Meander Dam Project Act 2003

The central concept is the Meander Dam project, defined in s 3 as the construction, commissioning and operation of a dam at a specific grid reference on the Meander River in northern Tasmania, including all associated infrastructure and facilities. The project is tethered to four instruments: the dam permit (granted under the Water Management Act 1999 by the Assessment Committee), the environment protection notice (issued on 10 October 2002 under the Environmental Management and Pollution Control Act 1994), the quarry permit (granted by the Meander Valley Council on 10 December 2002 under the Land Use Planning and Approvals Act 1993), and the deemed water licence under Part 6 of the Water Management Act.

The responsible entity is Tasmanian Irrigation Pty Ltd (ACN 133 148 384) or any subsequent developer or operator of the project - meaning the right to implement the project can be transferred without further legislative approval. The RMPAT decision of 22 January 2003 (reference J12/2003) set aside the dam permit and environment protection notice; the Act’s core function is to reverse that decision.

The Act creates a legislative override mechanism. Section 5(2) and s 7(3) list categories of decisions that are “not reviewable or appealable” under the Judicial Review Act 2000 or any other State law. This ouster extends to the reinstatement of the permit and notice, their validity, their conditions, and the Minister’s determination of initial terms of the deemed water licence, and decisions of the Assessment Committee under s 162 of the Water Management Act in relation to the dam permit.

Reserved land under the Forestry Act 1920 (State forest or forest reserve) loses its protected status under s 8 once it is disturbed, cleared, built on or submerged for the project. The Act does not require a separate excision process; the statutory provision itself effects the change in land status. The responsible Minister must publish a Gazette notice for each of two trigger events (receipt of the work‑as‑executed report and first filling to maximum storage) and then lodge a plan in the Central Plan Register identifying the land that has ceased to be reserved.

A later‑inserted concept is strata titles certification (s 9A, added in 2005). The Minister administering the Water Management Act may, on certifying it is necessary or desirable to give effect to that Act’s objectives, direct that any land in the prescribed location be treated as a lot for the purposes of the Strata Titles Act 1998. This allows the project’s land to be subdivided or owned separately from adjoining land, bypassing normal subdivision approval.

The special licence held by the Hydro‑Electric Corporation for the South Esk River hydro‑electric district is the source of the water allocation that is transferred to the responsible entity under s 7(2)(b). The Minister must approve that transfer under Division 4 of Part 6 of the Water Management Act, but s 7(3)(c) immunises that decision from review.

The Act directly affects Tasmanian Irrigation Pty Ltd (or any subsequent developer or operator) as the responsible entity that gains the right to construct, commission and operate the dam, take water from five named water resources, and modify Crown land for the project. That entity also receives a deemed water licence with initial terms determined solely by the Minister, without any public process or right of challenge.

The Hydro‑Electric Corporation (HEC) is affected because it must transfer a portion of its water allocation from the special licence for the South Esk River hydro‑electric district to the responsible entity. The HEC’s rights under that special licence are diminished, though the Act does not specify compensation. The HEC is also a statutory corporation continued by the Hydro‑Electric Corporation Act 1995 and the Act binds the Crown in right of Tasmania, so the HEC cannot refuse the transfer.

The responsible Minister (the Minister administering the Water Management Act 1999) has several duties: determining the initial terms of the deemed water licence before the works commencement day (s 7(2)(a)), publishing Gazette notices for the reserved‑land trigger events (s 8(4)), lodging a plan in the Central Plan Register (s 8(6)), potentially certifying strata lots (s 9A). The Minister also holds the power to reasonably determine when the dam is first filled to maximum capacity (s 8(3)(b)).

The Meander Valley Council is affected because the quarry permit it granted on 10 December 2002 remains in force and the project must be implemented in accordance with it. However, the Act’s primacy over other laws (s 10) may constrain the Council’s ability to enforce planning or by‑law requirements that would otherwise impede the project.

Holders of property rights near the Meander River and its tributaries - particularly downstream water users, riparian owners, and those with interests in reserved land - are affected because they lose any State‑law avenue to challenge the validity or conditions of the dam permit, environment protection notice, or water licence. The Act does not provide for compensation for lost appeal rights or for any diminution in water availability or land amenity.

Third‑party objectors (environmental groups, residents, agricultural users) who participated in the original RMPAT appeals are effectively shut out from further State‑level review. The Act does not affect federal jurisdiction, but it removes the State‑law remedies that were available before the RMPAT decision.

The Assessment Committee under the Water Management Act is affected because its decisions under s 162 concerning the dam permit are not reviewable under the Act (s 5(2)(e)). This protects the Committee’s original decision from challenge, but also means any future amendments to the dam permit cannot be contested.

The primary right conferred by the Act is on the responsible entity to do all things necessary or expedient to implement the Meander Dam project, but only in accordance with the four listed instruments (dam permit, environment protection notice, quarry permit, water licence) and any prescribed instrument (s 6). This right includes the ability to disturb, clear, excavate, build on, submerge or otherwise modify Crown land even if it is reserved land (s 8(1)). The right to take water from the Meander River and four secondary water resources (Dunning Rivulet, Huntsman Rivulet, Sales Rivulet, Warners Creek and unnamed tributaries) is deemed to exist from the works commencement day under s 7(1), with the allocation transferred from the HEC’s special licence.

The responsible entity also has a right to rely on the legislative deeming under s 9 that the project meets and furthers the objectives of the Water Management Act and all relevant State policies. This removes any future regulatory risk that the project could be found non‑compliant with those instruments.

The responsible Minister has a duty to determine the initial terms and conditions of the deemed water licence before the works commencement day (s 7(2)(a)). The Minister must also publish Gazette notices specifying the date of each of the two trigger events that limit the reserved‑land modification power (s 8(4)), and after the second notice, consult with the Minister administering the Forestry Act and lodge a plan in the Central Plan Register identifying the land that has ceased to be reserved (s 8(6)).

The Crown in right of Tasmania and in all its other capacities is bound by the Act (s 4). This means State instrumentalities cannot rely on other laws to obstruct the project - the Act prevails over them.

No duty is imposed on the responsible entity to consult with affected parties, provide compensation, or conduct environmental assessments beyond what is already contained in the reinstated permit and notice. The Act itself creates no public notice or hearing requirement for the Minister’s determination of licence terms.

Third parties have no rights under the Act. Their only substantive right is the negative one: they cannot bring review or appeal proceedings under the Judicial Review Act 2000 or any other State law in respect of the reinstatement, validity or conditions of the dam permit or environment protection notice, or the granting, terms, or transfer of the deemed water licence (s 5(2), s 7(3)). The Act does not expressly remove rights under Commonwealth law (e.g., the Environment Protection and Biodiversity Conservation Act 1999) or constitutional challenges, but that is beyond its scope.

The Act itself creates no specific offences or penalties. Enforcement relies on the underlying instruments: the dam permit, environment protection notice, quarry permit, and water licence. Those instruments would have been issued under the Water Management Act 1999, the Environmental Management and Pollution Control Act 1994, the Land Use Planning and Approvals Act 1993, and the Water Management Act again, respectively. Each of those Acts contains its own penalty provisions for breach of permit conditions, unauthorised taking of water, or pollution.

However, the Act’s ouster of judicial review significantly limits enforcement avenues against the approvals themselves. For example, if a condition of the dam permit were breached, the Water Management Act’s enforcement provisions could theoretically be used. But s 5(2)(b) declares that the validity of the dam permit and environment protection notice is not reviewable - so a challenge to the validity of a condition, rather than a breach, is impossible. Similarly, s 5(2)(e) immunises the Assessment Committee’s decisions under s 162 of the Water Management Act in relation to the dam permit. This could protect the Committee’s interpretation of permit conditions from being judicially questioned.

The quarry permit is not covered by the ouster provisions in s 5(2) or s 7(3), so it might still be reviewable under the Judicial Review Act. But the Act’s primacy (s 10) means that if a conflict arises between the quarry permit and another State law, the Act prevails. This could complicate enforcement by the Meander Valley Council if it tries to enforce the quarry permit conditions against the responsible entity, because the entity can argue that the Act overrides any local law that would prevent the project from proceeding.

The deemed water licence is also immune from review of its initial terms and the transfer of the allocation. If the responsible entity takes water beyond the licence terms, the normal enforcement regime under the Water Management Act (including prosecution for unauthorised taking of water) would apply, because the deemed licence itself specifies the allowed take. But the ability of an affected third party to compel the Minister to enforce those terms is curtailed by the inability to challenge the licence itself.

The responsible Minister has no enforcement duties under the Act. The Act gives the Minister administrative duties (publishing notices, lodging plans) but does not create a compliance monitoring or penalty‑imposing role. The Governor may make regulations under s 11 for the purposes of the Act, which could include penalties, but none have been specified in the source text.

In practical terms, the Act reduces enforcement risk for the responsible entity because it removes the threat of a successful legal challenge to the core approvals. Enforcement would likely be confined to clear breaches of permit conditions that are not themselves the subject of the statutory immunity, and even then, the Minister or agency would be enforcing against an entity that the Parliament has explicitly authorised to build the dam.

Section 10 is the key provision: the Act has effect notwithstanding any other law of the State or the RMPAT decision, and if a provision of the Act conflicts with a provision of another State law, the Act prevails. This gives it supreme status within the Tasmanian legal hierarchy for the purposes of this project. It overrides the Water Management Act 1999, the Environmental Management and Pollution Control Act 1994, the Land Use Planning and Approvals Act 1993, the Forestry Act 1920, the Strata Titles Act 1998, and any local council by‑law or State policy.

However, the interaction is not a blanket repeal. The Act works by reinstating existing approvals and deeming compliance. For example, the project is taken to meet the objectives of the Water Management Act and all relevant State policies (s 9). This means that even if the project would have failed an objective test under those Acts, it is conclusively deemed to satisfy them. The effect is that an objector could not argue that the project contradicts a State policy on water conservation or forestry protection.

The Judicial Review Act 2000 is specifically overridden by s 5(2) and s 7(3) for the decisions listed - reinstatement, validity, conditions, and the licence. But the ouster goes further: it extends to “any other law of the State”, meaning no State‑based administrative law remedy (such as certiorari or prohibition) is available for those decisions, even if the common law would normally provide one.

The Forestry Act 1920 is affected because reserved land (State forest or forest reserve) loses its status upon modification (s 8(2)). The Forestry Act’s protections for reserved land are overridden for the duration of the project. The Act does not, however, repeal the Forestry Act; it merely creates a specific exception.

The Strata Titles Act 1998 is affected by s 9A, inserted in 2005. That section allows the Minister to direct that land in the prescribed location be treated as a lot for strata title purposes, bypassing the usual certification and subdivision requirements of that Act. This is a significant override of land‑use regulation: it enables the creation of separate titles for parts of the dam site without going through normal planning or survey processes.

The Land Use Planning and Approvals Act 1993 is affected because the quarry permit was granted under its s 57, but any review of that permit is not expressly ousted. However, s 10 would prevail if the quarry permit conditions conflicted with the Act. Similarly, any planning scheme or council by‑law that would restrict the dam’s construction is overridden.

The Water Management Act 1999 remains the primary regulatory framework for water, but key parts of it are bypassed: the normal process for granting a water licence (public notice, competition for allocation, merits review) is replaced by the deemed licence in s 7. The Minister’s role under Division 4 of Part 6 (transfer of allocation) is immunised from review. The Assessment Committee’s role under s 162 is also protected.

The Act does not interact with Commonwealth laws such as the Environment Protection and Biodiversity Conservation Act 1999. The Act is only a State law, and it cannot oust federal jurisdiction. If the dam project required federal approval for matters of national environmental significance, that approval would still be required. The source does not indicate whether such approval was sought or granted.

The Act was originally enacted as Act No. 18 of 2003 and received Royal Assent on an unspecified date (the commencement section says it commences on Royal Assent). Three amendments appear in the source text, each noted with the amending Act and the date it was applied.

The first amendment was by No. 30 of 2005, s. 18, applied from 11 July 2005. It inserted a new section 9A, giving the Minister administering the Water Management Act power to certify that land in the prescribed location be treated as a lot for the purposes of the Strata Titles Act 1998. This amendment expanded the Act’s reach into land‑title regulation, allowing subdivision of the dam site without normal processes.

The second amendment was by No. 8 of 2011, Schedule 1, applied from 1 July 2011. It amended the definition of “responsible entity” in s 3(1). The entity was originally described simply as “Tasmanian Irrigation Pty Ltd”. The 2011 amendment added the company’s Australian Company Number (ACN 133 148 384), making the identification more precise. It also inserted a reference to the entity under a new paragraph (a) and added paragraph (b) “a subsequent developer or operator of the Meander Dam project”. This means the responsible entity can change without further legislative amendment.

The third amendment was by No. 34 of 2015, s. 17, applied from 1 January 2016. It amended the definition of “dam permit” in s 3(1). Originally the dam permit was defined as the permit granted by the Assessment Committee “as in force on the day on which this Act commences”. The 2015 amendment added “as, if applicable, from time to time amended”. This allows the dam permit to be varied after commencement, and those amendments are automatically incorporated into the Act’s definition. It also means that any later amendments to the permit conditions are equally immunised from review under s 5(2)(c) (conditions of the dam permit are not reviewable).

These three amendments show a pattern of the legislature fine‑tuning the Act over time to expand its flexibility: allowing subsequent developers, allowing permit amendments, and adding a strata title power. The core override provisions (s 5, s 7 ouster, s 9 deeming, s 10 primacy) have not been amended, remaining as enacted in 2003.

The Act’s very existence is a response to litigation. The RMPAT decision of 22 January 2003 (Appeal Tribunal reference J12/2003, relating to Appeals No. 225/02E, 226/02W and 233/02W) set aside the dam permit and environment protection notice. The Act defines “RMPAT decision” in s 3 and then in s 5(1) reinstates those instruments. The Act does not describe the grounds of the RMPAT decision, but it clearly involved appeals by third parties who successfully challenged the original approvals under the Water Management Act and the Environmental Management and Pollution Control Act.

The Act’s purpose is to nullify that litigation outcome. By reinstating the permit and notice and then ousting any further State‑level review, the Act prevents the same litigants or others from mounting similar challenges. The ouster clauses (s 5(2), s 7(3)) are comprehensive: they cover not only the decisions themselves but also the validity and conditions of the instruments.

Because the Act removes the possibility of State‑law judicial review, there is no reported litigation on the Act itself from Tasmanian courts under the Judicial Review Act or common law. The source text provides no information about any federal litigation. The Act does not prevent a party from arguing that the Act is constitutionally invalid (e.g., on separation of powers grounds, or because it ousts judicial review in a way that offends the implied constitutional requirement of judicial review, or because it is inconsistent with a Commonwealth law that covers the field). However, no such challenge is mentioned in the source.

The Act’s litigation history is thus one of a single legislative override of an adverse tribunal decision, followed by no subsequent State‑law challenges. The 2005 amendment (s 9A) and the 2011 and 2015 amendments were proactive adjustments, not responses to litigation.

The Act contains several traps for unwary practitioners. The most significant is the breadth of the ouster clauses. Section 5(2) and s 7(3) remove reviewability “under the Judicial Review Act 2000 or any other law of the State”. The phrase “any other law of the State” includes the common law. In Tasmania, the common law remedies of certiorari, prohibition and mandamus are available for jurisdictional error, but this Act purports to exclude them by statute. While the High Court of Australia has held that parliament cannot completely oust judicial review for jurisdictional error at the federal level, State parliaments have more power, but there is constitutional doubt whether a State can completely exclude review for decisions that affect rights. Nonetheless, on its face, the Act attempts a near‑total ouster.

The deemed compliance provision (s 9) is another trap. It says the project “is taken to meet and further” the objectives of the Water Management Act and all relevant State policies. This language may prevent a court from granting an injunction on the basis that the project does not meet those objectives, even if the project demonstrably causes environmental harm. The deeming is conclusive, not rebuttable.

Reserved land loses its status upon modification (s 8(2)). This means that once the first bulldozer disturbs the land, it ceases to be State forest or forest reserve. The responsible entity does not need to apply for excision or rezoning; the statutory provision itself effects the change. However, the power to modify reserved land is only temporary - until the later of the two trigger events (work‑as‑executed report or first filling to maximum capacity). If the responsible entity delays those events, the power continues, but it also means that after the dam is filled, no further reserved land can be modified without separate authority.

The water licence is deemed to be held from the works commencement day, but its initial terms are determined by the Minister “before the works commencement day” (s 7(2)(a)). There is no requirement for public consultation, no requirement for the Minister to consider any particular criteria, and no right of appeal. The terms could be favourable or unfavourable to the responsible entity, but the entity cannot challenge them. Conversely, third parties cannot challenge them either.

The definition of “law of the State” in s 3 includes State policies, planning schemes, and council by‑laws. This means the Act overrides not just Acts of Parliament but also subordinate instruments and local laws. A council could not use its by‑laws to restrict construction traffic or noise if that would conflict with the Act. Similarly, a State policy on water allocation could not be used to argue the project should not proceed.

The strata title provision (s 9A) is unusual and potentially significant. It allows the Minister to certify that land be treated as a lot under the Strata Titles Act if it is “necessary or desirable” to give effect to the objectives of the Water Management Act. This could be used to create strata lots for individual parts of the dam infrastructure, such as the dam wall, spillway, or pipelines, enabling separate ownership or leasing. This bypasses the normal subdivision process.

The quarry permit is not specifically immunised from review, but the Act’s primacy (s 10) could create a conflict if the Meander Valley Council tries to revoke or vary it. The Act says the project must be implemented “in accordance with” the quarry permit, but if the permit is later amended in a way that prevents the project, the Act’s primacy might allow the responsible entity to ignore the new condition. This is an uncertain area.

Finally, the works commencement day is not defined in the Act. It means “the day on which the works authorised by the dam permit are commenced”. The responsible entity can control this date, and it triggers the deemed water licence. There is no requirement to notify the public or the Minister of that date, though the Minister would know because the licence is deemed from that date. If the entity delays commencement, the licence does not arise, and the entity must rely on other water rights.

Compliance with the Act itself is passive: the Act does not impose ongoing duties beyond those inherent in the project’s implementation. For the responsible entity, the primary compliance obligation is to implement the project “pursuant to and in accordance with” the four instruments (s 6). This means the entity must hold and adhere to the dam permit, the environment protection notice, the quarry permit, and the deemed water licence, as well as any prescribed instrument made under regulations (s 11). The entity should ensure that its construction and operation plans remain consistent with the conditions of each of those instruments, as amended from time to time (the 2015 amendment allows the dam permit to be amended; the environment protection notice and quarry permit definitions also include “as, if applicable, from time to time amended”).

Before the works commencement day, the responsible entity must liaise with the responsible Minister so that the Minister can determine the initial terms and conditions of the deemed water licence under s 7(2)(a). The entity should provide the Minister with sufficient information about the proposed water take, storage capacity, and environmental flow requirements to inform that determination. The Act does not prescribe a process, so the entity and Minister may agree on terms informally, but the entity cannot challenge them.

On the works commencement day, the deemed water licence comes into force. The entity should ensure it has a copy of the licence terms as determined by the Minister, and that it does not take water before that day. The licence is taken to have been granted by the Minister and endorsed with the water allocation transferred from the HEC’s special licence. The entity must also ensure that the HEC transfers the allocation; s 7(2)(b) says it “is transferred” - the entity may need to facilitate that transfer through the Minister’s approval under Division 4 of Part 6 of the Water Management Act. The Minister’s decision on the transfer is immunised from review (s 7(3)(c)), but the entity should still ensure the administrative steps are completed so that the water allocation is legally recorded.

During construction, the entity can modify reserved land under s 8. The entity must monitor the trigger events: the receipt of the “work as executed” report (clause 12 of the dam permit conditions) and the first filling of the dam to its maximum authorised storage capacity. The entity should keep the Minister informed so that the Minister can publish Gazette notices under s 8(4). After the second notice, the entity cannot rely on s 8(1) to modify reserved land further. The entity must also ensure that any land that has been modified and ceased to be reserved is properly identified in the plan lodged by the Minister in the Central Plan Register (s 8(6)).

If strata title issues arise, the entity (or possibly the Minister on its behalf) may use s 9A to have land treated as a lot under the Strata Titles Act. The entity should request a certificate from the Minister administering the Water Management Act, demonstrating that it is necessary or desirable to give effect to that Act’s objectives. The Minister then directs that the land be treated as a lot.

For third parties (landowners, environmental groups, downstream users), compliance with the Act is largely a matter of accepting that State‑level legal challenges to the approvals are not available. They can still seek to ensure that the responsible entity complies with the substantive conditions of the permit and notice - for example, by reporting breaches to the regulator under the Water Management Act or the Environmental Management and Pollution Control Act. But they cannot challenge the conditions themselves. They may consider whether federal environmental laws or constitutional arguments provide a remedy outside the State legal system.

The responsible entity should maintain thorough records of compliance with each instrument, particularly the conditions of the dam permit and environment protection notice, because those conditions remain enforceable (albeit not reviewable). Any amendment to those instruments after 2015 (when the “from time to time amended” language was added) should be obtained and followed. The Act does not explicitly allow the entity to apply for amendments, but the fact that the definitions contemplate amendments suggests the entity can seek variations through the normal statutory processes - and any variation will then be protected by the ouster clauses.