This article examines the contents of a recently aired 4 Corners episode, Pumped, which included allegations of water theft, corruption and regulatory capture in the Murray-Darling Basin.
In recent weeks, the Murray-Darling Basin has emerged from policyland to become the protagonist in a national polemic centring around allegations of water theft, corruption and regulatory capture. It has graced the front page of the Daily Telegraph, inspired hundreds of articles in newspapers, provided fodder for cartoonists and satirists, generated heated debates in State and Commonwealth Parliaments, and resulted in an unprecedented alliance of South Australian politicians.
So, what exactly was 4 Corners all about? More importantly, how did it knock down the Great Wall of Ideology in the Australian Senate and get Sarah-Hanson Young and Cory Bernardi singing from the same hymn sheet?
Allegations of unlawful water harvesting
4 Corners discussed allegations of unlawful water harvesting by a large cotton farmer in Northern NSW. The allegations were based on usage data for two water access licences obtained by EDO NSW on behalf of its client under the Government Information (Public Access) Act 2009, New South Wales’ FOI legislation. The licences in question were issued under the Water Management Act 2000 (NSW) and permitted access to water in the Barwon-Darling River in accordance with conditions attached to each licence, as well as other laws and rules. The conditions and rules specify – amongst other things – how much water can be legally extracted in a water accounting year (which is the same as the financial year), and when. The two licences in question permit access to water at specific times and up to a certain volume in any one year. The first, which is known as an ‘A Class’ licence, permits access to ‘low flow’ water. The second, known as a ‘B Class’ licence, permits access to ‘medium flows’.
Usage data obtained by EDO NSW from WaterNSW, together with analysis of publicly available information regarding river heights, indicated that the licence holder extracted significantly more water than was permissible under the A Class licence during 2014-15 and the B Class licence during 2015-6.
Apparent over-extraction in the first half of 2015 (under the A Class licence) is particularly concerning, as this period was so dry that the Menindee Lakes fell to 4 percent of their total storage capacity, which in turn threatened Broken Hill’s water security. Indeed, the NSW Government imposed an embargo on water extractions under B and C Class licences during this period in order to improve flows down the Barwon-Darling and into the Lakes.
EDO NSW contacted WaterNSW many months ago asking if it could provide our client with evidence that the usage discrepancies had been authorised under lawfully issued permits. To date, WaterNSW has not provided EDO NSW with any such evidence.
Inadequate compliance and enforcement of laws
The second, key revelation aired on 4 Corners concerned the work of the Strategic Investigations Unit within the NSW agency that was responsible for compliance back in 2015, namely DPI Water. The former head of the Unit, Jamie Morgan, gave evidence on camera regarding investigations into properties on the Barwon-Darling River. Morgan indicated that his team found extensive evidence of meter tampering and unlawful water extraction at a number of properties on the Barwon-Darling, including one of the properties owned by the holder of the A and B Class licences discussed above. Despite these findings, Morgan stated that no enforcement action has been taken by the NSW Government in relation to the findings of the disbanded Strategic Investigations Unit.
Potential for regulatory capture?
The program also included a recording of a meeting between the Deputy Director-General of DPI Water, Gavin Hanlon, and a group of irrigator lobbyists. Mr Hanlon is recorded offering to share ‘de-badged’ government documents – including privileged legal advice – with the group. The group discuss ‘Plan B’ and ‘Plan C’, with the former referring to a strategy to walk away from the Basin Plan.
In early August, it was revealed that Perin Davey – who Minister Joyce had nominated to fill a vacancy on the Board of the Murray-Darling Basin Authority – had participated in this meeting. Following the revelation, Ms Davey stood down from the nomination.
There have been widespread calls for the identities of each person involved in this phone conference to be revealed, and understandably so. Transparency and accountability is vital given that the Basin Plan is one of the most important natural resource management laws ever passed by the Commonwealth Government.
A number of inquiries have been launched in response to the allegations aired on 4 Corners. The Murray-Darling Basin Authority has commenced – at the behest of the Prime Minister – an investigation into compliance across the Basin. In NSW, the Minister with responsibility for DPI Water, Niall Blair, appointed Mr Ken Matthews AO to lead an internal inquiry into matters raised on the program.
Neither of these inquiries will involve public hearings, or benefit from the powers and protections that go hand-in-hand with a full judicial inquiry (otherwise known as a royal commission). There is also a lack of transparency around the respective investigation processes. Furthermore, it is arguable that an inquiry into these matters should be undertaken by an independent body that does not have a working relationship with the irrigation industry.
More recently, the Senate Rural and Regional Affairs and Transport Committee was directed to inquire into ‘the integrity of the water market in the Murray-Darling Basin’, including in relation to compliance and enforcement in the Basin and extraction of environmental water for irrigation purposes. The deadline for submissions is 28 September 2017. While this is a welcome development, it is not a substitute for a full judicial inquiry.
It is therefore unsurprising that landholders, conservation groups, a coalition of South Australian politicians and three Basin States (Queensland, Victoria, South Australia) have all called for the Commonwealth to commission a judicial inquiry. It is unclear how the Turnbull Government will respond to this call. However, nothing less than unfettered scrutiny and complete transparency will quell the community’s concerns about the management of Australia’s largest and most productive river system
Dr Emma Carmody is an internationally recognised expert in water law and policy. She works as a solicitor at Australia’s oldest public interest environmental law centre, EDO NSW. She is also Legal Advisor to the Secretariat of the Ramsar Convention on Wetlands in Switzerland, a role that requires her to provide legal counsel in both English and French.