Water continued to be a major area of policy development and implementation for the Government this year. AGS teams across Australia assisted the Department of the Environment, Water, Heritage and the Arts (DEWHA) and other agencies with a range of water-related issues. These included drafting of the Murray–Darling Basin Plan, assisting with arrangements and transactions related to developing the water market and the water buy-back scheme. AGS also assisted the Government to successfully defend in the High Court the validity of a Commonwealth funding agreement to reduce groundwater entitlements.
Murray–Darling Basin Plan
During the year, a team of AGS lawyers worked to produce a proposed Murray–Darling Basin Plan (ongoing at 30 June) in accordance with the Water Act 2007 (Cth). This team included Phill White, Marlowe Thompson, Rebecca Eldred and Niamh Lenagh-Maguire, with Jenny Francis as project manager. The team also included Camilla Webster, formerly a senior drafter with the Office of Parliamentary Counsel, as well as a water law specialist, Megan Dyson. The team was supported by Alice Kingsland, client counsel to the Murray–Darling Basin Authority, and Chief General Counsel Robert Orr QC.
The Basin Plan will be a legislative instrument for the purposes of the Legislative Instruments Act 2003 (Cth) and will be legally enforceable.
AGS assisted DEWHA to develop a Water Management Partnership Agreement with each of the Murray–Darling Basin States and continued to advise DEWHA in relation to the drafting and negotiation of a number of project schedules under these agreements. These included a Queensland Government irrigation efficiency program (the Healthy HeadWaters Program) and a collection of bioremediation projects aimed at improving the water quality in some South Australian rivers.
AGS advised DEWHA on options and processes for acquiring a number of different water entitlements, including those that remain legally attached to land, as well as assisting with the transfer of a number of tropical river projects from Land and Water Australia to DEWHA. We also assisted DEWHA to develop 2 water shepherding MOUs and advised on amendments to the Commonwealth’s Snowy Water Inquiry Outcomes Implementation Deed with Victoria and NSW. The AGS team for these projects included Kathryn Grimes, Teresa Miraglia, Robert Cole, Peter Blennerhassett, Adrian Snooks, Kenneth Eagle, Grant Follett and Michael Brann.
In addition, AGS lawyers Kathryn Grimes and Rebecca McGloughlin assisted with the transfer of funding agreements from Land and Water Australia so that an environmental research project could continue to be funded by DEWHA under its Commonwealth Environment Research Facilities program.
An AGS team across our Melbourne, Sydney, Brisbane and Adelaide offices undertook water conveyancing to effect water buy-backs for DEWHA in support of the Water for the Future, Restoring the Balance in the Murray–Darling Basin Program.
In addition, Peter Blennerhassett and Kathryn Grimes assisted DEWHA in developing the Queensland Water Allocation Assignment Contract, required for the Queensland on-farm water use efficiency project.
An AGS team including David Lewis and Asaf Fisher acted for the Commonwealth in ICM Agriculture Pty Ltd v Commonwealth  HCA 51 (ICM) and Arnold v Minister Administering the Water Management Act 2000  HCA 3 (Arnold), in which the High Court upheld the validity of a funding agreement between the Commonwealth and NSW (as well as related Commonwealth and NSW legislation). The agreement enabled NSW to reduce groundwater entitlements under State law to environmentally sustainable levels and gave effect to a grant of financial assistance to NSW under the National Water Commission Act 2004 (Cth).
An AGS team including David Brown and Emily Nance also acted for the Commonwealth in the Federal Court case, Campisi v Commonwealth and Victoria ( FCA 379). The applicant sought to raise a number of questions regarding the validity of the Water Act 2007, s 100 of the Constitution and the Water Act 1989 (Vic). On application by the Commonwealth, supported by Victoria, the Court summarily dismissed the case, finding that the applicant had not identified an immediate right, duty or liability for the Court to determine.
This is an extract from the 2009–10 AGS annual report