Note 2: Amendments of the Murray‑Darling Basin Agreement, made in accordance with that agreement, operate as an agreement between the parties. The text of the Agreement as set out in Schedule 1 will be amended accordingly, and as such it has further effect as provided for by this Act (for example, see sections 18E and 18F). The amendment of the Schedule by itself cannot amend the agreement between the parties.
(2) A reference in subsection (1) to amendment includes a reference to the insertion, omission, repeal, substitution, addition or relocation of words or matter.
(2A) Subsection 14(2) of the Legislation Act 2003 does not apply to regulations made for the purposes of subsection (1) of this section.
(3) Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to regulations made for the purposes of this section.
18D Protocols made by the Authority
A protocol made by the Authority under a Schedule to the Agreement is a legislative instrument, but neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 applies to the protocol.
Division 3—Functions, powers and duties under the Agreement
18E Additional functions, powers and duties of the Authority
(1) Without limiting sections 172 and 173, the Authority has, in a referring State or the Australian Capital Territory, the functions, powers and duties that:
(a) are expressed to be conferred on it by or under the Agreement; and
(b) relate to the water and other natural resources of the Murray‑Darling Basin.
(2) In performing these functions and duties and exercising these powers, the Authority must comply with any requirements under the Agreement.
(3) The Authority has, in connection with:
(a) the performance of its functions and duties under this Part; and
(b) the exercise of its powers under this Part;
such powers in a referring State or the Australian Capital Territory as it has in connection with the performance of its other functions under this Act.
(4) However, the application of subsection (3) to the Authority’s powers under Part 10 is limited to the Authority’s powers under:
(a) Subdivision A of Division 2 of that Part (Authorised officers); and
(b) Subdivision B of Division 2 of that Part (Powers to enter land etc. other than for compliance purposes); and
(c) Division 3 of that Part (Information gathering).
(5) Part 10 so applies as if:
(a) the application of that Part in relation to premises in, or information held in, a referring State or the Australian Capital Territory were not limited by section 219 or by subsection 222D(1); and
(b) references in section 221 to the Authority’s functions under section 219 included references to the Authority’s functions under this Part.
(6) However:
(a) an authorised officer must not enter premises under Subdivision B of Division 2 of that Part as applied by this section unless he or she reasonably believes this is necessary for the performance of any of the Authority’s functions under this Part; and
(b) Subdivision B of Division 2 of that Part as applied by this section does not extend to entering premises for the purposes of:
(i) monitoring compliance with this Part or regulations made for the purposes of this Part; or
(ii) searching for evidential material; and
(c) the Authority must not require a person to give information under Division 3 of that Part as applied by this section unless the Authority has reason to believe that information relating to a matter:
(i) relevant to the performance of the Authority’s functions under this Part; and
(ii) specified in regulations made for the purposes of this paragraph;
is in the person’s possession, custody or control (whether held electronically or in any other form).
Note: The conferral of functions, powers and duties on the Authority by this section does not otherwise give the Agreement any effect as a law of the Commonwealth.
18F Additional functions, powers and duties of the Basin Community Committee
(1) Without limiting section 202, the Basin Community Committee has, in a referring State or the Australian Capital Territory, the functions, powers and duties that:
(a) are expressed to be conferred on it by or under the Agreement; and
(b) relate to the water and other natural resources of the Murray‑Darling Basin.
(2) In performing these functions and duties and exercising these powers, the Basin Community Committee must comply with any requirements under the Agreement.
Note: The conferral of functions, powers and duties on the Basin Community Committee by this section does not otherwise give the Agreement any effect as a law of the Commonwealth.
18G Management of money and assets
The Authority must deal with:
(a) any money under the Agreement; and
(b) any assets it acquires with that money; and
(c) any assets that vest in the Authority under section 239C;
in a way that is in accordance with the Agreement and consistent with the purposes of the Agreement.
18H Managing water access rights etc. for the Living Murray Initiative
(1) The Authority must, if the Living Murray Initiative so provides, manage the rights and interests that:
(a) are:
(i) water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or
(ii) interests in, or in relation to, such rights; and
(b) are held for the purposes of the Living Murray Initiative;
in accordance with and in a way that gives effect to the Living Murray Initiative.
(2) The Living Murray Initiative is the Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray‑Darling Basin of 25 June 2004 read together with:
(a) the Supplementary Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray‑Darling Basin of 14 July 2006; and
(b) arrangements referred to in clause 3.9.2 of the Agreement on Murray‑Darling Basin Reform‑Referral.
Part 2—Management of Basin water resources
Division 1—Basin Plan
Subdivision A—Introduction
19 Simplified outline
(1) This section sets out a simplified outline of this Part.
(2) There is to be a Basin Plan for the management of the Basin water resources. The Basin Plan will provide for limits on the quantity of water that may be taken from the Basin water resources as a whole and from the water resources of each water resource plan area. It will also provide for the requirements to be met by the water resource plans for particular water resource plan areas (these water resource plans are dealt with in Division 2).
(3) The Authority must prepare a Basin Plan and give it to the Minister for adoption. The Minister may adopt the Basin Plan without modification or direct the Authority to modify the Plan.
(4) The Authority may prepare amendments of the Basin Plan and give them to the Minister for adoption. The Minister may adopt the amendments of the Basin Plan without modifications or direct the Authority to modify the amendments.
(5) The Authority must review the Basin Plan at least every 10 years (or sooner if the Minister or all the Basin States request).
Subdivision B—Basin Plan, its purpose and contents
20 Purpose of Basin Plan
The purpose of the Basin Plan is to provide for the integrated management of the Basin water resources in a way that promotes the objects of this Act, in particular by providing for:
(a) giving effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources); and
(b) the establishment and enforcement of environmentally sustainable limits on the quantities of surface water and ground water that may be taken from the Basin water resources (including by interception activities); and
(c) Basin‑wide environmental objectives for water‑dependent ecosystems of the Murray‑Darling Basin and water quality and salinity objectives; and
(d) the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes; and
(da) the use and management of Basin water resources that takes into account spiritual, cultural, environmental, social and economic matters relevant to Indigenous people; and
(e) water to reach its most productive use through the development of an efficient water trading regime across the Murray‑Darling Basin; and
(f) requirements that a water resource plan for a water resource plan area must meet if it is to be accredited or adopted under Division 2; and
(g) improved water security for all uses of Basin water resources.
21 General basis on which Basin Plan to be developed
Basin Plan to implement international agreements
(1) The Basin Plan (including any environmental watering plan or water quality and salinity management plan included in the Basin Plan) must be prepared so as to provide for giving effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of the Basin water resources).
(2) Without limiting subsection (1), the Basin Plan must:
(a) be prepared having regard to:
(i) the fact that the use of the Basin water resources has had, and is likely to have, significant adverse impacts on the conservation and sustainable use of biodiversity; and
(ii) the fact that the Basin water resources require, as a result, special measures to manage their use to conserve biodiversity; and
(b) promote sustainable use of the Basin water resources to protect and restore the ecosystems, natural habitats and species that are reliant on the Basin water resources and to conserve biodiversity.
Note 1: See Articles 7 and 8 of the Biodiversity Convention.
Note 2: The Basin Plan must also be prepared having regard to critical human water needs (see Part 2A).
(3) Without limiting subsection (1), the Basin Plan must also:
(a) promote the wise use of all the Basin water resources; and
(b) promote the conservation of declared Ramsar wetlands in the Murray‑Darling Basin; and
(c) take account of the ecological character descriptions of:
(i) all declared Ramsar wetlands within the Murray‑Darling Basin; and
(ii) all other key environmental sites within the Murray‑Darling Basin;
prepared in accordance with the National Framework and Guidance for Describing the Ecological Character of Australia’s Ramsar Wetlands endorsed by the Natural Resource Management Ministerial Council.
Note 1: See Article 3 of the Ramsar Convention.
Note 2: A copy of the National Framework and Guidance for Describing the Ecological Character of Australia’s Ramsar Wetlands may be found on the Department’s website.
Basis on which Basin Plan to be developed
(4) Subject to subsections (1), (2) and (3), the Authority and the Minister must, in exercising their powers and performing their functions under this Division:
(a) take into account the principles of ecologically sustainable development; and
(b) act on the basis of the best available scientific knowledge and socio‑economic analysis; and
(c) have regard to the following:
(i) the National Water Initiative;
(ii) the consumptive and other economic uses of Basin water resources;
(iii) the diversity and variability of the Basin water resources and the need to adapt management approaches to that diversity and variability;
(iv) the management objectives of the Basin States for particular water resources;
(v) social, cultural, Indigenous and other public benefit issues;
(vii) the effect, or potential effect, of the Basin Plan on the use and management of water resources that are not Basin water resources;
(viii) the effect, or the potential effect, of the use and management of water resources that are not Basin water resources on the use and management of the Basin water resources;
(ix) the State water sharing arrangements;
(x) any other arrangements between States for the sharing of water.
Note 1: Paragraph (b): the best available scientific knowledge includes the best available systems for accounting for water resources.
Note 2: An example of a management objective referred to in subparagraph (c)(iv) might be preservation of the natural values of a river system through no development or minimal development.
Note 3: See also subsection 25(3) (which deals with the water quality and salinity management plan).
Basin Plan not to reduce protection of planned environmental water provided for under existing State water management laws
(5) The Basin Plan must ensure that there is no net reduction in the protection of planned environmental water from the protection provided for under the State water management law of a Basin State immediately before the Basin Plan first takes effect.
Basin Plan not to be inconsistent with Snowy Water Licence
(6) The Basin Plan must not be inconsistent with the provisions of the licence issued under section 22 of the Snowy Hydro Corporatisation Act 1997 of New South Wales.
Note: The Basin Plan applies to all Basin waters, including the Upper Murrumbidgee River, except to the extent that the Basin Plan is inconsistent with the licence mentioned in this subsection.
(7) In applying subsection (6), a variation of the licence after the commencement of Part 2 of this Act is to be disregarded unless the variation is prescribed by the regulations for the purposes of this subsection.
22 Content of Basin Plan
Mandatory content of Basin Plan
(1) The Basin Plan must include the matters set out in the following table: