Water (Commonwealth Powers) Act 2008

refer certain matters relating to water management to the Commonwealth Parliament for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth; and

amend the Murray-Darling Basin Act 1993 to provide for the carrying out of an agreement between the Commonwealth, New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory with regard to the water resources of the Murray-Darling Basin, to repeal all provision in that Act as to any former agreement revoked by that agreement; and

make consequential amendments to the Snowy Hydro Corporatisation Act 1997 and the Water Act 1989; and

to repeal the Murray-Darling Basin Amendment Act 2007.

Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

If a provision of this Act does not come into operation before 1 July 2009 it comes into operation on that day.

In this Part—

core human consumption requirements in urban and rural areas; and

those non-human consumption requirements that a failure to meet would cause prohibitively high social, economic or national security costs;

the initial reference; or

the amendment reference;

the powers, functions and duties of Commonwealth agencies that—

relate to Basin water resources; and

are conferred by or under the Murray-Darling Basin Agreement;

the management of Basin water resources to meet critical human water needs;

water charging in relation to Basin water resources (other than for urban water supply after the removal of the water from a Basin water resource);

the transformation of entitlements to water from a Basin water resource to enable trading in those water entitlements;

the application, in relation to water resources that are not Basin water resources, of provisions of the Commonwealth Water Act dealing with the subject-matters specified in paragraphs (c) and (d) (being an application of a kind that is authorised by the law of the State);

the transfer of assets, rights and liabilities of the Murray-Darling Basin Commission to the Murray-Darling Basin Authority established by the Commonwealth Water Act, and other transitional matters relating to the replacement of the Commission;

A reference in this Act to a Part of (or to be inserted in) the Commonwealth Water Act includes a reference to any Schedule to (or to be inserted in) that Act that contains provisions enacted for the purposes of that Part.

The following matters are referred to the Parliament of the Commonwealth—

the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the initial referred provisions in the Commonwealth Water Act in the terms, or substantially in the terms, set out in Schedule 1 of the tabled text;

the referred subject-matters, but only to the extent of the making of laws with respect to any such matter by making express amendments of the Commonwealth Water Act.

The reference of a matter under subsection (1) has effect only—

if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth); and

if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

The operation of each paragraph of subsection (1) is not affected by the other paragraph.

For the avoidance of doubt, it is the intention of the Parliament of the State that—

the Commonwealth Water Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of this Act by provisions of Commonwealth Acts whose operation is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1); and

the Commonwealth Water Act may at any time have its operation affected, otherwise than by express amendment, at any time by provisions of Commonwealth Water Act instruments.

Despite any other provision of this section, a reference under this section has effect for a period—

beginning when this section commences; and

ending at the end of the day fixed under section 5 as the day on which the reference is to terminate—

The Governor in Council may, at any time, by proclamation published in the Government Gazette, fix a day as the day on which—

the references terminate; or

the amendment reference terminates.

The Governor in Council may, by proclamation published in the Government Gazette, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 4) never to have been published.

A revoking proclamation has effect only if published before the day fixed under subsection (1).

The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

If the amendment reference has terminated, the expression the references in subsection (1)(a) refers to the initial reference only.

If the amendment reference terminates before the initial reference, the termination of the amendment reference does not affect—

laws that were made under the amendment reference before that termination (whether or not they have come into operation before that termination); or

the continued operation in the State of the Commonwealth Water Act as in operation immediately before that termination or as subsequently amended or affected by—

laws referred to in paragraph (a) that come into operation after that termination; or

provisions referred to in section 4(4)(a) or (b).

Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless the initial reference is terminated.

Subsection (1) does not apply to or in relation to an amendment of the Commonwealth Water Act that is excluded from the operation of this section by the proclamation that terminates the amendment reference.

For the purposes of subsection (1)—

the laws referred to in subsection (1)(a) include Commonwealth Water Act instruments; and

the reference in subsection (1)(b) to the Commonwealth Water Act as in operation immediately before the termination of the amendment reference includes that legislation as affected by Commonwealth Water Act instruments that have come into operation before that time.

A certificate of the Clerk of the House of Assembly of South Australia certifying that a document is an accurate copy of the tabled text, or is an accurate copy of a particular part or of particular provisions of the tabled text, is admissible in evidence in any proceedings and is evidence—

of the matter certified; and

that the text of the proposed Commonwealth Bill was tabled in the House of Assembly of South Australia as referred to in the definition of tabled text in section 3.

Subsection (1) does not affect any other way in which the tabling or content of the tabled text, or the accuracy of a copy of the tabled text or of a part or provisions of the tabled text, may be established.