73Procedure to be followed before exercising step‑in power

73  Procedure to be followed before exercising step‑in power Good faith negotiation  (1) The Minister must negotiate in good faith with the affected Basin State, and any relevant agency of the affected Basin State, with a view to dealing effectively with the circumstances without the exercise of the step‑in power. Preliminary notice  (2) Before the Minister exercises the step‑in power in relation to particular circumstances, the Minister must give the relevant State Minister for the affected Basin State a preliminary notice that:  (a) specifies the circumstances; and  (b) sets out the Minister’s reasons for being satisfied that the circumstances give rise to the step‑in power; and  (c) indicates that the Minister is considering exercising the step‑in power; and  (d) indicates that the Minister is willing to engage in a mediation process in relation to the circumstances; and  (e) requests the Basin State to notify the Minister, in writing, within 2 weeks after the notice under this subsection is given, whether the Basin State is also willing to engage in a mediation process in relation to the circumstances. Mediation  (3) If the affected Basin State indicates that it is willing to engage in a mediation process in relation to the circumstances, the mediator is to be:  (a) a person determined by agreement between the Minister and the Basin State; or  (b) a person nominated by the President of the Law Council of Australia if the Minister and the Basin State do not agree on a person to be the mediator.  (4) The process for the mediation is to be:  (a) the process agreed by the Minister and the affected Basin State; or  (b) the process determined by the mediator if the Minister and the affected Basin State do not agree on the process for the mediation.  (5) Representatives of the Minister must attend any mediation sessions called by the mediator.  (6) The affected Basin State is to be taken to have indicated that it is not willing to engage in a mediation process in relation to the circumstances if it does not give the notice requested in paragraph (2)(e) within the period of 2 weeks referred to in that paragraph. Formal notice  (7) The Minister may give the relevant State Minister for the affected Basin State a notice under subsection (8) if:  (a) the Basin State has indicated that it is not willing to engage in a mediation process in relation to the circumstances and the period of 1 month starting on the day on which the notice was given under subsection (2) ends; or  (b) the Basin State has indicated that it is willing to engage in a mediation process in relation to the circumstances and the period of 2 months starting on the day on which the notice was given under subsection (2) ends.  (8) The notice under this subsection is a notice that:  (a) specifies the circumstances that, in the Minister’s opinion, give rise to the step‑in power; and  (b) sets out the Minister’s reasons for being satisfied that the circumstances give rise to the step‑in power; and  (c) specifies the action or actions that the Minister considers would deal with the circumstances without the exercise of the step‑in power; and  (d) specifies the time within which the action or actions should be taken; and  (e) indicates that the Minister will consider exercising the step‑in power if the action or actions are not taken within the time referred to in paragraph (d); and  (f) requests the affected Basin State to respond to the notice within the period specified in the notice.  (9) The period specified under paragraph (8)(f) must end at least 1 month after the notice under subsection (8) is given to the affected Basin State.  (10) A copy of the notice under subsection (8) must be given to the relevant State Ministers of each of the other Basin States. Affected Basin State response to formal notice  (11) The affected Basin State may respond to the notice under subsection (8) within:  (a) the period specified under paragraph (8)(f); or  (b) such longer period as the Minister allows.  (12) In its response to the notice under subsection (8), the affected Basin State may:  (a) raise any issues that the Basin State considers appropriate; and  (b) draw attention to any facts or matters in relation to the circumstances that the Basin State considers should be taken into account; and  (c) draw attention to any mitigating factors in relation to the circumstances; and  (d) propose a variation of, or an alternative to, the action or actions specified under paragraph (8)(c). Notice of intention to proceed to a decision  (13) If:  (a) the affected Basin State does not respond under subsection (11); or  (b) the affected Basin State responds under subsection (11) and the Minister, having considered the response, intends to proceed to consider whether to exercise the step‑in power; the Minister must give the Basin State a notice that:  (c) indicates that the Minister intends to proceed to consider whether to exercise the step‑in power; and  (d) sets out the Minister’s reasons for intending to do so. Decision to exercise step‑in power  (14) The Minister may exercise the step‑in power only if:  (a) the process provided for in subsections (2) to (13), or that process as varied by agreement in writing between the Minister and the affected Basin State, has been followed; and  (b) the period of 2 weeks starting on the day on which the Minister gave the notice under subsection (13) has ended; and  (c) the Minister has considered the response (if any) of the affected Basin State under subsection (11); and  (d) the Minister is satisfied that:  (i) circumstances that give rise to the step‑in power exist; and  (ii) the circumstances, if not dealt with, will materially and adversely impact on the efficient or effective implementation of the Basin Plan; and  (iii) the exercise of the step‑in power would be an effective means for dealing with the circumstances; and  (iv) there is no other feasible and effective alternative way of dealing with the circumstances.  (15) If the Minister decides to exercise the step‑in power, the Minister must set out, in the document by which the step‑in power is exercised, when the exercise of the step‑in power will end.  (16) Without limiting subsection (15), the document may specify that the exercise of the step‑in power will end:  (a) at the end of a particular period of time; or  (b) when a specified action is taken; or  (c) when specified circumstances exist; or  (d) when the Minister is satisfied that specified conditions have been met.  (17) The extent, and duration, of the exercise of the step‑in power must be limited to what is reasonable to deal with the circumstances that give rise to the exercise of the step‑in power. Notices not legislative instruments  (18) A notice under subsection (2), (8) or (13) is not a legislative instrument.