Law Reform - EDO NSW

Law reform

We actively engage in environmental policy and law reform.

This work reflects our status as an independent, specialist legal centre. We put forward policy proposals suggesting ways the law can be improved in NSW and Australia. Our proposals may be in the form of:

  • submissions to Governments or parliamentary inquiries
  • proactive reports and consultancy projects
  • policy advice to Governments as a member of expert panels or stakeholder reference groups.

View our recent submissions.

For national environmental matters, we work with colleagues in EDOs of Australia and with national groups, to improve the law and protect the environment.

Review our submissions by topic using the right hand menu or use the search feature below to find a document of interest.

Current opportunities for comment on law reform can be seen at Have Your Say.

Recent Submissions

Barwon-Darling Watercourse Water Resource Plan - EDO NSW submission

October 2019 - download >>

EDO NSW reviewed the draft Water Resource Plan for the Barwon-Darling made by the NSW Government under the Commonwealth Water Act 2007. These key documents are intended to deliver the flow regimes necessary to restore the Basin to health. We were disappointed to find that, in the seven years since Basin Plan 2012 came into effect, the NSW Government has undertaken a process containing multiple legal flaws, most notably in the processes which should have ensured that the environmental watering requirements of the system can be met.

There was also a disappointing failure to provide basic information about whether, and to what extent, the NSW Government has accepted the recommendations of both the Natural Resources Commission and the Independent Inquiry into the fish deaths which occurred over the summer of 2018/2019.

Draft NSW Murray and Lower Darling Surface Water Resource Plan - EDO NSW submission

October 2019 - Download

Water resource plans under the Commonwealth Water Act 2007 are the operational documents which will govern the flows in the rivers of the Murray-Darling Basin. If water resource plans do not comply with the Basin Plan 2012 they will compromise the restoration of the health of the Basin.

The EDO's analysis identifies fundamental errors of law in the preparation of the draft NSW Murray and Lower Darling Surface Water Resource Plan. We recommend that the Risk Assessment be re-done in a lawful way that complies with the Basin Plan 2012 and that an updated draft Water Resource Plan and amendments to the Water Sharing Plan be developed on the basis of that process (and exhibited for further public comment).

Biodiversity Assessment Method Draft - EDO NSW submission

October 2019 - Download this submission

EDO NSW has expressed significant concerns about the implementation of the Biodiversity Conservation Act 2016 and associated regulations and orders, including the Biodiversity Assessment Method (BAM). 

We welcome attempts to provide greater clarity around implementation, to reduce the potential for misinterpretation, to remove inconsistencies, and to provide additional information around some aspects of the BAM. Nonetheless many of our concerns about the broader land management and biodiversity conservation framework in which the BAM operates, including the failure to publish all layers of the Native Vegetation Regulatory Map, remain and we strongly object to some aspects of these draft changes. 

Inquiry into the provisions of the Right to Farm Bill 2019 - EDO NSW submission

October 2019 - Download >>

Based on our experience and expertise as specialist lawyers, we have four key areas of concern with the proposed Bill.

  • First, we see this bill as unnecessary regulation

There is already sufficient regulation of the conduct purportedly targeted – ie. animal welfare activists trespassing on farms. Our view is that the existing legislative framework deals adequately with relevant offences, including trespass, obstruction and criminal damage. We do not support unnecessary or duplicative regulation. 

  • Secondly, we are concerned with the Scope of the Bill

Despite the purported intention of the Bill to target animal welfare activists trespassing on farms, the framing of the aggravated offence is not confined to achieve that objective and can just as easily apply to other kinds of political protestors and protest actions. In addition, the threshold for the commission of the aggravated offence is lowered by the Bill from interfering with the conduct of a business while trespassing to simply hindering the conduct of a business or undertaking while trespassing. The application of the offence is therefore extremely broad and potentially covers activities significantly beyond animal welfare activists.

  • Third, the increased penalties are disproportionate

Despite penalties increases in 2016 – that are awaiting statutory review - the Bill seeks to increase the maximum fine for aggravated trespass again to $22,000, with a potential three year custodial sentence. Such a disproportionate penalty carries with it the potential to create a chilling effect on the preparedness of citizens to participate in legitimate peaceful protest.

The framing of the Bill is sufficiently wide as to capture protest more broadly, rather than what was apparently intended, and therefore apply disproportionately harsh penalties to a wide range of peaceful protest activities. A Bill of such extraordinary breadth must require careful scrutiny in terms of the appropriateness of legislative restraints on the freedom of political communication. 

  • Finally, we are concerned at the adverse effects of the proposed immunity from nuisance for agricultural activities.

The Bill proposes to create a ‘nuisance shield’ through firstly taking the step of removing any right of recourse to the law of nuisance for certain commercial agricultural activities, and secondly, by modifying the discretion of the Court in remedying nuisance. These proposed amendments are not a proportionate response to the problems identified in the Second Reading Speech. The majority of calls we get to the EDO legal advice line concerning nuisance from agricultural activities are actually from neighbouring farmers themselves, so this approach may simply exacerbate those tensions in rural communities. We submit that other options should be applied to address land use conflicts.

In light of these concerns our recommendation is that the bill is unnecessary, disproportionate and should not proceed. If the Bill does proceed, amendments are needed, and debate on the Bill should be deferred until the statutory review of the previous amendments has been completed, including by undertaking fulsome public consultation and evidence-based analysis of the effect of the amendments.

Inquiry into the Local Land Services Amendment (Critically Endangered Ecological Communities) Regulation 2019 and Local Land Services Amendment (Allowable Activities) Regulation 2019 - EDO NSW submission

September 2019 - Download submission

These two Amendment Regulations make changes to the Framework that was established by Part 5A of the LLS Act. EDO NSW has ongoing concerns regarding the implementation of the Framework and its ability to ensure the proper management of natural resources consistent with the principles of ecologically sustainable development.

In our view, the Allowable Activities Regulation will further weaken already lax land clearing laws, contribute further to substantial increases in land clearing rates, and put native vegetation and wildlife at risk.

We recommend that the Allowable Activities Regulation be disallowed.

With respect to the CEEC Regulation, we submit that this needs to be considered in the broader context of the recent listing of Monaro Tableland Cool Temperate Grassy Woodland in the South Eastern Highlands Bioregion and Werriwa Tablelands Cool Temperate Grassy Woodland in the South Eastern Highlands and South East Corner Bioregions as critically endangered ecological communities in NSW, and also changes made by the Land Management (Native Vegetation) Code Amendment (Monaro and Werriwa Grassy Woodland Critically Endangered Ecological Communities) 2019.

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