(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: The person bears an evidential burden in relation to the matter in this subsection (see section 154E).
Civil penalty provision
(3) A person is liable to a civil penalty if the person contravenes subsection (1).
Note 1: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).
Note 2: This section applies in relation to conduct described in section 73J.
Civil penalty: 60 penalty units.
73H Trading water access right before water announcement made or generally available in contravention of the Basin Plan
(1) A person contravenes this subsection if the person contravenes subsection 12.51(2) of the Basin Plan.
Civil penalty provision
(2) A person is liable to a civil penalty if the person contravenes subsection (1).
Note 1: In proceedings against a person for a contravention of a civil penalty provision, it is generally not necessary to prove the person’s state of mind (see section 154C).
Note 2: A person who wishes to rely on the exception in section 12.52 of the Basin Plan bears an evidential burden in relation to the matter in that section (see section 154E of this Act).
Note 3: This section applies in relation to conduct described in section 73J or 73K.
Civil penalty:
(a) for an individual—1,000 penalty units; or
(b) for a body corporate—10,000 penalty units.
73J Application of sections 73F to 73H
(1) Sections 73F to 73H apply in relation to relevant contravening conduct of any of the following kinds:
(a) relevant contravening conduct by a constitutional corporation;
(b) relevant contravening conduct by another person that affects the activities of a constitutional corporation;
(c) relevant contravening conduct that takes place in the course of trade and commerce:
(i) among the States; or
(ii) between a State and a Territory;
(d) relevant contravening conduct that:
(i) takes place in a Territory; or
(ii) relates to tradeable water rights in relation to a water resource in a Territory;
(e) relevant contravening conduct by an agency of the Commonwealth.
Definitions
(2) In this section:
conduct includes an act or omission.
relevant contravening conduct, in relation to section 73F, 73G or 73H, means conduct that constitutes, or would constitute, a contravention of a provision of that section.
Postal, telegraphic, telephonic or other like services
(1) In addition to section 73J, section 73H also applies in relation to relevant contravening conduct that takes place using postal, telegraphic, telephonic or other like services (within the meaning of paragraph 51(v) of the Constitution).
Definitions
(2) In this section:
conduct includes an act or omission.
relevant contravening conduct means conduct that constitutes, or would constitute, a contravention of section 73H.
Division 3B—Audits
73L Audits
(1) The Inspector‑General may conduct, or appoint or establish a person or body (an auditor) to conduct, periodic audits to assess the extent of compliance with either or both of the following:
(a) the Basin Plan;
(b) water resource plans.
(2) In conducting an audit, the auditor must have regard to the following:
(a) guidelines (if any) issued by the Inspector‑General relating to the conduct of an audit;
(b) any applicable guidelines issued by the Inspector‑General under section 215V;
(c) any applicable standards issued by the Inspector‑General under section 215VA.
(3) The auditor must:
(a) prepare a report setting out the findings of the audit and any recommendations arising from the audit; and
(b) before the report is finalised, provide any person or body to which the audit relates with an opportunity to comment on the proposed findings and recommendations.
(4) After a report prepared under subsection (3) is finalised, the Inspector‑General must publish a copy of the report on the Inspector‑General’s website or the Department’s website.
73M Responses to audit reports including recommendations that an agency take certain action
(1) This section applies if:
(a) the Inspector‑General publishes a report under subsection 73L(4); and
(b) the report includes a recommendation that an agency of the Commonwealth, or an agency of a State or Territory, take certain action.
(2) The agency to which the recommendation is made must give a written response to the Inspector‑General, within 90 days after the report was published or within any longer period agreed to by the Inspector‑General, that sets out:
(a) whether the agency accepts the recommendation (in whole or in part); and
(b) if the agency accepts the recommendation (in whole or in part)—details of any action that the agency proposes to take to give effect to the recommendation (in whole or in part); and
(c) if the agency does not accept the recommendation (in whole or in part)—the reasons for not accepting the recommendation (in whole or in part).
(3) The Inspector‑General may publish a copy of a response received under subsection (2) on the Inspector‑General’s website or the Department’s website.
Division 4—Allocation of risks in relation to reductions in water availability
Subdivision A—Risks arising from reductions in diversion limits
74 Simplified outline
(1) This section provides a simplified outline of this Subdivision.
(2) When the long‑term average sustainable diversion limit for the water resources of a water resource plan area (or for a particular part of those water resources) is reduced, the Basin Plan identifies the Commonwealth’s share (if any) of the reduction.
Note 1: The Commonwealth’s share includes reductions attributable to changes in Commonwealth Government policy and may also include some part of reductions attributable to improvements in knowledge about the environmentally sustainable level of take for the water resources of a water resource plan area.
Note 2: See section 75.
(3) The Commonwealth:
(a) endeavours to manage the impact of the Commonwealth’s share of the reduction on the holders of water access entitlements; and
(b) may take steps to ensure that the holders of water access entitlements do not suffer a reduction in their water allocations as a result of the Commonwealth’s share of the reduction.
Note: See section 76.
(4) A water access entitlement holder is entitled to a payment if (despite the Commonwealth’s efforts) there is a reduction in, or a change in the reliability of, the holder’s water allocations that is reasonably attributable to the Commonwealth’s share of the reduction in the long‑term average sustainable diversion limit (and if certain other conditions are met).
Note: See section 77.
74A States applying the risk assignment framework
(1) The Minister must, in writing, determine that a Basin State is a State to which this section applies if the Minister is satisfied that a State water management law of the State:
(a) has applied the risk assignment framework provided for in clauses 48 to 50 of the National Water Initiative, read in conjunction with clause 10.1.3 of the Agreement on Murray‑Darling Basin Reform of 3 July 2008; and
(b) has applied that framework by, and at all times since:
(i) 30 June 2009; or
(ii) a later day specified in the regulations.
Note: Clauses 48 to 50 of the National Water Initiative and clause 10.1.3 of the Agreement on Murray‑Darling Basin Reform of 3 July 2008 are set out in Schedule 3A.
(2) The day specified in regulations made for the purposes of subparagraph (1)(b)(ii) must not be later than the day on which the Basin Plan first takes effect.
(2A) The Minister is taken, on the commencement of this section, to have made a determination under subsection (1) that New South Wales is a State to which this section applies.
(3) The Minister must, in writing, revoke a determination made under subsection (1) if satisfied that there is no longer a State water management law of the State that gives effect to that framework.
(5) A determination made under subsection (1), or a revocation under subsection (3), is not a legislative instrument.
75 Basin Plan to specify Commonwealth share of reduction in long‑term average sustainable diversion limit
(1) If the long‑term average sustainable diversion limit for the water resources of a water resource plan area (or for a particular part of those water resources) is reduced, the Basin Plan must specify:
(a) the amount of the reduction; and
(b) the amount of so much (if any) of the reduction as is attributable to changes in Commonwealth Government policy (the Commonwealth Government policy component of the reduction); and
(c) the amount of so much (if any) of the reduction as is attributable to improvements in knowledge about the environmentally sustainable level of take for the water resources of the water resource plan area (the new knowledge component of the reduction); and
(d) the amount of so much (if any) of the reduction as is the Commonwealth’s share of the reduction (worked out under subsection (2)).
Each of the amounts referred to in paragraphs (a), (b), (c) and (d) is to be expressed as a quantity of water per year.
(1AA) For the purposes of subsection (1), the Basin Plan may specify the amounts in relation to:
(a) cumulative reductions (which may include a reduction that is taken to have occurred under subsection 78(3) from the amount specified for the purposes of subsection 78(2)); or
(b) reductions resulting from changes to the SDL from time to time.
(1A) In working out the amount of the Commonwealth Government policy component or the new knowledge component, any reduction that is a result of matters referred to in clause 48 of the National Water Initiative is to be disregarded.
Note: Clause 48 of the National Water Initiative is set out in Part 1 of Schedule 3A.
(2) The Commonwealth’s share of the reduction is to be worked out as follows:
(a) the Commonwealth’s share of the reduction includes the Commonwealth Government policy component of the reduction (if any); and
(b) if the Basin State in which the water resource plan area is located is not a State to which section 74A applies, and the reduction is one that takes effect on or after 1 January 2015—the Commonwealth’s share of the reduction also includes so much of the new knowledge component (if any) as is worked out under subsection (3); and
(c) if the Basin State in which the water resource plan area is located is a State to which section 74A applies—the Commonwealth’s share of the reduction also includes so much of the new knowledge component (if any) as is worked out under subsection (3A).
(3) The amount to be included in the Commonwealth’s share of the reduction under paragraph (2)(b) is to be worked out on the basis that, for reductions in the long‑term average sustainable diversion limit for the water resources, or that part of the water resources, of the water resource plan area in any 10 year period, the Commonwealth’s share of the reductions:
(a) does not include so much of new knowledge components of those reductions as does not exceed (in aggregate) 3% of the relevant diversion limit; and
(b) includes two‑thirds of so much of the new knowledge components of those reductions as:
(i) exceeds (in aggregate) 3% of the relevant diversion limit; and
(i) does not exceed (in aggregate) 6% of the relevant diversion limit; and
(c) includes 50% of so much of the new knowledge components of those reductions as exceed (in aggregate) 6% of the relevant diversion limit.
(3A) The amount to be included in the Commonwealth’s share of the reduction under paragraph (2)(c) is to be worked out on the basis that, for reductions in the long‑term average sustainable diversion limit for the water resources, or that part of the water resources, of the water resource plan area in any 10 year period, the Commonwealth’s share of the reductions:
(a) does not include so much of new knowledge components of those reductions as does not exceed (in aggregate) 3% of the relevant diversion limit; and
(b) includes all of so much of the new knowledge components of those reductions as exceeds (in aggregate) 3% of the relevant diversion limit.
(4) For the purposes of applying subsection (3) or (3A) for a reduction in the long‑term average sustainable diversion limit for the water resources, or part of the water resources, of a water resource plan area, the relevant diversion limit is the earliest long‑term average sustainable diversion limit for those water resources, or that part of those water resources, that applied:
(a) during the 10 years immediately preceding the reduction; and
(b) on or after:
(i) if the Basin State in which the water resource plan area is located is a State to which section 74A applies, and a transitional water resource plan or an interim water resource plan has effect for the area—the day on which that plan ceases to have effect; or
(ii) in any other case—1 January 2015.
Note: The surface water of the Googong Dam Area is to be treated as if it were located in the Australian Capital Territory (see section 63A).
76 Commonwealth to manage Commonwealth share of reduction in diversion limit
If the Basin Plan specifies, under subsection 75(1), the Commonwealth’s share of a reduction in the long‑term average sustainable diversion limit for the water resources of a water resource plan area, or for the particular part of those water resources, the Commonwealth:
(a) must endeavour to manage the impact of the Commonwealth’s share of the reduction in the limit on the holders of water access entitlements; and
(b) may take steps to ensure that the holders of water access entitlements do not suffer a reduction in their water allocations, or a change in the reliability of their water allocations, as a result of the Commonwealth’s share of the reduction in the limit.
Note 1: This subsection implements in part the policy in clauses 49 and 50 of the National Water Initiative.
Note 2: If a reduction in, or a change in the reliability of, a water allocation results despite the steps taken by the Commonwealth, the Commonwealth may be liable for an amount under section 77.
77 Payments to water access entitlement holders
Qualification for payment under this section
(1) A person (the entitlement holder) qualifies for a payment under this section if:
(a) the entitlement holder holds a water access entitlement in relation to a water resource plan area; and
(b) one of the following subparagraphs is satisfied:
(i) the water access entitlement was granted, issued or authorised before 25 January 2007;
(ii) the water access entitlement is granted, issued or authorised in accordance with a transitional water resource plan;
(iii) the water access entitlement is granted, issued or authorised on or after 25 January 2007, and before the Basin Plan first takes effect, and the Minister determines in writing that the entitlement relates to a water resource that was not overallocated at the time of, or because of, the grant, issue or authorisation;
(iv) the water access entitlement is granted, issued or authorised after the Basin Plan first takes effect and is granted, issued or authorised in accordance with the Basin Plan and the water resource plan for the water resources of the water resource plan area, or for the particular part of the water resources of the area; and
(c) there is:
(i) a reduction in the water allocations to be made in relation to the water access entitlement; or
(ii) a change in the reliability of those water allocations; and
(d) the reduction in the water allocations, or the change in the reliability of the water allocations, occurs because of a reduction (the diversion limit reduction) in the long‑term average sustainable diversion limit for the water resources of the water resource plan area, or for the particular part of those water resources; and
(e) the whole, or a part, of the reduction in the water allocations, or the change in the reliability of the water allocations, is reasonably attributable to the Commonwealth’s share of the reduction.
A determination under subparagraph (b)(iii) is not a legislative instrument.
(2) In applying paragraph (1)(e), regard is to be had to:
(a) any steps taken by the Commonwealth to ensure that holders of water access entitlements do not suffer a reduction in their water allocations, or a change in the reliability of their water allocations, as a result of the diversion limit reduction; and
(b) the effect of those steps on the water allocations, or the reliability of the water allocations, made to the holders of water access entitlements; and
(c) the effect of the other provisions of the Basin Plan.
Minister to decide claim
(3) If the entitlement holder makes a claim for a payment under this section in relation to the diversion limit reduction, the Minister must:
(a) if the Minister is satisfied that the entitlement holder qualifies for a payment under this section in relation to the reduction:
(i) determine that a payment under this section is to be made to the entitlement holder in relation to the reduction; and
(ii) determine the amount of the payment under this section to be made to the entitlement holder; and
(b) if the Minister is not satisfied that the entitlement holder qualifies for a payment under this section in relation to the reduction—determine that a payment under this section is not to be made to the entitlement holder in relation to the reduction.
Amount of payment under this section
(4) Subject to subsection (6), the amount of the payment under this section is worked out as follows:
(a) first work out the amount of the reduction in the market value of the entitlement holder’s water access entitlement that occurred because of the reduction in, or the change in the reliability of, the entitlement holder’s water allocations;