After I posted on this topic earlier, one of our members initiated a dialog with me via email. I received Ken’s permission to put the discussion here since it helps to clarify the matter.

Ken’s email read:

This is entirely consistent with my recent conversation with DPI. Earlier this year, a number of farmers were chasing non-fishers and fishers off the Goodradigbee, citing a change to the Biosecurity Act as just one of the reasons. This is complete fiction. DPI have confirmed to me that whilst there are newish rules to the Biosecurity Act, these mostly relate to illegal trespass and not legal use of a road reserve or river where fishing is permitted.

You and many people in the club may already know this but it bears repeating. Section 38 of the FMA declares that a river is Crown Land. Irrespective of ownership, s38 declares that the public still has a right to fish despite the private ownership of the bed of a river or creek. Therefore, regardless of whether a farmer does or does not own a river, the public can access it to fish (provided you remain within the river bed). Furthermore, even if a farmer claims to have leased or licensed a TSR, they generally still do not limit use for fishing unless there is an exception – DPI are specifically checking this for the TSRs around and upstream of the Brindabella Bridge. I would also put forward that if there is a dispute about the high water mark and what the river bed is with a landholder, that their opinion of where this mark is has no greater authority or expertise than yours.

I see this with the public’s interface with Governments all the time. The risk with reading any legislation if you are not sufficiently skilled is that people cherry pick bits and pieces to fit their narrative with an inadequate understanding of the framework or the guiding principles of a certain piece of legislation. You can’t just make stuff up.

DPI are working on a whole of state approach to run more effective communications on angler rights and how to liaise with landholders on anglers’ behalf. I have been advised that they are also doing a site inspection of Brindabella Valley Road and meeting with adjoining landholders.

I responded to hopefully clarify a few minor points:

Re ” even if a farmer claims to have leased or licensed a TSR, they generally still do not limit use for fishing unless there is an exception ” … not quite complete. Private or public management might entail a biosecurity plan which might bar access normally provided for via TSR rules. Access can also be barred for ‘operational reasons’ eg spraying. NSWCFA through DPI are pursuing unjustified constraints on access.

A key point that anglers must understand is the definition of the bed … but definitions aside, applying it to particular waterways can be problematic.

Thanks for the advice re DPI getting on the ground. Will assist a lot. Alistair McBurnie has been doing some great work here.

Regardless, approaching landowners in advance will generally be a recommended approach…. that said it can be difficult to identify and locate owners/managers of freehold properties.

Ken responded “You can approach landowners where possible but when you do it’s important to know what the law is and have a clear understanding of your position and rights. What landowners have been relying on is bullying people in the hope that you don’t know what the law is and they can impose their version of the law, which can be adrift from the truth.”

Interestingly, while this discussion was progressing, Jim Harnwell, our key contact in DPI Fisheries, contacted me on another matter. I asked him to examine my blog post re access and Biosecurity. His response was:

Re your blog on S38 and biosecurity: the information you’ve prepared appears to be consistent with the advice provided so no issues my end.

Here’s some other info re biosecurity issues specifically relating to foot and mouth disease concerns.

While in the bed of the creek, access under section 38 of the Fisheries Management Act;

• In regard to the stated biosecurity concerns, any biosecurity risks associated to angling access to rivers and streams under Section 38 are considered to be minimal.
• It is noted that the NSW Biosecurity Regulation states that Division 12, which applies to biosecurity plans, “does not apply to a person who enters or is in a management area under the authority of an Act or another law”.
• As detailed above, Section 38 of the Act provides authority for fishers to enter land to take fish, in certain circumstances,
• This means biosecurity management plans do not apply to fishers if they are on land, taking fish, in accordance with Section 38.

However, if accessing a waterway through a Travelling Stock Reserve or private property (with land holder permission), and there is a Biosecurity Management Plan for that TSR or private property, then anglers must comply to this.

• There is a biosecurity duty by all involved to ensure that they are not presenting an undue risk – anglers should follow the principles of ‘come clean, go clean’
• In relation to Foot and mouth disease, while ever Australia remains free of FMD, there is negligible likelihood of an angler introducing FMD to a property
• If questioned about the risks of FMD, anglers can respond by assuring land holders they have not recently been to a country where FMD is present (if true). Also, explaining your understanding of biosecurity risks to land holders, and what steps you have taken to minimise these risks may help diffuse these situations.
• If anglers have returned from a country where FMD is present then they should follow the advice from https://www.agriculture.gov.au/biosecurity-trade/pests-diseases-weeds/animal/fmd 
• Information on general biosecurity practices can be found at https://www.dpi.nsw.gov.au/biosecurity/your-role-in-biosecurity/travellers

Ken also raised the concept of “permitted purpose” in relation to recreational access to TSRs. Fishing is a ‘permitted purpose’ in certain categories of TSRs but banned in the Western Division of NSW. Other activities may not be permitted, eg camping is banned on TSRs, indeed access is only during daylight hours.

DPI have assembled onto their Angler Access webpage information from a diversity of sources in relation to angler access rights.