Clause 2 of The National Water Initiative Agreement (NWIA), signed in 2004 by the Federal, State and Territory Governments, is an ambit claim in relation to rainwater falling on buildings in Australia.

According to the Federal Liberal Government, Clause 2 means “all” water in Australia – including water that falls on a person’s roof – is vested in Governments.

To its credit, the Victorian ALP Government says Clause 2 is not correct for Victoria because it does not say “all” water in Australia is vested in governments. The Victorian Government confirms that water falling on a person’s roof in Victoria is the property of that person.

Which Government is correct – the Federal Liberals or the Victorian ALP?

The Federal ALP has not declared a position on rainwater rights. This is probably because State ALP Governments are in disagreement. See http://forum.onlineopinion.com.au/thread.asp?article=4920#56469

In Australia, rights to surface water are vested in Governments. Surface water is “water flowing over land”.

The SA, WA and Tasmania State Governments consider that a person’s roof is land. The Victorian Government says a roof is not land. The NSW and Queensland Governments remain coy.

Here are 3 elementary tests if a roof is land -

Is the source of water for a roof (a) the sky, or (b) the land?

Can water be collected in a rainwater tank from the surface of the ground?

Do occupants of buildings live underground?

Under recent changes to South Australia’s Development Act, rainwater must be used in new houses. But under the Natural Resources Management Act, a person is “entitled” to use surface water.

Does “entitlement” mean ”requirement”?

This e-mail was issued on 17 September 2007:

Hon Gail Gago MLC
Minister for Environment and Conservation
South Australia

Dear Minister,

Is the occupier of land entitled not to take surface water from the land under section 124(2) of the Natural Resources Management Act 2004?

Section 124(2) is “Subject to this Act and to any other Act or law to the contrary, the occupier of land is entitled to take surface water from the land for any purpose.”

Greg Cameron

Senator Lyn Allison:

Would you advise Democrats policy in relation to rights to water that falls on a person’s roof in Victoria? Do you support the Federal Liberal position or the State ALP position (see above)? Or, do you have a different position?

By separate e-mail copy to Mr Anthony Albanese, would he kindly advise the Federal ALP position in relation to Clause 2 of the NWIA as it applies to rights to water that falls on a person’s roof in each State?

The link to State ALP Government policy is
http://www.onlineopinion.com.au/view.asp?article=6112 - apologies to all for providing an incorrect link, in my post, above.

Last week, NSW Premier, Mr Iemma, was asked to confirm NSW Government policy, as below.

-Original Message-
From: Greg Cameron
Sent: Tuesday, 18 September 2007 5:11 PM
To: Hon Morris Iemma
Subject: ALP rainwater policy

Hon Morris Iemma MP
Premier of New South Wales

Dear Mr Iemma,

Federal Liberal Party policy is that the water that falls on a person’s roof in New South Wales is not the property of that person.

Would you please confirm your Government’s policy (see below) that the water that falls on a person’s roof in New South Wales is the property of that person?

Thank you.

Yours faithfully,

Greg Cameron

-Original Message-
From: Information [mailto:Information@nswalp.com]
Sent: Tuesday, 20 March 2007 11:11 AM
To: gregorydcameron @bigpond .com
Subject: RE: Ownership of roofwater in NSW

Dear Mr Cameron

Thank you for taking the time to express your views.

The water that falls on a person’s roof is considered the property of that person. That’s why we are encouraging people to install rainwater tanks to help conserve town water supplies.

It is only the Federal Liberal government that has been talking about taxing people for the rain they collect.

With best wishes

ALP Information Office


Mr Cameron wrote:

Dear Mr Iemma and Mr Debnam:

Do you know who owns water that falls on a person’s roof in NSW?

Your answer will be appreciated.

Yours faithfully,

Greg Cameron

Senator Lyn Allison answered my question put to her in my 24 September post, above. She advises, “The Democrats consider the water that falls on a person’s roof to be the property of that person.” Thank you, Senator.

Mr Anthony Albanese was asked the same question on behalf of the Federal ALP, but he has not replied.

Federal Liberal policy is that all water in Australia – including water that falls on a person’s roof – is vested in Governments.

NSW ALP policy is, “The water that falls on a person’s roof is considered the property of that person. That’s why we are encouraging people to install rainwater tanks to help conserve town water supplies. It is only the Federal Liberal government that has been talking about taxing people for the rain they collect.”

NSW Coalition policy is, “The rain that falls on a person’s house is their property.”

Victorian ALP policy is, “The water that falls on a person’s roof in Victoria is the property of that person and Labor supports this position.”

The Victorian Nationals position is to agree with the proposition that “The water that falls on a person’s roof in Victoria is the property of that person.”

In Queensland, no State political party has a position.

Does this mean that the Queensland ALP, Queensland Nationals and Queensland Liberals all agree with the Federal Liberals? All parties – including the Democrats - have been repeatedly asked for their positions and all have demurred. Surely the position is clear? Section 19 of the Queensland Water Act 200 says, “All rights to the use, flow and control of all water in Queensland are vested in the State”, and, the definition of water “does not include water collected from roofs for rainwater tanks.” The best response that the Queensland ALP Government can muster is that “water collected in rainwater tanks does not fall within the ownership of the State.”

Mr Albanese: Is the Federal ALP’s policy the same as the Federal Liberal’s policy?

Now that Senator Allison has given the Democrats position, what is the Greens position?

Greg Cameron

Could someone please advise/explain whether a change in Government party (after the coming election in Nov) could result in a change in planning for the desalination plant?

Sophie,

It will make no difference. The decision on the desalinator was made by the state government, not the federal one. The federal government has no say in the matter.

Sylvia.