To hear the NSW government claiming it will walk away from the Murray-Darling Basin Plan after last week’s disallowance of a regulation to reduce environmental allocations is to witness institutional chutzpah of the highest order.
NSW has never had much interest in fulfilling its responsibilities in relation to the basin, and it has basically acted as a cipher for irrigators who want to extract as much water as they can from the system. On some rivers in the NSW part of the system, NSW’s departure from the plan will make little difference because it was barely doing anything to implement the plan in the first place.
While most people are familiar with the staggering revelations of Four Corners about the NSW Department of Primary Industries’ spectacular failures in enforcing the requirements of the plan, what’s less known is what reviews established in the wake of the program revealed. A review of state compliance and enforcement by the Murray-Darling Basin Authority was damning of, particularly, NSW and Queensland. The report found that in NSW:
[Compliance] has been a low priority in the 20 water agencies that have been responsible for compliance in the past 20 years. The absence of a culture of compliance, organisational instability and limited resourcing have meant that compliance has relied heavily on custom and practice, resulting in a lack of effectiveness, consistency and transparency…
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There is a striking variation in enforcement activity. In 2016-17, NSW issued 44 warning letters and notices, Queensland 14, South Australia 355, Victoria 562, and the ACT 1 … In 2016-17 there were no prosecutions in NSW and Queensland, and six in the other states.
Moreover, the report notes “there is a notable lack of transparency in NSW, Queensland and Victoria”. “For NSW and Queensland, water compliance is bedevilled by patchy metering, the challenges of measuring unmetered take and the lack of real-time, accurate water accounts. NSW and Queensland both have a low level of compliance resourcing.”
Then there was the review the NSW government was forced to establish in the wake of Four Corners. It was conducted by the former head of the now-abolished National Water Commission, Ken Matthews, and his interim report was savage, finding:
• The overall standard of NSW compliance and enforcement work has been poor.
• Arrangements for metering, monitoring and measurement of water extractions, especially in the Barwon–Darling river system, are not at the standard required for sound water management and expected by the community.
• Certain individual cases of alleged non-compliance have remained unresolved for far too long.
• There is little transparency to members of the public of water regulation arrangements in NSW, including the compliance and enforcement arrangements which should underpin public confidence.
When Matthews provided his final report late last year, he found that the NSW government had rushed to implement the reforms he recommended but that there was a risk that the government was still under-resourcing compliance areas, there were “uncooperative relationships” between major agencies and he warned of “increasing pressure from certain stakeholders to ‘water down’ key reforms, including reforms to water metering and improving transparency of information about water usage.”
That last warning from Matthews reveals the extent to which the plan is still under threat in NSW even now.
So, did the Commonwealth take stronger action to force NSW to adhere to its responsibilities under the plan? In short, no. In a remarkable report by the Australian National Audit Office in response to a complaint from Tony Burke in the wake of Four Corners, the auditors found something strange about the way the Department of Agriculture and Water Resources had, under Barnaby Joyce, ticked off on NSW’s compliance. Grant Hehir and his team found:
While the Department of Agriculture and Water Resources has followed agreed processes for monitoring performance, there was a lack of evidence and explanation to substantiate its positive assessment of NSW’s progress under Milestone 8 of the Murray-Darling Basin NPA for 2015-16, in light of serious issues raised about the state’s water regulation arrangements.
Importantly, there was little in the Department of Agriculture and Water Resources’ submission to the Minister for 2015-16 to suggest that there were risks that NSW was not delivering environmental water consistent with the basin plan. These factors have limited the effectiveness of Department of Agriculture and Water Resources’ assessment.
But the Department of Agriculture insists everything was above board. It told the ANAO that it had raised concerns about NSW’s compliance with elements of the plan and in 2015 and had received assurances from the NSW Water Minister about actions being implemented to address the department’s concerns. The following year, the department got Joyce to write to the NSW Water Minister and again NSW provided assurances that all would be fine.
Obviously the assurances from NSW government about its compliance with the plan weren’t worth the ministerial letterhead they were printed under. But the Department of Agriculture and Joyce — unsurprisingly in the latter case — were happy to accept the blithe assurances of the NSW government.
What’s going to change if NSW withdraws from the plan? The answer to that isn’t clear.