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Managing Our Scarce Water Resources

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Managing Our Scarce Water Resources WATER LAW Dr Emma Carmody Managing our scarce water is Senior Policy and Law Reform Solicitor, EDO NSW resources: recent developments and Legal Advisor, Secretariat of the in the Murray-Darling Basin Ramsar Convention on Wetlands. BY EMMA CARMODY ater law and policy in and enforcement – would demand a swift the Murray-Darling Ba- response from government. sin (‘MDB’) has domi- • Water law and policy in the Inquiries and reviews nated headlines over the Murray-Darling Basin has W dominated Australia’s news last 16 months or so. The genesis of this In the immediate aftermath of Four Cor- headlines over the past renewed interest in our scarce water re- ners, a number of the allegations raised 18 months. sources was the much-discussed Four on the program (in particular those • It has been a tumultuous period Corners episode ‘Pumped’, which aired involving public officials) were referred with a number of inquiries into to the Independent Commission Against on 24 July 2017. As is now widely known, water management ordered the episode included allegations of non- and undertaken at both levels Corruption. Additional matters were compliance by certain water users on the of government; court cases referred to the anti-corruption watchdog Barwon-Darling River and maladminis- were commenced in the in the weeks and months that followed, tration of water laws by relevant agencies. New South Wales Land and with the resulting investigation still in It also discussed the government’s ongo- Environment Court (including civil train some 16 months later. Under the enforcement proceedings being Independent Commission Against Corrup- ing failure to address the lawful pumping run by EDO NSW); and legislative tion Act 1988, the Commission ‘may, if of environmental water purchased by the amendments were passed – with Commonwealth with public money (not- more to come in 2019. it is satisfied that it is in the public in- ing that this water was purchased to re- terest to do so, conduct a public inquiry’. store the health of the MDB consistently At this stage, it is unclear whether the with specific statutory obligations set out in the Water Act 2007 Commission will order such an inquiry and if it does, what its (Cth) and Basin Plan). scope may be. However, given the apparent scale of the current investigation and the level of public interest in the subject mat- In the tumultuous period that followed, a number of inquiries ter, it is reasonable to assume that the Commission will exercise into water management were ordered and undertaken at both its discretion under the Act to produce a formal report, which levels of government; court cases were commenced in the New must be tabled in Parliament. South Wales Land and Environment Court (including civil enforcement proceedings being run by EDO NSW); and legisla- Independently of the aforementioned investigation, the NSW tive amendments were passed – with more to come in 2019. This Minister for Water responded quickly and appointed respected article will outline and contextualise these developments – and former Commonwealth public servant, Mr. Ken Matthews AO, in so doing hopefully assist legal practitioners to increase their to investigate the allegations raised on the program and report understanding of water governance challenges across the Basin. on the same. Briefly, Mr. Matthews produced two reports, the first of which found that: the overall standard of NSW compli- Why is the MDB significant? ance and enforcement work had been poor; arrangements for Water management in the MBD has been contentious since metering, monitoring and measurement of water extractions, Federation, with the creation of states and territories transform- especially in the Barwon–Darling river system, were not at ing the Basin into a transboundary system subject to the sorts the standard required for sound water management and did of ‘upstream v downstream’ boundary challenges seen in many not meet community expectations; certain individual cases of other regions. Against this backdrop, the size of the MDB – one alleged non-compliance have remained unresolved for far too million square km – coupled with its economic, social, cultur- long; and there was little transparency to members of the public al and environmental significance, has given rise to heated de- of water regulation arrangements in NSW, including the com- bates regarding allocation of water for different uses, and what pliance and enforcement arrangements which should underpin exactly constitutes ‘sustainable’ management of the Basin’s riv- public confidence. ers and aquifers. It is therefore unsurprising that the commu- nity – one apprised of serious allegations regarding compliance ISSUE 51 I DECEMBER 2018 I LSJ 75 Legal updates WATER LAW Both reports included a set of recommendations intended to meters meet Australian Standard 4747 and the need to improve address these issues, notably the creation of an independent compliance functions within the MDBA. Natural Resources Access Regulator charged with enforcing Murray-Darling Basin Royal Commission water laws in NSW, the introduction of a ‘no meter, no pump’ rule, significantly increased access to information (including in The complexities of managing a transboundary water basin, the relation to individual water extractions) and ethics training for scientific (and therefore legal) validity of certain administrative water bureaucrats. Some of these recommendations have been decisions and ongoing questions regarding the proper implemen- partially or fully implemented, as discussed below. tation of the Water Act 2007 and Basin Plan, have been the focus of the Murray-Darling Basin Royal Commission (established by To Mr Matthews’ reports we can add three reports by the NSW the Governor of South Australia in January 2018). Commission- Ombudsman into water management in NSW, tabled in the er Bret Walker SC and Counsel Assisting, Richard Beasley SC, NSW Parliament between November 2017 and August 2018. took evidence from over 70 witnesses during a series of hearings The first of these reports revealed that: held in Adelaide between June and October of this year. ‘From 2006 onwards the NSW Ombudsman’s office has In his final submissions, Mr. Beasley SC found: received complaints and public interest disclosures alleging that the water management principles and rules were not be- ‘the Water Act and the Basin Plan have been hailed as ing properly complied with and enforced. We have undertaken ground-breaking reform. They are. What this Commission has three prior investigations into those complaints and disclosures learnt, however, from the evidence it has gathered, and from the that resulted in reports to Government and the Minister. We witnesses that have informed us, is that it’s one thing to enact are now undertaking a fourth investigation, once again trig- transformative legislation like the Water Act and the Basin Plan, gered by complaints from the public and public interest dis- it’s quite another thing to faithfully implement it. Sadly, the closures from officials working in the agencies charged with implementation of the Basin Plan at crucial times has been char- administering the legislation.’ acterised by a lack of attention to the requirements of the Water Act and a near total lack of transparency in an important sense ...’. It went on to find, inter alia, that there was a strong clash between customer service delivery (such as billing customers Mr Beasley went on to state that the ‘implementation of the for delivery of water) on the one hand, and compliance and Basin Plan has been marred by maladministration. By that I enforcement functions (which apply to the same ‘customers’) on mean mismanagement by those in charge of the task in the the other. It also found that the efficacy of water agencies was Basin Authority, its executives and its board, and the consequent undermined by a lack of resourcing and constant restructuring. mismanagement of huge amounts of public funds.’ Commis- Significantly, the report noted that the NSW Ombudsman’s sioner Walker will deliver his final report in February of 2019. observations were essentially the same as those that emerged As an aside, it is worth noting that Commissioner Walker from the previous three investigations, and that those three issued summonses compelling certain bureaucrats within the reports had not been made public as the agency in question MDBA to appear before the Commission and ordering the had assured the Ombudsman that all matters of concern would production of specified documents. In response, the Common- be addressed. This perhaps serves as a reminder of the impor- wealth took the unprecedented step of seeking an injunction tance of publicly disclosing all reports produced under Part 4 of in the High Court to avoid complying with said summons- the Ombudsman Act 1979 (noting that such reports are not, by es. Unfortunately, the South Australian Government denied nature, anodyne as they must only be produced where there is Commissioner Walker’s request to extend the reporting date to an adverse finding of the kind specified in s 26 of the Act). ensure affected witnesses would be granted procedural fairness At the Commonwealth level, the ‘Murray-Darling Basin Com- in the event that the Commonwealth’s claim was dismissed by pliance Review’ which included a report by the Murray-Darling the Court. As a consequence, the Commissioner felt obliged to Basin Authority (‘MDBA’), as well as by an independent panel withdraw the summonses. As the MDBA would not voluntari- of experts appointed by the MDBA, was published in Novem- ly send any witnesses, the Commission concluded its hearings ber 2017. The review, which was undertaken at the behest of without obtaining oral evidence from any current employees of the former Prime Minister and Deputy Prime Minister, found that organisation. significant deficiencies with respect to compliance and enforce- ment in New South Wales and Queensland. Notably, it found Legislative changes that only 29 per cent of surface water that is taken is metered As alluded to earlier in this article, some of the recommenda- in the northern MDB and the standard and accuracy of meters tions by Mr.
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