'PRIVATE' RIGHTS TO WATER IN VICTORIA: FARM DAMS AND
THE MURRAY DARLING BASIN COMMISSION CAP ON DIVERSIONS

FRANCINE ROCHFORD

ABSTRACT:

Under the Murray Darling Basin Commission Cap, the volume of water taken from the Murray-Darling Basin was limited to the volume of water that would have been diverted under the 1993/94 levels of development. The MDBC Cap was viewed as a resource management tool, essential to the management of water, but was to be implemented by each state by a range of appropriate mechanisms. Water could be harvested on an extensive scale by an individual under the 'private rights' to water allowed by s 8(4) of the Water Act 1989 (Vic) prior to its amendment. If included in the total volume of diversions, it would have led to the Cap volume for the River Murray being exceeded. Reductions would have had to be made from the sales pool or by other mechanisms. Farmers and legislators had the example set by developments such as Cubby Station (near Derrunbandi in south-western Queensland, close to the New South Wales border) to illustrate the potential of private rights to disrupt water management, create political conflict and excite interjurisdictional comparisons. To bring diversions into farm dams within the MDBC Cap, amendments were made to the Water Act 1989 (Vic). These amendments were supposed to remove the right to capture overland flows in a farm dam and use the water so stored for irrigation purposes. The amendments were challenged in Ashworth v Victoria. This article considers the background to the amendments to the Act, the case, and its outcome.