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Water Accounting Information and Confidentiality in Australia

Published online by Cambridge University Press:  24 January 2025

Clare McKay  and
Alex Gardner
Clare McKay
Affiliation:
UWA, Solicitor, King & Wood Mallesons
Alex Gardner
Affiliation:
UWA Law School, Adjunct Professor ANU College of Law, Chief Investigator, National Centre for Groundwater Research and Training
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Abstract

A key objective of Australia's recent national water reforms is to keep water licence and entitlement holders accountable for the amounts of water they extract, trade and use. Water metering and the recording and reporting of water extraction and trading data are processes designed to ensure this accountability, and are central to Australia's water accounting regimes. Yet much of the data necessary to ensure compliance with water licences and access entitlements is not publicly available in Australia. This absence of publicly accessible information is due to a lack of rigour and transparency in statutory water accounting regimes. There are also restrictions imposed by water legislation and the laws of privacy and confidentiality that prevent public access to water accounting data, except in aggregated form. Consequently, commercial and industrial water consumers in Australia are not kept accountable for their consumptive water use and water market objectives are unfulfilled, contrary to the express provisions of the Intergovernmental Agreement on a National Water Initiative (‘NWI’). This article argues that statutory and policy frameworks for water accounting in most Australian jurisdictions fail to meet the NWI objectives for national water accounting. In response, it advocates legislative reforms that would facilitate the achievement of these objectives.

Type
Research Article
Information
Federal Law Review , Volume 41 , Issue 1 , March 2013 , pp. 127 - 162
Copyright
Copyright © 2013 The Australian National University

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Footnotes

The authors acknowledge that this article has been prepared with Australian Research Council and National Water Commission funding support through the National Centre for Groundwater Research and Training.

References

1 See generally Bureau of Meteorology, The Water Accounting Story, Australian Government, <http://www.bom.gov.au/water/standards/waterAccStory.shtml>.

2 Intergovernmental Agreement on a National Water Initiative – between the Commonwealth of Australia and the Governments of New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory and the Northern Territory (National Water Commission, 2004) ('NWI 2004’) 17 [80] (emphasis in original).

3 National Water Commission, ‘The National Water Initiative – Securing Australia's Water Future: 2011 Assessment’ (Australian Government, September 2011) [3.3]; James H Skurray, E J Roberts and David J Pannell, ‘Hydrological Challenges to Groundwater Trading: Lessons from the South-West of Western Australia’ (2012) 412-413 Journal of Hydrology 256, 257.

4 See, eg, Water Corporation of Western Australia, ‘Water Forever: Towards Climate Resilience’ (2009) 21, projecting the increase in the population of Perth and its surrounding urban centres.

5 National Water Commission, ‘Framework for Assessing Potential Local and Cumulative Effects of Mining on Groundwater Resources', Report 7: ‘National Synoptic Overview of Groundwater Resource Condition – a Mining Perspective’ (2010).

6 The terminology here is potentially confusing, as is explained in Gardner, Alex, Bartlett, Richard and Gray, Janice, Water Resources Law (LexisNexis, 2009) ch 18.Google Scholar We use the term “licence” to mean a pre-NWI authorisation to “take” water and “access entitlement” to mean those authorisations under NWI consistent legislation. See also the discussion at IIC of this article.

7 The term is cited in Gunningham, Neil, ‘Environment Law, Regulation and Governance: Shifting Architectures’ (2009) 21 Journal of Environmental Law 179, 198.CrossRefGoogle Scholar

8 Gardner, Bartlett and Gray, above n 6, 563 [25.5] and later discussion of State registers; Stoeckel, K et al, Australian Water Law (Thomson Reuters (Professional) Australia, 2012) 227 [5.35]Google Scholar and later discussion of State registers. See also Young, M D and McColl, J C, Robust Separation (CSIRO Land and Water, 2002)Google Scholar; and ACIL Tasman in association with Freehills, An Effective System of Defining Water Property Titles (Land and Water Australia, 2004) especially Part 5.Google Scholar

9 Gunningham, above n 7, 198, citing Karkkainen, Bradley C, ‘Information as Environmental Regulation: TRI Performance Benchmarking, Precursor to a New Paradigm?’ (2001) 89 Georgetown Law Journal 257.Google Scholar The equivalent legislation in Australia is the National Environment Protection (National Pollutant Inventory) Measure: <http://www.npi.gov.au>.

10 Wilson, Emily, ‘Australian Freedom of Information Legislation v The Aarhus Convention; Is Australia Falling Below International Standards?’ (2012) 15(1) The Australasian Journal of Natural Resources Law and Policy 1, 5Google Scholar, and sources there cited.

11 International Network for Environmental Compliance and Enforcement, Principles of Environmental Compliance and Enforcement Handbook (April 2009) 59 <http://www.inece.org/principles>.

12 Skurray, James H, Pandit, Ram and Pannell, David J, ‘Institutional Impediments to Groundwater Trading: The Case of the Gnangara Groundwater System of Western Australia (2012) 15(1) Journal of Environmental Planning and Management 1, 22.Google Scholar The authors note that ‘[a] major impediment to effective trade in the current environment is that there is no publicly available price information'.

13 See Peter Dillon et al, ‘Managed Aquifer Recharge: An Introduction’ (Waterline Report Series No 13, National Water Commission, Australian Government, 2009).

14 National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 108-110 [3.5]–[3.6].

15 Under the Commonwealth Constitution, the Commonwealth government has no power to directly regulate water within Australia. Legislative power to regulate and control water sources and use is a part of the plenary legislative power which rests with Australia's states and territories: see, eg, New South Wales v Commonwealth (1975) 135 CLR 337; ICM Agriculture Pty Ltd v The Commonwealth (2009) 240 CLR 140. However, the federal-state division of legislative power concerning the regulation of Australia's natural water resources is a complex question: see Kildea, Paul and Williams, George, ‘The Constitution and the management of water in Australia's rivers’ (2010) 32 Sydney Law Review 595.Google Scholar

16 Above n 2.

17 See NWI 2004, above n 2, 17-18 [81]–[85].

18 National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 28 [1.1].

19 NWI 2004, above n 2, 6 [31(vii)].

20 Ibid 11 [59]. Paragraph 59 acknowledges that temporary water trades may be recorded by water service providers, but it is implicit in this paragraph that records of trades should be reliable and publicly accessible.

21 It may be useful, at some stage, to do a careful analysis of the legal effect on private interests of the registration and dealing provisions for water entitlements and compare their operation with established law on such matters relating to Torrens title land or mining titles: see, eg, Gardner, Alex and Jorek, Michal, ‘Dealings with Mining Titles under the Mining Act 1978 (WA): Part 1 – requirements of form, consent and registration’ (2005) 24 Australian Resources and Energy Law Journal 342Google Scholar; Gardner, Alex and Jorek, Michal, ‘Dealings with Mining Titles under the Mining Act 1978 (WA): Part 2 – the effect of registration and caveats’ (2006) 25 Australian Resources and Energy Law Journal 41.Google Scholar

22 NWI 2004, above n 2, 6 [31(vi)].

23 Gardner, Bartlett and Gray, above n 6, ch 8 generally.

24 Chasemore v Richards [1843–60] All ER 77.

25 Gardner, Bartlett and Gray, above n 6, 208 [11.2].

26 Ibid chs 9-10.

27 Ibid 217 [12.3], 425–427 [18.3]–[18.6] and 562 [25.3].

28 Ibid 425ff, ch 18.

29 Ibid 627–8 [26.7].

30 National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 50 [1.7].

31 See, eg, Western Australia Department of Water, ‘Metering Fact Sheet’ (Government of Western Australia) 1.

32 Rights in Water and Irrigation Act 1914 (WA) sch 1 cl 46(5).

33 Western Australia Department of Water, above n 31, 1.

34 For this reason, the Commonwealth Government issued a National Framework for Non-urban Water Metering policy paper in 2009 that provides national standards for installating and auditing water meters. This policy provides recommendations for meter selection, installation and maintenance to ensure the reliability and accuracy of the readings provided: Australian Government, ‘National Framework for Non-urban Water Metering: Policy Paper’ (Commonwealth of Australia, 2009), 4ff.

35 Australia is heavily dependent upon groundwater as a source of its industrial and domestic water supply. One of the world's largest aquifer systems, the Great Artesian Basin, supplies much of Australia's water for inland pastoral use. See Godden, Lee, ‘Efficiency and Environmental Sustainability: Using Market Mechanisms for Water Resources Regulation in Australia’ in Burton, Barry (ed), Regulating Energy and Natural Resources (Oxford University Press, 2006) 293, 297.CrossRefGoogle Scholar However, groundwater resources are neither understood nor managed as well as they need to be: see Australian Government, National Water Commission, ‘Groundwater Essentials', (Commonwealth of Australia, 2012) <http://www.nwc.gov.au/__data/assets/pdf_file/0020/21827/Groundwater_essentials.pdf>.

36 National Water Commission, ‘Groundwater Essentials', above n 35, 27. See also Godden, above n 35, 295.

37 National Water Commission, ‘Groundwater Essentials', above n 35, 27.

38 Ibid.

39 Skurray, Pandit and Pannell, above n 12, 1.

40 See, eg, Natural Resources Management Act 2004 (SA) s 226. See also NWI 2004, above n 2.

41 Legislation and policy governing water metering and licencing are at various stages of development in each Australian jurisdiction, largely reflecting the extent to which water reforms have been initiated. Significant differences exist between the statutory and policy frameworks in each state and territory.

42 See above, Part I, 127.

43 See, eg, Water Management Act 2000 (NSW) ss 71, 71A.

44 See, eg, Water Management Act 2000 (NSW) ss 84, 85.

45 We do not consider here the remnant operation of the Water Act 1912 (NSW).

46 Water Management Act 2000 (NSW), s 56(1).

47 Water Management Act 2000 (NSW) ss 71M, 71U.

48 Water Management Act 2000 (NSW) s 71Q.

49 Water Management Act 2000 (NSW) ss 71T, 71V.

50 Water Management Act 2000 (NSW) s 71L(1), (4). See also Government of New South Wales, Office of Water, Dealings and trade (7 March 2012) <http://www.water.nsw.gov.au/Water-Licensing/Dealings-and-trade/default.aspx>.

51 Water Management Act 2000 (NSW) ss 71L(1) and (4) and 71M(4). See also NSW Office of Water website, ibid. The Minister's consent will generally be administered by the NSW Office of Water.

52 Ken Roberts, ‘NSW Interim Water Meter Standards’ (NSW Government, Office of Water, 2009) 5. Accessible at Government of New South Wales, Office of Water, Metering (30 June 2011) <http://www.water.nsw.gov.au/Water-licensing/Metering/Metering/default.aspx>.

53 Government of New South Wales, Office of Water, Metering (30 June 2011) <http://www.water.nsw.gov.au/Water-licensing/Metering/Metering/default.aspx>.

54 This policy aims to increase active monitoring of water extraction and expand water metering in New South Wales: Government of New South Wales, Department of Water and Energy, ‘Water Extraction Monitoring Policy’ (2007) 5.

55 Government of New South Wales, above n 53, 5. On its website, the NSW Office of Water advises water licence and approval holders to check their ‘conditions statement’ for specific recording and metering requirements applicable to their licence. For example, water licence conditions may require water extractors in NSW to have a meter fitted to their extraction works.

56 Roberts, above n 52, 6–7. The Policy states that the metering data should be reported to the Department of Water and Energy, however the Department was replaced by the Office of Water as the water resource manager and regulator in 2009. The Office of Water administers the metering of unregulated systems and groundwater, while State Water, a State owned water services provider, administers the metering of water extraction from regulated rivers that it manages through the operation of dams: Government of NSW, ‘Water Extraction Monitoring Policy', above n 54, 2.

57 Government of New South Wales, above n 54, 5.

58 See above, Part I, 3.

59 See Government of New South Wales, Office of Water, Public Registers (20 March 2012) <http://www.water.nsw.gov.au/Water-licensing/Registers/default.aspx>.

60 Water Management Act 2000 (NSW) ss 71–71C, sch 1A.

61 Water Management Act 2000 (NSW) s 71J(1).

62 Water Management Act 2000 (NSW) s 71J(3)(b). The Access Register is maintained by Land and Property Information NSW on behalf of the Minister for Water and is searchable for a fee.

63 Water Management Act 2000 (NSW) s 84.

64 Water Management Act 2000 (NSW) s 85.

65 The NSW Office of Water provides free on-line access to the register of available water determinations at <http://registers.water.nsw.gov.au/wma/DeterminationSearch.jsp?selectedRegister=Determination>.

66 Water Management (General) Regulation 2011 (NSW) cls 14-15.

67 See especially Water Act 1989 (Vic) pt 3 div 1A, pt 3A, pt 4 div 1A, pts 4A-4B, pt 5A.

68 Water Act 1989 (Vic) ss 8, 51(1)(ba).

69 These strategies include the Northern Region Sustainable Water Strategy (DSE 2009), Gippsland Region Sustainable Water Strategy (DSE 2009), Central Region Sustainable Water Strategy (DSE 2009) and Draft Western Region Sustainable Water Strategy (DSE 2010).

70 Sinclair Knight Merz, ‘Assessment of Groundwater Licensing, Metering and Extraction Estimation Arrangements and Techniques in Australia’ (Waterlines Report No 83, National Water Commission, June 2012) 33.

71 See Department of Sustainability and Environment, Government of Victoria, Monitoring & Reporting: Groundwater Monitoring (13 October 2011) <http://www.water.vic.gov.au/monitoring/groundwater>.

72 Water Act 1989 (Vic) ss 32A(3)(a), 43(g)-(h), 56(1)(xii), 71(ac). The Act also provides for instruments allocating environmental entitlements to stipulate volumetric quantification and accounting procedures for the entitlement: ss 48I(a)–(b).

73 Water Act 1989 (Vic) ss 33H(b), 64Z(3).

74 See, eg, ‘Groundwater Management Plan for the Katunga Groundwater Supply Protection Area 2006', 14. Available in Goulburn-Murray Water, Groundwater Management Plans (5 April 2011) <http://www.g-mwater.com.au>. Such plans have the force of law.

75 Water Act 1989 (Vic) s 84B.

76 Water Act 1989 (Vic) s 84E.

77 Water Act 1989 (Vic) s 84ZF.

78 Water Act 1989 (Vic) s 84ZI.

79 Water Act 1989 (Vic) s 84J.

80 Water Act 1989 (Vic) s 64F. The available regulations seem only to relate to fees: Water (Resources Management) Regulations 2007 (Vic).

81 Water Act 1989 (Vic) s 84ZG.

82 Water Act 1989 (Vic) s 84D(1).

83 Water Act 1989 (Vic) s 84X.

84 Water Act 1989 (Vic) s 84ZA.

85 Water Act 1989 (Vic) ss 84X(3)-(4).

86 Department of Sustainability and Environment, Government of Victoria, Victorian Water Register <http://www.waterregister.vic.gov.au/Default.aspx?TabIndex=0>.

87 Water Act 2000 (Qld) ss 121–122, 127A.

88 Gardner, Bartlett and Gray, above n 23, 426 [18.5].

89 Water Act 2000 (Qld) ss 128-130, 141ff. It is not clear from the legislation how the seasonal water assignment process interacts with the ‘announced allocations'.

90 Water Act 2000 (Qld) ss 206(1), 213, with exceptions noted at s 213(1)(e); such as local government, a water authority, a resource operations licence holder, a petroleum tenure holder and the Commonwealth Environmental Water Holder.

91 Water Act 2000 (Qld) ss 214, 215(1). Where water is to be taken from a resource that is not on, adjacent to or under a licensee's land, the licensee must obtain and register on the land titles register a lease or easement pertaining to the access to land from which the water resource is sourced: s 214(4).

92 Water Act 2000 (Qld) ss 213–14.

93 Gardner, Bartlett and Gray, above n 23, 435 [18.20].

94 Water Act 2000 (Qld) ss 230–35. It is not clear how the statutory provisions for seasonal water assignments interact with the announced allocations under the Water Regulations.

95 Water Act 2000 (Qld ss 121(1)(a), 206.

96 Water Act 2000 (Qld) s 147.

97 Water Act 2000 (Qld) s 148(1).

98 Water Act 2000 (Qld) ss 121–122.

99 Water Act 2000 (Qld) ss 127–127A. Although it may appear that the chief executive has a discretion as to the conditions that he or she may require to be entered on the register (s 127(1)(e)), this interpretation would be inconsistent with the purpose of the register and the effect of s 127A. The details are different if the allocation is not managed under a resource operations licence: s 127(3).

100 Water Act 2000 (Qld) ss 128–130, 150. Strictly speaking, a transfer or lease of an allocation does not require approval by the chief executive; rather it requires notice to the chief executive and then recording by the registrar of water allocations: s 128B.

101 Water Act 2000 (Qld) ss 1007(3)–(4). This allows a search of the land titles register under any Act to reveal the licence document and show that the licence attaches to the relevant land.

102 Water Act 2000 (Qld) ss 122(4), 122A, 123.

103 Water Act 2000 (Qld) ss 127A, 214(2)(b); Water Regulations 2002 (Qld) ss 70–75 and associated definitions of ‘metered entitlements’ and ‘authorisation. See also Water Regulations 2002 (Qld) regs 78–79.

104 Water resource plans ('WRPs’) are essential water planning instruments in Queensland that establish an allocation framework for the plan area's water resources. See Vanessa O'Keefe, ‘A Framework for Managing and Developing Groundwater Trading’ (Waterlines Report Series No 52, National Water Commission, June 2011) Appendix C, 112.

105 Water Act 2000 (Qld) ss 128 ff, 222 ff.

106 Department of Natural Resources and Mines, Government of Queensland, ‘Queensland Metering Water Extractions Policy’ (May 2005) and Department of Environment and Resource Management, ‘Queensland State Implementation Plan for Non-Urban Water Metering’ (2010), both of which are available on the departmental website relating to water metering: <http://www.derm.qld.gov.au/water/use/index.html>. These documents affirm the responsibility of the Department or water service providers to conduct the metering in return for a water metering charge, but they do not say what happens to the metering data.

107 Water Act 2000 (Qld) ss 150, 153.

108 Queensland Government, Department of Environment and Resource Management, Gold Coast Water Resource Account 2010-11, Nov 2011, 11. See also, Queensland Government, Department of Environment and Resource Management, Water Trading: Seasonal Water Assignments and Water Leases, 2009.

109 Water Act 2000 (Qld) ss 1009(1)(n)-(o).

110 Department of Natural Resources and Mines, Government of Queensland, above n 106, 18.

111 Gardner, Bartlett and Gray, above n 23, 431–2 [18.13]–[18.14], 437–8 [18.25].

112 See, eg, Water Management Act 1999 (Tas) ss 95, 103, 120, 121.

113 Rights in Water and Irrigation Act 1914 (WA) s 26GZI(1).

114 Rights in Water and Irrigation Act 1914 (WA) s 26GZJ; Rights in Water and Irrigation Regulations 2000 (WA) reg 48.

115 Rights in Water and Irrigation Act 1914 (WA) sch 1 cl 46.

116 Department of Water, Government of Western Australia, Strategic Policy 5.03 – Metering the Taking of Water (2009) iii, 4. This policy outlines the WA Department of Water's position on water metering in Western Australia.

117 Ibid 11. See also Rights in Water and Irrigation Act 1914 (WA) sch 1 cls 7(5), 15(3), app 1.

118 Sinclair Knight Merz, above n 70, 13.

119 Water metering may also be required for wells associated with small allocations such as stock watering, domestic use and garden irrigation: see Sinclair Knight Merz, above n 70, 13.

120 Rights in Water and Irrigation Act 1914 (WA) ss 26GZJ, 26GZK; Rights in Water and Irrigation Regulations 2000 (WA) reg 48.

121 Sinclair Knight Merz, above n 70, 104.

122 Rights in Water and Irrigation Act 1914 (WA) s 26GZI(3). The WA Department of Water has also created an online access to the register using a simple search function to find basic details of water licences and available water: <http://www.water.wa.gov.au/ags/WaterRegister/>.

123 National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 48 [1.6].

124 See, eg, Water Resources Act 2007 (ACT) s 67.

125 National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 113 [3.6.2].

126 Ibid 113.

127 See generally Skurray, Pandit and Pannell, above n 12.

128 See ibid 2.

129 See, eg, Rights in Water and Irrigation Act 1914 (WA) s 26GZI(3). However, note that some information is freely available via a departmental website: see Government of Victoria, above n 86.

130 Water Act 2007 (Cth) s 123.

131 Water Act 1989 (Vic) s 84X(1).

132 Ibid s 84Y(1).

133 Ibid s 84Y(2).

134 Information Privacy Act 2000 (Vic) s 3.

135 Department of Sustainability and Environment, Government of Victoria, Privacy (12 October 2011) <http://www.water.vic.gov.au/privacy>.

136 See Government of New South Wales, above n 59.

137 Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report No 108 (2008) 164–5. See also the definition of ‘personal information’ in Privacy and Personal Information Protection Act 1998 (NSW) s 4.

138 Privacy and Personal Information Protection Act 1998 (NSW) s 18.

139 Ibid s 57.

140 See Information Privacy Act 2009 (Qld) sch 3 cl 11.

141 Privacy Act 1998 (Cth) s 6. This definition is adopted in substantially the same terms in the Personal and Privacy Information Act 1998 (NSW), Information Privacy Act 2000 (Vic) and the Information Privacy Act 2009 (Qld).

142 See, eg, Privacy and Personal Information Protection Act 1998 (NSW) s 57(1).

143 Water Act 1989 (Vic) s 84Y(1).

144 Ibid s 84Y(2).

145 See Information Privacy Act 2009 (Qld) sch 3 cl 11.

146 Notably, this exception is also subject to three other conditions: (ii) disclosure does not involve the publication of all or any of the personal information in a form that identifies the individual; (iii) it is not practicable to obtain the express or implied agreement of the individual before the disclosure; (iv) the agency is satisfied on reasonable grounds that the relevant entity will not disclose the personal information to another entity: Information Privacy Act 2009 (Qld) sch 3 cl 11(f).

147 Ibid sch 3 cl 11(e)(i).

148 O'Keefe, above n 104, 96.

149 See, eg, Freedom of Information Act 1982 (Cth) s 11.

150 Freedom of Information Act 1982 (Cth) s 4.

151 See below Part V.

152 Water Agencies (Powers) Act 1984 (WA) s 112(1) makes it an offence for any person to misuse any confidential information that the person has by reason of performing any function in the administration of the State's water legislation: discussed below.

153 See, eg, BGC (Australia) Pty Ltd v Fremantle Port Authority (2003) 28 WAR 187.

154 Lord Ashburton v Pape [1913] 2 Ch 469.

155 Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services and Health (1990) 22 FCR 73.

156 Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 443; Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services and Health (1990) 22 FCR 73, 86–87.

157 See, eg, Deputy Commissioner of Taxation v Rettke (1995) 31 IPR 457, 461–2; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587.

158 Dal Point, G E, Chalmers, D R C and Maxton, J K, Equity and Trusts: Commentary and Materials (Lawbook Co., 3rd ed, 2004) 148 [6.25].Google Scholar

159 See Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, 590.

160 Amber Size & Chemical Co Ltd v Menzel [1913] 2 Ch 239, 247.

161 See, eg, RLA Polymers Pty Ltd v Nexus Adhesives Pty Ltd (2011) 280 ALR 125, [42].

162 See Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; Smith Kline & French Laboratories (Australia) Ltd v Secretary to the Department of Community Services and Health (1990) 22 FCR 73.

163 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1983) 156 CLR 414, 438.

164 See R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (Butterworths LexisNexis, 2002) 1134.

165 See Deputy Commissioner of Taxation v Rettke (1995) 31 IPR 457, 461–2 ('Rettke’).

166 Castrol Australia Pty Ltd v EmTech Associates Pty Ltd (1980) 33 ALR 31.

167 (1995) 31 IPR 457 ('Rettke’).

168 Rettke (1995) 31 IPR 457, 462.

169 See above Part III.

170 Ibid.

171 Government of New South Wales, above n 54, 6.

172 In some jurisdictions, water meter readings are provided to government at a corporate rather than individual level. Corporate irrigators, such as the Central Irrigation Trust in South Australia, provide water accounting data to government at an aggregate level, representing extraction volumes for all irrigators within that trust. See below Part VI(A).

173 Interview with Brendan Moran, Standards and Regulation Section, Climate and Water Division, Bureau of Meteorology (Canberra, 16 November 2011).

174 See, eg, Freedom of Information Act 1982 (Vic) s 38; Geelong Community for Good Life Inc v Environmental Protection Authority & Anor [2009] VCAT 2429, [36].

175 See Smith Kline v French Laboratories [1990] 1 AC 64 (‘Smith Kline’).

176 Ibid.

177 Ibid 103–4 (Lord Bridge of Harwich agreeing).

178 See Water Agencies (Powers) Act 1984 (WA) s 112(1).

179 See above Part IV(B)(1).

180 Water Agencies (Powers) Act 1984 (WA) s 112(4).

181 Bennett v President, Human Rights and Equal Opportunity Commission (2003) 134 FCR 334.

182 Freedom of Information Act 1992 (WA); Government Information (Public Access) Act 2009 (NSW); Freedom of Information Act 1991 (SA); Freedom of Information Act 1982 (Vic); Right to Information Act 2009 (Qld); Right to Information Act 2009 (Tas).

183 Freedom of Information Act 1982 (Cth).

184 Osland v Secretary, Department of Justice (2008) 234 CLR 275, 302.

185 See, eg, Freedom of Information Act 1992 (WA) sch 1.

186 Mineralogy Pty Ltd v Department of Environment, Water and Catchment Protection and Yamatji Barna Baba Maaja Aboriginal Corporation [2003] WAICmr 14. Merely expending time and money on the acquisition and compilation of information (in this case, a hydrogeology report submitted in support of a water licence application) does not make the information commercially valuable.

187 Freedom of Information Act 1992 (WA) sch 1 cl 8(4); Freedom of Information Act 1991 (SA) sch 1; Freedom of Information Act 1982 (Vic) Part IV; Right to Information Act 2009 (Qld) s 49(1); Right to Information Act 2009 (Tas) s 33. In NSW, the scheme of the new freedom of information legislation works differently; there is a public interest in disclosure but there may be an overriding public interest in non-disclosure: Government Information (Public Access) Act 2009 (NSW) ss 5, 12–15, especially s 14 Table items 1(d), 3(a), 4(c).

188 Freedom of Information Act 1982 (Cth) pt 4 div 3.

189 See, eg, Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550, 569.

190 (2008) 234 CLR 275, 303 [66].

191 Freedom of Information Act 1992 (WA) sch 1 cl (8)(1) and (2).

192 Ibid sch 1 cl (8)(4) (emphasis added).

193 Freedom of Information Act 1982 (Vic) s 36. Public interest considerations also provide grounds to permit disclosure of information under Victoria's FOI statute. Where a decision is made refusing access to a document sought under FOI, an application may be made to the Victorian Civil and Administrative Tribunal ('VCAT’) to review that decision. Under s 50 of the FOI Act, the VCAT has powers to permit access to exempt documents where the public interest favours disclosure of that document: Freedom of Information Act 1982 (Vic) s 50(4).

194 Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550, 569.

195 See National Water Commission, ‘The National Water Initiative – 2011 Assessment', above n 3, 51 [1.8].

196 See O'Keefe, above n 104, 68; Godden, above n 35, 296.

197 National Water Commission, ‘The National Water Initiative – 2011 Assessment', above n 3, 50 [1.7]; O'Keefe, above n 104, 57. In 2009, the NWC reported that a small minority of water users may have exceeded their water allocations or tampered with water meter and flows. As the NWC noted, ‘[s]uch actions undermine the water security of legitimate water entitlements and frustrate users'. National Water Commission, ‘Australian Water Reform 2009: Second Biennial Assessment of Progress in Implementation of the National Water Initiative’ (Australian Government, September 2009) 59 [3.3.6].

198 Ryall, Aine, ‘Access to Environmental Information in Ireland: Implementation Challenges’ (2011) 23 Journal of Environmental Law 45, 45–6.CrossRefGoogle Scholar

199 See National Water Commission, ‘The National Water Initiative – 2011 Assessment', above n 3, 50 [1.7].

200 See, eg, National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 50 [1.7]; National Water Commission, ‘Australian Water Reform 2009: Second Biennial Assessment of Progress in Implementation of the National Water Initiative’ (Australian Government, September 2009) 59 [3.3.6].

201 See Water Act 2007 (Cth) s 123(2)(a).

202 Water Act 2007 (Cth) s 123(2)(b). Significantly, no public interest consideration applies to this section.

203 See Government of Queensland, above n 106, 18.

204 See above Part III(A).

205 See, eg, Australian Government, National Water Commission, ‘Australian Water Markets Report 2009-2010’ (Commonwealth of Australia, 2010) <http://archive.nwc.gov.au/library/topic/markets/water-markets-report-december-2010>.

206 See Murray-Darling Basin Authority, Water Accounting, Australian Government, Murray-Darling Basin Authority <http://www.mdba.gov.au/water/water-accounting>.

207 See Irrigation New Zealand Inc, ‘Decision Support Systems for Audited Self-Management: Opihi Catchment’ (Contract Report, Project No 2242, Ministry of Environment Report, October 2008) 1.

208 Cameron Holley and Darren Sinclair, ‘When Does Agricultural Management of Groundwater Work?’ (Paper presented at National Ground Water Association Ground Water Summit, Garden Grove, California, 8 May 2012).

209 See S Taylor, ‘Audited Self-management for Regulators', Country-Wide National (1 February 2011) <http://www.country-wide.co.nz/article/12433.html>.

210 Ibid.

211 National Water Commission, ‘The National Water Initiative – 2011 Assessment’, above n 3, 50-51 [1.7]-[1.8].

212 Ibid.

213 Sinclair Knight Merz , above n 70.

214 Ibid.

215 For example, Western Australia's water metering plan has not yet been fully financed. A proposal to increase metering requirements for water licensees in this state has been partially implemented but is unable to proceed further due to lack of resources: see Sinclair Knight Merz, above n 70.

216 National Water Commission, ‘National Performance Report 2009-10: Rural Water Service Providers’ (Australian Government, 2011) 53.

217 Water Act 2007 (Cth) pt 7, ‘Water Information’ Water Regulations 2008, as amended in 2012, and pt 5, ‘Murray-Darling Basin Water Rights Information Service'.

218 See above Part III.

219 See above Part VI. On this point, and more broadly concerning the need for greater transparency in environmental information, see Abbot, J and Marohasy, J, ‘Barriers to Accessing Environmental Information under Australian Freedom of Information’ (2013) 24 Public Law Review 3.Google Scholar

220 NWI 2004, above n 2, 17 [80].