NSW National Party Water Minister, Melinda Pavey, has been forced to reveal internal government legal advice that suggests most floodplain harvesting without a licence is “on the balance” an offence under NSW water laws.
Minister Pavey failed to reveal the advice during a recent Parliamentary debate on regulations to introduce floodplain harvesting licences, enabling the NSW Irrigators Council to circulate contrary advice while lobbying Members of Parliament to vote to accept the new licensing regime.
The advice was obtained through a parliamentary freedom of information request but legal privilege claimed by the Government prevented anyone other than Legislative Council MPs from reading it. Even Labor’s Shadow Water Minister Clayton Barr was unable to see or be advised about the advice at the time of the disallowance debate.
Under pressure from Independent NSW MP Justin Field, Minister Pavey agreed to waive privilege on the legal advice and the formal Ministerial Briefing on the issue.
Independent NSW MP Justin Field said, “I welcome the release of this important information, but it’s an extraordinary act of bad faith to have allowed this debate to happen without the Government’s own legal advice being in the public realm for all stakeholders and parliamentarians to see and understand.”
“Floodplain harvesting is highly controversial and contested and this legal advice makes it clear that the government has known for some time of the gaps within their legal system. Not making that clear to the public has pitted communities against one another and further entrenched distrust with the way our rivers are managed.”
Questions about the legality of floodplain harvesting have been central to the debate about regulating and licencing this form of water take. The NSW Irrigators Council published their own advice, using it to lobby MPs to oppose the recent disallowance arguing that "The NSWIC legal advice from a leading law firm is unequivocal: disallowing the regulations to reduce, licence and measure floodplain harvesting means continued uncontrolled and unlimited floodplain harvesting that is not subject to rules or metering obligations."
Mr Field said, “It is clear that the Water Minister had advice that directly refuted the claims being made by the Irrigators Council but failed to provide it during the debate.
“The recent ICAC report into Water Management in NSW highlighted systemic favouritism of irrigators interests over the environment and the failure to make public this legal advice suggests that favouritism is continuing.
“The tit for tat over legal advice has to end. We need an open and transparent process to clarify the law, the definitions, the models and the rules for how this type of water take can work fairly for all, including downstream communities and rivers.
“It is clear the Parliament is not prepared to give a blank cheque to the Government to issue billions of dollars in tradable and compensable floodplain harvesting rights when there remains so much uncertainty.
“Minister Pavey has now flagged that the Government intends to introduce legislation in the Spring sitting. The onus is on the Minister to engage with the Labor Opposition, other crossbench parties and stakeholders to negotiate a way forward that will provide certainty to irrigators while ensuring downstream flows are protected and the needs of downstream communities met.”