An Act to ratify certain agreements made between the States of New South Wales and Queensland relating to the Severn, Dumaresq, Macintyre and Barwon Rivers, and for other purposes
Long title sub 1993 No. 31 s 5
Preamble om 1993 No. 31 s 6
pt 1 hdg sub 2001 No. 55 s 2 sch
This Act may be cited as the New South Wales-Queensland Border Rivers Act 1946.
This Act shall bind the Crown.
In this Act—agreement means the original agreement, as amended by—(a)the first amending agreement; and(b)the second amending agreement; and(c)the third amending agreement.s 4 def agreement ins 1993 No. 31 s 7 (2)
amd 2001 No. 55 s 3 (3)
Border Rivers ...s 4 def Border Rivers om 1968 No. 46 s 5 (a)
Carrier Rivers ...s 4 def Carrier Rivers om 1968 No. 46 s 5 (b)
constructing authority means the contracting government by which any works under this Act are constructed or to be constructed, or any authority constituted or appointed for the purpose of such construction.contracting government means a government which is a party to the agreement.controlling authority, where used in reference to a State, means any government department or authority of that State which under the laws of that State is authorised or required to exercise the powers and fulfil the obligations by this agreement conferred or imposed upon a controlling authority.diversion includes abstraction, impounding, and appropriation of water that diminishes or retards the volume of flow of a river.first amending agreement means the agreement a copy of which is set out in schedule 2.s 4 def first amending agreement ins 1993 No. 31 s 7 (2)
government gazette means the government gazette of the State of New South Wales or Queensland (as the case may require).Governor ...s 4 def Governor om 1993 No. 31 s 7 (1)
land includes Crown lands and buildings, messuages, tenements, and hereditaments of any tenure, and any easement, right, or privilege in, over, or affecting any land.maintenance includes repairs and improvements.Minister ...s 4 def Minister om 1968 No. 46 s 5 (c)
original agreement means the agreement a copy of which is set out in schedule 1.s 4 def original agreement ins 1993 No. 31 s 7 (2)
Person ...s 4 def Person om 1993 No. 31 s 7 (1)
Premier ...s 4 def Premier om 1993 No. 31 s 7 (1)
Prescribed ...s 4 def Prescribed om 1993 No. 31 s 7 (1)
proclamation means proclamation by the Governor in Council of the State of New South Wales or Queensland published in the government gazette of that State.purposes of this Act includes purposes of the agreement.river and tributary, respectively, include any affluent, effluent, creek, anabranch, or extension of, and any lake or lagoon connected with, the river or tributary.second amending agreement means the agreement a copy of which is set out in schedule 3.s 4 def second amending agreement ins 1993 No. 31 s 7 (2)
The Agreement ...s 4 def The Agreement om 1993 No. 31 s 7 (1)
the commission means the Dumaresq–Barwon Border Rivers Commission appointed for the purposes of this Act.The Schedule ...s 4 def The Schedule om 1993 No. 31 s 7 (1)
third amending agreement means the agreement a copy of which is in schedule 4.s 4 def third amending agreement ins 2001 No. 55 s 3 (2)
this Act means this Act, the agreement, and any regulations made under this Act.under this Act includes under the agreement.s 4 sub 2001 No. 55 s 3 (1)
pt 2 hdg ins 1993 No. 31 s 8
sub 2001 No. 55 s 2 sch
Each of the following agreements is ratified—(a)the original agreement;(b)the first amending agreement;(c)the second amending agreement;(d)the third amending agreement.s 5 sub 1993 No. 31 s 9
amd 2001 No. 55 s 4
While the agreement continues to be binding on the State of New South Wales, it is binding on the State of Queensland.s 5A ins 1993 No. 31 s 9
pt 3 hdg sub 2001 No. 55 s 2 sch
6Regulations made by the commission
(1)The commission may make regulations—(a)for or relating to—(i)the times and places of its meetings;(ii)the conduct of its proceedings;(iii)the duties and the control, supervision, and guidance of its officers and servants, and the time and mode in which they shall account to the commission for all moneys received by them on its behalf or account;(iv)the mode of making and the management and carrying out of contracts of the commission;(b)prescribing what business shall be deemed formal for the purposes of the agreement;(c)prescribing a penalty not exceeding $100 for a breach of any such regulations.(2)Every regulation under this section, on being published in the government gazette of each of the States of New South Wales and Queensland, shall take effect from the date of the last of such publications, or from a later date specified in the regulation.(3)In addition, regulations under subsection (1)(a) and (b) shall be laid before both Houses of Parliament of the State of New South Wales and before the Legislative Assembly of the State of Queensland within 14 sitting days after the date of the last publication thereof as aforesaid if Parliament is then in session, and, if not, then within 14 sitting days after the commencement of the next sitting of Parliament.(4)If either House of Parliament of New South Wales or the Legislative Assembly of Queensland passes a resolution (of which notice has been given at any time within 15 sitting days after such regulations have been laid before such House) disallowing such regulation such regulation shall thereupon cease to have effect.(5)For the purpose of this section—sitting days means days on which the House actually sits for the despatch of business.
The regulations of the commission made and to take effect pursuant to this Act shall have the force of law.
The production of a document purporting to be a copy of any such regulation, and to be signed by a commissioner or the secretary of the commission, or of a government gazette in which such regulation was published shall be prima facie evidence that such regulation was made and is in force.
For the purposes of this Act the commission and any person authorised by the commission may enter any lands and shall have free access to all works.
10Writ to enforce performance of duty of commission
The commission or a commissioner may be compelled, by mandamus or other writ issuing from the Supreme Court of either of the said States or (so far as the High Court has or may be invested with jurisdiction in the matter) from the High Court, to perform any of the duties of the commission or the commissioner (as the case may be) under this Act.
11Orders of the commission to bind
Subject to this Act and the agreement the orders, determinations, decisions, and declarations of the commission made in the exercise of its powers and discharge of its duties shall bind the Government and all persons and corporations, and may be made a rule or order of the Supreme Court and shall be enforceable accordingly.
12Evidence of records of commission
Every minute or record of the proceedings of the commission, if signed by the commissioners, or a copy thereof certified as correct under the hand of a commissioner or the secretary of the commission, shall be presumed to be correct until the contrary is proved.
13Saving of rights of State officers
The existing and accruing rights of a person in the public service or in the employment of any authority constituted by or under any Act shall not be affected by reason of the person being appointed a commissioner or being appointed or employed as an officer or servant by the commission; and service as a commissioner or as such officer or servant shall count as service in the public service of Queensland or in the employment of any such authority.
pt 4 hdg sub 2001 No. 55 s 2 sch
14Construction of works authorised
Subject to this Act and the agreement, the construction in Queensland of the works to be constructed under the agreement by Queensland is hereby authorised.
The works to be constructed under the agreement by Queensland shall be constructed, maintained, operated, and controlled under, subject to and in accordance with this Act and the agreement by the State.s 15 amd 1967 No. 48 s 3 (2) sch 1; 1992 No. 15 s 13 sch; 2000 No. 26 s 12 sch 1
16Construction of works in Queensland by New South Wales
(1)Subject to this Act the construction in Queensland of so much of the works to be constructed under the agreement by New South Wales as will be situated in this State is hereby authorised.(2)So much of the works to be constructed under the agreement by New South Wales as will be situated in Queensland may be constructed, maintained, operated, and controlled under, subject to, and in accordance with this Act and the agreement by the Crown in the right of the State of New South Wales, or by any corporation, instrumentality or person authorised in that behalf by the Governor of that State, and the Crown in the right of the State of New South Wales or such authorised corporation, instrumentality, or person may do in this State all such acts, matters, and things as are necessary in or for the purposes of the construction, maintenance, operation, and control of such works or any of them.(3)Subject to the approval of the Governor any land in Queensland required for such works or any of them may be taken by the State in the same manner as if such land were required by the said commissioner for works referred to in section 15.(4)Notwithstanding anything contained in any Act relating to industrial arbitration or any award or agreement made thereunder or pursuant thereto it shall be lawful for the Crown in the right of New South Wales or any authority, instrumentality, or person thereto authorised by it in constructing, undertaking, carrying out, establishing, carrying on, maintaining, managing or controlling in the State of Queensland any work required to be constructed, undertaken, carried out, established, carried on, maintained, managed or controlled by it under this Act and the agreement to observe the same conditions and pay the same wages as would prevail if such work were being undertaken or performed in the State of New South Wales.s 16 amd 1992 No. 15 s 13 sch; 2000 No. 26 s 12 sch 1
pt 5 hdg sub 2001 No. 55 s 2 sch
s 17 om 1967 No. 48 s 3 (2) sch 1
18Notice to be given in action for compensation
No action, claim, or other proceeding for compensation for damage occasioned by the construction or maintenance of works under this Act shall be maintainable unless—(a)notice in writing stating the nature and extent of the damage complained of has been furnished to the constructing authority within 6 months after the damage in respect of which the notice is given has been occasioned; and(b)after giving the notice the person claiming compensation proceeds without unreasonable delay to obtain such compensation.
19Rules to be applied in determining compensation
In determining whether any and what compensation for such damage is to be made, the court shall in each case have regard to and is hereby empowered and directed to apply the following principles—(a)no compensation shall be awarded save in respect of some item set forth in the notice in writing stating the nature and extent of the injury complained of furnished to the constructing authority as hereinbefore provided;(b)no compensation shall be awarded for any diminution or deterioration of the supply of water to which any person may be entitled, unless such diminution or deterioration is such as to deprive the claimant of a supply of water previously legally enjoyed by him or her, and unless such diminution or deterioration is the direct and will be the permanent result of the completed works;(c)no compensation shall be made for the taking or diverting of any water which the constructing authority is empowered by or under this Act to take or divert either permanently or temporarily from any river, creek, stream or watercourse, lake, lagoon, swamp or marsh;(d)there shall be considered in reduction of all claims for compensation for injury, whether by reason of the execution of any works under this Act, any, and if so what, enhancement in value of any property of the claimant, wherever situate, has been directly or indirectly caused, and whether any, and if so what, immediate or proximate benefit has been gained by or become available to such claimant by reason of the construction or use of such works; and a deduction shall be made accordingly from the amount which, but for this paragraph, would have been paid or payable as compensation;(e)the measure of damages shall in all cases be the direct pecuniary injury to the claimant by the loss of something of substantial benefit accrued or accruing, and shall not include remote, indirect, or speculative damages;(f)where the injury complained of appears to be of a permanent or continuing character, or likely to be repeated, a sum may be awarded which the court may declare to be a compensation for all injury, loss, or damage sustained in respect of the matter complained of to the date of the bringing of the action, and also for all future injury, loss, or damage, in respect of the same matter; and after such award no further compensation shall be made in respect of any such future injury, loss, or damage.
20Stay of proceedings until completion of works
If compensation is sought to be recovered for any such injury alleged to be the result of the execution of works which at the time of the alleged injury and of the claim to compensation in respect thereof are incomplete, it shall be lawful for any judge of the Supreme Court, upon an application by the constructing authority, made without action, and either by summons or by motion upon notice to the claimant for compensation, to make an order directing that the proceedings upon the claim for compensation shall be stayed until the completion of such works or for such period to be stated in the order as the judge may consider sufficient for the completion of such works, and the proceedings to recover such compensation shall be stayed accordingly; but at the expiration of the stay limited in such order the claimant shall be at liberty to resume his or her proceedings for the recovery of such compensation without commencing any fresh proceedings.
21Compensation for injury to interests in reversion
(1)Where such compensation is sought to be recovered in respect of any acts causing or likely to cause the same kind of injury to the same property, and such acts may injure interests in reversion as well as in possession of such property, the person claiming compensation shall, before any sum is awarded as compensation, satisfy the court as to the nature and extent of the respective estates or interests in such property of such claimant and all other persons (if any) said to be injured, and that the claimant has given sufficient notice to all such other persons of the claimant’s proceedings to obtain compensation under this Act.(2)All such other persons, whether they have received such notice or not, who may appear before the court shall be entitled to be heard on behalf of their respective interests in the compensation to be awarded.(3)In awarding any sum by way of compensation for such injury the court shall award and apportion as between such claimant and such other persons in such manner in all respects as to such court may seem fit the amounts to be received by any or some or all of them respectively out of such sum as compensation for all injury of the same kind caused or likely to result to the respective interests of such claimant or other persons in such property.(4)Such amounts shall be received by such claimant or other persons, and shall be in full discharge and satisfaction of the claims of such persons to compensation in respect of the matter complained of, and of all future injury, loss, or damage in respect of the same matter.(5)Any person to whom any such sum has been awarded or apportioned as aforesaid shall have all such remedies and means of recovering the said sum from the constructing authority against which the claim has been made as though such person had originally been a plaintiff in the action in which such award or apportionment has been so made.
pt 6 hdg sub 2001 No. 55 s 2 sch
The Governor in Council may, for carrying out any of the purposes of this Act for which the commission is not empowered to make regulations, make regulations and provide a penalty not exceeding $100 for any breach thereof.s 22 amd 1993 No. 31 s 10; 2001 No. 55 s 2 sch
pt 7 hdg sub 2001 No. 55 s 2 sch
hdg prec s 24 om 2001 No. 55 s 2 sch
22AAuthorisation of department in which Water Act 2000 administered
The department in which the Water Act 2000 is administered is authorised in relation to the State of Queensland to exercise the powers conferred and fulfil the obligations imposed by the agreement on a controlling authority.s 22A ins 2020 No. 14 s 167
23Appointment of commissioner and deputy commissioner
The Governor may, under this Act, appoint a commissioner and, when and so often as may be necessary, a deputy commissioner, who shall respectively be paid, such salaries as the Governor shall determine.
s 24 om 1993 No. 31 s 11
Every person who unlawfully and maliciously destroys or damages, or attempts to destroy or damage, any works or portion of works under this Act shall in addition to any penalty provided by regulations under this Act be guilty of a crime and liable on conviction on indictment to imprisonment for any term not exceeding 10 years.
26Evidence of arbitrator’s decision
A document signed by and purporting to contain the decision of an arbitrator appointed under the provisions of the agreement shall be evidence of such decision.
27Exemption from rates and taxes
No rates, taxes, or charges whatsoever (whether local government or not) shall be imposed, made, or levied, in respect of any works under this Act, or in respect of any land or other property held by any contracting government or constructing authority for the purposes of such works.
All proceedings and penalties for offences against or breaches of any regulations made under this Act not being indictable offences shall be heard and determined and be recovered in a summary way by complaint under the Justices Act 1886.
29Reports to be laid before Parliament
All reports, statements, and estimates received under this Act by the Governor shall be laid before Parliament without delay.
Consistent with the provisions of the Act, this schedule only contains the proposed agreement authorised to be entered into by the Act as originally enacted. It does not purport to be either the agreement actually entered into or that agreement as amended from time to time.
sch 1 amd 1993 No. 31 s 12
section 4, definition first amending agreement
sch 2 ins 1993 No. 31 s 13
amd 2001 No. 55 s 5
section 4, definition “second amending agreement”
sch 3 ins 1993 No. 31 s 13
amd 2001 No. 55 s 6
section 4, definition third amending agreement
sch 4 ins 2001 No. 55 s 7