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.

There is more on Angler Access in a subsequent post.

In 2022 NSWCFA sought formal advice regarding a possible contradiction between the Fisheries Management Act which allows anglers specific/defined access to streams, and the Biosecurity Act, which allows landowners to have management plans which affect how people access and behave on their properties. I wrote about it in Burley Line but after discussions were raised in a recent CAA meeting, I thought useful to put into ‘Tips’ blog.

Mr Jim Harnwell, DPI Program Leader Stocking & Fisheries Enhancement Operation, sought advice from DPI’s legal team, .

The advice is:

The Biosecurity Regulation states that Division 12, which applies to biosecurity management plans, “does not apply to a person who enters or is in a management area under the authority of an Act or another law.”

Section 38 of the FMA 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.

The authority to be on land under section 38 of the FMA is limited by section 38. For a fisher to rely on section 38 they must be in a boat on the river or creek or on the bed of the river or creek. Bed is defined as “bed of a river or creek includes any part of the bed of the river or creek which is alternatively covered and left bare with an increase or decrease in the supply of water (other than during floods).”

If fishers are not taking fish and in a boat on the waters of a river or creek, or on the bed of the river or creek, any biosecurity management plan on the relevant land will apply to fishers. To be clear, they cannot access land where there is a biosecurity management plan in place beyond the bed of the river or creek, except in accordance with that biosecurity management plan.

The crux then becomes the definition of ‘bed of the river or creek’. This was the subject of another post on the website. Here. Suffice to say if you are standing in the water you are within the law. Standing on dry land of the bank becomes problematic.

Regardless, even if the angler had been accessing the water in accordance with the laws, seeking to argue relevant rights with an aggrieved property owner will generally not go well. Sticking to public access points, or knocking on doors to ask permission removes uncertainty.

The NSW DPI Angler Access website, has the ability to provide you with a georeferenced map of a selected area showing access points. This is in the form of a special pdf. Internet access is required to connect to the access website, but the map created can be downloaded onto your phone for viewing offline.

The pdf map is used by an app called Avenza Maps to display your current location on the map without the need for mobile data connection.

Production of the map is a little complicated. The screenshots here display the process using a phone, but should be easier on desktop computer.

Go to the access website and zoom to the area of interest.

On my phone I couldn’t see the print button but is available via the green button at the bottom right of screen.

Press the brown print button.

I tinkered with some of the advanced settings – not sure if it had any real effect, but I thought the map should be larger. I also opted for km scale.

Then hit print button.

Then tap “1. Fishing Access Map”

Tap ‘Save to Downloads’. Unfortunately it will be saved with the horrible name. I take steps via the app MyFiles to rename it.

When you open Avenza Maps, go to My Maps which shows maps you have already loaded. Here you can see I’ve got a number already. Unfortunately the free version of Avenza limits you to three maps … we’ll deal with that in a moment.

Press the orange + button

Press Download or import a map

Press Cloud storage or device

Here you can see my map file renamed as Mowamba. If you produced the pdf on your desktop and transferred to phone you may need to navigate to where you stored it. Click on your pdf map name

The message above is because of the 3 map limit, you will not see this when starting to use Avenza. Click on PROCEED ANYWAY

I tapped on the three dots next to an unwanted map and chose to delete it. I suspect the pdf remained on my phone somewhere so I could reload in the future. In due course I could tap on the Mowamba map

Talk to Bill sometime if the instructions are too confusing and get a live demo.