Floodplain harvesting "not unlawful" but better legislation desperately needed

According to prominent Australian barrister Bret Walker, who appeared before the committee hearing, floodplain harvesting, under the current Water Management Act, is legal, but he said so while being highly critical of the legislation that surrounds it.

Mr Walker, who conducted the South Australian Royal Commission into the Murray Darling Basin, said while the 1912 Water Act, with the Water Management Act 2000, was currently intended to be the governing mechanism for floodplain harvesting, it did not address "in terms" floodplain harvesting.

This created a situation where floodplain harvesting, while perhaps in conflict with the aims of the Acts, did not actually cause an offense under them.

In acknowledging that, he said floodplain harvesting was not unlawful.

"The thing that ought to have been considered more than 100 years ago, that if you do take the water resource into public hands, where I strongly believe it has to be, then it really is part and parcel of that control that you define what people can do, what people can't do, and what follows if the law is broken".

"With respect to floodplain harvesting, including up to today, because although there are provisions that provide for it to be done, as you all know better than anyone else, it hasn't yet been done."

In summing this up, Labor MLC Adam Searle said although floodplain harvesting may not constitute an offence, it may still offend against the Water Management Act, to which Mr Walker agreed.

Mr Walker said such convolutedness demonstrated a failure of our system in that "you need to be a silk as I am in order to find your way around its provisions" and while floodplain harvesting was deemed lawful, he said there remained the potential for works to be unlawful, depending how they were used.

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One example, he said, was where "one land owner may complain that another landowner has prevented the first landowner from enjoying natural flow of water".

He added that when viewed in light of the law of the commons (i.e. the people), "it does not follow that it (floodplain harvesting) is against the Act, but I have to say it's against what might be seen to be the political program of all the water Acts".

"It doesn't mean there's an offense, it doesn't mean there's unlawfulness that it would be sensible to go to court to remedy. It does mean there's a crying need for the legislators to consider what to do," he said.

"It does seem to be that one symbolic way of indicating today the gross inadequacy of the social and governmental history with respect to floodplain harvesting, with respect to NSW, is to reflect on the obscurity to lawyers of the interrelation between the Water Act of 1912, in so far as it survives ... which of course contains, in theory, the State's latest governmental intentions with respect with respect to many other things," he said.

"And as a lawyer ... I think it's a failure of our system if you need to be a full-time lawyer to understand law such as the Water Management Act."

He said there needed to be a statute written in such a way that farmers, graziers, regulators, parliamentarians and people concerned with environmental effect could, without a law degree among them, understand how the public resource of water is regulated for the common good.

Minister for Water, Property and Housing Melinda Pavey said the committee having sought the legal opinion of Mr Walker had been a seminal moment.

"I hope that we can put the concerns about legality behind us and get on with the job of licencing and metering floodplain harvesting," she said.

She said his advice put the impetus squarely back on the shoulders of the legislative council to remove its opposition to the government's floodplain harvesting regulations.

"What I am intending, is to use this legal advise by Bret Walker to get us all into a position where we can actually just get on with the job of measuring water and as as Grant Barnes (from NRAR) said earlier today, we would have actually had more water in the wetlands if this regulation, this licencing, had been in place and hadn't been overturned by the Upper House.

"I really just want to get on with this in a non-political and factual way and I think Bret Walker's evidence and his statement ... gives us clarity of purpose to get that done."

Mr Walker also questioned the Murray Darling Basin Authority's legal reasoning, or lack thereof, around how a sustainable diversion limit may or may not be adjusted according to new information that altered the base diversion limit.

"Do they, or do they not plainly mean that the sustainable diversion limit is affected by the discovery of better information concerning a state of affairs at times past?" he said.

"If it means the SDL simply floats around by reason of better intelligence being found, then that is simply wrong. The law stipulates otherwise concerning the adjustment of an SDL.

"If it means we should always be alert of getting better information, even including about the past, I completely agree."

Murray Darling Basin Authority Basin Plan portfolio executive director, Tim Goodes, said on Tuesday BDLs were expected to change as water resource plans were developed because improved information about water use was available and needed to be incorporated.

Because the SDL and the BDL were linked, "changes to the BDL will impact on the SDL".

"When the Basin Plan was made in 2012, not all floodplain harvesting was fully known or accounted for under the limits," Mr Goodes said.

"Governments are committed to obtaining more information about these diversions, and continuously improving, measurement and monitoring. This means the BDL estimates will continue to be improved through the development of water resource plans.

"The limits will continue to change as new information is incorporated into the plans. The BDL will be adjusted, and the SDL is linked and will therefore change accordingly."

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