Australian Conservation Foundation v WaterNSW

Our client, the Australian Conservation Foundation (ACF), is seeking access to information held by WaterNSW (the NSW Government regulator) about Water Access Licences held by major irrigators on the Barwon-Darling River under the Water Management Act. WaterNSW has denied access to information that ACF argues that the public has a right to know.

ACF argues that the public has a right to know how the NSW Government is regulating and enforcing the use of one of our most vital natural resources, and that transparency is key to public confidence in the regulatory system governing water access and use in the Barwon-Darling Basin.

On behalf of ACF, we are asking the NSW Civil and Administrative Tribunal (Tribunal) to decide that the release of this information is in the public interest.

Background

In December 2016, we applied, on behalf of ACF, for information about the Water Access Licences, and complaints made in respect of potential non-compliance, under NSW freedom of information laws.

WaterNSW released some licensing information in February this year, but much of what our client requested was withheld on the basis that it would prejudice the business affairs of the licence holders, and because WaterNSW was conducting its own investigation into the licences.

On the basis of the information that was released, we wrote to WaterNSW, on behalf of ACF, requesting the regulator to investigate certain alleged breaches of the Water Management Act 2000 that we had identified. WaterNSW advised that it is conducting an investigation into those matters. However, that investigation will not be concluded until November 2017, despite the alleged breaches dating back to 2015.

In May this year, we applied for further information, on behalf of ACF, in respect of other licences held by the irrigators. WaterNSW responded earlier in July by refusing to release the majority of the information sought, again, on the basis that it would prejudice the business affairs of the licence holders.

The information sought is crucial to understanding how the Water Management Act is administered by WaterNSW. Accordingly, the release of the information is likely to inform an issue of significant public importance, that being wheter laws regulating extraction of water from the Barwon-Darling river system are being complied with.

For this reason, on behalf of ACF, we have appealed WaterNSW’s decisions to withhold this information to the Tribunal. ACF will argue that the business affairs exemption does not apply to the information, that adequate reasons for refusal were not provided, and that there is an overriding public interest in disclosure. Access to this information is vital for the public to have confidence that important environmental laws protecting fair and equitable access to Australia’s water resources are being properly administered.

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