Australian Conservation Foundation v WaterNSW - EDO NSW

Harris & Budvalt Pty Ltd v WaterNSW

Our client, the Australian Conservation Foundation (ACF), sought access to information held by WaterNSW (the NSW Government regulator) about Water Access Licences held under the Water Management Act on the Barwon-Darling River by major irrigators. Following a case lodged by ACF last year, WaterNSW decided to release the information. However, the irrigators have commenced their own case objecting to that decision. ACF argues the public has a right to know about the information.

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 under NSW freedom of information laws.

WaterNSW released some licensing information in February 2017, but much of what our client requested was withheld on the basis that it would prejudice the business affairs of the licence holders.

In May 2017, we applied for further information, on behalf of ACF, in respect of other licences held by the irrigators. WaterNSW responded by refusing to release the majority of the information sought, again, on the basis 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.

For this reason, on behalf of ACF, we appealed WaterNSW’s decisions to withhold the information to the Tribunal in July 2017. Midway through those proceedings, WaterNSW reversed its decision and decided to release the information. However, the irrigators objected to the release of the licensing data and sought a further review by WaterNSW. Ultimately, WaterNSW upheld its decision to release the information and, in late January this year (2018), the irrigators commenced their own proceedings in the Tribunal objecting to the release of the information.

ACF is not a party to those proceedings but, as the original access applicant, has a right to appear and be heard in the proceedings. ACF will argue that there is an overriding public interest in the disclosure of the information it seeks.

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. This was most recently highlighted by the recommendations of the NSW Ombudsman and Ken Matthew’s independent investigations into water management and compliance in NSW.

The matter is next before the Tribunal on 19 June 2018.

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