Law Reform · Energy & Climate

Qld Govt rush through laws to retrospectively validate ‘legally deficient’ water licences

11 April, 2014

The amendments do not reflect an urgent public need to rush through the legislation and there has been no explanation as to why there are such short timeframes.

On 19 March 2014, the Minister for Natural Resources and Mines, the Queensland Government introduced the Land and Other Legislation Amendment Bill 2014 to the Queensland Parliament. The Bill was then referred to the State Development, Infrastructure and Industry Committee for consideration, open for public comment for 23 days, until 4 April 2014. Below is a summary of EDO Qld’s submission.

Water licences with questionable legal validity should be reassessed

The Government has revealed that the Department of Natural Resources and Mines (DNRM) has made many administrative decisions that are ‘legally deficient’ under the Water Act 2000 (Qld).

The Explanatory Notes to the Bill reveal that DNRM failed to take into account the mandatory decision-making criteria in the Water Act for water licence decisions, including advancing the act’s purpose to promote the ‘efficient use of water’.

To remedy these legal deficiencies, the Bill retrospectively validates those decisions. Retrospectively validating what appears to be a large number of errors significantly undermines the integrity of the water licencing scheme and is a breach of fundamental legislative principles (which is acknowledged by the Government).

The mandatory criteria in the Water Act should not be dispensed with so lightly. EDO Qld considers there should be a separate inquiry to deal with what appears to be significant failures in the decision making process, rather than rushing through legislation to cover the Department’s mistakes.

A comment on the short timeframe

The amendments do not reflect an urgent public need to rush through the legislation and there has been no explanation as to why there are such short timeframes. There was no public consultation on the reform – which has been acknowledged by the Government in the Explanatory Notes.

The introduction of the Bill to Parliament is the first time the Government revealed the proposal to use retrospective legislation to validate invalid water licences.

In most legislatures across Australia, there is an upper house that can consider and scrutinise legislation. As a result of Queensland’s unicameral system (which means there is only one chamber), there is limited opportunity for scrutiny of bills – without prior public consultation, the Committee process is the only opportunity for the scrutiny of bills.

Without allocating sufficient time for the Committee process, this effectively reduces the opportunity for public comment to a draft Bill during the legislative process and should only be adopted in rare, urgent circumstances, which have not been established in this case.

EDO Qld does not support rushed legislation to retrospectively validate the chief-executive’s decisions. In addition to an inquiry to fully investigate the departmental failures that allowed potentially thousands of water licences to be approved, EDO Qld submits that a transparent and accountable way of dealing with this problem is to reassess the applications that may be invalid, rather than retrospectively validating the licences. This would give certainty to Queensland’s water resources and approvals could be conditioned appropriately and according to law.

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.

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