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.
In the media
ACCC warning on "screen scraping" and CDR
data
Any information gained by combining CDR data with other
sources, including screen scraping, would be treated as CDR data,
the ACCC said, requiring higher standards of consent, privacy and
security (28 March 2021). More...
New law protects pets from domestic violence
Domestic violence victim-survivors and their companion
animals will have greater protections from abuse under new laws
that commenced this weekend (28 March 2021). More...
Integrity summit to focus on lobbying and the public
sector
Representatives from integrity agencies across Australia
will put lobbying practices and their influence on the public
sector under the microscope at an integrity summit to be held in
Brisbane. The summit will hear from integrity practitioners who are
responsible for overseeing or administering legislation pertaining
to lobbying government officials (23 March 2021). More...
What factors influence police and court bail
decisions
BOCSAR has found that legal factors had the largest impact
on police and court decisions to refuse bail. The strongest
predictors of bail refusal were whether the offence carried a
presumption against bail, offence seriousness, concurrent charges,
prior offending and prior imprisonment (23 March 2021). More...
ICAC finds former Canterbury City Council councillors
and senior staff corrupt, recommends tighter planning safeguards in
NSW
The NSW ICAC has found former Canterbury City Council
councillors Michael Hawatt and Pierre Azzi, and then director of
city planning Spiro Stavis, engaged in serious corrupt conduct by
dishonestly and partially exercising their official functions
through misusing their positions in relation to planning proposals
and applications at the Council (22 March 2021). More...
Gaetjens report
The committee's final report, tabled on 19 March 2021, recommends
the government immediately fund all projects that were assessed as
meritorious and recommended by Sport Australia but dismissed in the
final ministerial funding decision.
Path cleared for demerger process to begin
The Morrison Government has cleared the way for individual
parts of amalgamated registered organisations - unions or employer
organisations - to begin the process of breaking away from their
larger organisations. Regulations detailing the demerger process,
including the rules for conducting ballots of members, were made by
the Governor-General (19 March 2021).
New laws to overturn unfair child abuse payouts
Many survivors of institutional child abuse will be
empowered to pursue fairer compensation, under reforms to be
introduced to NSW Parliament by Attorney General Mark Speakman (17
March 2021). More...
ATO awards $11 million contract for face scanning
technology
A UK-based biometrics company will provide face scanning
technology for the government's myGovID program. The technology
means users will be able to confirm their myGovID digital identity
by scanning their face on a mobile device in order to access
digital government services. The government says facial scanning
will prevent digital identity fraud (17 March 2021). More...
In practice and courts
Federal Circuit Court of Australia - judicial
appointment
The Federal Circuit Court of Australia is delighted to
announce the appointment of Mr Christopher John Bowrey, a family
law solicitor in Townsville, as a judge of the Federal Circuit
Court of Australia in the Townsville Registry, commencing Monday,
22 March 2021. Read the media release here.
AAT Bulletin
The AAT Bulletin is a weekly publication containing a list
of recent AAT decisions and information relating to appeals against
AAT decisions, including immigration and citizenship. Issue No. 6/2021, 22 March 2021.
AustLII cyber law on the map
AustLII has announced the upcoming launch of the Cyber Law Map, an annotated guide to
Australian cyber-related legislation and case law which is intended
to be an evolving wiki categorising cyber law and case
information.
AHRC: Independent review into Commonwealth parliamentary
workplaces
The Commission will not be investigating nor making
findings about individual allegations of bullying, sexual
harassment or sexual assault as part of the review. The
Commission will report on its findings and recommendations in a
report to be tabled in Parliament in November 2021. The terms of
reference outline the scope of the review in more detail. Download
the PDF.
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
In April 2021, the Australian Information Commissioner and
Privacy Commissioner will tender for an independent review of
the Privacy (Credit Reporting) Code
2014 (CR Code). This review is an
opportunity to explore how the CR Code is operating in practice.
Click here for updates and here to read more about the Code (26
March 2021).
OAIC: Our FOI disclosure log
The information described in our disclosure log has been
released by the OAIC under the Freedom of Information Act 1982 (FOI
Act): Reference number FOIREQ21/00013, date of access 23 March 2021
FOI request. A copy of Privacy Impact Assessment report for the
joint OAIC ACCC Complaint Handling System for the Consumer Data
Right - Other information Partial access provided - 24
March 2021. Read more here.
ACMA reminder, NBN consumer experience rules
ACMA has enhanced NBN
consumer experience rules to protect Australians during
the final phase of the NBN migration. The enhancements have been
made to the following rules: Service
Continuity Standard; Service
Migration Determination; Consumer
Information Standard; Complaints Handling Standard. The enhancements
to the Service Continuity Standard and Service Migration
Determination started on 14 December 2020, while most enhancements
to the Complaints Handling Standard and Consumer Information
Standard will start on 1 April 2021. Read more here.
LSC: Regulation of litigation funding schemes
The Legal Services Council has amended the Legal
Profession Uniform General Rules 2015 with effect from 22 August
2020 so the prohibitions in section 258(1) and (3) of the Legal
Profession Uniform Law do not apply in relation to litigation
funding schemes now regulated as managed investment schemes. The
new rule will operate for 12 months to allow for consultation. See
the Legal Services Council website.
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.
COVID-19: Information for attending court - 26 March
2021
The New South Wales Bar Association's consolidated
guide to COVID-19-related court arrangements has
again been updated in terms of recent developments.
Local court of NSW - Chief Magistrate's Memo No 17 -
COVID-19
Given the significant reduction in restrictions by
Government, the Chief Magistrate has rescinded all previous
COVID-19 memoranda and replaced them with the attached memorandum
effective from 29 March 2021. The Chief Magistrate's memorandum
is available here.
Legal Aid NSW: New eligibility policy for criminal
contempt matters
The Legal Aid NSW Board has approved a new eligibility
policy to cover some criminal contempt of court matters. The policy
covers defended proceedings, sentence proceedings and discharge
proceedings. The policy applies to applications determined on or
after 22 March 2021. For details of the change see Policy Bulletin 2021 No. 1 [Contempt of
court].
IPC feedback on its resources
The Information and Privacy Commission NSW is seeking
feedback from people who have used the resources on its
website, by completing the survey. Read
more here (23 March 2021).
IPC Bulletin is now live
17 March 2021 - the IPC Bulletin is produced to support
agencies and organisations with compliance of the IPC's
administered legislation. March 2021 Bulletin is now live.
JUDCOM: Civil Trials Bench Book - preliminaries
Update 43, March 2021. Read more here.
ICAC: Public inquiry into allegations concerning John
Sidoti MP starts Monday
The ICAC's Operation Witney public inquiry into
allegations concerning the State Member for Drummoyne, John Sidoti
MP, started on Monday, 29 March 2021. Read more here.
Published - articles, papers, reports
ALRC InBrief 16 March 2021
Judicial impartiality seminar stimulates important
discussions. On Tuesday 2 March 2020 the Australian Law Reform
Commission (ALRC) co-hosted a panel seminar with
the Australian Academy of Law at the Federal Court of Australia in
Sydney. The expert panel explored issues of public confidence,
apprehended bias, and the modern federal judiciary. Click here to read the brief.
What factors influence police and court bail
decisions?
Ilya Klauzner & Steve Yeong; BOSCAR 23 March 2021.
Crime and Justice Bulletin No. CJB236. Aboriginal / Indigenous
Australians; bail / remand; children, juveniles and young people;
domestic violence; policing. Click here to read more.
The impact of COVID-19 on young people in the criminal
justice system
Nicholas Chan: BOSCAR 25 March 2021. Bureau Brief No.
BB15. 1 COVID-19, young people, remand, sentencing, Children's
Court, Young Offenders Act. Click here to read more.
Cases
Decision
restricted [2021] 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 [2021] 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 [2021] 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 [2021] 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 [2021] 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 [2021] 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 [2021] 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 [2021] 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) [2021] 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 [2021] 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 [2021] 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 [2021] 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.
Legislation
Commonwealth
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.
NSW
Regulations and other miscellaneous instruments
Road Transport Legislation Amendment (Offensive
Advertising) Regulation 2021 (2021-136) - published LW 26
March 2021
Bills introduced Government - 19 March 2021
Civil Liability Amendment (Child Abuse) Bill
2021
COVID-19 Recovery Bill 2021
Local Government Amendment Bill 2021
Non-Government - 19 March 2021
Independent Commission Against Corruption
Amendment (Publication of Ministerial Register of Interests) Bill
2021
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.