Speech given to the Australian Water Association 9 August 2019

By Grant Barnes, CRO, Natural Resources Access Regulator

Welcome. Firstly, I'd like to acknowledge the Wiradjuri peoples who are the traditional custodians of this land upon which we’ve gathered, pay my respects to their Elders past and present, and extend that respect to all Aboriginal and Torres Strait Islander peoples here today.

May I also pay my respects in the Kiwi tradition - by way of mihi.

E ngā mana – to the indigenous people of this place, I acknowledge you;

E ngā reo – to the Australian Water Association and sponsors, I thank you for the invitation;

E rau rangatira mā o ngā hau e whā – to my colleagues and those who have gathered here today from far and wide, I greet you all;

Tēnā koutou, tēnā koutou, tēnā tātou katoa – greetings one and all Ko Grant Barnes tōku ingoa – My name is Grant Barnes

E mahi ana au hei kaiwhakahaere matua motu tari o Chief Regulatory Officer

Drought acknowledgement

In addition to those greetings, I’d also like to acknowledge rural communities of NSW who are experiencing hardship as a result of the drought. It is in these times that the character of rural Australia is demonstrated; its resolve, strength and fortitude.

Address

For my address this morning, I will reflect on three things:

  • NRAR; its mandate and approach
  • why our establishment matters to those who depend on water in the Murray– Darling Basin
  • how NRAR is delivering.

A lot has happened in 24 months. Late last month was the second anniversary of the ABC Four Corners program ‘Pumped’. The NSW Government’s response was prompt; Ken Matthews AO undertook an independent review of water regulation and his recommendations were accepted in full.

The Water Reform Action Plan quickly followed, and soon thereafter the Natural Resources Access Regulator was initiated, replete with its own legislation and independent Board.

So to the first point, NRAR and its activities

NRAR has been established with a clear, legislated mandate to:

  • firstly, ensure the efficient, effective, transparent and accountable delivery of the regulatory regime for water, and
  • restore public trust and confidence.

The Natural Resources Access Regulator Act 2017 has set NRAR up as a body corporate, governed by a fully independent Board chaired by the Hon. Craig Knowles.

In an operational sense we have been up and running for a little over one year.

  • We are operational and our teams are on the ground engaging with stakeholders, providing assistance when it is sought, investigating alleged breaches of water law, and protecting environmental flows.
  • We are working diligently on compliance matters. We have largely resolved the almost 500 legacy cases inherited from former agencies.
  • We have embraced transparency and proactively publish online the actions of our governors, our policies and procedures, our engagement with stakeholders, and our   compliance activities. This speech for instance, will soon be published.
  • We have taken enforcement action when necessary and have issued penalty infringement notices, stop work orders, show cause notices, remediation directions, and formal warnings.
  • Prosecutions have commenced in local court and the Land and Environment Court, with more likely to follow.

I am privileged to lead NRAR and proud of what our team of skilled regulatory practitioners has achieved since we commenced operations on 30 April 2018.

NRAR has hit the ground running.

From start up to scale up we have more compliance boots on the ground across the state than ever before, with teams conducting inspections to ensure the protection of our precious water resources.

Since commencing operations, we have more than tripled the number of investigators. We have over 90 frontline staff across the organisation undertaking compliance activities.

We are leveraging ‘boots on the ground’ by utilising ‘eyes in the sky’. The use of spatial and satellite data boosts our compliance presence and directs staff to areas where harm is occurring, so appropriate compliance actions can be taken.

NRAR is introducing new technologies such as drones and sonar depth gauges to further enhance the effectiveness of staff when they are in the field. NRAR compliance staff are getting more out of every hour they spend in the field than ever before.

All this activity has yielded some impressive results. To date NRAR staff have:

  • inspected 340 properties
  • undertaken 74 compliance audits
  • sent 390 advisory and formal warning letters
  • issued 113 statutory notices, including stop work, show cause and remedial directions
  • issued 50 penalty infringement notices that entail a fine of $750 for an individual and $1500 for a corporation.

These regulatory responses allow a balanced approach to non-compliance which stops the improper conduct and promotes change in attitudes and behaviours, rather than simply applying a punishment.

However, it’s also imperative that regulators are prepared to enforce the law - a watchdog like us that’s unwilling to bark is of little use.

Since establishment we have commenced nine prosecutions, three in the Land and Environment Court and six in the Local Court, with an additional prosecution approved and awaiting initiation. Three of these cases relate to the allegations aired in the Four Corners program.

Three of the nine commenced prosecutions have since been finalised, with their results published on NRAR’s public prosecutions register.

We are still in our infancy though, and there is much to do.

Reviews by independent bodies draw attention to the behaviour of some, to the detriment of many.  The reputations of a lot of good farmers and irrigators have been unfairly sullied.

The same can be said of the overwhelming majority of professional and hardworking staff whose expertise was ignored and contributions marginalised.

The bad behaviour of a few has had an adverse effect on the performance of many. With an eye then intently on the future, we will maintain our positive trajectory.

As the independent regulator, we need to make sure we do all the things necessary to:

  • maintain a physical compliance presence with ‘boots on the ground’
  • re-state what is required to be a professional regulator: outcome focused, intelligence led and pro-active
  • require the highest of ethical standards of our people; accountability, integrity, service and trust
  • fiercely protect our independence
  • resolutely commit to act in the public interest at all times.

OK, now to the second reflection: why do I think NRAR matters?

Since joining NRAR as Chief Regulatory Officer, I have been all over NSW meeting with farmers, irrigators and the residents of rural towns who rely so heavily on stable access to water for their livelihoods and indeed their very existence.

The Murray–Darling Basin is a significant contributor to the Australian economy, providing about a third of the total output for natural resource-based industries, worth billions of dollars a year. In addition to this there is significant environmental value in its water assets, cultural significance for some 30 Aboriginal nations that call the Basin home, and great importance to 40 per cent of Australia’s farmers who ply their trade within its reaches, producing a significant proportion of the nation’s food and fibre.

But I suspect that as members of the Australian Water Association you know all this

You know too the importance of water as a critical input to all the Basin’s activities. Security of supply goes hand in hand.

Equally, you understand that the ability to access water and to extract for productive use is a right that confers both economic value and social obligations.

Now I understand that just like the land the farmer may own, he or she also owns the right to the water that has been purchased. Just as one has an expectation of protection from the theft of land, there is an equal right to the protection of water assets. Both are essential to business success and deserve active protection under the law.

Low accountability of water users undermines the integrity of the regulatory system and the confidence therein.  A downward spiral can ensue.

Water users act rationally to purchase water at a price that is in part based on the certainty that they’ll get what they paid for. That there will be little or no ‘leakage’. This runs true for taxpayers who foot the bill for environmental water held on their behalf.

Thirdly and finally, how does independence empower NRAR?

NRAR is independent in that its operations, including investigations, are not subject to the direction of politicians, bureaucrats, any political party, or the government. Unlike most other publicly funded organisations in NSW, we are accountable to an independent
Board.

Whilst the Board is appointed by the Minister for Water, its independence is enshrined in the Natural Resources Access Regulator Act. This independence is essential for the public to have confidence that NRAR is not biased or subject to the dictates of the government of the day.

The NRAR Act confers significant powers and discretion on me as Chief Regulatory Officer, the NRAR Board and NRAR officers. Given these extensive powers, an accountability framework is in place to ensure powers are not abused and legislative responsibilities are met. These mechanisms include the NRAR Board Charter, staff Code of Conduct, a commitment to transparency and proactively meeting freedom of information provisions, and the oversight of the NSW Ombudsman.

Independence is at the core of our operational DNA. In our second year we have avoided regulatory capture by steadfastly upholding our role as regulatory practitioners working in the interest of the public, now and for the future.

With NRAR we are rebuilding a compliance regime that affirms the value of water as an asset, protected from those who seek to obtain it unlawfully.

An effective and efficient regulatory system is best determined by a robust, fair, and ethical compliance agency. That is where NRAR comes in. We make it easy to comply and painful to not.

A visible, professional, well-resourced and, importantly independent NRAR affirms the social licence of lawful operators by validating their compliance, as distinct from unlawful actors   whose activities flout the law.

By having a presence on the ground with clear rules, fairly and consistently applied, NRAR endorses the good and marginalises the bad.

It is with this final point that I acknowledge the support of the Australian Water Association and its members. Throughout regional NSW I have consistently heard that the great majority of water users are honest operators who appreciate the need for rules and want them fairly applied.

That is NRAR’s commitment to you.