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Water theft

Scope and definitions

Water 'theft' is not necessarily a new phenomenon for Australia but current climatic conditions, a history of overuse and variable source replenishment has brought the problem and consequences of unauthorised withdrawal and use of water to the national forefront. The introduction of water restrictions and stricter approaches to managing Australia's water resources, most prominently the Murray-Darling Basin, potentially (and probably) increases the temptation to take water that one is not entitled to. Because there is now much greater political and public awareness about water availability, the theft of water and how much theft is actually occurring, it is an emerging theme in environmental crime research.

Australia is the driest inhabited continent and reliable water sources are mostly concentrated on its coastal stretches (Harris 2006). The 2006 State of the Environment report describes a 'geographical disjunction between (water) supply and demand' existing in Australia, that is exacerbated by population increase in coastal areas, the climate and runoff variability made worse by the recent sustained drought (Harris 2006: 2). Nonetheless, Australia's use of water is huge and has been ranked third in the world in terms of per capita water usage (Radcliffe 2004). Agriculture is the greatest consumer of water in Australia; the most recent statistics estimate that in 2004–05, consumption totalled 12,191 gigalitres of water, or 65 percent of all water used in that year (ABS 2008a). Ninety-one percent of this water is taken to irrigate crops and pasture, although in recent years, there has been a decrease in the amount diverted for irrigation purposes. Household and water supply industries consumed another 11 percent of water, 'other industries' seven percent and manufacturing and mining industries consumed three and two percent respectively (ABS 2008b, 2008c).

Water is derived from both surface and groundwater sources. The conventional view was that surface water, as available in our inland rivers, was an 'unconditionally renewable' resource. The reality is that the combination of low rainfall, higher than average temperatures (leading to increased rates of evaporation) and extraction rates exceeding that of replacement, has led to a situation where that renewable resource is in danger of becoming a rare commodity. For many inland river systems in Australia and particularly those in southeastern Australia where the drought is entrenched, this has become increasingly the case. Groundwater, on the other hand, is a limited resource and its use regulated accordingly. However, additional stress is being placed on groundwater reserves, in part because of the drought and in part because of consumers turning to groundwater instead of surface water (URS Australia 2008). Some sources of groundwater are being used well above their recharge limits (Harris 2006).

Water theft covers not just that from natural water courses but the stealing of harnessed or piped water. The latter takes in offences of actual theft, breach of extraction conditions and construction of works to illegally take water, tampering with meters to relay false readings and contravening declared water restrictions. Much of the literature, however, focuses on the former type of theft and the following discussion reflects this emphasis.

Laws and regulation

Water management and use in Australia is governed by an extensive regulatory framework, reflecting dependence on a relatively limited resource coupled with large and disparate consumption demands from the Australian population. Up to 150 regulatory water plans are currently in effect across the states and territories; primary statutes are listed in Table 31. In New South Wales, the Water Management Act 2000 is the predominant legislative form and while certain provisions in the Water Act 1912 are still observed, the latter will eventually be phased out (NSW DWE 2009a).

Table 31: State and territory water management statutes
Jurisdiction Primary statute(s)
NSW Water Management Act 2000
Water Act 1912
Vic Water Act 1989
Qld Water Act 2000
WA Rights in Water and Irrigation Act 1914
SA National Resources Management Act 2004
Water Resources Act 1997
Tas Water Management Act 1999
ACT Water Resources Act 2007
NT Water Act

Note: While the agencies listed are responsible for administering legislation, compliance and enforcement roles are taken up in some jurisdictions by other agencies (eg State Water in New South Wales)

In addition is the Water Management Act 2007 (and Water Amendment Act 2008) which delineates management of water resources contained within the Murray-Darling Basin. The Murray-Darling Basin Authority will have responsibility for enforcing water management provisions as specified in the Act and the Australian Competition and Consumer Commission will oversee adherence to water charge and water market rules.

Water access and use is arranged through the granting of entitlements and water allocations or shares. Traditionally, an entitlement was an exclusive right to use water from a specified water source for a specified purpose and an allocation designated enforceable limits on the volume of water that could be drawn from an entitled source. These general permissions have since been remodelled and re-labelled in most jurisdictions. For example, in New South Wales, a water access licence (recognised under the Water Management Act 2000) stipulates the share of the available water the licence holder is entitled to (and from which an allocation is calculated) and the 'part' of the water source from which water can be extracted. An approval must be additionally sought to use the water for a specific purpose (eg irrigation) and/or to carry out a specific activity, such as the construction of water-affecting works.

Taking surface water, from a river, lake, aquifer, spring or soak, requires a licence, unless otherwise stated. Unlicensed water extraction is allowable in all jurisdictions if used for domestic or stock purposes, where landowners hold rights to water under the Commonwealth Native Title Act 1993, or for miscellaneous purposes such as camping or watering travelling stock. New South Wales additionally recognises 'harvestable rights', where landowners can collect up to 10 percent of average regional rainfall runoff if stored in a 'small' dam (NSW DWE 2009b). Water use licences are required in South Australia and Western Australia if surface water is extracted from 'prescribed' or 'proclaimed' areas respectively but not from other water sources if the taking of water does not affect the water rights of persons downstream (SA DWLBC 2008b; WA Department of Water 2009a).

With groundwater a much less abundant resource, licensing requirements tend to be stricter. A licence (or approval of works or permit) must be obtained before sinking a bore, even if the groundwater is to be used for non-prescribed activities such as domestic and stock use. The bore must always be sunk by a licensed driller. Actual use of groundwater also requires a licence, but like surface water, only if the water is to be harvested for purposes other than domestic or stock-related needs. Construction of works (other than bores) such as dams, weirs etc need authorisation in the form of permits.

Licenses are accompanied by prescribed water allocation and usage plans, and where water management or water-sharing plans are in place, refer to allocation rights as specified for these regions. Allocations state how much water can be taken over a given time period and for water drawn from a source other than a dam, there is a limit (in megalitres) on how much can be drawn, plus where the water can be taken from, where it can be used and for what purpose. Allocations are not tied to the life of the licence. Accounting for water usage is inherent to the issuance of a licence and installation of meters and regular recording of water usage a mandatory condition.

One response to water shortages and overuse in Australia is to restrict issuance of new licences. Many jurisdictions have embargoed the granting of water entitlements for particular areas, for particular purposes, for particular water sources or for particular times of the years. Examples include:

  • No new water licenses are being issued in New South Wales if water use is for commercial purposes (NSW DWE 2009b).
  • Groundwater extraction licences in Western Australia will be available only in areas where the total number of worked bores does not exceed allocation limits (WA Department of Water 2009a)
  • Water allocations will be being granted in Tasmania for extraction in winter months only, from dams or via transfers from water catchments (Tas DPIW 2009a).

Simultaneously, jurisdictions are formulating more sophisticated water trading networks. Victoria has the most developed system in operation and in Queensland, permanent surface water trading has begun with markets for groundwater in development. There is little trading so far in jurisdictions such as Tasmania, where the market is spatially disconnected because of relatively small catchments.

Offences and penalties

Water offences, then, predominantly refer to the:

  • unauthorised taking of surface or groundwater ie without a licence;
  • unauthorised construction of works;
    • bore construction or alteration
    • other works such as dams or weirs
    • bore construction by an unlicensed driller
  • contravention of conditions of authorisation
  • taking water for purposes different to those agreed to
    • taking water in excess of allocation
    • taking water from a source not specified on authorisation (Table 32).
Table 32 Maximum penalties for selected water offences
Act and associated selected offences Maximum penalty

Water Management Act 2000 (NSW)

Taking water without, or otherwise than authorised by, an access licence (s 60A)

Intentional (Tier 1):

$1m and/or seven years imprisonment (natural person)

$5m (body corporate)

Other (Tier 2)

$250,000 (natural person)

$1m (body corporate)

Contravention of terms and conditions of access licence (s 60B)

Tier 2 as above

Taking water for which there is no, or insufficient, water allocation (s 60C)

Tier 1 (intentional) and Tier 2 (other) as above

Taking water otherwise than from a nominated water supply work (s 60D)

Tier 2 as above

Using water without or not authorised by a water use approval (s 91A)

Tier 2 as above

Constructing or using water supply work, drainage work or flood work without, or otherwise than as authorised by, a water supply work approval (s 91B–D)

Tier 2 as above

Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval (s 91E)

Tier 2 as above

Carrying out aquifer interference activity without, or otherwise than as authorised by, an aquifer interference approval (s 91F)

Tier 2 as above

Contravention of terms and conditions of approval (s 91G)

Tier 2 as above

Failure to install or maintain metering equipment (s 91 H)

Tier 2 as above

Taking water when metering equipment not working (s 91I)

Tier 1 (intentional) and Tier 2 (other) as above

Failure to keep metering records (s 91J)

Tier 2 as above

Meter tampering (s 91K)

Tier 1 (intentional) and Tier 2 (other) as above

Fail to comply with requirement (directions) or enforcement (s 340A)

Tier 1 (intentional) and Tier 2 (other) as above

Water Act 1912 (NSW)

Failure to comply with conditions of licence (s 17B(1c))

$11,000 (natural person)

$22,000 (body corporate)

Failure to comply with terms of notice regarding

  • modification of licence;
  • amount of water that can be taken; and
  • restriction or suspension of rights (s 17B(2))

$11,000 (natural person)

$22,000 (body corporate)

Alteration of works to affect quantity or quality of licence flowing in, to or from a river (s 18(1))

$11,000

Irrigation of area in excess of that permitted on licence (s 18(2))

As above

Continue to take or use water after suspension, withdrawal or expiry of permit (s 18R(1a–b))

As above

Failure to comply with conditions of permit (s 18R1c)

As above

Taking water where the work is not connected to a water meter or other measuring device (s 20AC(1))

$11,000 (natural person)

$22,000 (body corporate)

Damaging water meter, preventing measurement or interfering with reading (s 20AC(2))

$11,000 and/or 12 months imprisonment (natural person)

$22,000 (body corporate)

Construction, erection or use of works without a licence (s 21(B))

$11,000 (natural person)

$22,000 (body corporate)

Failure to comply with restriction or suspension of rights during periods of water shortage (held under licence (s 22b); from bore (s 117E))

As above

Unauthorised sinking, enlargement, deepening or alteration to a bore (s 112)

As above

Alteration to a bore in contravention of licence conditions (s 117I(a))

As above

Taking or using water from an unlicensed bore (s 117I(b))

As above

Taking or using water from a bore in contravention of licence conditions (s 117I(d)

As above

Water Act 1989 (Vic)

Unauthorised taking of water from waterway, aquifier, spring or soak, or dam in a declared system (s 33E)

$6805.20 and/or six months imprisonment (First offence)

$13,610.40 and/or 12 months imprisonment (Second offence)

Contravene terms of bulk entitlement (s 47A)

$22,684.00

Unauthorised taking or use of water from waterway or bore in a non-declared system (s 63(1))

As above

Taking or using water from spring, soak or dam for use other than domestic or stock-related (s 63(1A))

Use of water for irrigation or allowing irrigation from declared water system without a water use licence (s 64J(1))

As above

Unauthorised use of water for purposes other than irrigation from declared water system (s 64J(2))

$2,268.40

Use of water on land not specified in water licence or registration (s 64K)

$6,805.20

Failure to comply with conditions of water licence (s 64AF)

As above

Unauthorised construction, alteration, operation, removal or decommissioning of a private dam (s 75(2))

$2,268.40 and/or three months imprisonment

Unauthorised construction, deepening, enlargement or alteration of a bore (s 75(2))

$6805.20 and/or six months imprisonment (First offence)

$13,610.40 and/or 12 months imprisonment (Second offence)

Wrongful taking of water (without consent of Authority) (s 289(1))

As above

Water Act 2000 (Qld)

Unauthorised taking, supplying or interfering with water (s 808(1)(2)))

$124,875

Taking of water without an approved water meter (s 808(3))

As above

Use of water contrary to water use plan or land and water management plan (ss 809–810)

As above

Tampering with device used to measure volume, rate or time of taking water (s 811(1))

As above

Contravene conditions of water entitlement, seasonal assessment notice or permit (s 812)

As above

Contravene conditions of licence (s 813)

As above

Unauthorised construction of a bore (s 816)

$37,500

Taking water without an operator's licence (s 820)

$75,000

Rights in Water and Irrigation Act 1914 (WA)

Obstruction of water course on Crown land (s 25)

Unauthorised bore work (s 26a)

$10,000 (natural person) $100,0000 (body corporate)

Unauthorised taking of water for irrigation (s 39A)

$20,000 (natural person) $50,000 (body corporate)

Fraudulent use of water for irrigation (s 39C)

As above

National Resources Management Act 2004 (SA)

Contravenes s 127 (1, 2, 3, 5a) and s 127 (6a):

  • Unauthorised taking of water (s 127(1))
  • Take water from non-prescribed water course or take surface water from land not in a surface water prescribed area (in contravention of an NRM) (s 127(2))
  • Unauthorised construction or modification of water affecting works (s 127(3))
  • Various activities in contravention of a NRM plan (s 127(5a)

$35,000 (natural person); to be increased to $700,000 $70,000 (body corporate); to be increased to $2.2m

Contravenes or fails to comply with term or provision of water management authorisation (s 127(6ab))

As above

Contravenes or fails to comply with conditions under management authorisation, permit or water use authorisation (s 127(6b)

As above

Fail to comply with rectify unauthorised activity notice (s 130(2)

$25,000 (natural person)

$50,000 (body corporate)

Fail to comply with notice regarding restrictions in case of inadequate supply or overuse of water (s 132(7)

As above

Contravenes or fails to comply with water conservation regulation (s 169(8)

$5,000 (natural person)

$10,000 (body corporate)

Water Resources Act 1997 (SA)

Taking water in excess of water allocation on licence (s 132(1a))

  • quantity taken
  • source
  • contravention of notice under s 16

Penalty declared by Minister based on

Taking water when not owner of water licence (s 132(1b))

As above

Use of water in contravention of licence conditions (s 132(1c))

As above

Water Management Act 1999 (Tas)

Take water in excess of allocation (s 82(1))

$50,000

Contravene conditions of licence (s 82(1))

As above

Using water for purposes other than those allowed (s 82(1))

As above

Breach of water restrictions (s 92)

As above

Building of dam without permit (s 146(3))

$20,000

Failure to comply with conditions of dam permit (s 146A)

As above

Damage or interfere with water meter (s 236)

$10,000

Water Resources Act 2007 (ACT)

Unlicensed taking of surface or ground water (s 28(1))

$50,000 and/or six months imprisonment

Take water from unlicensed bore (s 28(2))

$50,000

Unlicensed bore work (s 37)

$50,000 and/or six months imprisonment

Unlicensed or adverse waterway work (s 42)

$10,000 and/or 12 months imprisonment

Unlicensed recharge work (s 47)

$50,000 and/or six months imprisonment

Contravene conditions of licence (s 58)

$50,000

Contravene installation, working or reading of water meter (s 59)

$25,000

Water Act (NT)

Obstruction or interference with waterway (s 15(1))

$2,000 and/or two years imprisonment

≤ $2,000 ≥$10,000

Breach of permit conditions (s 42)

$2,000

Unauthorised construction of dam, water storage or other control structure to affect water flow (s 40)

$2,000

≤ $2,000 ≥$10,000

Unauthorised taking of surface water (s 44)

As above

Breach of licence conditions on taking or use of surface water (s 46)

$2,000

Unlicensed drilling for ground water (s 48)

$5,000 and/or 3 months imprisonment

Unlicensed extraction of ground water (s 59)

$2,000

Contravene conditions of ground water licence (s 61)

As above

Unlicensed recharge of aquifiers (s 67)

$200

Breach of licence conditions (s 68)

$2,000

Wastage of bore water (s 69)

$200

Water Act 2007

Contravene enforcement notice (for breaches of provisions in Part 2: Management of Basin resources)

$66,000

In 2008, New South Wales introduced the category of 'intentional, negligent and reckless conduct' to differentiate penalties for unauthorised taking of water, and in so doing, raised such an act to a Tier 1 offence (NSW DWE 2008c). Pecuniary penalties thus increased from $132,000 to $1.1m for individuals, with imprisonment up to two years, and for body corporations, a maximum penalty of $2.2m, up from $275,000. A new offence listed in NSW's Water Management Act 2000 (s 60C) is the taking of water for which there is an insufficient water allocation. South Australia has recently announced a substantial increase in penalties under the Natural Resources Management Act 2004 for 'water theft' (Rann 2009). Individuals discovered illegally taking water will in future be liable for a maximum penalty of up to $700,000 and corporations of up to $2.2m. Previous penalties were $35,000 and $700,000 respectively.

Water restrictions and proposed and directed reductions in allocations have placed greater emphasis on consistent monitoring of rates of water usage. As described earlier, water licence holders are obliged to install and maintain water meters and accurately record the volume of water taken and the rate and time of taking. To counteract tampering of, or failing to maintain, metering equipment, provide less than accurate water usage reports, or take advantage of faulty equipment to draw more water, some jurisdictions (New South Wales, Tasmania and the Australian Capital Territory) have legislated for offences pertinent to such behaviour.

Nature and extent

The over-zealous dispensation of water entitlements and allocations is proposed, if not established, as one of the major human-sponsored factors affecting current water shortages and the precarious state of some of Australia's larger inland river systems (Webb, McKeown & Associates 2007). During the 1980s and particularly the 1990s, state governments handed out a substantial number of new water licences, with generous extraction allocations attached. Many of these went to irrigators and other equally large consumers of water. Fears about water mismanagement and severe water shortages prompted COAG discussion on water reform, which bore the Intergovernmental Agreement on a National Water Initiative (NWI). The NWI came into effect in 2004 (with Tasmanian and Western Australia joining in 2005 and 2006 respectively) and aimed to alleviate deficits in water management plans, particularly with regard to minimal focus on environmental outcomes, little systematic monitoring or assessment of compliance and disconnected management of surface and groundwater resources. Among the objectives of the NWI are to modify the granting of water entitlements, address current and prevent future over-allocation of water, develop measures for water accounting and compliance and expand the water trade market (COAG 2005). Almost all states and territories have made good progress in developing water access entitlement and planning frameworks as prescribed by the NWI, particularly in high-priority water systems. However, in its report to COAG of 26 March 2008, the Working Group on Climate Change and Water identified that, despite this progress, significant improvements in monitoring and compliance were needed to underpin stakeholder confidence in water access entitlements and in the security of water provided for the environment (COAG Working Group on Climate Change and Water 2008).

Increased competition can increase the temptation to rort or disregard the system and with newly introduced constraints on access and allocation, this temptation will continue to grow. Such contempt commonly comes in the form of taking more water than has been allocated or from a source that one is not entitled to use, using water for non-authorised purposes and tampering with metering equipment to conceal actual usage rates. And while such behaviour is bandaged in phrases referring to unauthorised activity and contravention of conditions, as many environmental offences are, they all represent or enable in one way or another an act of taking water that is not lawfully theirs. More blatant acts of theft are also occurring in Australia, primarily through the appropriation of water stored in private water tanks and dams. Media reports over the last couple of years have described draining of water from tanks and dams in rural areas of New South Wales; in one five month period in 2007, there were five separate incidents of more than 100,000 litres of water stolen from water tanks and many more of 10,000 litres or less (Williams 2007).

The question remains, however, as to how much theft is actually happening and how much water is being 'stolen'? Quantifying the prevalence of theft is like tracking illegal native vegetation clearance—hamstrung by the practicalities of monitoring a large assemblage of licensed holders and having access to resources to undertake comprehensive surveillance work of potentially and actual affected water resources. Another complication is the absence of a nationally-consistent water accounting method. One of the objectives of the National Water Initiative that is being overseen by the National Water Commission, is the development of national standards for the measurement and metering of water, which should improve not only calculating the volume and location of available water, but who the users are and what they are using the water for (NWC 2007). Another more immediate problem affecting estimation of volume taken both by compliant and non-compliant means, is that not all water allocations are metered. As stated previously, an increase in metering of water allocations is recommended under the NWI and jurisdictions are taking steps to improve coverage. For example, meter installation is now required for users in Western Australia who extract 50,000 litres or more a year (WA Department of Water 2009b) and for all licensed, commercial users of water in Tasmania (Tas DPIW 2009b). The proportion of license holders with metered entitlements is, though, relatively low. While most water extracted from regulated rivers in New South Wales is metered, much less of that coming from groundwater sources are and none from unregulated rivers. Just 34 percent of licences in New South Wales in 2007–08 were metered (NSW DWE 2008a), which complicates estimation of overall compliance and comparison of allocation accounts with that actually taken.

Consequently, published data, or even published estimates, of theft (or evidence of non- compliance) are difficult to uncover. Data from the NSW Department of Water and Energy show that the number of investigations for non-compliance under the Water Act 1912 and Water Management Act 2000 was stable from 2005–06 to 2007–08 (n=114, 115 and 118 respectively) but considerable variation in compliance was apparent, at least in 2007–08, between different regions (NSW DWE 2008a). For example, the majority of bore licence holders in the Leeton area of New South Wales complied with licence conditions while a third in the Murray Irrigation Area had not. In the same time period, the SA Department of Land, Water and Biodiversity Conservation investigated 70 complaints about improper water usage in the River Murray (SA DLWBC 2008a). All violations in both states and territories received administrative reprimands. Neither report elaborates about what these investigations or complaints referred to but the latest water statistics report from the Queensland Department of Natural Resources and Water does list cases prosecuted against relevant sections of the Water Act 2000 (Qld). Of the 24 cases prosecuted in 2006–07, three were for unauthorised taking or interfering with water, two for contravening conditions of licence and two for tampering with a water meter (Qld DNRW 2008b).

There has been some media exposure of actual incidents and suspected participation in water theft but these too are sporadic and only report outcomes of prosecuted cases. All describe irrigators (in Victoria and South Australia) taking water they were not authorised to harvest and/or interfering with meters/altering meter readings. The drought ravaged Murray-Darling Basin and the complicity of irrigators (via the aforementioned granting of substantial water allocations in the past) in affecting its current state, has focused national attention on illegal and unmetered pumping and diversion of its waters. Certainly, the actuality of theft is acknowledged, for example in submissions to the current senate inquiry by the Rural and Regional Affairs and Transport Committee on the long-term sustainability of the basin system, scientific papers describing the crisis (eg Cullen 2007) and by media releases from affected state government and opposition parties (eg Murray 'water theft' pumping angers SA Oppn, ABC News 7 Aug 2008). Yet little is made publically available to describe the dynamics of this theft.

The identification of high-risk areas for intensive compliance monitoring attention also suggest elevated risk of water theft. In their latest annual report, the NSW Department of Water and Energy listed eight regions and groups of licence holders subject to such scrutiny, as the increased pressure of the ongoing drought in the state 'increased the benefit from and potential motivation for water theft' (NSW DWE 2008a: 27). Those identified included surface water licence holders (Bourke area), bore (groundwater) licence holders (Murray Irrigation, Botany Groundwater Area and Leeton areas), irrigators (along the Murray), bore drillers (Great Artesian Basin) as well as the measurement of water extraction (from the Wingecarribee River) and use of town water while under a directed water restrictions order (Deniliquin).

Another, less considered version of water theft can occur when the combination of loose regulation and inducement to 'push the system' enables quasi-permissible drainage of environmentally sustaining waters. This is exemplified by recent investigation of works constructions on the Macquarie floodplain, diversion of environmental flows and subsequent declining health of the ecological communities therein (Steinfeld & Kingsford 2008). The Macquarie Marshes is one of the largest semi-permanent wetland systems in Australia, surrounded by floodplains and an important breeding site for over 40 species of waterbird. When flooded, the wetlands can extend up to 250,000 hectares in area. Eighty-eight percent of the wetlands is privately owned and used for agricultural purposes, primarily grazing but also dryland farming and irrigation.

A four-fold increase in the construction of levees, channels and river storage facilities took place in the southern regions of the Macquarie floodplain between 1949 and 2005, with much of this development in the 1980s and 1990s, and despite the implementation of the Murray-Darling Basin Cap in 1995. While most of these constructions may be technically legal under the regulations applicable at the time, the risk of continued over-harvesting of 'environmental waters' (by diversion of flows from rivers and direct capture from the floodplain) is not (Steinfeld & Kingsford 2008). Further, the level of development, according to the report authors, breaches guidelines regarding floodplain development and disconnected vegetation communities along the floodplain. Some of these communities are severely water-stressed, with 100 percent mortality of river red gums in nine percent of sites sampled (Steinfeld & Kingsford 2008) and a marked reduction in water bird numbers (Kingsford & Auld 2005). A follow-up audit investigating unauthorised constructions and illegal water diversions is in progress (Costa 2008), as is the creation of new policy on better management of water diversions on floodplains.

Reporting and detection

The establishment of incidents of water theft come from three forms of monitoring activity. The first focuses on compliance auditing of water licences, involving site visits and in which works and equipment are inspected (and tested) and metering and water usage records are reviewed. Compliance auditing is supplemented by surveillance comprising (depending on jurisdiction) aerial, ground and river surveys, combined with aerial photography and the use of satellite images. Surveillance is used to detect unauthorised works, irregular flows and other signs of illegal water diversion. Reports of alleged breaches from the public, local councils or state utilities and other government departments represent the third method whereby regulators are alerted to possible water theft.

Sanctioning

As for published data on incidence of theft, there is a similar dearth on sanctions applied. The NSW Department of Water and Energy, Queensland Department of Natural Resources and Water and the Tasmanian Department of Primary Industries, Water and the Environment publish recent, although not directly comparable, data on sanctions for water management offences. Further, there is little or no information on penalties following prosecution.

Between 2005–06 and 2007–08, the majority of investigations in New South Wales for breaches of the Water Management Act 2000 or the Water Act 1912 resulted in no compliance action recorded (NSW DWE 2008c). When sanctioning occurred, it mostly came in the form of a warning letter or negotiation. Seventeen of the 48 investigated breaches against the Water Management Act 2000 in 2007–08 did, however, result in the issuance of a penalty notice, up from a total of two from the previous two years but there is no accompanying information as to whether this increase is relevant. No prosecutions were entered into.

In Queensland, the commission of water offences finalised in 2006–07 were also met predominantly with warnings (90 of 165 compliance actions), followed by 'statutory notices' (n=51; Qld DNRW 2008b). Unlike New South Wales, prosecutions did go ahead, against a total of 24 charges. Three referred to the taking etc of water with authorisation (s 808), two with contravening conditions of water licence etc (s 812) and two with meter tampering (s 811). Very few water offences were dealt with in Tasmania between 2004–05 and 2007–08. Nine water infringement notices were meted out for illegal taking water, 14 for illegal dam works and one each for failure to comply with the directions of an authorised officer, contravening water restrictions and taking water without metering (Tas DPIW 2009c, 2007, 2006). Total fines collected in 2006–07 amounted to $2,900, ($2,400 of this $2,900 was derived from water infringement notices issued for illegal dam works) and in 2007–08, just $240 was collected. Only two prosecutions were initiated in that time (for illegal taking of water) but the outcome was not recorded.

Summary

Establishing how much water theft is occurring in Australia is at present, and of all the environmental crimes considered here, the most difficult to do. While each of the theme sections have highlighted the general limitations of published data on the nature and extent of various categories of environmental crime, the dearth of information as to how much water is being illegally extracted and use is especially conspicuous. This deficiency in data is in no doubt related to the perceived notion of water theft as an emerging environmental offence and more practical issues related to accurate measurement and detection. The truth is that illegal water extraction and use is not a new problem for Australia and from anecdotal reports has always been pursued and regularly so. Its elevation to an environmental crime of consequence has largely been in response to more recent concerns about Australia's water supply, aggravated by drought and newly-legislated attempts to reign in past practices of over-supply and overuse. Regulatory attention has thus become more focused and information about transgressions will become more commonplace in regulatory reports. However, a national standard for water accounting is yet to be realised and detection of offences generally relies on formalised site visits, which restricts how much illegal behaviour can be uncovered.

The difficulties now associated with preventing water theft are akin to those for native vegetation clearance. While the regulation of water use has been in place much longer than it has for native vegetation clearance, bulk water users up until very recently had what has been described as rather generous allowances regarding the where from, what for and how much. Now these same users are being told that allocations are to be reduced, old entitlements reviewed and new entitlements put on hold and construction of works for extraction and diversion purposes to be more vigorously monitored. In other words, a culture of entitlement is being challenged by a new set of rules and a level of scrutiny not previously experienced. For this reason, like native vegetation clearance, it is assumed that the scale of the crime is probably a lot larger than officially reported and comprises a significant proportion of intentional non-compliance.

Much of the blame for water theft is being levelled at irrigators and certainly the desperate state many of our important inland river systems are now in is to do with the overuse (and both lawful and unlawful overuse ) of waters from these systems. An oft-repeated maxim of the Australia irrigator is 'upstream, theft; downstream, waste' and the culture of entitlement is probably the most entrenched within this community of water users. However, while it can be proposed that a significant amount of non-compliant behaviour is probably occurring here, it is likely that non-compliance is more broadly dispersed, between different groups of users located in different regional areas. The most recent annual report from the NSW Department of Water and Energy described where they had detected high-risk areas for non-compliance; an interesting adjunct to a study on estimating the prevalence of water theft would be to investigate why compliance for one group of users is so poor but mostly acquiescent in others.