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 StandardService Migration DeterminationConsumer Information StandardComplaints 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.


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.



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

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.