New Water Policy and Practice Volume 1, Number 2 - Spring 2015 | Page 70

Water Industry (Law) Reforms

the decade long drought (1999–2009) in 60% of the country, and covering 90% of the
population, the Commonwealth and the State Governments would need to become
increasingly more proactive. None more so than Western Australia (WA) that has
experienced declining rainfall and stream flows into its water supply dams, since 1975
(Department of Water (DoW 2012).

In Australia, water essentially belongs to the Crown, and is invested in the
relevant minister in each state or territory (AECOM 2010). Ultimately, therefore the
government is responsible for delivering water, the essential ingredient to life and health
(United Nations Committee on Economic 2002) to its people. The Commonwealth of
Australian Governments (COAG) reforms were agreed to by all states, territories and the
Australian Government in 1994 (COAG 1994) were significant reforms that provided
for the separation of land and water title rights, enhancing the State Government’s
ability to not only manage water as a separate issue, but also as a tradeable commodity.
This change is significant in that prior to its introduction the value of the water and
access to it was regarded as a “right” that was inextricably linked with the property
rights (or in most cases Riparian Rights1), with the ability to allocate and trade water
previously governed under common law (Fisher 2000). The amount of water that may
be taken or used under this process is not precisely measurable (Gardner, Bartlett, and
Gray 2009) and that trade and transport from riparian lands is restricted.

The introduction of the COAG reform framework through the National
Competition Policy (NCP)2 resulted in radical restructuring of the water industry in
WA, particularly in the areas of water resource allocation, licensing, protection and
planning. The Water Reform Framework allowed for significant changes to occur:
firstly, the creation of the Water and Rivers Commission (WRC)3 in 1996, under
the WRC Act4 to establish a Commission with functions relating to water resources,
including functions under various written laws, and for connected purpose, clear
powers to manage water resources and the environment; secondly, the drafting of
express statuary provisions in regard to water resource planning and protection; and
1

There is a significant volume of literature devoted to the discussion and doctrines of riparian rights.
See mention in Gardner, Bartlett, and Gray (2009, 29). In the main the rights are vested in the access to
water, and regarded as incident to owning the riparian land, viewed as a ‘natural right’ accruing to the
landholder. Gardner, A.W., Bartlett, R.H. and Gray, J. 2009. Water Resources Law (Chatswood, NSW:
LexisNexis Butterworths, 2009).
2
National Competition Policy refers to a set of policies introduced in Australia in the 1990s with the
aim of promoting microeconomic reform. The reforms (based on the Hilmer report) were also used
as the basis for the Competition Principles Agreement reached at the 1995 meeting of the COAG. The
term 'Hilmer reforms' is now used to refer to processes arising from the inter-governmental Competition Principles Agreement and the associated Competition Policy Reform Act 1995 (Cwlth).
3
The WRC was later to become the DoW in 2006, under the Water Resources Legislation Amendment
Bill 2005.
4
The WRC was created under the Water and Rivers Commission Act 1995, with ‘the Act’ being repealed by the Water Resources Legislation Amendment Act 2007 s.189 (No. 38 of 2007) as at February 1,
2008 (see s.2(2) and Gazette January 31, 2008, 251).

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