(a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or
(b) to produce a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or
(c) to give information or evidence, or to produce a document, that would disclose the deliberations of the Cabinet of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matters in this subsection: see subsection 13.3(3) of the Criminal Code and section 154E of this Act.
(10) This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 154E of this Act.
239AK Oaths and affirmations for the purposes of section 239AJ
(1) If a notice under subsection 239AJ(2) requires a person to appear before the ACCC to give evidence, the ACCC may require the evidence to be given on oath or affirmation. For that purpose, any member of the ACCC may administer an oath or affirmation.
(2) If a notice under subsection 239AJ(2) requires a person to appear before a member of the staff assisting the ACCC to give evidence, the member of the staff may require the evidence to be given on oath or affirmation and may administer an oath or affirmation.
239AL Power to vary time for the purposes of section 239AJ
(1) A member of the ACCC may vary the time specified in a notice given to a person under subsection 239AJ(2):
(a) within which the information must be given; or
(b) within which the documents must be produced; or
(c) at which the person is required to appear before the ACCC or the member of the staff assisting the ACCC who is specified in the notice.
(2) Subsection (1) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection 239AJ(2).
(3) A member of the ACCC may, in writing, delegate the member’s powers under subsection (1) to a member of the staff of the ACCC who is an SES employee or an acting SES employee.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee.
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
239AM Privilege against self‑incrimination
(1) A person is not excused from giving information or producing a document under subsection 239AJ(2) on the ground that the information or document may tend to incriminate the person or expose the person to a penalty.
(2) However, the answer by an individual to any question asked in a notice under subsection 239AJ(2), or the giving by an individual of any information in pursuance of such a notice, is not admissible in evidence against the individual in any criminal proceedings, other than:
(a) proceedings for an offence against section 239AJ; or
(b) proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to that section.
239AN Court may order a person to comply with a notice
If a person refuses or fails to comply with a notice under subsection 239AJ(2), a court may, on application by the ACCC, make an order directing the person to comply with the notice.
Part 10A—Transitional matters relating to the Murray‑Darling Basin Commission
Division 1—Preliminary
239A Definitions
In this Act:
former MDB Agreement has the same meaning as Agreement had in the Murray‑Darling Basin Act 1993 immediately before the commencement of Schedule 2 to the Water Amendment Act 2008, including all of the changes to that agreement that the former Murray‑Darling Basin Ministerial Council had agreed to before the commencement of that Schedule.
former Murray‑Darling Basin Ministerial Council has the same meaning as Murray‑Darling Basin Ministerial Council had in this Act immediately before the commencement of Schedule 2 to the Water Amendment Act 2008.
Murray‑Darling Basin Commission has the same meaning as Commission had in the Murray‑Darling Basin Act 1993 immediately before the commencement of Schedule 2 to the Water Amendment Act 2008.
239B Application of this Part
This Part applies if each of the Basin States (other than the Australian Capital Territory) is a referring State.
Division 2—Assets, liabilities and legal proceedings
239C Vesting of assets of Murray‑Darling Basin Commission
(1) On the commencement of this Part, the transitional assets of the Murray‑Darling Basin Commission immediately before that commencement:
(a) cease to be assets of the Murray‑Darling Basin Commission; and
(b) become assets of the Authority without any conveyance, transfer or assignment.
(2) The Authority becomes the successor in law in relation to the transitional assets.
(3) A transitional asset is:
(a) any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective; or
(b) any right, power, privilege or immunity, whether actual, contingent or prospective;
but does not include a right, power, privilege or immunity conferred by:
(c) an Act; or
(d) regulations or other subordinate legislation made under an Act; or
(e) the Murray‑Darling Basin Act 1992 of New South Wales; or
(f) the Murray‑Darling Basin Act 1993 of Victoria; or
(g) the Murray‑Darling Basin Act 1996 of Queensland; or
(h) the Murray‑Darling Basin Act 1993 of South Australia; or
(i) the former MDB Agreement.
239D River Murray Operations assets unaffected
(1) This Part does not affect:
(a) the ownership or control of River Murray Operations assets; or
(b) the application of the Agreement in relation to River Murray Operations assets.
(2) River Murray Operations assets are:
(a) the works set out in Schedule A to the former MDB Agreement; and
(b) any other works the construction of which was authorised under subclause 50(1) of the former MDB Agreement (including any works authorised under Schedule C to the former MDB Agreement); and
(c) any other assets purchased with amounts paid by the Murray‑Darling Basin Commission under subclause 73(1) of the former MDB Agreement.
Note: The Agreement provides for how these assets are to be dealt with (including in accordance with directions given by the Authority).
239E Living Murray Initiative assets unaffected
(1) This Part does not affect:
(a) the ownership or control of Living Murray Initiative assets; or
(b) the application of the Living Murray Initiative in relation to Living Murray Initiative assets.
(2) Living Murray Initiative assets are:
(a) water access rights, water delivery rights, irrigation rights or other similar rights relating to water; or
(b) interests in, or in relation to, such rights;
that are held by a person for the purposes of the Living Murray Initiative, but do not include the legal title to such rights or interests if the legal title was held by the Murray‑Darling Basin Commission in its own name immediately before the commencement of this Part.
239F Vesting of liabilities of Murray‑Darling Basin Commission
(1) On the commencement of this Part, the transitional liabilities of the Murray‑Darling Basin Commission immediately before that commencement:
(a) cease to be liabilities of the Murray‑Darling Basin Commission; and
(b) become liabilities of the Authority without any conveyance, transfer or assignment.
(2) The Authority becomes the successor in law in relation to the transitional liabilities.
(3) A transitional liability is any liability, duty or obligation, whether actual, contingent or prospective, but does not include a liability, duty or obligation imposed by:
(a) an Act; or
(b) regulations or other subordinate legislation made under an Act; or
(c) the Murray‑Darling Basin Act 1992 of New South Wales; or
(d) the Murray‑Darling Basin Act 1993 of Victoria; or
(e) the Murray‑Darling Basin Act 1996 of Queensland; or
(f) the Murray‑Darling Basin Act 1993 of South Australia; or
(g) the former MDB Agreement.
(4) To avoid doubt, this section does not apply to liabilities that relate to River Murray Operations assets or Living Murray Initiative assets, except to the extent that they are liabilities of the Murray‑Darling Basin Commission immediately before the commencement of this Part.
Note: The Agreement provides for the Basin States to indemnify the Authority for liabilities that were, before the commencement of this Part, liabilities of the Murray‑Darling Basin Commission relating to River Murray Operations assets.
239G Certificates relating to vesting of land etc.
(1) This section applies if:
(a) any legal or equitable estate or interest in real property, whether actual, contingent or prospective (a real property asset), vests in the Authority under this Part; and
(b) there is lodged, with the Registrar of Titles or other proper officer of the State or Territory in which the real property asset is situated, a certificate that:
(i) is signed by the Minister; and
(ii) identifies the real property asset, whether by reference to a map or otherwise; and
(iii) states that the real property asset has become vested in the Authority under this Part.
(2) The Registrar of Titles or other officer may:
(a) register the matter in a way that is the same as, or similar to, the way in which dealings in real property assets of that kind are registered; and
(b) deal with, and give effect to, the certificate.
(3) A certificate made under paragraph (1)(b) is not a legislative instrument.
239H Certificates relating to vesting of assets other than land etc.
(1) This section applies if:
(a) any transitional asset other than a real property asset vests in the Authority under this Part; and
(b) there is lodged, with the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned, a certificate that:
(i) is signed by the Minister; and
(ii) identifies the transitional asset; and
(iii) states that the transitional asset has become vested in the Authority under this Part.
(2) The person or authority may:
(a) deal with, and give effect to, the certificate as if it were a proper and appropriate instrument for transactions in relation to assets of that kind; and
(b) make such entries in the register as are necessary having regard to the effect of this Part.
(3) A certificate made under paragraph (1)(b) is not a legislative instrument.
239J Substitution of Authority as a party to pending proceedings
(1) If any proceedings to which:
(a) the Murray‑Darling Basin Commission; or
(b) a person in the person’s capacity as the President or a Commissioner;
was a party were pending in any court or tribunal immediately before the commencement of this Part, from that commencement the Authority is substituted for the Murray‑Darling Basin Commission or the person as a party to the proceedings.
(2) The President is the person appointed in accordance with subclause 20(1) of the former MDB Agreement, and includes a Deputy President appointed under subclause 20(3) (in the capacity of Deputy President or acting President).
(3) A Commissioner is a person appointed in accordance with subclause 20(2) of the former MDB Agreement, and includes a Deputy Commissioner appointed under that subclause.
Note: The Agreement provides for the Basin States to indemnify the Authority for a share of the costs associated with, or arising from, proceedings covered by this section.
239K Rights to sue President or Commissioner become rights to sue Authority
If a right to sue a person, in the person’s capacity as the President or a Commissioner, existed immediately before the commencement of this Part, but had not been exercised, from that commencement the right to sue:
(a) ceases to be a right to sue the person; and
(b) becomes a right to sue the Authority.
Note: The Agreement provides for the Basin States to indemnify the Authority for a share of the costs associated with rights covered by this section.
239L President’s or Commissioner’s rights to sue become rights of Authority
If a person’s right to sue, in the person’s capacity as the President or a Commissioner, existed immediately before the commencement of this Part, but had not been exercised, from that commencement the right to sue:
(a) ceases to be a right of the person; and
(b) becomes a right of the Authority.
239M Transfer of custody of Murray‑Darling Basin Commission records
(1) On the commencement of this Part, each record or document that was in the custody of the Murray‑Darling Basin Commission immediately before that commencement is to be transferred into the custody of the Authority.
(2) If, immediately before the commencement of this Part, the Murray‑Darling Basin Commission owed a duty of confidence to a person in relation to a record or document transferred under this section, the Authority owes the same duty of confidence to the person after the transfer.
Division 3—Effect on instruments and things done
239N References in certain instruments to Murray‑Darling Basin Commission etc.
(1) If a transitional instrument is one or more of the following:
(a) an instrument that was made by the Murray‑Darling Basin Commission;
(b) an instrument to which the Murray‑Darling Basin Commission was a party;
(c) an instrument that was given to, or in favour of, the Murray‑Darling Basin Commission;
(d) an instrument under which any right or liability accrues or may accrue to the Murray‑Darling Basin Commission;
(e) any other instrument in which a reference is made to the Murray‑Darling Basin Commission;
it continues to have effect from the commencement of this Part as if:
(f) references in the transitional instrument to the Murray‑Darling Basin Commission (however described) were references to the Authority; and
(g) references in the transitional instrument to the former Murray‑Darling Basin Ministerial Council (however described) were references to the Murray‑Darling Basin Ministerial Council; and
(h) references in the transitional instrument to the contracting governments under the former MDB Agreement (however described) were references to the contracting governments under the Agreement; and
(i) in the case of a protocol made under a Schedule to the former MDB Agreement:
(i) references in the protocol to the former MDB Agreement were references to the Agreement; and
(ii) references in the protocol to provisions of, or Schedules to, the former MDB Agreement were references to the corresponding provisions of, or Schedules to, the Agreement; and
(iii) references in the protocol to other protocols made under Schedules to the former MDB Agreement were references to the corresponding protocols made under Schedules to the Agreement.
(2) However, subsection (1) does not apply to a transitional instrument specified in the regulations.
(3) If the regulations specify a transitional instrument for the purposes of subsection (2), the regulations may also provide one or more of the following:
(a) that the transitional instrument has effect as if references in the transitional instrument to the Murray‑Darling Basin Commission (however described) were references as specified in the regulations;
(b) that the transitional instrument has effect as if references in the transitional instrument to the former Murray‑Darling Basin Ministerial Council (however described) were references as specified in the regulations;
(c) that the transitional instrument has effect as if references in the transitional instrument to the contracting governments (however described) were references as specified in the regulations;
(d) in the case of a protocol made under a Schedule to the former MDB Agreement—that the transitional instrument has effect as if references to one or more of the following:
(i) the former MDB Agreement;
(ii) provisions of, or Schedules to, the former MDB Agreement;
(iii) other protocols made under Schedules to the former MDB Agreement;
were references as specified in the regulations.
(4) A transitional instrument is:
(a) an instrument of a legislative character; or
(b) an instrument of an administrative character (including a resolution made by the Murray‑Darling Basin Commission); or
(c) a contract, arrangement or understanding;
that was in force immediately before the commencement of this Part, but does not include an Act, a State Act or an Act of a Territory.
239P Things done by, or in relation to, the Murray‑Darling Basin Commission etc. under Acts and instruments
(1) If, before the commencement of this Part, a thing was done by or in relation to the Murray‑Darling Basin Commission, or a committee of the Murray‑Darling Basin Commission, under:
(a) a provision (the authorising provision) of an Act, other than a provision of the MDB Act; or
(b) a provision (the authorising provision) of an instrument made under a provision of an Act, other than a provision of the MDB Act;
then the thing done has effect from that commencement as if it had been done by or in relation to the Authority, or the corresponding committee of the Authority, under the authorising provision as in force from that commencement.
(2) However, if the thing done is included in a class of things specified in the regulations, it has effect from that commencement as if it had been done by or in relation to the person or body specified in the regulations under the authorising provision as in force from that commencement.
(3) This section does not change the time at which the thing was actually done.
(4) The regulations may:
(a) provide that this section does not apply to a specified class of things done; or