Law reform in the Murray-Darling Basin: Accuracy, transparency and accountability

The Murray-Darling Basin has dominated Australia’s environmental news headlines over the past eight months. A Four Corners investigation in mid-2017 exposed allegations of unlawful water extractions and loose enforcement of laws that were set up to benefit and protect landholders, communities and ecosystems.

Dr Carmody, a UNSW graduate, Senior Solicitor at the Environmental Defenders Office NSW and Legal Advisor to the Secretariat of the Ramsar Convention on Wetlands presented at UNSW-GWI’s second seminar of the year on Thursday 8 March. Her extensive experience in water law over the past 15 years has enabled her to think critically about where some of the gaps are in water law and policy for the Murray-Darling basin – Australia’s largest and most productive river system – and identify some possible solutions. Specifically, Dr Carmody set out eight major challenges for policymakers and communities and eight corresponding legal and technological solutions involving both State and Commonwealth laws.

Dr Carmody explained that the Murray Darling Basin covers approximately one million square kilometres, traverses four states and one territory, and hosts 16 Ramsar-listed wetlands. It is responsible for nearly 50% of the country’s irrigated agricultural production and is extremely important to Australia from a social and economic perspective.

The Water Act 2007 was introduced by the Howard Government at the height of the Millennium Drought in recognition of the fact that water resources in the Basin were overallocated. The Murray-Darling Basin Plan, passed in 2012, is a legislative instrument that sits under the Water Act.

Dr Carmody says, “If I were to distil the purpose of Water Act and the Basin Plan in one single element, it would be to reinstate an environmentally sustainable level of [water] take.”

So, given that the appropriate legislation exists at the Commonwealth level, what are the challenges standing in the way of achieving a sustainable level of water extraction and equitable access to our most precious resource?

The '101' of good water management

The first, according to Dr Carmody, and arguably the most important, is the challenge of ensuring accurate data collection. Currently, there are questions surrounding the integrity of data available on water extractions in certain parts of the Basin due to allegations involving broken, faulty or inaccurate meters and ongoing difficulties measuring take from overland flow.

Dr Carmody says that accurate data is not only critical for compliance, it’s critical for understanding whether individual and catchment-scale water accounts are correct. 

“To me, it’s the ‘101’ of good water management,” said Carmody

According to Carmody, the answer lies in the use of existing technology to measure and monitor flows and extractions, coupled with appropriate amendments to state legislation.

“What we need are reliable, accurate, tamper-proof meters which enable data to be digitised and stored on the cloud,” said Dr Carmody.

This is a multi-billion-dollar market. It’s procuring significant private good for landholders. If the market isn’t functioning as it should, that has larger public consequences.

Dr Emma Carmody, Senior Solicitor at the Environmental Defenders Office NSW

Carmody also proposed a methodology – developed in conjunction with scientist and floodplain expert, Dr Celine Steinfeld – for measuring extractions from overland flows. 

The same issue applies not just to water extractions, but also to water trades. While there is a water registry in NSW, there are some limitations with the existing system along with evidence of trades that do not comply with certain trading rules. There is also potential for incorrect data input – whether deliberate or by human error.

“Having an accurate water registry is incredibly important,” said Carmody.

“This is a multi-billion-dollar market. It’s procuring significant private good for landholders. If the market isn’t functioning as it should, that has larger public consequences”.

Carmody points to digitisation of data linked to blockchain technology, which is ‘virtually incorruptible’ to overcome this. This type of technology records data in chronological order and is not controlled by one single entity, meaning that there is limited possibility of mismanagement or data tampering - particularly if based on the 'Ethereum' platform.

Open access to data

While technology has the potential to markedly improve the accuracy of data, Dr Carmody believes this will have the greatest impact if that data also becomes widely accessible to the public. The use of telemetry (or real time monitoring of water usage) coupled with laws that require this information – as well as water account balances - to be made publicly available is paramount. 

This raises obvious questions around privacy laws, but Dr Carmody says these are not applicable in many cases as a large number of water entitlements are not held by individuals but by corporations—to which privacy laws do not apply. Moreover, it is important to remember that water is a public asset that is held in trust for the community.

“The public interest far outweighs any private considerations,” said Dr Carmody. 

“The community needs to know whether that asset, which is something that we all depend on for our prosperity and our survival, is being used in accordance with the law.”

From a legal standpoint, Carmody doesn’t believe any amendments to the Water Act 2007 are required to enable the sharing of data to occur.

“If you are going to legislate for that, it is needed at the State level,” Dr Carmody says.

“It’s then a question of relevant agencies such as the MDBA exercising their existing functions and powers under ss. 172 and 173 of the Water Act 2007 and cooperating effectively with the States.”

And it’s not just the corporations who need to be more transparent about their water use and transactions – the same applies to the Government.

In the last year, about $182 million was spent by the Commonwealth Government on the purchase of water entitlements (known as ‘buybacks’). These ‘closed-tender’ purchases form part of the Government’s water recovery program designed to meet the requirements of the Basin Plan. However, that level of expenditure should be accompanied by a higher level of transparency and accountability.

Dr Carmody recommends amendments to the Water Act 2007 requiring water entitlement ‘buybacks’ above a certain threshold to be put on public exhibition, and for the information available to clearly demonstrate how that water will meet the objectives of the Water Act 2007 and the Murray-Darling Basin Plan – which is why they are being purchased in the first place. Anti-avoidance provisions would also be necessary to prevent purchases avoiding public scrutiny by being divided into smaller lots. 

Prioritising action

If you make sure your data is accurate and have a transparent and accountable system that's 90% of the problem solved

Dr Emma Carmody, Senior Solicitor, Environmental Defenders Office NSW

While there are many other challenges in the basin relating to compliance and enforcement, threats to environmental water, market integrity, governance arrangements, reduced rainfall and increased evaporation, and recognition of cultural flows and management by Traditional Owners, Dr Carmody says that solving the issues around the accuracy and availability of data should be prioritised in the short-term. 

Only once all stakeholders and decision-makers have access to the same factual data can effective decision-making and long-term planning begin to occur.

“If you make sure your data is accurate and have a transparent and accountable system, that’s 90% of the problem solved,” said Carmody.

Dr Carmody argued that accurate data and proper access to information should be followed closely by legislative amendments which manage and reduce threats to environmental water. This should include – amongst other things - legally enforceable rules in water resource plans (which will set out how water is to be shared in a given catchment under the Basin Plan) which prevent the Commonwealth’s environmental water from being pumped at certain times.