(3) A document approved under this clause may require the Authority to refer to the Committee for the purposes of a determination under clause 33 any specified matter relating to the carrying out of the Authority’s functions in relation to river operations, including any decision that the Authority proposes to make in relation to river operations, that has the potential to have a material effect on State water entitlements.
(4) If a document approved under this clause includes a requirement to refer, the document must specify the criteria to be applied to determine whether a matter has the potential to have a material effect on State water entitlements and thus needs to be referred.
32. Continuation of Resolutions, Practices and Procedures Relating to River Operations
(1) From the commencing day, and until the Committee approves a document under clause 31 the Authority must, subject to a determination under clause 33, carry out the Authority’s functions in relation to river operations in accordance with such of the resolutions, practices and procedures in relation to the Commission’s water business as are in effect immediately before the commencing day.
(2) In this clause “Commission’s water business” has the same meaning as under the former Agreement.
33. Referrals and Determinations in Relation to River Operations
(1) The Authority must refer to the Committee any matter relating to carrying out river operations:
(a) that the document approved under clause 31 requires the Authority to refer; or
(b) that two or more members of the Committee have notified the Authority and the Committee in writing is a matter that should be referred to the Committee because the document approved under clause 31 has not made relevant specifications about the matter, and the matter has the potential to have a material effect on State water entitlements.
(2) A notification made under paragraph (1)(b) may be withdrawn at any time before a determination is made under this clause, by notice in writing given to the Authority and the Committee by the members of the Committee who made the notification.
(3) The Authority must refer to the Committee any decision that the Authority proposes to make in relation to river operations that has the potential to have a material effect on State water entitlements, unless the decision is authorised by the document approved under clause 31 or a previous determination made under this clause.
(4) The Authority may, before the Committee has approved a document under clause 31, refer to the Committee a proposal by the Authority to carry out its functions in relation to river operations in a manner other than in accordance with the resolutions, practices and procedures referred to in clause 32.
(5) If the Authority refers a matter to the Committee under this clause, the Committee must consider the matter and may make a determination in relation to it.
(6) A determination under sub‑clause (5) will be made:
(a) by a unanimous vote of all Committee members present who constitute a quorum; or
(b) by majority vote of the Committee members present who constitute a quorum, if those members by a unanimous vote agree that the resolution will be carried in that way.
(7) If the Committee cannot make a determination in relation to a referred matter, the matter must be referred to the Ministerial Council as if it were a motion submitted by a Committee member for the purposes of clause 140.
(8) After a matter has been referred to the Committee under this clause, the Authority must:
(a) continue to carry out its functions in relation to river operations in accordance with resolutions, practices and procedures that were in effect before the matter was referred; and
(b) in the case of a proposed decision, must not make the decision, until such time as the Committee makes a determination under this clause.
34. Annual Corporate Plan
(1) The Authority must prepare a draft corporate plan, by the date determined by the Ministerial Council, for each reporting period of the Authority under the Public Governance, Performance and Accountability Act 2013 (Commonwealth).
(2) The draft corporate plan must:
(a) state that it is prepared for the purposes of this Agreement; and
(b) subject to paragraph (a), include the same matters in relation to the Authority’s functions under this Agreement as are required to be included in the corporate plan for the Authority prepared for the purposes of section 35 of the Public Governance, Performance and Accountability Act 2013 (Commonwealth) for the reporting period; and
(c) cover the same period as the corporate plan mentioned in paragraph (b) is required to cover.
Note—The corporate plan prepared for section 35 of the Public Governance, Performance and Accountability Act 2013 (Commonwealth) covers all of the Authority’s functions, not just the Authority’s functions under this Agreement. The corporate plan prepared for this clause will be included in the corporate plan prepared for that section (see section 213A of the Water Act).
(3) The draft corporate plan may include any other matters relevant to the Authority’s functions as the Authority sees fit.
(4) The Authority must provide the draft corporate plan to the Committee.
(5) After considering the draft corporate plan, the Committee must submit the draft plan and the Committee’s advice in relation to it, to the Ministerial Council.
(6) After receiving the plan and the advice of the Committee, the Ministerial Council may:
(a) approve the plan with or without amendment; or
(b) refer the plan back to the Authority for further consideration.
34A. Annual work plan
(1) The Authority must prepare a draft work plan, by the date determined by the Ministerial Council, for each reporting period of the Authority under the Public Governance, Performance and Accountability Act 2013 (Commonwealth).
(2) The draft work plan must:
(a) set out the Authority’s activities relating to this Agreement for the next 4 years, including the activities through which the Authority intends to achieve the outcomes and objectives—
(i) set by the Ministerial Council; and
(ii) in respect of river operations, set by the Committee; and
(b) set out new capital works and operational and maintenance programs to be undertaken or required under Part VIII of this Agreement, including as may be required to implement the asset management plan; and
(c) include the budget for the activities, works and programs, which must be developed in accordance with clause 74.
(3) The draft work plan may include any other matters relevant to the Authority’s functions under this Agreement as the Authority sees fit.
(4) The Authority must provide the draft work plan to the Committee.
(5) After considering the draft work plan, the Committee must submit the draft plan, and the Committee’s advice in relation to it, to the Ministerial Council.
(6) After receiving the plan and the advice of the Committee, the Ministerial Council may:
(a) approve the plan with or without amendment; or
(b) refer the plan back to the Authority for further consideration.
35. Amendment of Annual Corporate Plan and Annual Work Plan
(1) If the Authority considers that it is necessary or desirable for there to be a significant variation to the corporate plan or the work plan, the Authority must prepare a draft amendment to the relevant plan and provide it to the Committee.
(1A) If the Ministerial Council requests the Authority to prepare a draft amendment to the corporate plan or the work plan to give effect to a decision of the Ministerial Council, the Authority must prepare the draft amendment and provide it to the Committee.
(2) After considering a draft amendment provided to it under sub‑clause (1) or (1A), the Committee must submit the draft amendment and the Committee’s advice in relation to it, to the Ministerial Council.
(3) After receiving the draft amendment and the advice of the Committee, the Ministerial Council may:
(a) approve the amendment of the relevant plan with or without further amendment; or
(b) refer the draft amendment back to the Authority and request that the Authority make changes to the draft amendment.
35A. Service Level Agreement
The service level agreement between the Ministerial Council and the Authority will set out the key elements of how the Authority will undertake its responsibilities for the joint programmes and other functions under this Agreement encompassing:
(a) the work plan (deliverables, standards, costs, timelines, risk assessment and risk treatment); and
(b) the asset management plan (annual review and delivery); and
(c) the objectives and outcomes document; and
(d) financial and performance reporting; and
(e) management and decision making protocols; and
(f) audit and review processes.
PART VI—APPLICATION OF AGREEMENT TO QUEENSLAND AND THE AUSTRALIAN CAPITAL TERRITORY
36. Application of Agreement to Queensland and the Australian Capital
The provisions of the Agreement apply to the State of Queensland and the Australian Capital Territory except:
(a) for those provisions declared not to apply by this Part; and
(b) to the extent that provisions are modified by this Part; and
(c) where the Ministerial Council or the Committee determines that a provision does not apply pursuant to clause 39.
37. Provisions Not Applying to Queensland
(1) Parts XII, XIII and XIV of the Agreement do not apply to the State of Queensland.
(2) Clause 145 of the Agreement only applies to the State of Queensland in respect of an act, omission or loss incurred, in relation to the bona fide execution of powers:
(a) in or related to the State of Queensland; or
(b) under a provision of the Agreement as it applies to the State of Queensland.
(3) Insofar as any provision of the Agreement bears on a matter set out in sub‑clause (4), that provision does not apply to the State of Queensland.
(4) Sub‑clause (3) applies to:
(a) any issue concerning the design, execution, construction, funding, operation, maintenance, alteration or replacement of any works, measures, policies or strategies solely associated with the management of the upper River Murray and the River Murray in South Australia;
(b) any liability of the Committee or Authority, any Contracting Government or any Constructing Authority in respect of ‑
(i) any matter referred to in paragraph (4)(a); or
(ii) any matter arising under a provision of the Agreement which the Ministerial Council or Committee has determined does not apply to the State of Queensland under clause 39.
(5) Nothing in the Agreement requires the State of Queensland:
(a) to contribute to the costs of, or associated with, remedying any actual or anticipated damage referred to in paragraph 57(c) of the Agreement; or
(b) to meet any compensation for damage paid under clause 84 of the Agreement,
except where the State of Queensland has contributed to the construction, maintenance or operation expenses of the works to which the costs or compensation relate.
38. Provisions not applying to the Australian Capital Territory
(1) Parts XII, XIII and XIV of the Agreement do not apply to the Australian Capital Territory.
(2) Clause 145 of the Agreement only applies to the Australian Capital Territory in respect of an act, omission or loss incurred in relation to the bona fide execution of powers:
(a) in or related to the Australian Capital Territory; or
(b) under a provision of the Agreement as it applies to the Australian Capital Territory.
(3) Insofar as any provision of the Agreement bears on any of the following matters, it does not apply to the Australian Capital Territory:
(a) any matter concerning the design, execution, construction, funding, operation, maintenance, alteration or replacement of any works, measures, policies or strategies solely associated with the management of the upper River Murray and River Murray in South Australia;
(b) any liability of the Committee or Authority, any Contracting Government or any Constructing Authority in respect of:
(i) any matter referred to in paragraph (3)(a); or
(ii) any matter arising under a provision of the Agreement which the Ministerial Council or Committee has determined does not apply to the Australian Capital Territory under clause 39.
(4) Nothing in the Agreement requires the Australian Capital Territory:
(a) to contribute to the costs of or associated with remedying, any actual or anticipated damage referred to in paragraph 57(c) of the Agreement; or
(b) to meet any compensation for damage paid under clause 84 of the Agreement,
except where the Australian Capital Territory has contributed to the construction, maintenance or operation expenses of the works to which the costs or compensation relate.
39. Powers of Ministerial Council and Committee to make determinations
(1) The Ministerial Council or the Committee, as the case may be, may:
(a) determine that a provision of the Agreement does not apply to the State of Queensland or the Australian Capital Territory, or both, either generally or in relation to a particular matter or class of matters; and
(b) revoke any such determination made by it, or any similar such determination made by the former Ministerial Council under the former Agreement.
(2) The Ministerial Council may, at any time, direct that any determination made:
(a) by the Committee under sub‑clause (1); or
(b) by the Commission or the former Ministerial Council under clause 4 of Schedule D or clause 6 of Schedule H of the former Agreement,
is to be deemed to have been either revoked, or altered in any way directed by the Ministerial Council.
(3) The Committee and, if the case requires, the Authority, must give effect to any determination made by the Ministerial Council under sub‑clause (1).
40. Factors to be Considered by Ministerial Council or Committee
(1) In making a determination under clause 39, the Ministerial Council or the Committee must apply the guidelines set out in this clause, unless the Ministerial Council or the Committee, as the case may be, determines otherwise.
(2) A provision should apply to the State of Queensland if:
(a) issues arising under that provision are likely to cause a significant benefit or a significant detriment to Queensland;
(b) any decisions or actions taken within Queensland without reference to that provision might cause significant benefit or significant detriment to any part of the Murray‑Darling Basin within Queensland;
(c) the Government of Queensland has incurred or may incur any financial obligation as a result of that provision.
(3) A provision should not apply to the State of Queensland if issues arising under that provision are only likely to concern that portion of the Murray‑Darling Basin delineated in the plan comprising Schedule C to this Agreement.
(4) A provision should not apply to the Australian Capital Territory unless:
(a) issues arising under that provision are likely to cause a significant benefit or a significant detriment to the Australian Capital Territory; or
(b) any decisions or actions taken within the Australian Capital Territory without reference to that provision might cause significant benefit or significant detriment to any part of the Murray‑Darling Basin within the Australian Capital Territory; or
(c) the Government of the Australian Capital Territory has incurred or may incur any financial obligation as a result of that provision.
41. Application of Previous Ministerial Council Decisions to Queensland
(1) The Ministerial Council may affirm that a policy, determination or decision of the former Ministerial Council applies to the State of Queensland.
(2) Any such policy, determination or decision shall apply to the State of Queensland in whole or in part, or with such modification, as the Ministerial Council decides.
(3) This clause applies only to policies, determinations or decisions made by the former Ministerial Council between 27 August 1986 and the first meeting of the former Ministerial Council after Schedule D of the former Agreement came into force.
(4) Any policy, determination or decision referred to in sub‑clause (3) which is not affirmed by the Ministerial Council under sub‑clause (1) does not apply to Queensland.
42. Application of previous Ministerial Council decisions to the Australian Capital Territory
(1) Except as provided in this clause, every policy, determination or decision made by the former Ministerial Council before it approved Schedule H of the former Agreement, in relation to any provision or matter which, by virtue of this Part, applies in whole or in part to the Australian Capital Territory, applies to the Australian Capital Territory.
(2) If the Ministerial Council allows, the Australian Capital Territory may propose to the Committee that a policy, determination or decision of the former Ministerial Council referred to in sub‑clause (1):
(a) should apply to the Australian Capital Territory; or
(b) should only apply to the Australian Capital Territory with modifications; or
(c) should not apply to the Australian Capital Territory.
(3) The Committee shall consider any proposal made under sub‑clause (2) and may make such recommendations to the Ministerial Council about the proposal, as it thinks fit.
(4) The Ministerial Council, after considering any recommendations made by the Committee, may either:
(a) adopt the proposal, with or without amendments; or
(b) reject the proposal.
(5) Any policy, determination or decision referred to in sub‑clause (1), which is not mentioned in a proposal as adopted by the Ministerial Council under sub‑clause (4), ceases to apply to the Australian Capital Territory on the day on which that proposal is adopted by the Ministerial Council.
PART VII—INVESTIGATION, MEASUREMENT AND MONITORING