Water Resources Amendment Act 2023 (ACT)

The Water Resources Amendment Act 2023 (ACT) was the subject of a legal dispute concerning the preparation and approval of environmental flow guidelines. The case involved the director-general, the Minister, and the authority, each with distinct roles under the Act. The central issue before the court was the process and authority of the director-general in preparing draft environmental flow guidelines for the Minister’s approval, and the extent to which the director-general must consult and consider various impacts and comments during this process.

The court was tasked with interpreting the statutory language and determining the specific duties and considerations the director-general must undertake when preparing the draft guidelines. It examined whether the director-general’s obligation to consult with the authority was mandatory or discretionary, and if the consideration of economic and social impacts was restricted to only when deemed appropriate by the director-general. Additionally, the court evaluated the scope of the director-general’s authority to revise the draft guidelines based on written comments received during the consultation period.

In its reasoning, the court clarified that the director-general must principally consider the ecological needs of aquatic ecosystems when preparing draft environmental flow guidelines. While the director-general may also consider the environmental, economic, and social impacts of the guidelines, this consideration is not compulsory. The court further found that the consultation with the authority is a mandatory requirement, and the director-general must take into account any written comments received during the consultation period, allowing for revisions to the draft guidelines as deemed appropriate. The court’s interpretation affirmed that the director-general’s role is pivotal in ensuring the guidelines balance ecological needs with broader impacts, while maintaining a consultative approach in their preparation.

The final orders confirmed the statutory framework for the preparation and approval of environmental flow guidelines, emphasizing the director-general's role and the mandatory nature of certain consultations. The court's decision provided clarity on the legislative intent behind the drafting process, ensuring a balanced approach to water resource management that aligns with both ecological and broader community interests.