(3) In applying paragraph (2)(a), a variation of the licence, or an amendment of the Snowy Hydro Corporatisation Act 1997 of New South Wales, after the commencement of this section is to be disregarded unless the variation is prescribed by the regulations for the purposes of this subsection.
9 Constitutional basis for Act
This Act (other than Parts 1A, 2A, 4, 4A, 10A and 11A) relies on:
(a) the Commonwealth’s legislative powers under paragraphs 51(i), (v), (viii), (xi), (xv), (xx), (xxix) and (xxxix), and section 122, of the Constitution; and
(b) any implied legislative powers of the Commonwealth.
Note 1: See also sections 36 and 37, which clarify the constitutional basis for section 35.
Note 2: See also sections 60 and 61, which clarify the constitutional basis for section 59.
Note 3: See also sections 73C and 73D, which clarify the constitutional basis for sections 73A and 73B, and sections 73J and 73K, which clarify the constitutional basis for sections 73F to 73H.
Note 4: See also section 119, which clarifies the constitutional basis for Part 7.
Note 5: See also subsection 165(6), which clarifies the constitutional basis for giving a direction under subsection 165(2) in certain circumstances.
9A Constitutional basis of Parts 1A, 2A, 4, 4A, 10A and 11A
Operation in a Basin State
(1) The operation of Parts 1A, 2A, 4, 4A, 10A and 11A in a referring State that is a Basin State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has in respect of matters to which those Parts relate because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.
(2) The operation of Parts 1A, 2A, 4 and 11A in a Basin State (other than the Australian Capital Territory) that is not a referring State is based on the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).
Operation in a State that is not a Basin State
(3) The operation of Parts 4A and 11A in a referring State that is not a Basin State is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)); and
(b) the legislative powers that the Commonwealth Parliament has in respect of matters to which those Parts relate because those matters are referred to it by the Parliament of the referring State under paragraph 51(xxxvii) of the Constitution.
Note: The State reference fully supplements the Commonwealth Parliament’s other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.
Operation in the Australian Capital Territory
(4) The operation of Parts 1A, 2A, 4 and 10A in the Australian Capital Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and
(b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).
Operation in the Northern Territory
(5) The operation of Part 4A in the Northern Territory is based on:
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of that Territory; and
(b) the legislative powers that the Commonwealth Parliament has under section 51 of the Constitution (other than paragraph 51(xxxvii)).
10 Basis for Basin water charge, water trading and water market rules
(1) This Act deals with, and provides for plans and rules made under this Act to deal with:
(a) water charges in relation to:
(i) the Basin water resources; or
(ii) water service infrastructure that carries Basin water resources; or
(iia) water service infrastructure that carries water that has been taken from a Basin water resource; or
(iii) water access rights, irrigation rights or water delivery rights in relation to Basin water resources; and
(b) the trading and transfer of tradeable water rights and eligible tradeable water rights in relation to the Basin water resources; and
(c) the market for tradeable water rights and eligible tradeable water rights in relation to the Basin water resource.
(2) The basis for dealing with those topics is that:
(a) the Basin water resources are physically interconnected; and
(b) the Basin water resources are a major Australian water resource and, because they are interconnected, are the major Australian water resource in relation to which:
(i) tradeable water rights and eligible tradeable water rights are able to be traded between States; and
(ii) water is, pursuant to that trade, able to be delivered between States; and
(c) the Basin water resources are scarce and at risk of continuing scarcity and further depletion; and
(d) the Basin water resources are subject to significant environmental threat; and
(e) there are important and significant environmental assets that are associated with the Basin water resources and that need protection; and
(f) the inefficient and/or inappropriate use of the Basin water resources would have a significant detrimental impact on:
(i) the availability of the Basin water resources; and
(ii) the health of the Basin water resources or the environmental assets associated with the Basin water resources; and
(g) the inefficient and/or inappropriate use of the Basin water resources would have a significant detrimental economic and social impact on the wellbeing of the communities in the Murray‑Darling Basin; and
(ga) the integrity and transparency in water markets relating to Basin water resources; and
(h) this Act and the plans and rules relating to:
(i) water charging; and
(ii) trading; and
(iii) the transfer of tradeable water rights and eligible tradeable water rights; and
(iv) water markets;
will promote:
(v) the more efficient use of the Basin water resources; and
(vi) the continued availability of the Basin water resources; and
(vii) the health of the Basin water resources and the environmental assets associated with the Basin water resources; and
(viii) the economic and social wellbeing of the communities in the Murray‑Darling Basin.
11 Reading down provision in relation to the operation of sections 99 and 100 of the Constitution
(1) If:
(a) the operation of a provision of this Act, or of regulations or another instrument made under this Act, in reliance on the Commonwealth’s legislative powers under paragraph 51(i) or (xx) of the Constitution would be invalid because of section 99 or 100 of the Constitution; and
(b) the operation of that provision in reliance on another legislative power, or other legislative powers, of the Commonwealth would not be invalid because of section 99 or 100 of the Constitution;
it is the intention of the Parliament that the provision operate in reliance on the legislative power or powers referred to in paragraph (b).
(2) Without limiting paragraph (1)(b), the reference in that paragraph to a legislative power of the Commonwealth includes a reference to a legislative power under a referral under paragraph 51(xxxvii) of the Constitution.
(3) If:
(a) a provision of this Act, or of regulations or another instrument made under this Act, operates in relation to trade or commerce; and
(b) the operation of the provision is invalid, under section 99 or 100 of the Constitution, in relation to trade or commerce between the States;
it is the intention of the Parliament that the provision operate in relation to trade or commerce within the States.
(4) Subsections (1) and (3) may both operate in relation to the same provision of this Act, or of regulations or another instrument made under this Act and, if they do, subsection (1) is to be applied first and then subsection (3).
(5) This section does not affect the operation of section 15A of the Acts Interpretation Act 1901 in relation to the provisions of this Act or the regulations or other instruments made under this Act.
12 Application to Crown etc.
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to be:
(a) prosecuted for an offence; or
(b) subject to civil proceedings for a civil penalty for a contravention of a civil penalty provision; or
(c) given an infringement notice.
(3) This Act does not make an agency of the Commonwealth, or an agency of a State, liable to be:
(a) prosecuted for an offence; or
(b) subject to civil proceedings for a civil penalty for a contravention of a civil penalty provision; or
(c) given an infringement notice.
(4) Subsection (3) does not apply to the following:
(a) an agency of the Commonwealth of the kind referred to in paragraph (g) of the definition of agency of the Commonwealth in subsection 4(1);
(b) an agency of a State of the kind that:
(i) is referred to in paragraph (c) of the definition of agency of a State in subsection 4(1); and
(ii) operates primarily on a commercial basis;
(c) an agency of a State of the kind referred to in paragraph (g) of the definition of agency of a State in subsection 4(1).
12A Actions of the Murray‑Darling Basin Ministerial Council
If this Act requires or permits the Murray‑Darling Basin Ministerial Council to do a thing, the Murray‑Darling Basin Ministerial Council is required or permitted to do the thing in accordance with any requirements specified in the Agreement.
13 The Native Title Act 1993 not affected
Nothing in this Act affects the operation of the Native Title Act 1993.
Part 1A—The Murray‑Darling Basin Agreement
Division 1—Preliminary
18A Definitions
In this Act:
Agreement means the Murray‑Darling Basin Agreement, as amended from time to time in accordance with that agreement and as set out in Schedule 1.
Note: The Murray‑Darling Basin Agreement operates as an agreement between the parties. The text of the Agreement is set out in Schedule 1, and as such it has further effect as provided for by this Act (for example, see sections 18E and 18F).
Authority means the Murray‑Darling Basin Authority established by section 171.
Basin Officials Committee means the committee established under the Agreement.
Murray‑Darling Basin means the area falling within the boundary described in the dataset that:
(a) is titled Murray‑Darling Basin Boundary—Water Act 2007; and
(b) has a dataset scale of 1:250,000; and
(c) specifies the boundary of the Murray‑Darling drainage division derived from the dataset that is titled “Australia’s River Basins 1997” and is dated 30 June 1997; and
(d) is held by the Commonwealth.
Note 1: An indicative map of this area is set out in Schedule 1A.
Note 2: A copy of the dataset can be obtained from the Department’s website: see section 252A.
Murray‑Darling Basin Ministerial Council has the same meaning as Ministerial Council in the Agreement.
18B Meaning of referring State
Reference of matters by State Parliament to Commonwealth Parliament
(1) A State is a referring State if the Parliament of the State has referred the matters covered by subsections (3) and (4) in relation to the State to the Parliament of the Commonwealth for the purposes of paragraph 51(xxxvii) of the Constitution:
(a) if and to the extent that the matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); and
(b) if and to the extent that the matters are included in the legislative powers of the Parliament of the State.
This subsection has effect subject to subsections (5) and (6).
(2) A State is a referring State even if a law of the State provides that the reference to the Parliament of the Commonwealth of either or both of the matters covered by subsections (3) and (4) is to terminate in particular circumstances.
Reference covering initial provisions of this Act
(3) This subsection covers the matters to which the referred provisions for the State in question relate to the extent of making laws with respect to those matters by including the referred provisions, as originally enacted by the Water Amendment Act 2008, in this Act.
Reference covering amendments of this Act
(4) This subsection covers:
(a) if the State in question is a Basin State—the referred subject matters; and
(b) in any case—the matter of the application, in relation to water resources that are not Basin water resources, of provisions of this Act dealing with the subject matters specified in paragraphs (c) and (d) of the definition of referred subject matters in subsection (9) (being an application of a kind that is authorised by the law of the State in question);
to the extent of the making of laws with respect to those matters by making express amendments of this Act.
Effect of termination of reference
(5) A State ceases to be a referring State if the State’s initial reference terminates.
(6) Subject to subsections (7) and (8), a State ceases to be a referring State if the State’s amendment reference terminates.
(7) A State does not cease to be a referring State because of the termination of its amendment reference if:
(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and
(c) that State’s amendment reference, and the amendment reference of every other referring State, terminate on the same day.
(8) A State does not cease to be a referring State because of the termination of its amendment reference if:
(a) a Bill is introduced into a House of the Parliament that includes a proposed amendment of the referred provisions, or that would, if enacted, have the effect that this Act would no longer contain:
(i) subsections 22(10), (11) and (12), or provisions having substantially the same effect; or
(ii) Part 11A, or provisions having substantially the same effect; and
(b) the Governor of the State, by proclamation, issues a notice stating that:
(i) the State has not agreed to the amendment; and
(ii) this subsection will apply in relation to the State from a day specified in the notice; and
(c) the State Minister of that State who is a member of the Murray‑Darling Basin Ministerial Council informs the other members of the Murray‑Darling Basin Ministerial Council that the notice was issued; and
(d) the Governor does not revoke the notice before:
(i) the day specified in the notice passes; or
(ii) the Bill is enacted in a form that includes that amendment or a substantially similar amendment;
whichever happens later.
Definitions
(9) In this section:
amendment reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (4).
express amendment of this Act means the direct amendment (whether by the insertion, omission, repeal, substitution or relocation of words or matter) of:
(a) the referred provisions; or
(b) definitions in this Act of terms used in the referred provisions;
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 the referred provisions or those definitions.
initial reference of a State means the reference by the Parliament of the State to the Parliament of the Commonwealth of the matters covered by subsection (3).
referred provisions, for a State, means:
(a) if the State is a Basin State—this Part and Parts 2A, 4, 4A, 10A and 11A to the extent to which they deal with matters that are included in the legislative powers of the Parliament of the State; or
(b) if the State is not a Basin State—Parts 4A and 11A to the extent to which they deal with matters that are included in the legislative powers of the Parliament of the State.
referred subject matters means any of the following:
(a) the powers, functions and duties conferred on Commonwealth agencies that:
(i) relate to Basin water resources; and
(ii) are conferred by or under the Agreement;
(b) the management of Basin water resources to meet critical human water needs;
(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);
(d) the transformation of entitlements to water from a Basin water resource to enable trading in those water entitlements;
(e) the transfer of assets, rights and liabilities of the Murray‑Darling Basin Commission to the Authority, and other transitional matters relating to the replacement of the Murray‑Darling Basin Commission.
(10) A reference in this section to a Part of this Act includes a reference to any Schedule to this Act that contains provisions enacted for the purposes of that Part.
Division 2—The Murray‑Darling Basin Agreement
18C Amendment of Schedule 1
(1) The regulations may make amendments to Schedule 1 by incorporating into the Agreement amendments made to, and in accordance with, the Murray‑Darling Basin Agreement.
Note 1: The Murray‑Darling Basin Agreement requires the agreement of the Murray‑Darling Basin Ministerial Council to any amendments of the Murray‑Darling Basin Agreement.