{"id":"nsw:act-2008-069","name":"Water (Commonwealth Powers) Act 2008","slug":"water-commonwealth-powers-act-2008","collection":"act","jurisdiction":"nsw","status":"in_force","isInForce":true,"actNumber":"69 of 2008","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":78287,"registerId":"nsw-act-2008-069-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Name of Act","content":"#### 1 Name of Act\n\n1 Name of Act\n\n> This Act is the [Water (Commonwealth Powers) Act 2008](/view/html/inforce/current/act-2008-069).","sortOrder":0},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"#### 2 Commencement\n\n2 Commencement\n\n> > (1) This Act commences on the date of assent, except as provided by subsection (2).\n> \n> > (2) Sections 8, 9, 10 and 11, and Schedules 1 and 2, commence on a day or days to be appointed by proclamation.","sortOrder":1},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"#### 3 Definitions\n\n3 Definitions\n\n> > (1) In this Act:\n> > \n> > amendment reference means the reference under section 4 (1) (b).\n> > \n> > Basin water resources means water resources within or beneath that part of this State that comprises the Murray-Darling Basin (as defined in the terms, or substantially in the terms, set out in the initial referred provisions), but does not include ground water resources of the Great Artesian Basin.\n> > \n> > Commonwealth Water Act means the [Water Act 2007](http://www.legislation.gov.au/) of the Commonwealth, as in force from time to time.\n> > \n> > Commonwealth Water Act instrument means any instrument (whether or not of a legislative character) that is made or issued under the Commonwealth Water Act.\n> > \n> > critical human water needs means the needs for a minimum amount of water, that can only reasonably be provided from Basin water resources, required to meet:\n> > \n> > > (a) core human consumption requirements in urban and rural areas, and\n> > \n> > > (b) those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs.\n> > \n> > express amendment of the Commonwealth Water Act means the direct amendment of the text of Parts 1A, 2A, 4, 4A, 10A and 11A of that Act or of definitions of terms used in those Parts (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has or will have substantive effect otherwise than as part of the text of those Parts or those definitions.\n> > \n> > initial reference means the reference under section 4 (1) (a).\n> > \n> > initial referred provisions means the text of Parts 1A, 2A, 4, 4A, 10A and 11A set out in the tabled text.\n> > \n> > Murray-Darling Basin Agreement means the Murray-Darling Basin Agreement (a copy of which is set out in the tabled text), as amended from time to time by the parties to that Agreement in accordance with the procedure set out in that Agreement.\n> > \n> > reference means:\n> > \n> > > (a) the initial reference, or\n> > \n> > > (b) the amendment reference.\n> > \n> > referred subject-matters means any of the following:\n> > \n> > > (a) the powers, functions and duties of Commonwealth agencies that:\n> > > \n> > > > (i) relate to Basin water resources, and\n> > > \n> > > > (ii) are conferred by or under the Murray-Darling Basin Agreement,\n> > \n> > > (b) the management of Basin water resources to meet critical human water needs,\n> > \n> > > (c) water charging in relation to Basin water resources (other than for urban water supply after the removal of the water from a Basin water resource),\n> > \n> > > (d) the transformation of entitlements to water from a Basin water resource to enable trading in those water entitlements,\n> > \n> > > (e) the application, in relation to water resources that are not Basin water resources, of provisions of the Commonwealth Water Act dealing with the subject-matters specified in paragraphs (c) and (d) (being an application of a kind that is authorised by the law of this State),\n> > \n> > > (f) the transfer of assets, rights and liabilities of the Murray-Darling Basin Commission to the Murray-Darling Basin Authority established by the Commonwealth Water Act, and other transitional matters relating to the replacement of that Commission.\n> > \n> > tabled text means the text of the proposed [Water Amendment Bill 2008](http://www.legislation.gov.au/) for a Commonwealth Act as tabled by or on behalf of the Minister for the River Murray in the House of Assembly of South Australia on 23 September 2008.\n> \n> > (2) A reference in this Act to a Part of (or to be inserted in) the Commonwealth Water Act includes a reference to any Schedule to (or to be inserted in) that Act that contains provisions enacted for the purposes of that Part.","sortOrder":2},{"sectionNumber":"4","sectionType":"section","heading":"Reference of matters","content":"#### 4 Reference of matters\n\n4 Reference of matters\n\n> > (1) The following matters are referred to the Parliament of the Commonwealth:\n> > \n> > > (a) the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the initial referred provisions in the Commonwealth Water Act in the terms, or substantially in the terms, set out in Schedule 1 of the tabled text,\n> > \n> > > (b) the referred subject-matters, but only to the extent of the making of laws with respect to any such matter by making express amendments of the Commonwealth Water Act.\n> \n> > (2) The reference of a matter under subsection (1) has effect only:\n> > \n> > > (a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth), and\n> > \n> > > (b) if and to the extent that the matter is included in the legislative powers of the Parliament of this State.\n> \n> > (3) The operation of each paragraph of subsection (1) is not affected by the other paragraph.\n> \n> > (4) For the avoidance of doubt, it is the intention of the Parliament of this State that:\n> > \n> > > (a) the Commonwealth Water Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts whose operation is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1), and\n> > \n> > > (b) the Commonwealth Water Act may at any time have its operation affected, otherwise than by express amendment, at any time by provisions of Commonwealth Water Act instruments.\n> \n> > (5) Despite any other provision of this section, a reference under this section has effect for a period:\n> > \n> > > (a) beginning when this section commences, and\n> > \n> > > (b) ending at the end of the day fixed under section 5 as the day on which the reference is to terminate,\n> > \n> > but no longer.","sortOrder":3},{"sectionNumber":"5","sectionType":"section","heading":"Termination of references","content":"#### 5 Termination of references\n\n5 Termination of references\n\n> > (1) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which:\n> > \n> > > (a) the references terminate, or\n> > \n> > > (b) the amendment reference terminates.\n> \n> > (2) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published.\n> \n> > (3) A revoking proclamation has effect only if published before the day fixed under subsection (1).\n> \n> > (4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.\n> \n> > (5) If the amendment reference has terminated, the expression the references in subsection (1) (a) refers to the initial reference only.\n> \n> **s 5:** Am 2009 No 106, Sch 3.44.","sortOrder":4},{"sectionNumber":"6","sectionType":"section","heading":"Effect of termination of amendment reference before initial reference","content":"#### 6 Effect of termination of amendment reference before initial reference\n\n6 Effect of termination of amendment reference before initial reference\n\n> > (1) If the amendment reference terminates before the initial reference, the termination of the amendment reference does not affect:\n> > \n> > > (a) laws that were made under the amendment reference before that termination (whether or not they have come into operation before that termination), or\n> > \n> > > (b) the continued operation in the State of the Commonwealth Water Act as in operation immediately before that termination or as subsequently amended or affected by:\n> > > \n> > > > (i) laws referred to in paragraph (a) that come into operation after that termination, or\n> > > \n> > > > (ii) provisions referred to in section 4 (4) (a) or (b).\n> \n> > (2) Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the initial reference is terminated.\n> \n> > (3) Subsection (1) does not apply to or in relation to an amendment of the Commonwealth Water Act that is excluded from the operation of this section by the proclamation that terminates the amendment reference.\n> \n> > (4) For the purposes of subsection (1):\n> > \n> > > (a) the laws referred to in subsection (1) (a) include Commonwealth Water Act instruments, and\n> > \n> > > (b) the reference in subsection (1) (b) to the Commonwealth Water Act as in operation immediately before the termination of the amendment reference includes that legislation as affected by Commonwealth Water Act instruments that have come into operation before that time.","sortOrder":5},{"sectionNumber":"7","sectionType":"section","heading":"Evidence","content":"#### 7 Evidence\n\n7 Evidence\n\n> > (1) A certificate of the Clerk of the House of Assembly of South Australia certifying that a document is an accurate copy of the tabled text, or is an accurate copy of a particular part or of particular provisions of the tabled text, is admissible in evidence in any proceedings and is evidence:\n> > \n> > > (a) of the matter certified, and\n> > \n> > > (b) that the text of the proposed Commonwealth Bill was tabled in the House of Assembly of South Australia as referred to in the definition of tabled text in section 3.\n> \n> > (2) Subsection (1) does not affect any other way in which the tabling or content of the tabled text, or the accuracy of a copy of the tabled text or of a part or provisions of the tabled text, may be established.","sortOrder":6},{"sectionNumber":"8","sectionType":"section","heading":null,"content":"#### 8\n\n8–11 (Repealed)","sortOrder":7},{"sectionNumber":"Schedule 1","sectionType":"schedule","heading":null,"content":"# Schedule 1\n\nSchedules 1, 2 (Repealed)\n\n**sch 1:** Rep 2011 No 62, Sch 5.\n\n**sch 2:** Rep 2009 No 56, Sch 5.","sortOrder":9}],"analysis":{"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":false,"description":"The Act itself defines the scope of the reference in the definitions and the referral clause (s3–4). It preserves that scope subject to the termination power exercisable by the Governor (s5) and contains saving rules for laws made under any amendment reference (s6). Repeals noted in the text are recorded amendments but do not alter the Act’s original mechanism for referring matters as enacted."},"complexity_factors":["Cross‑jurisdictional transfer: incorporation of Commonwealth Water Act Parts into State law and allowance for later express amendments (s3–4).","Detailed definitions: multiple technical terms and a long list of ‘referred subject‑matters’ that limit what is referred (s3).","Dual reference structure: separate initial reference and amendment reference with different legal effects (s3–4).","Temporal and termination mechanics: Governor may fix or revoke termination days by proclamation, producing timing and revocation complexity (s5).","Continuity rules: specific saving and continuation rules if amendment reference ends before the initial reference (s6).","Proof mechanism: admissible certificate of the South Australian Clerk about the tabled text to establish the proposed Commonwealth Bill text (s7).","Recorded repeals: several sections and schedules are marked as repealed, adding historical amendment layering to the text (notes)."],"plain_english_summary":"This Act refers specified Murray–Darling Basin water matters from New South Wales to the Commonwealth by adopting particular Parts of the Commonwealth Water Act and by permitting later express amendments (s3–4). It affects State and Commonwealth agencies and Basin water users by shifting law‑making authority on defined subjects and by giving the Governor power to end the referral by proclamation (s5)."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"},"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"The Act appears to maintain its original scope as a referral of powers mechanism. The repealed sections and schedules suggest procedural or transitional provisions were removed after serving their purpose, but the core referral mechanism in sections 3-7 remains intact. There is no evidence of significant scope creep beyond the original intent to refer specific water management powers to the Commonwealth."},"complexity_factors":["Multiple nested definitions including self-referential terms ('amendment reference', 'initial reference', 'reference') that require careful tracking","Conditional commencement provisions with split commencement dates (immediate vs proclamation)","Complex conditional logic in section 4(2) limiting the reference to matters not already within Commonwealth power and only to extent within State power","Sophisticated termination mechanics in sections 5-6 allowing partial termination (amendment reference only) with 'snap-back' revocation provisions","Cross-referencing to external documents ('tabled text', Commonwealth Water Act, Murray-Darling Basin Agreement) that are not fully reproduced in the Act","Constitutional law concepts (section 51(xxxvii) referrals) embedded throughout requiring knowledge of federalism mechanics","Repealed provisions (sections 8-11 and Schedules 1-2) indicating the Act has been amended, leaving gaps in the operational text","Specific evidentiary provisions regarding South Australian parliamentary documents despite this being NSW legislation"],"plain_english_summary":"This is a **referral of powers** law from New South Wales (despite the name suggesting Commonwealth legislation, this is actually a State Act — likely NSW based on the mention of the NSW legislation website and the Murray-Darling Basin context).\n\n**What it does:**\nThe Act allows the NSW Parliament to **hand over (refer) certain law-making powers** to the Australian Federal Parliament (Commonwealth) regarding water management in the Murray-Darling Basin.\n\n**Why this matters:**\nUnder Australia's Constitution, the Federal Parliament can only make laws on certain topics. Water management is mostly a State responsibility. However, States can **voluntarily refer** their powers to the Commonwealth to allow national, consistent laws. This Act does exactly that for critical water issues in Australia's most important river system.\n\n**What powers are being referred:**\n- Managing water resources to meet **critical human water needs** (essential drinking water and vital non-drinking uses)\n- **Water charging** (pricing rules for water use, except urban tap water)\n- **Water trading** (transforming water rights so they can be bought and sold)\n- Powers related to the **Murray-Darling Basin Agreement** (the deal between Basin states)\n- Transferring assets from the old Murray-Darling Basin Commission to the new Commonwealth Authority\n\n**Key features:**\n- The referral is **limited** — it only covers specific parts of the Commonwealth Water Act 2007\n- The referral can be **terminated** by the NSW Governor if the State wants its powers back\n- Even if the \"amendment reference\" (power to change the laws) ends, existing laws continue to operate\n- The Act references a specific **\"tabled text\"** — the draft Commonwealth Bill tabled in the South Australian Parliament in September 2008\n\n**Who it affects:**\n- Farmers and water users in the Murray-Darling Basin\n- State and Commonwealth water bureaucracies\n- Anyone involved in water trading or water pricing in the Basin\n\n**In short:** This is NSW's legal permission slip allowing the Federal Government to make national water laws for the Murray-Darling Basin, with an emergency brake (termination power) that NSW can pull if needed."},"summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act has been amended at least three times since its original enactment in 2008 (with versions dated July 2009, January 2010, and January 2012), suggesting the scope of powers referred to the Commonwealth was refined or expanded over time, likely in response to negotiations around the finalisation of the Murray-Darling Basin Plan and the Commonwealth Water Act framework."},"complexity_factors":["Involves constitutional law concepts — specifically the referral of legislative powers under section 51(xxxvii) of the Australian Constitution — which are inherently technical","Requires understanding of the federal-state division of powers to grasp why this law is necessary","The practical effect of the law depends heavily on separate Commonwealth legislation (the Water Act 2007 (Cth)) that is not reproduced here","Has been amended multiple times (at least three versions), suggesting evolving and nuanced scope","Interacts with a complex intergovernmental agreement (the Murray-Darling Basin Agreement) involving multiple states and territories","The content available here is largely metadata and navigation — the substantive provisions are not displayed, making full analysis difficult","Water resource management is inherently complex, involving environmental, agricultural, economic and political dimensions"],"plain_english_summary":"The Water (Commonwealth Powers) Act 2008 (NSW) is NSW’s legal referral of certain water-management powers to the Commonwealth so national rules — notably the Murray‑Darling Basin Plan — can bind users and authorities in NSW. It changes who sets and enforces key water rules, affecting farmers, water utilities, communities and environmental management.\n\nNSW retains the ability to limit or withdraw referred powers; the Act has been amended over time to refine that referral."}},"importantCases":[],"_links":{"self":"/api/acts/water-commonwealth-powers-act-2008","history":"/api/acts/water-commonwealth-powers-act-2008/history","analysis":"/api/acts/water-commonwealth-powers-act-2008/analysis","conflicts":"/api/acts/water-commonwealth-powers-act-2008/conflicts","importantCases":"/api/acts/water-commonwealth-powers-act-2008/important-cases","documents":"/api/acts/water-commonwealth-powers-act-2008/documents"}}