Water Accounting Information and Confidentiality in Australia
| Author | Alex Gardner,Clare McKay |
| DOI | 10.22145/flr.41.1.5 |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Subject Matter | Article |
WATER ACCOUNTING INFORMATION AND
CONFIDENTIALITY IN AUSTRALIA
Clare McKay* and Alex Gardner**
ABSTRACT
A key objective of Australia's recent national water reforms is to keep water licence
and entitlement holders ac countable for the amounts of water they extract, trade and
use. Water metering and the recording and reporting of water extraction and trading
data are processes designed to ensure this ac countability, and are central to Australia's
water accounting regimes. Yet much of the data necessary to ensure compliance with
water licences and access entitlements is not publ icly available in Australia. This
absence of publicly accessible informatio n is due to a lack of rigour and transparency
in statutory water accounting regimes. There are also restricti ons imposed by water
legislation and the laws of privacy and confidentia lity that prevent public access to
water accounting data, except in aggregated form. Consequently, commercial and
industrial water consumers in Australia are not kept accountable for their consumptive
water use and water market objectives are unfulfilled, contrary to the express
provisions of the Intergovernmental Agreement on a National Water Initiative ('NWI').
This article argues that statutory and pol icy frameworks for water accounting i n most
Australian jurisdictions fail to meet the NW I objectives for national water accounting.
In response, it advocates legislative reforms that would facilitate the achievement of
these objectives.
I INTRODUCTION
This article advocates greater transpa rency of water accounting in Australia. Water
accounting is a regulated process that i nvolves identifying, measuring, rec ording and
reporting information about water.1 Transparency in water accounting is essential to
secure environmental and other public benefit ou tcomes, and to enhance resource
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* Clare McKay, BA, LLB(Hons) UWA, Solicitor, King & Wood Mallesons.
** Alex Gardner, Associate Professor UWA Law School, Adjunct Professor ANU College of
Law, Chief Investigator, National Centre for Groundwater Research and Training. The
authors acknowledge that this article has been prepared with Australian Research Council
and National Water Commission funding support through the National Centre for
Groundwater Research and Training.
1 See generally Bureau of Meteorology, The Water Accounting Story, Australian Government,
<http://www.bom.gov.au /water/standards/waterAccStor y.shtml>.
128 Federal Law Review Volume 41
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security for holders of water access rights. This premise is implicit, if not explicit, in the
nationally agreed objective for water accounting reform:
that the outcome of water resource accounting is to ensure that adequate measurement,
monitoring and reporting systems are in place in all jurisdictions, to support public and
investor confidence in the amount of water being traded, extracted for consumptive use,
and recovered and managed for environmental and other public benefit outcomes.2
Commonwealth and state legislation and policies that implement water accounting
in Australia generally fail to give full effect to this objective. This f ailure is becoming a
matter of increasing concern. In many areas, Australia's natural water resources are
under continuing pressure from identified overallocati on and overuse. 3 There are also
rapid escalations of water resource exploitation occurring in growing urban
environments4 a nd the mining industry. 5 Pressures from increased water consumption
have caused, and may continue to cause, significant e cological decline of Australia's
water dependent ecosystems. There are also risks that degrading natural water
resources will compromise Australia's future co nsumptive water use.
To respond effectively to these pressures, water accounting systems in Australia
must facilitate public understanding of co mpliance with limits on water extractio n and
the operation of water trading. This understanding must apply not only to water
resources as a whole, but also to individual ho lders of water licenses and access
entitlements.6 Responsible and transparent water cons umption and the effective
operation of water markets can affect all users of Australia's depleting natural water
resources. It follows that compliance with legal limits on water extra ction and
transparent water trading information are in the public interest. We advocate
transparent public disclosure of water accounting data as a form of 'informa tion based
regulation'7 to better achieve water resource regulation objectives.
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2 Intergovernmental Agreement on a National Water Initiative – between the Commonwealth of
Australia and the Governments of New South Wales, Victoria, Queensland, South
Australia, the Australian Capital Territory and the Northern Territory (National Water
Commission, 2004) ('NWI 2004') 17 [80] (emphasis in original).
3 National Water Commission, 'The National Water Initiative – Securing Australia's Water
Future: 2011 Assessment' (Australian Government, September 2011) [3.3]; James H Skurray,
E J Roberts and David J Pannell, 'Hydrological Challenges to Groundwater Trading:
Lessons from the South-West of Western Australia' (20 12) 412-413 Journal of Hydrology 256,
257.
4 See, eg, Water Corporation of Western Australia, 'Water Forever: Towards Climate
Resilience' (2009) 21, projecting the increase in the population of Perth and its surrounding
urban centres.
5 National Water Commission, 'Framework for Assessing Potential Local and Cumulative
Effects of Mining on Groundwater Resources', Report 7: 'National Synoptic Overview of
Groundwater Resource Condition – a Mining Perspective' (2010).
6 The terminology here is potentially confusing, as is explained in Alex Gardner, Richard
Bartlett and Janice Gray, Water Resources Law (LexisNexis, 2009) ch 18. We use the term
"licence" to mean a pre-NWI authorisation to "take" water and "access entitlement" to mean
those authorisations under NWI consistent legislation. See also the discussion at IIC of this
article.
7 The term is cited in Neil Gunningham, 'Environment Law, Regulation and Governance:
Shifting Architectures' (2009) 21 Journal of Environmental Law 179, 198.
2013 Water Accounting Information and Confidentiality in Australia 129
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This theme has not yet been fully explored in A ustralian water resources law. 8 It is,
however, a well-recognised theme in Australia and int ernationally in environmenta l
law. The concept of requir ing regulated entities to p ublish information on their
operations to affected stakeholders and the public has been applied through the
"Community Right to Know" ( CRTK) legislation, which requires publica tion of
aggregate data on toxic pollutant releases a nd transfers.9 A key be nefit of information
disclosure is to enable 'communities to exert po litical and social pressure on
governments and business to ensure c ompliance with substantive environ mental
requirements and improve environmental performance'.10 While CRTK legislation can
generally build pressure for better environmental performance, it will not generally
enable affected stakeholders to determine whether a regulated entity is complying
with licence or approval conditions from time to time. There are, however, more
sophisticated protocols for publishing approval conditions and self-reported
monitoring data. Most United State s environmental laws require self-reported
monitoring data to be reported to the public, which is said to 'dete r violations and a
failure to report, especially when the law gives citizens the right to sue sources'.11
This article suggests three core elements that are necessary for transparent water
accounting in Australia:
1. A clear and accessible statement of legal limits on licensees and entitlement holders
to take and trade wate r – usually by conditions on the licence or entitlement
recorded on a water entitlement register;
2. A clear and accessible statement of the obligations on licensees and access
entitlement holders to:
(a) install meters and record and report metered extractions to government; and
(b) report trading information; and
3. A clear and accessible record of the aggregated and individual metering and trading
data on a water entitlement r egister that is searchable by members of the public.
Most water accounting frameworks in Australia satisfy the first of these elements
and often address the second. However, problems arise in complying with the third
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8 Gardner, Bartlett and Gray, above n 6, 563 [25.5] and later discussion of State registers;
K Stoeckel et al, Australian Water Law (Thomson Reuters (Professional) Australia, 2012) 227
[5.35] and later discussion of State registers. See also M D Young and J C McColl, Robust
Separation (CSIRO Land and Water, 2002); and ACIL Tasman in association with Freehills,
An Effective System of Defining Water Property Titles (Land and Water Australia, 2004)
especially Part 5.
9 Gunningham, above n 7, 198, citing Bradley C Karkkainen, 'Information as Environmental
Regulation: TRI Performance Benchmarking, Precursor to a New Paradigm?' (2001) 89
Georgetown Law Journal 257. The equivalent legislation in Australia is the National
Environment Protection (National Pollutant Inventory) Measure:
<http://www.npi.gov. au>.
10 Emily Wilson, 'Australian Freedom of Information Legislation v The Aarhus Convention; Is
Australia Falling Below International Standards?' (2012) 15(1) The Australasian Journal of
Natural Resources Law and Policy 1, 5, and sources there cited.
11 International Network for Environmental Compliance and Enforcement, Principles of
Environmental Compliance and Enforc ement Handbook (April 2009) 59
<http://www.inece.org/principles>.
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