In search of the Floodplain Harvesting Goldilocks Zone
The NSW Government has set itself a 1 July 2021 deadline to implement a floodplain harvesting licensing regime for the five valleys – the Border Rivers, Gwydir, Namoi, Macquarie and Barwon-Darling – that make up the Northern Basin of the Murray-Darling.
Floodplain harvesting is the process of collecting, extracting or impounding water flowing across the floodplain for use in irrigated agriculture (most typically the production of cotton).
It is estimated that floodplain harvesting accounts for between 15 to 35 per cent of the overall surface water take for the Northern Basin.
The implementation of a robust framework for the licensing and monitoring of the extraction of water from the floodplains is essential because these diversions represent the largest taking of water behind water from regulated rivers, unregulated rivers and groundwater sources.
Floodplain harvesting is so divisive because perspectives on the practice vary so widely.
For irrigators within the Northern Basin, floodplain harvesting represents a pragmatic response to the climate, changing government demands and the lack of State-sponsored on-river storage.
Irrigators in the Riverina see the taking of water from the floodplain as nothing short of theft, while environmental groups are concerned about what the current unregulated extraction of water from the floodplains means for downstream river ecosystems and ecosystem services.
The implementation of a floodplain harvesting policy has not been easy for successive NSW governments.
Following an initial announcement on 3 July 2008 by the then Water Minister Nathan Rees, the policy was not adopted until March 2013 under a Coalition Government.
Last year, regulations designed to facilitate the introduction of the licensing framework for floodplain harvesting were disallowed by the NSW Legislative Council.
The State’s Water Minister Melinda Pavey now has a narrow window to implement the licensing framework before the start date.
For the scheme to commence on 1 July 2021, regulations of a machinery nature need to be proclaimed and to survive any move in the Legislative Council to disallow them, water sharing plans in each of the valleys need to be amended to give effect to the licensing requirements and establish the rules by which floodplain harvesting entitlements can be taken, entitlements for individual properties need to be determined and licences need to be issued.
Each one of those steps will require the Government to run the gauntlet of interest groups concerned to ensure that the final framework meets their needs.
For the Government, the challenge will be to seek the goldilocks zone – a volume of entitlements, supported by evidence of historical take and science, that does not result in cuts beyond what the irrigators in the Northern Valleys can reasonably contemplate but that similarly will not require ecologically unacceptable increases in either the individual valley plan limits under the State’s water sharing plans or the wider Murray-Darling Basin sustainable diversion limits.
The NSW Government has released draft entitlements and proposed water sharing rules for the Border Rivers, the Gwydir and the Macquarie. The Government is yet to release draft entitlements or rules for both the Namoi and the Barwon-Darling.
The NSW Parliament does not resume sitting until 4 May 2021, and even then only sits for 13 days between 4 May and 1 July 2021.
If the Government cannot obtain the support of the Labor Party, the easiest path for the Government to avoid having any regulation disallowed is the combination of the votes of the Shooters, Fishers and Farmers Party, the Christian Democratic Party (Fred Nile Group) and the Pauline Hanson’s One Nation Party.
With such a short timeframe and still so much to do, the implementation of the NSW Floodplain Harvesting Policy is looking like it is going to come down to the wire.
Author: Peter Holt
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AustLII cyber law on the map
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AHRC: Independent review into Commonwealth parliamentary workplaces
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OAIC: Amendments to the Privacy (Market and Social Research) Code 2014
Initiated and developed by the Association of Market and Social Research Organisations (AMSRO), the code sets out how AMSRO members must comply with the Australian Privacy Principles in the Privacy Act 1988 in the conduct of market and social research. The Privacy (Market and Social Research) Code 2021 commenced on 22 March 2021. Read more here (04 March 2021).
OAIC: Independent review of the Credit Reporting Code
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OAIC: Our FOI disclosure log
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ACMA reminder, NBN consumer experience rules
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Finance and Public Administration Legislation Committee
Data Availability and Transparency Bill 2020 [Provisions] and Data Availability and Transparency (Consequential Amendments) Bill 2020 [Provisions]. Report by Thursday, 29 April 2021
Operation and management of the Department of Parliamentary Services. On 22 February 2021, the reporting date was extended to 19 May 2021.
Legal and Constitutional Affairs Legislation Committee
National Emergency Declaration Act 2020. The deadline for submission to the inquiry was 26 March 2021.
Judges’ Pensions Amendment (Pension Not Payable for Misconduct) Bill 2020. Report by 5 April 2021.
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IPC feedback on its resources
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JUDCOM: Civil Trials Bench Book – preliminaries
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What factors influence police and court bail decisions?
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Decision restricted  NSWSC 294
HIGH RISK TERRORISM OFFENDER – final hearing – application by the State for extended supervision order – convicted NSW terrorism activity offender – whether Court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious terrorism offence if not kept under supervision under the Terrorism (High Risk Offenders) Act 2017 – where defendant convicted of whipping fellow Muslim to administer Sharia law – where defendant refused to renounce his offending and stated only that he lacked authority to carry out the punishment – defendant’s associations with persons who have engaged in terrorism offences and advocated support for violent extremism and terrorist organisations – where defendant involved in conversion to Islam, as he understood it, of those with whom he came into contact – where defendant was a guide and mentor with engaging personality capable of exerting significant influence over younger or vulnerable persons – relevant risk of commission of serious terrorism offence established – ESO granted subject to conditions.
In the Matter of Richards Contracting Co Management Pty Ltd  NSWCA 34
CIVIL PROCEDURE – parties – proper party – whether the Authority of the Insurers’ Guarantee Fund a proper party to the proceedings
STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – deregistered company – where legislation providing power to reinstate company repealed – Companies (New South Wales) Code (NSW), section 459(6) – whether court has power to reinstate company
STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – Corporations (New South Wales) Act 1990 (NSW), section 85 – whether section of its own force can render applicable repealed co-operative scheme law – where section is not a deeming provision
STATUTORY INTERPRETATION – amendment and repeal – references to repealed statute – accrued statutory rights – Interpretation Act 1987 (NSW), section 30(1)(c) – nature of the rights – Companies (New South Wales) Code 1981 (NSW), section 459(6) – right to seek reinstatement – more than mere locus standi – where person aggrieved – where interests affected by the exercise of the right
STATUTORY INTERPRETATION – literal meaning – natural and ordinary meaning – Workers Compensation Act 1987 (NSW), section 236 – entitlement to payment
WORKERS COMPENSATION – insurance – Insurers’ Guarantee Fund – liability – Workers Compensation Act 1987 (NSW), section 236(2) – whether plaintiff entitled to proceed directly against the Authority – Workers’ Compensation Act 1926 (NSW), section 18(3) – precondition to liability.
Makowska v St George Community Housing Ltd  NSWSC 287
ADMINISTRATIVE LAW – judicial review – alternative relief by way of appeal not availed of – absence of satisfactory explanation – avoidance of time limit for an appeal – avoidance of need to obtain leave to appeal – value of claim small – whether relief should be refused on discretionary grounds
ADMINISTRATIVE LAW – judicial review – decision of Appeal Panel of NCAT – error of law by Tribunal member identified by Appeal Panel – whether Appeal Panel erred in law in dismissing error as immaterial – whether member found breach of duty by landlord entitling tenant to compensation
ADMINISTRATIVE LAW – judicial review – grounds – irrelevant consideration – whether finding of Appeal Panel an irrelevant consideration – overlap of grounds – reliance on “no evidence” and unreasonableness as equivalent to a prohibited consideration – whether error of law
LEASES AND TENANCIES – residential tenancy – right to quiet enjoyment – failure to repair drains resulting in stormwater impeding access to car park – no substantial interference
LEASES AND TENANCIES – residential tenancy – reduction of facilities provided with the residential premises – failure to repair drains resulting in stormwater causing deterioration of lawn in common area – reduction of rent allowed – whether entitlement to compensation.
Moavenian v Transport for NSW  NSWCATAD 77
HUMAN RIGHTS – equal opportunity – whether leave required for complaint to proceed – principles applying to grant of leave
HUMAN RIGHTS – equal opportunity – discrimination on ground of race – qualifying bodies – victimisation.
Zreika v Commissioner of Police  NSWCATAD 76
ADMINISTRATIVE LAW – costs – whether there are special circumstances warranting an award of costs – whether lump sum appropriate.
Imielska v NSW Land and Housing Corporation  NSWCATAD 74
ADMINISTRATIVE LAW – access to government information – conclusive public interest against disclosure – client legal privilege and common interest - overriding public interest against disclosure – prejudice a deliberative process of a government agency – personal information.
Folbigg v Attorney General of New South Wales  NSWCA 44
ADMINISTRATIVE LAW – judicial review – inquiry into criminal convictions – challenge to opinion that no reasonable doubt attended the convictions – whether opinion arbitrary, capricious or irrational – whether relevant material disregarded
ADMINISTRATIVE LAW – procedural fairness – improperly rejecting evidence – test of relevance for purposes of inquiry – failure to consider submissions – failure to consider good character evidence – failing to reopen inquiry
CRIMINAL LAW – post-appeal review – petition to Governor – doubt or question as to person’s guilt – judicial officer appointed to conduct inquiry – legal test to be applied by judicial officer – “reasonable doubt as to guilt of convicted person” – Crimes (Appeal and Review) Act 2001 (NSW), section 82(2)(a)
JUDICIAL REVIEW – justiciability – challenge to opinion of judicial officer holding inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 – whether exercise of prerogative of mercy – whether decisions of intermediate courts of appeal should be followed – whether procedure under Criminal Code (Qld), section 672A, distinguishable.
Bryant v Secretary, Department of Communities and Justice  NSWCATAD 73
ADMINISTRATIVE LAW – freedom of information – access to information – GIPA – public interest considerations in favour of disclosure – public interest considerations against disclosure – balancing exercise.
EEH v Insurance and Care NSW (iCare)  NSWCATAD 72
ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act – questions to assess the application of IPP 9 in the circumstances – what constitutes use for the purposes of IPP 9 – what are reasonable steps to check the accuracy of personal information in the circumstances under IPP 9 (s16 PIPP Act) – relief available where IPP 9 breached but personal information is accurate.
BP7 Pty Ltd v Gavancorp Pty Ltd  NSWSC 265
STATUTORY INTERPRETATION – meaning of “option to purchase” and “option granted for the purchase” in Division 9 of Part 4 of Conveyancing Act 1919 (NSW) – whether “option to purchase” includes put options – held that “option to purchase” should be construed as an option in the nature of a call option that gives holder or grantee the right to purchase property – “option granted for the purchase” has no wider meaning – statutory expressions given ordinary and natural meanings
LAND LAW – options – deeds of put and call option in respect of fourteen strata scheme lots – vendors granted call options to purchaser – purchaser granted put options to vendors – purchaser paid call option fee being 10% of the respective purchase prices – call option fee to be credited as deposit if any option is exercised – call options not exercised by purchaser – put options exercised by vendors – contracts for sale of land deemed to be entered into – purchaser subsequently rescinded contracts for sale relying upon statutory cooling off period – purchaser forfeits 0.25% of the respective purchase prices – whether purchaser is entitled to refund of call option fees less forfeited amount – where call option fees treated as deposits – held that the purchaser is entitled to refund of call option fees less 0.25% of the respective purchase prices – Conveyancing Act 1919 (NSW), section 66V.
Jeray v Blue Mountains City Council  NSWCATAD 67
GOVERNMENT INFORMATION – refusal by agency to deal with application as valid – sec 41(1)(e) GIPA Act- meaning of ‘reasonably necessary information’ in application.
EIG v North Sydney Council  NSWCATAD 66
ADMINISTRATIVE REVIEW – personal information – review of conduct of agency and if in contravention of sections 12 (IPP 5) and 18 (IPP 11) of the Privacy and Personal Information Protection Act 1998 – what are reasonable security safeguards in the circumstances under IPP 5.
Archives and Other Legislation Amendment Bill 2021
HR Third reading agreed to 25/03/2021 – this Bill would strengthen the confidentiality of information given to the Independent Review into the workplaces of Parliamentarians and their staff conducted by the Sex Discrimination Commissioner, by excluding a right of access under the Freedom of Information Act 1982. These proposed amendments would not prevent the Independent Review from publishing such information as it considers appropriate.
Family Law Amendment (Federal Family Violence Orders) Bill 2021
HR 24/03/2021 – the Family Law Amendment (Federal Family Violence Orders) Bill 2021 (the Bill) would amend the Family Law Act 1975 (the Family Law Act) to establish new federal family violence orders which, if breached, can be criminally enforced. Federal family violence orders would offer stronger protection for victims of family violence than existing family law personal protection injunctions which can only be enforced civilly.
Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021
Senate 17/03/2021 – introduced with the Online Safety Bill 2021, the bill: repeals the Enhancing Online Safety Act 2015; makes consequential amendments to 10 Acts; amends the Crimes Act 1914, Export Market Development Grants Act 1997 and Online Safety Act 2021, when enacted, to make amendments contingent on the commencement of certain other Acts; and contains transitional and application provisions.
Online Safety Bill 2021
Senate 17/03/2021 - introduced with the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, the bill: retains and replicates certain provisions in the Enhancing Online Safety Act 2015, including the non-consensual sharing of intimate images scheme; specifies basic online safety expectations; establishes an online content scheme for the removal of certain material; creates a complaints-based removal notice scheme for cyber-abuse being perpetrated against an Australian adult; broadens the cyber-bullying scheme to capture harms occurring on services other than social media; reduces the timeframe for service providers to respond to a removal notice from the eSafety Commissioner; brings providers of app distribution services and internet search engine services into the remit of the new online content scheme; and establishes a power for the eSafety Commissioner to request or require internet service providers to disable access to material depicting, promoting, inciting or instructing in abhorrent violent conduct for time-limited periods in crisis situations.
Higher Education Support Amendment (Freedom of Speech) Act 2021
23/03/2021 – Act No. 22 of 2021 as made.
Spam Regulations 2021
22/03/2021 – these regulations exclude fax messages from the definition of commercial electronic message, and specify conditions with which an electronic address must comply for the purposes of the Spam Act 2003.
Student Identifiers Amendment (Authorised Collection, Use or Disclosure—Regional University Centres Program) Regulations 2021
22/03/2021 – this instrument amends the Student Identifiers Regulation 2014 to provide for the collection, use or disclosure of student identifiers by bodies corporate to whom a grant has been made under the Regional University Centres Program.
Privacy Amendment (Office of the National Rail Safety Regulator) Regulations 2021
22/03/2021 – this instrument amends the Privacy Regulation 2013 to prescribe the Office of the National Rail Safety Regulator (an authority of South Australia) as an organisation under subsection 6F(1) of the Privacy Act 1988.
Regulations and other miscellaneous instruments
Road Transport Legislation Amendment (Offensive Advertising) Regulation 2021 (2021-136) – published LW 26 March 2021
Non-Government – 19 March 2021
Independent Commission Against Corruption Amendment (Publication of Ministerial Register of Interests) Bill 2021
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.