(m) if the Minister requests advice about a matter relating to any of the above functions—to give the advice;
(n) to do anything incidental or conducive to the performance of any of the above functions.
Note: The Authority also has the functions conferred on it by Part 1A (The Murray‑Darling Basin Agreement) and Part 2A (Critical human water needs).
Authority may adopt Basin State measurements and request Basin States to take measurements etc.
(2) Without limiting paragraph (1)(b) or (c), in performing its functions the Authority may:
(a) adopt measurements, records and conclusions made by a Basin State or an agency of a Basin State; or
(c) request a Basin State to carry out any measuring, monitoring or recording within the State’s geographical limits that the Authority considers necessary.
Informing others of paragraph (1)(g) recommendations
(3) The Authority must, as soon as practicable, inform the Minister and the other members of the Murray‑Darling Basin Ministerial Council, and inform the Basin Officials Committee, of any recommendation made under paragraph (1)(g).
Varying and revoking consents and requests
(4) The Minister may vary or revoke the following:
(a) a consent given under paragraph (1)(l);
(b) a request made under paragraph (1)(m).
Consents and requests not legislative instruments
(5) Neither of the following is a legislative instrument:
(a) a consent given under paragraph (1)(l);
(b) a request made under paragraph (1)(m).
173 Authority’s powers
(1) The Authority has power to do anything that is necessary or convenient to be done for or in connection with the performance of its functions.
Note 1: The Authority’s functions are set out in section 172, and in Part 1A (The Murray‑Darling Basin Agreement) and Part 2A (Critical human water needs).
Note 2: Acquisitions of interests in land will be done in accordance with the Lands Acquisition Act 1989 and the Public Governance, Performance and Accountability Act 2013.
(2) The Authority’s powers include, but are not limited to, the following powers:
(a) the power to acquire, hold and dispose of real and personal property;
(b) the power to enter into contracts.
Note 1: Under paragraph 176(1)(c), the Authority may also sue and be sued in its corporate name.
Note 2: Acquisitions of interests in land will be done in accordance with the Lands Acquisition Act 1989 and the Financial Management and Accountability Act 1997.
(1) The Commonwealth must pay to the Authority, for the purposes of the Murray‑Darling Basin Special Account, an amount equal to any amount paid by the Authority in discharging any liability of the Authority arising:
(a) from an act or omission in the bona fide execution of the powers vested in the Authority by or under the Agreement; or
(b) because of the operation of section 239F, 239J or 239K (about transitional matters relating to the Murray‑Darling Basin Commission).
(2) For the purposes of the Agreement, treat a payment by the Commonwealth under subsection (1) as a payment made in respect of losses or costs incurred by the Commonwealth arising:
(a) if the payment relates to a liability of the Authority arising as described in paragraph (1)(a)—as described in paragraph (1)(a); or
(b) if the payment relates to a liability of the Authority arising as described in paragraph (1)(b)—as described in paragraph (1)(b).
(3) Amounts payable under subsection (1) are to be paid out of the Consolidated Revenue Fund, which is appropriated accordingly.
175 Minister may give directions to Authority
(1) The Minister may give directions, which must be consistent with the objects of this Act, to the Authority about the performance of the Authority’s functions.
Note: Other provisions enable the Minister to give directions about particular matters (for example, see subparagraphs 44(3)(b)(ii) and 48(3)(b)(ii) and subsection 49AA(1)). Those other powers to give directions may be subject to limitations.
(2) However, the Authority is not subject to direction under subsection (1) in relation to any of the following:
(a) a determination by the Authority under paragraph 83(2)(b);
(b) its powers under Division 3 (information gathering) of Part 10;
(e) the performance of a function that is conferred under Part 1A or 2A.
(3) The Authority must comply with a direction under subsection (1).
(4) A direction made under subsection (1) is a legislative instrument, but neither section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 applies to the direction.
Division 2—Authority’s constitution and membership
Subdivision A—Authority’s constitution
176 Authority’s constitution
(1) The Authority:
(a) is a body corporate with perpetual succession; and
(b) must have a seal; and
(c) may sue and be sued in its corporate name.
Note: The Public Governance, Performance and Accountability Act 2013 applies to the Authority. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(2) The seal of the Authority is to be kept in such custody as the Authority directs and must not be used except as authorised by the Authority.
(3) All courts, judges and persons acting judicially must:
(a) take judicial notice of the imprint of the seal of the Authority appearing on a document; and
(b) presume that the document was duly sealed.
Subdivision B—Authority’s membership
177 Authority’s membership
The Authority consists of the following members:
(aa) a Chief Executive;
(a) a Chair;
(b) 2 Indigenous persons recognised in the Indigenous community as having a high level of expertise in Indigenous matters relevant to Basin water resources, each of whom is a standing Indigenous Authority member for the purposes of this Subdivision;
(c) 4 other members.
Note 1: Section 18B of the Acts Interpretation Act 1901 deals with the title of the Chair.
Note 2: For Indigenous person, see subsection 4(1).
178 Appointment of Authority members
Appointment by instrument
(1) Each Authority member is to be appointed by the Governor‑General by written instrument.
Note: An Authority member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
Eligibility for appointment
(2) To be eligible for appointment as an Authority member (other than as a standing Indigenous Authority member), an individual must, at the time of appointment:
(a) have a high level of expertise in one or more fields relevant to the Authority’s functions; and
(b) not be a member of the governing body of a relevant interest group.
(2A) To be eligible for appointment as a standing Indigenous Authority member, an individual must be an Indigenous person who, at the time of appointment:
(a) has a high level of expertise in Indigenous matters relevant to Basin water resources; and
(b) is not a member of the governing body of a relevant interest group.
(3) For the purposes of this Act, a field relevant to the Authority’s functions includes each of the following:
(a) water resource management;
(b) hydrology;
(c) freshwater ecology;
(d) resource economics;
(e) irrigated agriculture;
(f) public sector governance;
(g) financial management;
(h) Indigenous matters relevant to Basin water resources.
(4) For the purposes of this Act, an individual is a member of the governing body of a relevant interest group if:
(a) the individual is one of the persons involved in the management of another entity; and
(b) that other entity (whether incorporated or otherwise):
(i) represents one or more classes of holders of water access rights, water delivery rights or irrigation rights; or
(ii) advocates managing the Basin water resources in a particular way.
Basis of appointments
(5) The Chief Executive must be appointed on a full‑time basis.
(6) An Authority member (other than the Chief Executive) must be appointed on a part‑time basis.
Validation
(7) The appointment of an individual as an Authority member is not invalid because of a defect or irregularity in connection with the individual’s appointment.
(8) An act of the Authority is not invalid because of a defect or irregularity in connection with the appointment of the Chief Executive, Authority Chair or any other member of the Authority.
179 Period of appointment for Authority members
(1) An Authority member holds office for the period specified in his or her instrument of appointment. The period must not exceed 4 years.
(2) The sum of an Authority member’s first appointment period and any period or periods of re‑appointment must not exceed 8 years (not including any periods of acting appointment).
Note: An Authority member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.
180 Acting Authority members
Acting Chief Executive
(1A) The Minister may appoint a member of the Authority staff who is an SES employee to act as the Chief Executive:
(a) during a vacancy in the office of the Chief Executive, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Chief Executive:
(i) is absent from duty or Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Acting Authority Chair
(1) The Minister may appoint an Authority member to act as the Authority Chair:
(a) during a vacancy in the office of the Authority Chair, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Authority Chair:
(i) is absent from duty or Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Acting Authority member (other than Chief Executive or Authority Chair)
(2) The Minister may appoint an individual to act as an Authority member (other than the Chief Executive or the Authority Chair):
(a) during a vacancy in the office of an Authority member (other than the Chief Executive or the Authority Chair), whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when an Authority member (other than the Chief Executive or the Authority Chair):
(i) is absent from duty or Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Eligibility
(3) An individual is not eligible for appointment to act as an Authority member (other than the Authority Chair or a standing Indigenous Authority member) unless the individual has a high level of expertise in one or more fields relevant to the Authority’s functions.
Note 1: Fields relevant to the Authority’s functions include those set out in subsection 178(3).
Note 2: An individual is only eligible for appointment to act as the Authority Chair if the individual is already an Authority member (see subsection (1)). This means either subsection 178(2) or this subsection, or subsection 178(2A) or subsection (3A) of this section, must already be satisfied in relation to the individual.
Note 3: An individual appointed to act in a vacant office must not continue to act for more than 12 months (see paragraph 33A(1)(ba) of the Acts Interpretation Act 1901).
(3A) An individual is not eligible for appointment to act as a standing Indigenous Authority member unless the individual is recognised in the Indigenous community as having a high level of expertise in Indigenous matters relevant to Basin water resources.
(4) An individual is not eligible for appointment to act as an Authority member (other than the Authority Chair) if the individual is a member of the governing body of a relevant interest group.
Note: For when an individual is a member of the governing body of a relevant interest group, see subsection 178(4).
Subdivision C—Terms and conditions for Authority members
181 Remuneration
(1) An Authority member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Authority member is to be paid the remuneration that is prescribed in the regulations.
(2) An Authority member is to be paid the allowances that are prescribed in the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
182 Disclosure of interests
(1) A disclosure by an Authority member (other than the Chief Executive) under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Minister.
Note: Under the rules made for the purposes of the Public Governance, Performance and Accountability Act 2013, the Chief Executive must disclose interests to the Minister.
(2) Subsection (1) applies in addition to any rules made for the purposes of that section.
(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the Authority member is taken not to have complied with section 29 of that Act if the Authority member does not comply with subsection (1) of this section.
185 Outside employment
The Chief Executive must not engage in paid employment outside the duties of his or her office without the Minister’s approval.
186 Member of the governing body of a relevant interest group
An Authority member must not be a member of the governing body of a relevant interest group.
Note: For when an individual is a member of the governing body of a relevant interest group, see subsection 178(4).
187 Leave of absence
(1) The Chief Executive has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant the Chief Executive leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
(3) The Chief Executive may grant leave of absence to any other Authority member on the terms and conditions that the Chief Executive determines.
188 Resignation
(1) An Authority member may resign his or her appointment by giving the Governor‑General a written resignation.
(2) The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.
189 Termination of appointment
(1) The Governor‑General may terminate the appointment of an Authority member for misbehaviour or physical or mental incapacity.
(2) The Governor‑General may terminate the appointment of an Authority member if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Minister is satisfied that the performance of the member has been unsatisfactory; or
(c) if the member is the Chief Executive—the member is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 consecutive months; or
(d) the member is absent, except on leave of absence, from 3 consecutive meetings of the Authority; or
(e) if the member is the Chief Executive—the member engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or
(ea) if the member is not the Chief Executive—the member engages, except with the Minister’s approval, in paid employment that conflicts or could conflict with the proper performance of the duties of his or her office; or
(f) the member fails to comply with section 186; or
(g) if the member is not the Chief Executive—the member fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules
Note: The appointment of the Chief Executive may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
190 Other terms and conditions
An Authority member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Governor‑General.
Division 3—Decision‑making and delegation by Authority
Subdivision A—Meetings
191 Holding of meetings
(1) The Authority is to hold such meetings as are necessary for the performance of its functions.
(2) The Authority Chair:
(a) may convene a meeting at any time; and
(b) must convene a meeting within 30 days after receiving a written request from the Minister or from at least 2 other Authority members; and
(c) must convene at least 9 meetings each financial year.
192 Presiding at meetings
(1) The Authority Chair presides at all meetings at which he or she is present.
(2) If the Authority Chair is not present at a meeting, the Authority members present must appoint one of themselves to preside.
193 Quorum
(1) At a meeting of the Authority, 4 Authority members constitute a quorum.
(2) However, if:
(a) rules in force for the purposes of paragraph 29(2)(c) of the Public Governance, Performance and Accountability Act 2013 prevent an Authority member from participating in the deliberations or decisions of the Authority in relation to a particular matter; and
(b) when the member leaves the meeting concerned there is no longer a quorum present;