(1A) Subsection (1) does not apply in relation to any of the matters included or specified in the Basin Plan under Part 2A (Critical human water needs).
Note: For the effect of the Basin Plan on other agencies and persons in relation to these matters, see section 86H.
(2) Subsection (1) applies to an act of an agency of a Basin State only if the act is one that relates to the use or management of the Basin water resources.
(3) Subsection (1) has effect subject to regulations made for the purposes of section 38.
36 Constitutional operation of section 35 (general)
(1) Section 35 imposes an obligation to the extent to which imposing the obligation gives effect to a relevant international agreement.
(2) Section 35 imposes an obligation to the extent to which the obligation is imposed:
(a) on a constitutional corporation; or
(b) in relation to conduct that affects the activities of a constitutional corporation.
(3) Section 35 imposes an obligation to the extent to which the obligation is imposed in relation to conduct that takes place in the course of trade or commerce:
(a) with other countries; or
(b) among the States; or
(c) between a State and a Territory.
Note: This subsection is of particular relevance to the provisions of the Basin Plan that deal with the trading or transfer of tradeable water rights.
(4) Section 35 imposes an obligation to the extent to which the obligation is imposed in relation to conduct that takes place in a Territory.
(6) Subsections (1), (2), (3) and (4):
(a) have effect independently of each other; and
(b) do not limit section 37; and
(c) do not limit the operation (if any) that section 35 validly has apart from this section.
(7) In this section:
conduct includes an act or omission.
37 Constitutional operation of section 35 (water trading rules)
(1) This section deals with the provisions of the Basin Plan to the extent to which they deal with the trading or transfer of a tradeable water right in relation to Basin water resources.
Note: See item 12 of the table in subsection 22(1).
(2) Section 35 imposes obligations in relation to the provisions if at least one of the parties to the trading or the transfer is a constitutional corporation.
(3) Section 35 imposes obligations in relation to the provisions if the trading or transfer takes place in the course of trade and commerce:
(a) between the States; or
(b) between a State and a Territory.
(4) Section 35 imposes obligations in relation to the provisions if:
(a) the trading or transfer takes place in a Territory; or
(b) the trading or transfer relates to tradeable water rights in relation to a water resource in a Territory.
(5) Section 35 imposes obligations in relation to the provisions if at least one element of the trading or transfer takes place using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution).
(7) Subsections (2), (3), (4) and (5):
(a) have effect independently of each other; and
(b) do not limit section 36; and
(c) do not limit the operation (if any) that section 35 validly has apart from this section.
38 Regulations may provide for exceptions
(1) Without limiting section 250E, the regulations may provide that subsections 34(1) and 35(1) do not apply to the activities specified in the regulations.
(2) Without limiting subsection (1), the regulations:
(a) may provide that subsections 34(1) and 35(1) do not apply to a particular activity only if the conditions specified in the regulations are satisfied; and
(b) may provide that subsections 34(1) and 35(1) do not apply to a particular activity only for the period specified in the regulations.
39 Obligations under both Basin Plan and water resource plans
(1) If:
(a) the Basin Plan provides for obligations in relation to a particular matter; and
(b) the Basin Plan also provides that water resource plans must impose obligations of the same, or a similar, kind in relation to that matter;
the obligations referred to in paragraph (a) are disregarded for the purposes of applying sections 34 and 35.
(2) To avoid doubt, subsection (1) applies even if a particular water resource plan was accredited under section 63 having regard to a version of the Basin Plan that did not include the obligations referred to in paragraph (1)(a).
40 Effect on State laws
Without limiting section 250B, if the Basin Plan provides for a maximum quantity of water that may be taken from the water resources of a particular water resource plan area, it is not intended to exclude or limit the concurrent operation of a State law that provides for the same or a lower maximum quantity of water that may be taken from those water resources.
Subdivision E—Procedure for making Basin Plan
41 Authority to prepare Basin Plan and give to Minister for adoption
The Authority must, as soon as practicable after the commencement of this Part, prepare a Basin Plan and give it to the Minister for adoption together with any document prepared under paragraph 43(11)(a) or 43A(6)(d).
42 Consultations by Authority in preparing Basin Plan
(1) The Authority must consult with:
(a) the Basin States; and
(b) the Basin Officials Committee; and
(c) the Basin Community Committee;
in preparing the Basin Plan.
(2) In preparing the rules referred to in item 12 of the table in subsection 22(1), the Authority must obtain, and have regard to, the advice of the ACCC.
(3) In preparing the Basin Plan, the Authority may undertake such other consultation, and publish such information to facilitate consultation, as it considers appropriate.
43 Authority to seek submissions on proposed Basin Plan
(1) This section applies once the Authority has prepared a proposed Basin Plan.
(2) The Authority must prepare a plain English summary of the proposed Basin Plan (including an outline of the scientific knowledge and socio‑economic analysis on which the proposed Basin Plan is based).
(3) Without limiting subsection 42(1), the Authority must:
(a) give a copy of the proposed Basin Plan (and the summary) to the relevant State Minister for each of the Basin States; and
(b) invite the Basin State to make submissions to the Authority on the proposed Basin Plan; and
(c) allow the Basin State at least 16 weeks from when the invitation is given to make submissions to the Authority on the proposed Basin Plan.
(4) The Authority must:
(a) publish an invitation to members of the public to make submissions to the Authority on the proposed Basin Plan; and
(b) allow at least 16 weeks from the start of the consultation period for submissions on the proposed Basin Plan.
(5) The invitation under paragraph (4)(a) must be published:
(a) in the Gazette; and
(b) in a newspaper circulating generally in each Basin State; and
(c) on the Authority’s website.
The consultation period starts when the invitation is published in the Gazette.
(6) The invitation under paragraph (4)(a) must:
(a) specify how a person may obtain a copy of the proposed Basin Plan (and the summary); and
(b) specify a physical address, and an email address, to which a person may send submissions on the proposed Basin Plan to the Authority; and
(c) specify the date by which submissions must be received by the Authority; and
(d) indicate that submissions that a person makes to the Authority on the proposed Basin Plan will be published on the Authority’s website unless the person specifically requests the Authority to treat the submissions (or a particular part of the submissions) confidentially.
(7) The Authority must make the proposed Basin Plan (and the summary) available on its website.
(8) The Authority must publish on its website the submissions it receives on the proposed Basin Plan in response to the invitations issued under subsections (3) and (4).
(9) Subsection (8) does not apply to the submissions (or a particular part of the submissions) that a person makes to the Authority if the person requests the Authority to treat the submissions (or that part of the submissions) confidentially.
Note: See paragraph (6)(d).
(10) The Authority:
(a) must consider any submissions it receives in response to the invitations issued under subsections (3) and (4); and
(b) may alter the Basin Plan as a result of its consideration of those submissions.
(11) The Authority must:
(a) prepare a document that:
(i) gives a broad outline of any changes that the Authority makes to the proposed Basin Plan after the start of the consultation period; and
(ii) summarises any submissions it received in response to the invitations issued under subsections (3) and (4), how it addressed those submissions and any alterations it has made as a result of its consideration of those submissions; and
(c) publish a copy of the document on its website.
43A Authority to seek comments from Murray‑Darling Basin Ministerial Council on proposed Basin Plan
(1) This section applies once the Authority has complied with section 43 in relation to a proposed Basin Plan.
(2) Without limiting subsection 42(1), the Authority must give each member of the Murray‑Darling Basin Ministerial Council a copy of the proposed Basin Plan (incorporating any alterations it has made under paragraph 43(10)(b)).
(3) The copy must be given together with the Authority’s advice to the Murray‑Darling Basin Ministerial Council on the likely socio‑economic implications of any reductions in the long‑term average sustainable diversion limits proposed in the proposed Basin Plan.
(4) The Murray‑Darling Basin Ministerial Council must, within 6 weeks after the Authority complied with subsection (2), give the Authority a written notice:
(a) stating that neither the Murray‑Darling Basin Ministerial Council nor any of its members have any comments on the proposed Basin Plan; or
(b) stating that the Murray‑Darling Basin Ministerial Council, or one or more of its members, disagrees with one or both of the following:
(i) the long‑term average sustainable diversion limits proposed in the proposed Basin Plan;
(ii) any other aspect of the proposed Basin Plan in relation to which the Minister may give a direction under subparagraph 44(3)(b)(ii);
and specifying the nature of the disagreement.
Note: Subsection 44(5) specifies matters in relation to which the Minister must not give a direction.
(5) If the Murray‑Darling Basin Ministerial Council does not give the Authority such a notice within that period of 6 weeks, the Murray‑Darling Basin Ministerial Council and its members are taken not to have any comments on the proposed Basin Plan.
(6) If the Murray‑Darling Basin Ministerial Council gives the Authority a notice that states under paragraph (4)(b) matters with which the Murray‑Darling Basin Ministerial Council, or one or more of its members, disagrees, the Authority must:
(a) consider the matters; and
(b) undertake such consultations in relation to the matters as the Authority considers necessary or appropriate; and
(c) either:
(i) confirm the proposed Basin Plan, and give each member of the Murray‑Darling Basin Ministerial Council a copy of the unaltered proposed Basin Plan, together with the Authority’s views on the matters; or
(ii) alter the proposed Basin Plan, and give each member of the Murray‑Darling Basin Ministerial Council a copy of the altered proposed Basin Plan, together with the Authority’s views on the matters; and
(d) prepare a document that summarises:
(i) any submissions it received in response to the consultations referred to in paragraph (b); and
(ii) how it addressed those submissions; and
(iii) the extent (if any) to which its consideration of those submissions has affected the version of the Plan, or the views, given to the members of the Murray‑Darling Basin Ministerial Council under paragraph (c); and
(e) publish on its website a copy of the document prepared under paragraph (d).
(7) The Murray‑Darling Basin Ministerial Council must, within 3 weeks after the Authority complied with paragraph (6)(c), give the Minister a written notice:
(a) stating that neither the Murray‑Darling Basin Ministerial Council nor any of its members express any further views on the proposed Basin Plan; or
(b) setting out the views of the Murray‑Darling Basin Ministerial Council, or one or more of its members, on one or both of the following:
(i) the long‑term average sustainable diversion limits proposed in the proposed Basin Plan;
(ii) any other aspect of the proposed Basin Plan in relation to which the Minister may give a direction under subparagraph 44(3)(b)(ii).
Note: Subsection 44(5) specifies matters in relation to which the Minister must not give a direction.
(8) If the Murray‑Darling Basin Ministerial Council does not give the Minister such a notice within that period of 3 weeks, the Murray‑Darling Basin Ministerial Council and its members are taken not to express any further views on the proposed Basin Plan.
44 Minister may adopt Basin Plan
(1) Within 12 weeks after the Authority gives the Minister the Basin Plan, the Minister must:
(a) consider the Basin Plan; and
(b) either:
(i) adopt, in writing, the Basin Plan; or
(ii) give the Basin Plan back to the Authority with suggestions for consideration by the Authority.
(2) If the Minister gives the Basin Plan back to the Authority with suggestions, the Authority must:
(a) consider the suggestions; and
(b) undertake such consultations in relation to the suggestions as the Authority considers necessary or appropriate; and
(c) give the Minister either:
(i) an identical version of the Basin Plan; or
(ii) an altered version of the Basin Plan;
together with the Authority’s views on the Minister’s suggestions; and
(d) prepare a document that summarises:
(i) any submissions it received in response to the consultations referred to in paragraph (b); and
(ii) how it addressed those submissions; and
(iii) the extent (if any) to which its consideration of those submissions has affected the version or views given to the Minister under paragraph (c); and
(e) publish on its website a copy of the document prepared under paragraph (d).
(3) Within 6 weeks after the Authority gives the Minister a version of the Basin Plan under subsection (2), the Minister:
(a) must consider that version of the Basin Plan and the views given to the Minister under subsection (2); and
(b) must either:
(i) adopt, in writing, that version of the Basin Plan; or
(ii) direct the Authority, in writing, to make modifications to that version of the Basin Plan and give it to the Minister for adoption.
(4) A direction under subparagraph (3)(b)(ii) is not a legislative instrument.
(5) The Minister must not give a direction under subparagraph (3)(b)(ii) in relation to:
(a) any aspect of the Basin Plan that is of a factual or scientific nature; or
(b) without limiting paragraph (a), any of the matters referred to in:
(i) items 1, 2, 3 or 8 of the table in subsection 22(1); or
(ii) subsection 75(1); or
(iii) subsection 81(2) or (3).
(5A) To avoid doubt, subsections 43A(5) and (8) do not affect the Minister’s power to give suggestions or directions to the Authority under this section.
(6) If the Minister gives a direction under subparagraph (3)(b)(ii):
(a) the Authority must comply with the direction; and
(b) the Minister must adopt, in writing, the Basin Plan given to the Minister in compliance with the direction.
(7) When the Basin Plan is laid before a House of the Parliament under the Legislation Act 2003, the Minister must also lay before that House a document that sets out:
(a) any direction the Minister gave under subparagraph (3)(b)(ii) in relation to the Basin Plan; and
(b) the Minister’s reasons for giving that direction.
Subdivision F—Amendment of Basin Plan
45 Authority may prepare amendment of Basin Plan
The Authority may prepare an amendment of the Basin Plan and give it to the Minister for adoption together with any document prepared under paragraph 47(11)(a) or 47A(5)(d).
46 Consultations by Authority in preparing amendment of Basin Plan
(1) The Authority must consult with:
(a) the Basin States; and
(b) the Basin Officials Committee; and
(c) the Basin Community Committee;
in preparing an amendment of the Basin Plan.
(2) In preparing an amendment of the rules referred to in item 12 of the table in subsection 22(1), the Authority must obtain, and have regard to, the advice of the ACCC.
(2A) In preparing an amendment of a provision of the Basin Plan that confers functions or powers on the Inspector‑General or otherwise relates to the Inspector‑General, the Authority must obtain, and have regard to, the advice of the Inspector‑General.
(3) In preparing an amendment of the Basin Plan, the Authority may undertake such other consultation, and publish such information to facilitate consultation, as it thinks appropriate.
47 Authority to seek submissions on proposed amendment of Basin Plan
(1) This section applies once the Authority has prepared a proposed amendment of the Basin Plan.
(2) The Authority must prepare a plain English summary of the effect of the proposed amendment (including an outline of the scientific knowledge and socio‑economic analysis on which the proposed amendment is based).
(3) Without limiting subsection 46(1), the Authority must:
(a) give a copy of the proposed amendment of the Basin Plan (and the summary) to the relevant State Minister for each of the Basin States; and
(b) invite the Basin State to make submissions to the Authority on the proposed amendment; and
(c) allow the Basin State at least 8 weeks from when the invitation is given to make submissions to the Authority on the proposed amendment.
(4) The Authority must:
(a) publish an invitation to members of the public to make submissions to the Authority on the proposed amendment of the Basin Plan; and