06 June 2022
#Planning, Environment & Sustainability
On the evening of 23 April 2020, Goulburn–Murray Water (GMW) received a tip-off about an illegal diversion of water from a channel in northern Victoria. Officers arrived on site at 11 pm and found a tractor pumping water into an on-farm channel. One and a half years later, Mark Anthony Ryan, the owner of a small farm, pleaded guilty for water theft. While Mr Ryan only stole $508 worth of water, he was fined $10,000 and ordered to pay approximately $2,000 for GMW’s legal costs.
This matter illustrates the ‘zero-tolerance approach’ taken in many jurisdictions to prevent, detect and enforce water theft laws by applying serious penalties to water users who exceed their legal entitlements. So what exactly constitutes water theft? And how is the zero-tolerance approach enforced?
The law acknowledges that water is a vital communal resource to be shared. In Australia, the National Water Initiative recognised that “water is vested in governments that allow other parties to access and use water for a variety of purposes.” A person commits water theft when they take water vested in governments without legal permission. This includes instances wherein water users exceed their authorised volumes by fractional amounts. Water theft is monitored and enforced strictly to enable all water users to access their share of water and to ensure sufficient water is left in waterways for other users and environmental purposes.
In Australia, water theft as an offence is primarily enforced at a state and territory level. In this article, we examine Victoria’s water management framework which is broadly replicated in the other jurisdictions. In Victoria, six water corporations are primarily responsible for ensuring compliance with the Water Act 1987 (Vic) (Act).
Under the Act, there are a number of offences related to water theft. Two of the key offences are under sections 33E and 289.
Section 33E makes it an offence to take water from a declared water system without authorisation under a water share. Water shares can be issued under section 33F of the Act and authorise the taking of an allocated amount of water during a specified period. Taking water in excess of your water share constitutes an offence under section 33E. Penalties are increased where the taking is “knowing” or “reckless” and where the taking causes serious damage or economic loss. The maximum penalty for individuals is 10 years' imprisonment and a fine of approximately $220,000 while corporations face a fine of approximately $1 million.
Section 289 makes it an offence to take, use or divert an authority’s water without consent. Water is “Authority’s water” where it is under the control and management of a water corporation or a catchment management authority, or where it is supplied by any of these bodies for the use of another person. In practice, this is essentially all the water provided to users. Taking, using or diverting water in excess of the amount consented to would constitute a breach. It is also an offence to not comply with any conditions attached to consent – for example, taking water outside the relevant times or at a higher flow rate than prescribed. Taking, using or diverting water knowingly or recklessly, and where doing so results in serious damage, attracts increased penalties. The maximum penalties are the same as under section 33E.
Water corporations employ a wide range of strategies to ensure compliance with water theft laws. Lower-level compliance actions involve water corporations encouraging and assisting compliance by educating the community about what constitutes water theft and alerting users when they are close to exceeding their allocated volumes. Medium-level compliance actions involve the use of enforcement tools to bring those who have engaged in water theft back into compliance such as warning letters and discontinuing water supply until payments are made. Last, high-level compliance actions involve prosecutions for breaches of sections 33E and 289, revocation of water rights and the issuance of on-the-spot infringement notices.
In 2017, the well-known Four Corners episode titled ‘Pumped’ made serious allegations of substantial water theft and poor regulation of the Murray–Darling Basin’s resources. A 2018 review of Victoria’s compliance and enforcement policies found that such policies could be used to greater effect, and that the approaches taken by water corporations to implement these policies were inconsistent and at times ineffective. In response to these findings, water corporations released compliance and enforcement strategies to establish consistency, transparency and more effective responses to water theft. In addition, the Act was amended to strengthen penalties and enforcement measures and to make it easier to prosecute offences. In 2020, an independent review found that significant progress had been made but there was room for further improvements. The review estimated that up to 3.6 percent of rural water volume was stolen and set a target of reducing this to one percent.
To achieve the one percent target, the independent review recommended that water corporations clearly communicate to water users a ‘zero-tolerance approach’ to water theft. Water corporations have acted on this recommendation by increasing the use of numerous compliance strategies as outlined above, particularly prosecutions and the issuance of infringements. Water corporations have also increased monitoring of water use, such as by installing more water meters to better determine water take. In 2020/21, GMW undertook 25 successful water prosecutions and saw a halving of the number of customers who took water without authorisation from the previous year. Lower Murray Water, another water corporation, undertook one successful prosecution and issued numerous infringement notices and saw an 87 percent reduction in water theft.
To avoid inadvertently stealing water and being subjected to substantial financial penalties, it is crucial that water users regularly review their water entitlements and how much water they are currently taking. It is also important that users plan ahead month-to-month and seasonally and consider how much water they may need depending on their circumstances and projected rainfall. If users are unsure how much water they are entitled to, they should contact the relevant water corporation to enquire.
Authors: Joseph Monaghan, Christopher Watt & Jacob Atkinson
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.