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Eaux, pauvreté et crises sociales

Habib Ayeb
Thierry Ruf

Atelier 1. Représentations des relations entre eaux et pauvreté

“Water Poverty” in Australia

An evaluative account of its impact with particular reference to the poor

Janice Gray

Texte intégral


1Coleridge’s well known words from the Ancient Mariner, ‘Water, water, everywhere/ nor any drop to drink’ have strong resonances for Australia which is an island country and, by definition, surrounded by undrinkable sea water. The bulk of Australia’s population is huddled into a belt of arable land on the coastal perimeter of the nation, while its vast dry inland area remains only sparsely populated.

  • 1 Note that these ages vary across the states.

2Australia is, on many indicators, a rich island. It is highly industrialised. It runs a national public hospital system and offers partially subsidised medical treatment through its national health care scheme (Medicare). Free schooling is available and school attendance is compulsory for children aged between approximately five and fourteen years of age1. Many people have internet connections in their homes and mobile phone ownership is amongst the highest in the world. A means-tested old-age pension scheme operates for people over 65 years of age and there is a social security system (although in more recent years it has been cut-back significantly) for the unemployed (Department of Human Services). Australia’s wealth, measured in terms of its gross national income is high (Australian Bureau of Statistics). Yet, in other ways Australia is poor (ACOSS). It is poor in the sense that a significant number of its inhabitants live below the poverty line, as ascertained by the Henderson Report, 1973 (MIAESR). The gap between the rich and the poor is also one of the largest in the developed world. Further, Australia is arguably poor in spirit; a poverty that is reflected, in the federal government’s approach towards refugees, who are held in detention centres for long periods (while their applications are processed); the introduction of a ‘citizenship test’ and the introduction of industrial laws which diminish the rights of workers (Burnside; Mason). It is also water-poor (ie dry), perhaps with less overt indicators than in some parched, developing countries, but ‘water-poor’, nevertheless.

3The dawning realisation that water availability is finite and that Australia needs to rethink its approach to water management is attributable to the work and ideas of a range of individuals and groups including environmentalists, irrigators, scientists, academics, lawyers, farmers, economists, Indigenous groups and political scientists to name but a few. Accordingly, reform packages seeking to address water issues need, therefore, to consider and/or incorporate the perspectives of such people and need to contain legal changes, policy development, scientific research and education programs, for example. However, the focus of this paper is largely limited to a discussion of legal and policy-oriented considerations.

4In short, the paper aims to examine the proposition that although Australia is seen as a wealthy nation, its water management has been poor, with inadequate attention having been devoted to long-term demands on the water supply. Attention is drawn to the fact that for the last 20 years or so some regions (eg Sydney) have experienced a demand for water which has exceeded the estimated long-term supply from existing infrastructure. This situation has been exacerbated, according to the 2006 Emergency Water Summit, by several reasons including severe drought conditions which have lowered water levels in supply storage (The Age). The consequences of the water problem when viewed cumulatively are potentially severe at both the physical and social levels. They are also consequences which tend to impact most harshly on the poor. Against this background the issues of ‘water poverty and social crisis’ are discussed.


5The following paper seeks to highlight the ‘water problem’ in Australia and accordingly discusses the means by which governments and policy-makers have sought to overcome that problem. The paper deals with the concept of ‘water poverty’ in two senses: (1) the impoverished or depleted nature of the resource (water) itself; and (2) the effect on the poor amongst others, of water policies and management. It is perhaps worth noting at this point that in the Australian context, poverty is generally understood in terms of relative poverty, meaning ‘to be forced to live on the margins of society, to be excluded from the normal spheres of consumption and activity which together define social participation and normal identity’ (Saunders: 5). This is in contradistinction to absolute poverty which involves insufficient food, shelter and clothing to sustain life.

6The paper is divided into three parts. The first sets out the main contributing factors to the water problem, including high levels of consumption, drought, faulty infrastructure and environmental degradation. Although it deals with nation-wide problems the emphasis is on the New South Wales (NSW) position. The second part outlines the various attempts to manage the water problem including the introduction of water restrictions; the subsidisation of water saving devices; the transferral of water from the Shoalhaven River; the introduction of recycling schemes, desalination plants and air filtration plants; and water pricing. There is reference to both rural and urban water issues and in the rural context the trading of water entitlements is specifically considered given that Australia recently chose to follow the lead of other countries, such as Chile, by establishing a partial water market based on the commodification of water entitlements. The Water Management Act (NSW) 2000 is used as an example of legislation creating the preconditions for trade and the establishment of what is tradeable.

7The third part of the paper evaluates the responses to the water problem and accordingly takes each of the responses listed in Part 2 and considers them individually. In taking this approach the paper is necessarily limited to highlighting strengths and weaknesses rather than providing an in-depth analysis of each response. Nevertheless, the paper seeks to offer some evaluation of the impact of these responses, particulary as they affect the poor. In that regard, the paper considers the pricing regime announced by the national regulator, the Independent Pricing and Regulatory Tribunal (IPART (a)), as well as commodification and its potential link to the rural poverty trap. In particular, special consideration is given to a subset of the poor, namely Indigenous Australians, who without assistance are likely to suffer as a result of the operation of the trading provisions in the Water Management Act (NSW) 2000.

Australia’s water problem

8Australia’s water problem is multi-faceted. The following section spells out some of the factors contributing to the water problem.

High levels of consumption

9Water, along with air, is essential to human existence. It is also a finite resource. Yet, historically, in Australia, water has been used as though it were not a limited resource. This is particularly pertinent given that (with the exception of Antarctica) Australia is the driest continent in the world. Yet, its people seem to have ignored this fact and have been great consumers of water, using more than one million litres of freshwater per person each year or about 24,000 gigalitres (Savewater). Indeed urban Australians wash themselves, hose their gardens, launder their clothes and flush their toilets with an increasingly rare resource: high standard potable water. In 2004, Sydney (the country’s largest city) was using 106% of the annual sustainable yield of its water supplies; an amount which has proven clearly not sustainable (Smith; IPART).

10Rural water consumption is worse. It tends to far outstrip urban consumption. This is partly explained by the existence of irrigation schemes in some rural areas. However, the domestic/garden consumption rates of rural residents are also considerably higher than that of urban residents. People living around irrigated agriculture use about three times as much water in their homes and gardens as urban residents use in their homes and gardens. One government report notes that people in country towns such as Griffith use 775 kilolitres of water per year while the average Sydney household uses 249 kilolitres per year (Peatling).

11Until very recently most urban water consumers gave little thought to how future generations would manage when supplies of water became depleted. Accordingly, the most recent era of scarcity took many modern Australian urban dwellers, by surprise. Farmers and agriculturalists although perhaps more directly attuned to the likelihood of water shortages also still encountered unimagined hardship.


12Widespread drought in rural areas along with poor water management policies and practices meant that rural dwellers, together with city dwellers (who rely on the production from rural areas) have all experienced the hardship of water scarcity. (Smith: 1). Drought has ravaged much of Australia over the last decade and images of cracked earth, dried river beds, skeletal animal remains and destitute farmers whose livelihoods have been wrecked by poor yields, are common both in the media and more generally in the Australian psyche. Although the cause of drought is contestable, some scientific evidence links drought to global warming; a link which is acknowledged by the New South Wales government (DIPNR: 4).

13However, it should be noted that Australia experienced drought long before global warming was a recognised problem. Indeed there were droughts in Melbourne and its environs in 1965-66; 1914-15; 1919; 1922-23; 1938-39; 1943-45; 1976-78; 1982-83 and 1997. Similar droughts were replicated around the country and the Federation drought between 1895-1902 which spread throughout much of the nation even led to the New South Wales government declaring 26 February 1902 as a day of ‘humiliation and prayer’ for rain. Similar declarations took place in Queensland and Victoria as the drought worsened (BOM a).

14The present reality is that rain has not filled the dams and many throughout the nation remain at low levels having insufficient water to service communities adequately in the mid (and increasingly short) term. For example, in December, 2006 the main dam that supplies 80% of Sydney’s water (Warragamba Dam) was only 37% full (Sydney Water (a)). Meanwhile Sydney’s population continues to grow and in 2006 it was approximately 4.25 million. (ABS). It was noted, in 2005, that Sydney was ‘within two years of being at an all-time low, where water would literally only be available for drinking’ (Essery).

15On the other side of the country, in Western Australia there has been a 15% drop in rainfall, which scientists believe is perhaps being replicated along the eastern coast (Cullen). The Commonwealth Scientific and Industrial Research Office (CSIRO) projections which extend to approximately the year 2070 suggest that the area from Perth through to about Sydney will suffer a 40% decrease in rainfall. Indeed, if the CSIRO rainfall predictions are correct, in 2070 Adelaide will be situated in a 1214 inch rainfall zone. No other Australian city of Adelaide’s size exists in such a limited rainfall zone for the good reason that there would be insufficient resources to sustain it (Flannery; BOM b; BOM c).

16The present pattern of reduced rainfall, resulting in drought, has meant that many farmers/agriculturalists have had to ‘buy in’ water and have suffered huge stock loss or crop failure. The effect of drought financially, domestically and emotionally has been painful for many giving rise to a new class of dispirited rural poor.

17Yet, whether or not drought should be seen as an aberration rather than a normal part of Australia’s long-term climate pattern, is a moot point. Some argue that drought is a normal if unwelcome, part of the Australian climate pattern and accordingly land and water management policies need better to take account of that fact. (Courtenay Botterill & Fisher). Hence, water/drought management it is argued, needs to be seen as a longterm rather than short-term project and consequently Australians need to change their land and water management practices so that they are prepared for times, in the future, when water will be in short supply again (Courtenay Botterill & Fisher; McKernan). However, ultimately, it will be unsatisfactory to deal with the present water crisis simply in terms of drought proofing alone. The problem goes well beyond the drought.

Faulty infrastructure

18Faulty infrastructure including very old, cracked and broken pipes are another feature of the water problem. This is particularly so in New South Wales. In order to appreciate the magnitude of Sydney’s faulty infrastructure it is useful to understand how water is supplied to that city.

19The supply of water comes from 16,000 square metres of catchments which contain nine major dams and seven reservoirs. The dams and reservoirs have a collective storage capacity of 2,400,000 million litres (megalitres) (Sheil: 7). There are also 11 processing plants, 165 pumping stations, 261 service reservoirs and around 20,000 kilometres of piping which supplies about 1,500 megalitres of water a day throughout Sydney, the Blue Mountains, and the Illawarra (Sheil: 7). Since 1996, all of Sydney’s drinking water has been artificially filtered before it has been distributed. This complex and large water supply system has been augmented by an extensive sewerage and drainage works involving 23 sewerage systems, seven of which drain to the ocean and 16 emptying into inland treatment plants.

20Faulty equipment was found to exist in Sydney Water’s (the corporation supplying retail services) network of piping which carries water to and from Sydney properties. Decayed infrastructure has, therefore, been cited as both a cause of the water shortage in Sydney and a manifestation of the water problems that beset the country. Few State government financial and technical resources were devoted to the maintenance and replacement of Sydney’s water infrastructure over many years, with the result that large water losses occurred. In 2005 the leakage was calculated to be a little less than 10% of Sydney Water’s water (SMH). According to media reports some pipes leaked up to 1,000 litres a day for five years. Put another way, more than 144 Olympic-sized swimming pools of drinking water was being wasted each year because of leaky pipes in NSW (Silmalis). Of the leakages in Sydney, a spokesperson for the relevant trade union, the Australian Services Union, claimed that staff reductions contributed to an increase in faulty infrastructure, leading to leakages. The spokesperson noted that the number of maintenance workers employed by Sydney Water was halved in a five-year period (McManus in Silmalis).

21It is notable that Sydney Water’s Operating Licence (para 9.2.1) requires that Sydney Water give ‘due consideration to demand side management as the basis for planning the future provision of its Services, including addressing Water Leakage’. Further, para 9.2.3 (h) of the same instrument requires Sydney Water ‘identify strategies for reducing water leakage.’ These obligations are mandatory rather than optional but they fall short of requiring that leakages are actually fixed, presumably because repairing has cost implications. (Nevertheless since 2005 there has been a more serious attempt to redress leakages.)

22It is improbable that the water loss associated with these leakages would alone account for the water crisis in Sydney but as other sources have noted ‘[a]s water restrictions bite in many Australian cities and towns, the fact that the chief wasters of water are the supply companies is not sitting well with consumers’ (InMotion).

Environmental degradation

23High levels of water consumption in rural areas, particularly consumption associated with irrigation schemes and the production of water heavy crops, such as cotton, have also contributed to the water problem in Australia. So, too, has the fact that some land in Australia deemed totally unsuitable for agriculture, was opened up for that very purpose, despite warnings dating back to the 1860s. (In the 1860s experts such as George Goyder, Surveyor General of South Australia tried to prevent agricultural expansion into land with no or very low rainfall. As a result of his trip to investigate the drought of 1863-1866, Goyder developed a line indicating the limit of rainfall. The line coincided with the southern boundary of saltbush country. He suggested that farming beyond the line should be discouraged in favour of pastoralism.)

24Today, it has become increasingly obvious that environmental degradation has meant that not even pastoralism can be sustained in vast tracts of the Australian bush. Where the land does not support agriculture or pastoralism, resultant hardship is commonly experienced in terms of crop failure, animal loss and high personal cost including marital breakdown, debilitating debt and suicide, yet there remains a reticence on the part of some country folk to leave the land because of its water-poor status (Rural Women’s Network; The World Today). This lack of willingness to leave is related to a range of reasons including struggles for better compensation packages and emotional ties to the land. Yet, continuing to maintain agricultural industries on unsuitable land involves heavy investment in expensive agricultural systems and/or reliance on irrigation schemes, both of which are questionable in terms of their environmental sustainability (Jeyaretnam).

25Where there is dependence on the diversion of water, via irrigation schemes, from rivers and streams, to land without direct access to water, the alteration of ecosystems generally occurs. With development on the floodplains (eg along the Murray Darling river systems) has come the loss of a natural treatment works to filter out pollutants from reaching the inland river systems. Biological life is also unable to be nurtured in the rich alluvial soils of the floodplain and scientific analysis has revealed that such changes may have severe consequences (Murray Darling Basin Commission; The 7.30 Report). The Australian eco-system therefore faces threats, to soil, water, atmosphere and biodiversity, all of which are interlinked (Flannery).

26Associated with a reliance on irrigation and the development of flood plains is the problem of increased salinity levels. In order to remove the salt, bore pumps, which pump out large volumes of salt every day (and are high electricity consumers) have been placed along the Murray River. Without this intervention the Murray River would be unusable for between two to four months per year and the South Australian towns which are totally dependent on the Murray River would not survive. Adelaide, which usually takes 40% of its water from the Murray River, may in drought times, become 100% water-dependent on the Murray (Williams; Craik). In this context, a solution to the problem of high salinity levels has become urgent and the fact that it has not yet been found, poses very real questions about the long-term viability of cities such as Adelaide and even Perth which is not on the Murray River but the Swan River. In such circumstances population re-settlement issues arise; issues which affect all but more particularly those less well resourced.

Population growth

27Yet another reason for the water problem in the large urban areas of Australia, such as Sydney, is population growth. Sydney’s population is presently about four million people. That figure is expected to grow by one million people over the next 25 years. It has been calculated that ‘if consumption remains at current levels and nothing is done to reduce demand, an extra 200 billion litres of water will be needed each year within 25 years’ (Smith S). Although growth in Sydney’s population is likely to be higher than in other state capitals or rural areas, Australia’s population outside Sydney also looks set to increase. The growth in population has already exacerbated an overburdened water system.

28In September, 2005 the NSW Auditor General found the State Government had failed to secure Sydney's water supply against both the effects of climate change and increased population (Auditor General’s Report, NSW).

Attempts to manage the water problem

29Policies and initiatives which attempt to solve or respond to the water crisis have been developed at Federal, State and local levels. At the national level, the National Water Initiative (NWI) signed in June, 2004 takes a whole-of-country approach. Its objective, set out in clause 23, is ‘the development of: a nationally-compatible, market, regulatory and planning based system of managing surface and groundwater resources for rural and urban use that optimises economic, social and environmental outcomes’.

30At the urban level, plans have also been developed. For example, the plan for Sydney’s water management over the next twenty five years is contained in a policy document known as, Meeting the challenges- Securing Sydney’s water future, which was released by the NSW government in October, 2004. It noted that ‘if no further demand management strategies were introduced, and low runoff into dams continued, Sydney would have approximately three and a half years of water storage left before it ran out’ (Smith S). At the rural level, water management and sharing plans have also been developed, mainly relative to water catchment areas. These plans are localised and must be in compliance with the Water Management Act (NSW) 2000.

31The key responses and initiatives (which are evaluated later) are catalogued below. They include: water restrictions, the subsidisation of water-saving devices to reduce consumption, water transfers from the Shoalhaven River; large-scale recycling plants; desalination plants, new pricing regimes, and the commodification of some water entitlements.

Water restrictions

32One approach to reducing water consumption has been to implement mandatory water restrictions. This has been done in all state capital cities except Darwin. In Sydney, water restrictions were introduced on 1 October, 2001 and they have been progressively increased. The restrictions prevent hand-held hosing of lawns and gardens, except at restricted times on two days a week. They also prohibit the hosing of all hard surfaces and cars except where exemptions apply. Remarkably, the restrictions have not additionally limited use of bore water for domestic consumption by Sydneysiders.

Subsidisation of water-saving devices

33Water suppliers have introduced a number of subsidies for water-saving devices designed to help reduce consumption. Those introduced (by Sydney Water) include aerated shower-heads and water tanks with a capacity of 2,000 litres or more.

Transferring water from the Shoalhaven River via pipeline

34This project represents an attempt to focus on Sydney’s water problem not by reducing consumption, but rather by increasing the supply of water to Sydney. It involves transferring water from the Tallowa Dam, in the Shoalhaven region south of Sydney, by virtue of a purpose-built pipeline, up to Sydney’s Warragamba Dam. Implementation of the project involves significant expenditure on new pumps. Stage 1 which was set to commence in 2007 was estimated to cost $250 million. This solution was heralded as having the potential to provide between 50-80 billion litres of water when fully completed. A total cost of $430 million was estimated with the potential increase in water of up to 110 billion litres (Smith S:3; Waterfor life). (Note in early 2006 the government deferred this project indefinitely.)

Recycling schemes

35Recycling of waste water into re-usable water is a popular water management tool in several parts of the world. In Australia, an effective recycling scheme presently operates in Rouse Hill, in the north west of Sydney, but it is relatively small scale. Fifteen thousand homes use recycled water from the Rouse Hill Sewerage Plant and on average the scheme is saving 35% of drinking water per household although the recycled water itself is not potable. The NSW government plans to expand such a scheme into new land release areas linking those areas by pipe to an existing treatment plant. Treated waste would then be pumped into the new release areas to be used for non-drinking purposes. The cost of such a scheme is calculated to be $563 million while the amount of water saved per year would be approximately 24 billion litres (Securing the Future of Our Water Supply). Other recycling schemes are either planned or operate in other states for example, Western Australia.

Desalination plants

36In response to the Sydney water problem, in July 2005, the state government announced a plan to build a large desalination plant at Kurnell. Other plants have either been built in or are mooted for Western Australia, Victoria, Queensland and South Australia. Desalination plants have also gained popularity in other parts of the world and already operate or are planned in Algeria, Singapore, England (London), United Arab Emirates, Spain and Ashkelon (Israel) (Smith S).

Air filtration

37Air filtration machines provide another method of increasing the water supply. Whereas desalination takes the salt out of sea water, an air filtration machine takes the moisture out of air, filters it extensively and even chills it if required. One firm responsible for a machine of this type has already supplied large versions to the Israeli and American militaries and to the Sri-Lankan and Thai governments in the post tsunami period2.


38According to economists and policy makers one of the key methods of addressing high levels of water consumption is through an increase in the price of water in Australia. Such a view can be traced back to, at least as far as 1994, when the Council of Australian Governments (COAG) accepted a report known as the National Water Framework. The Framework affirmed principles which related to water allocation, water trading, environmental considerations, public involvement in water management as well as water pricing. COAG agreed to the development of ‘a strategic framework to achieve an efficient and sustainable water industry’. Significantly, the Framework supported a shift away from property-based pricing to full price recovery for water, based on consumption as well as the rejection of cross subsidies (COAG Communique 1994). (Note that the shift to full price recovery was tied to National Competition Council payments received from the Federal government for compliance with the competition policy package based on the Hilmer Report 1993). Some decade later, in October, 2004, the NSW government released its Metropolitan Water Plan for Sydney. That plan had implications for pricing (in part because it involved expenditure on infrastructure as well as demand control) and accordingly the NSW government requested the Independent Pricing and Regulatory Tribunal (IPART) provide assistance in the development of new pricing principles for the Greater Sydney Region. It was hoped that a new model would assist Sydney Water to achieve a sustainable outcome. (Note also that in 2003, Sydney Water was taking 630 gigalitres out of dams. This was 30 gigalitres more than was considerd sustainable.) Some of the pricing issues dealt with by IPART, such as ‘infrastructure access’ pricing, which is relevant to competitors wishing to access Sydney Water’s infrastructure, is again beyond the scope of this paper. This paper only considers ‘customer supply’ pricing.


39The COAG Framework of 1994 supported the introduction of a partial water market as a means of achieving a better balance between efficiency and environmental objectives. Accordingly, the COAG principle of clear and tradeable allocations (cl 6(g), 7(b) & 8(b) that are separate from land title (cl 4), was incorporated into the Water Management Act (NSW) 2000 (WMA). The Act has implications for the supply of water to retailers such as Sydney Water but it is more focused on issues that relate to rural water management.

40While entitlements to water remained tied to ownership of land through the riparian rights doctrine, it was very difficult, although not impossible, to trade in them. By effectively doing away with riparian rights, which were derivative of rights in land, and by creating Water Access Licences (WALs), the WMA established some of the legal pre-conditions for easy trading. As WALs may exist independently of land ownership, they can potentially be traded without a simultaneous trade of rights in land.

  • 3 Specific ground water trading is not discussed in this paper.

41As such the WMA permits the trading of entitlements to access-regulated surface water rather than the trading of the resource itself3. A WAL is comprised of a share component and an extraction component both of which are tradeable. The share component provides the holder with a specified share in the available water within a specified management area or water source (ss 52, 56 WMA) while the extraction component is what allows the holder to take water at specified rates or in specified circumstances, for example between 1 February and 30 June in any given year from River X. It is possible to trade WALs permanently or to effect a term transfer which is not unlike a lease (s 71N, 71M). Water allocations are themselves assignable (pursuant to s 71T). Notably a WAL does not permit the holder to use the water to which s/he has access. For that, a separate Water Use Approval must be granted. Unlike WALS, Water Use Approvals are still tied to the land.

42At this stage a Register exists recording the entitlements of holders but as insufficient checking has been done on the veracity of the entries, there is no governmental move afoot to cause registration to give rise to indefeasibility, whereby the title of the holder would be conclusive.

Evaluation of the responses to the water problem

43This section offers an evaluation of the impact (with particular reference to the poor) of the suggested responses to water problems.

Water restrictions

44One of the main criticisms of Sydney’s water restrictions (and that of other jurisdictions) is that they are somewhat narrow in their ambit in that they do not limit water use for the purposes of showering, bathing and laundering. They target a subset of discretionary use only.

45Enforcement of the restrictions has proved difficult to implement. Officers in patrol cars try to locate offenders but much illicit water use goes on in back yards and away from public view. Apprehensions are largely dependent on neighbours reporting breaches. (Between November, 2003 and 11 October, 2005, 3,262 penalties notices for water restriction offences were issued) (Etherell). Arguably the fines for breach of the water restrictions are insufficiently high ($A220 for individuals and $550 for corporations) if they are to act as a deterrent to consumption. It is estimated that the present mandatory water restrictions in Sydney save 63 GL per year (Angel). Further, a loop hole which means that Sydney Water’s level 3 restrictions do not apply to water sold to water carriers – even though that water comes out of Sydney’s drinking supplies – means that the rich have been able to buy in water and thus avoid the restrictions which affect the rest of the community.

46It would seem somewhat cavalier not to apply additional limitations to the amount of water removed from aquifers, for domestic and stock use as well. Although water from aquifers within the Sydney region is not regarded as potable, it is still an important source of water for purposes other than drinking (Timms et al). Further, the plan of the NSW government (detailed in Meeting the Challenges) to sink bores to augment the existing dam supply may perhaps be a little ill-considered given that there is no reliable inventory detailing the amount of water held in the state’s aquifers. It could perhaps be seen as imprudent to siphon off water from these underground supplies as though they contained an infinite amount of available water. Such an approach was taken with regard to river water and the effect of that is, in part, what we are dealing with today.

Subsidisation of water-saving devices

47Media reports indicate that the take-up rate on aerated shower heads has not been high because they provide a low pressure flow which is unpopular. It is also notable that such devices have not been provided to public housing residents (some of the poorest members of the community) free of charge. If the NSW government were keen both to reduce domestic consumption and to protect low income earners in public housing from increased water use costs, the free installation of such water-saving devices may need to be more fully considered.

48In regard to water tanks the figures demonstrate that the number of water tanks being installed in Sydney’s residential properties has increased but according to a Sydney Water source, unfortunately there is no corollary in terms of reduced water consumption of Sydney Water-supplied water. (It seems that tank installers continue to use the same amount of water inside their homes and simply use the extra water on their gardens.) Accordingly, this initiative has not yet had the desired outcome.

Transferring water from the Shoalhaven via pipeline

49As noted in the previous section this project involves very expensive infrastructure expenditure; expenditure which would place a heavy burden on State resources and at the same time allegedly result in environmental damage in the form of increased salinity and pollution levels caused by pipe laying. Hence while the transfer of water from the Shoalhaven to Sydney is a possible (partial) solution to Sydney’s water problem, its overall effectiveness is questionable. The ‘solution’ has also offended people in the Shoalhaven who feel ‘their’ resource is being robbed. The deferral of the plan in early 2006 met with widespread approval although water is still transferred to Sydney from the Shoalhaven albeit without a specially built pipeline.

Recycling schemes

50Recycling schemes have appeal in that they do not contribute to the depletion of water. Yet, if they are to be used in older, more established areas of Sydney access to existing Sydney Water pipework would need to be made available to those operating the recycling schemes or otherwise the schemes would be too expensive to implement. Resistance by Sydney Water to applications by Services Sydney, a competitor in the wastewater industry, to access Sydney Water’s sewerage network, was strong. It led to a ruling by the National Competition Council that Sydney’s sewers should be opened up to private competition. Government failed to respond to the ruling so the matter was referred to the Australian Competition Tribunal. Ultimately, the water and wastewater service in the Sydney and Hunter regions was ‘declared’ under the Trade Practices Act 1974 with the result that private access to public sewerage infrastructure was made available.

51Yet, some Sydney residents have also expressed reticence (known as the ‘yuck factor’) about drinking recycled sewage. The residents of the Queensland town of Toowoomba also felt similarly when they rejected the introduction of recycled water by voting against it in the town’s local water referendum in 2006. However, while some resistance to drinking recycled water may exist there are growing pockets of support for recycling schemes that produce recycled water for non potable purposes and sewer mining projects such as the one implemented at the Olympic village in Sydney in 2000 attest to this.

52The Total Environment Centre suggested a scheme to integrate recycled water with non recycled potable water. Under the plan water would be recycled from the Western Sydney Sewerage Treatment Plants and then fed back into the Warragamba Dam or Prospect Reservoir for dilution before further processing at the Prospect Water Filtration Plant. The benefit of this could be great. It is estimated that the total contribution of permanent water restrictions and recycling under such a proposal would be 75GL per year (Angel).

53As there is convincing evidence that processes such as reverse osmosis, microfiltration, and ultraviolet disinfection can produce high quality water and the risk of drinking recycled water which has been treated by these methods is significantly lower than the acceptable risk involved in drinking potable water, it would seem worthwhile to pursue such initiatives (Leslie). Several other jurisdictions, such as Orange County (California), Singapore and Bendigo (Victoria) have either implemented or are considering implementing recycling schemes (Seah; Thwaites).

54Much expert opinion emphasises that recycling is a more economically sensible option than the use of desalination plants (Fane; Angel). However, a report commissioned by the NWI, suggests that many stakeholders do not share this view. The report claims that the cost of water to users, the lack of financial incentives offered by water authorities to encourage recycling projects, investment risk and uncertain demand are seen as impediments to investment in water recycling (RARWIRWI). Further, over 43% of respondents believed that the issue of legal liability was ‘very significant’ as a deterrent to investment in recycled water schemes (RARWIRWI). The corollary of this would be to reduce legal liability (particularly tortious liability) so as to encourage investment, but this paper argues that such a step would be very detrimental. Legal safeguards are in place, for good reason. They are designed to protect citizens from wrongs and to provide recompense in cases where wrongs are committed. Such laws have important ethical underpinnings and the solution, therefore, is not to reduce the liability of water authorities (public or private), so as to encourage investment in water recycling plants (and ultimately profit acquisition by the shareholders of the corporations who invest). Cutting back on tortious liability, for example (via statute or contract) and causing the supplier only to be responsible for a minimum standard in terms of monitoring, treatment, filtration or delivery, for example, would not be a positive step.

55The importance of maintaining acceptable standards and appropriate legal safeguards was confronted when, in 1998, Cryptosporidium and Giardia contaminated Sydney’s water supply. It was later observed that water from the privatised Prospect treatment plant was probably one of two sources responsible for the problem but the company which built and operated the plant (Australian Water Services) denied all responsibility because its contract did not require that it test for Cryptosporidium or Giardia (Sheil). Fortunately, there were no fatalities but the government issued warnings to Sydney residents to boil water for several weeks. The scare highlighted not only the need for the appropriate monitoring of water standards but the need to cast the legal net of liability sufficiently broadly so that health and safety standards are maintained.

56If a similar problem involving a lapse in acceptable water standards occurred in the context of a recycling plant and the victim was unable to sue in tort, on the basis of the investor’s limited liability, the consequences could result in very serious health outcomes. These would have to be borne by the whole community. Yet, the poor would suffer most because they would have no tortfeasor against whom they could claim. They would be less able to pay for appropriate medical treatment and they would be more affected by work absences if they happened to be in employment.

Desalination plants

57Disputing the claims that a large desalination plant is excessively expensive, the NSW government planned to build such a plant at Kurnell, in Sydney. This scheme appeared to be ill-founded from the outset and was deferred in January, 2006 with the government keeping open the option of a smaller desalination plant. Apparently the original plant would have used high levels of electricity which would have led to an increase in fossil fuel consumption and a resultant increase in greenhouse gas emission. Greenhouse gas emissions have themselves been blamed for global warming, which in turn, arguably increases the likelihood of drought, one of the contributors to Australia’s water problem in the first place. The process is cyclical and rather than helping solve the water problem, large-scale desalination plants may lead to an exacerbation of it. This would result in negative consequences for all, but again the poor would be the most severely affected because they could not afford simply to pay increased prices for an even more in-demand resource.

58Despite widely vented concerns the NSW government gave concept approval in late 2006 for a smaller desalination plant to be constructed at Kurnell.

59Another impact of any planned construction is that it may interfere with the rights of other parties. In Perth, Western Australia this was the case. There, a plan for a proposed $A387 million desalination plant conflicted with the interest of the Nyungah Council of Elders, a local Perth Aboriginal Group. Consequently, the Elders sought emergency protection for Cockburn Sound and the surrounding sand dunes (the site of the proposed plant) by lodging an application, under s 9 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. The Minister for the Environment and Heritage rejected it saying that he was not convinced that the plant posed ‘a serious and immediate threat’ to the area’s Indigenous heritage (Campbell). Therefore, the plan for a desalination plant in this part of the country remains on foot but it may be derailed if another application, by the same group, under s 10 of the Act, seeking long-term protection of the area, is successful.

Air filtration

60Air filtration machines may well take pressure off Australian dams and used in combination with other water-saving or water-increasing strategies could help alleviate the water crisis. In homes where residents presently use three 15-litre bottles of water per week, an air filtration machine would pay for itself in a year. (Further, a machine producing up to 20 litres of water per day and relying on electricity rather than solar power costs $A1, 300). That makes these machines viable options for many middle class homes but hardly viable for working class homes and the chronically poor. Should air filtration be embraced in offices and middle class homes, presumably there would be more water left in the consumptive pool (provided by surface and groundwater sources) for those unable to afford to buy such a machine. Alternatively and/or additionally such machines could be incorporated into public housing developments either free of charge or on the basis of a generous subsidy. However, consideration would need to be given to how much electricity non solar versions need in order to operate.

61That these machines are mobile is also an advantage to people in remote areas. Perhaps the solar versions could be taken to remote Aboriginal communities and as the sun and air (the resources on which they rely) have not, as yet, been commodified, the machines would have very low running costs. Further, as the NSW Departments of Health and Aboriginal Affairs are presently working on an Aboriginal Community Water and Sewerage Project to set up community-based infrastructures in remote Aboriginal communities (such as Wilmoringle) where there is only a discrete (nontown) water supply, machines such as these could prove a great asset in relieving water poverty, as some can produce in excess of 50 litres per day. Adoption of this technology is, however, dependent on government funding, the Indigenous poor not being in the position to self-fund.

Water pricing

62In considering the impact of a new pricing scheme as a solution to the water problem, it is useful to begin with the issue of ‘postage stamp’ pricing. To explain, traditionally the customer supply pricing system used in Sydney has not reflected the cost of supplying water to a particular location although some locations are more difficult to supply than others. Instead, prices have been calculated on the average cost of supply so that there has been uniformity of pricing across the city. This approach is sometimes called ‘postage-stamp pricing’ presumably because it costs the same amount to send a letter a short or long distance. Postage stamp pricing is likely to lead to horizontal and geographic equity across the Sydney region making targeted subsidies for the less privileged either unnecessary or fewer (Freeman and Wellsmore: 6).

63Alternatives to postage stamp pricing involve fully cost-reflective pricing; a form of pricing rejected by the Public Interest Advocacy Centre (PIAC) in its submission to IPART on water and wastewater but favoured in the COAG framework. PIAC claimed that postage stamp pricing represented a better option because it ‘delivers social benefits at both [a] retail and …network level [and] [t]here is social benefit in having everyone entitled to the same level of access and affordability in water and wastewater services’. In having come to a decision in favour of uniform pricing it would seem that IPART heeded arguments based on social equity concerns such as these. This is a positive outcome of the new pricing structure.

64In designing a new pricing regime IPART had to consider several options including differential pricing, flat rate pricing and two-tiered (ie ‘inclining block’) pricing, with or without add-ons such as service charges. From a social justice perspective flat rate pricing, which charged the rich as much as the poor, is a less than appealing alternative once it is recognised that all people (whether rich or poor) require a core amount of water for drinking and hygiene. Such an option also would not effectively penalise the better off who could continue to be water-wasteful as long as they paid for their excessive usage. Fortunately, IPART did not opt for such a pricing option. Instead, it chose a two-tier scheme with a lower first-tier charge followed by a higher second-tier charge for consumption above the base amount. The final scheme also includes a relatively low fixed service charge per annum which will be used to collect the balance of Sydney Water’s revenue requirements. The viability of the option for those less well-off will, in part, depend on the actual price determinations made, from time to time, by IPART. They need to remain within the reach of the poor if they are to serve the community well.

65One benefit of this option is that it targets discretionary users, that is those people who use extra water in a wasteful manner, to hose gardens, wash cars and hard surfaces. One notable drawback is that it does not cap water use at a maximum level. Without such a cap the effect could be that revenue is raised for Sydney Water (by heavy use) but consumption is not reduced as much as is desirable. Put simply, those well-off could continue to use high levels of water and simply pay for it. How ‘vulnerable customers’ will be affected by the new pricing regime is somewhat uncertain.

66Interestingly IPART acknowledged that when developing its new pricing structure it did not have in mind the objective of avoiding price increases altogether for vulnerable customers (Poverty Lines: IPART(b)). It claimed that if the number of vulnerable customers, who were forced to pay more under the new pricing scheme, were sufficiently low, Sydney Water could offer rebates for large households. Yet, experience demonstrates that rebate schemes are necessarily clumsy, requiring high levels of bureaucratic support and burdensome for those who have to comply with them. Further, in its projections on how the new pricing system will affect vulnerable customers, IPART classified vulnerable customers on the basis of (a) low household incomes and/or (b) a large household. It estimated ‘a reasonably efficient volume of water use’ for these customers. If those facing difficulty in paying increased charges were not also using water ‘efficiently’ (and according to IPART’s calculation were not therefore categorised as ‘vulnerable’) they would be ineligible for the rebate. Given that IPART’s methodology for deciding on vulnerability does not appear to have factored in water consumption beyond what was considered ‘efficient,’ the reliability of IPART’s categorisation may be somewhat problematic, in cases involving illness or nursing of the sick or where damaged plumbing in substandard rental accommodation causes higher than efficient water consumption.

67Whether these new prices will have the effect of reducing water consumption will also depend on the broader issue of the price elasticity of demand (PED). If the price elasticity of water proves high then small increases in price will cause large decreases in water consumption. The art is in knowing where water pricing in Australia sits on the elasticity/inelasticity continuum. This is a new venture for Australia and so there is little experience on which to rely. Further, overseas experience is not culturally, geographically and climatically directly comparable.

68An alternative approach to regulating water use through pricing would be the introduction of a scheme reflective of the ‘carbon credits’ scheme that operates in regard to pollution. Already there is discussion of how the carbon credit scheme could be down-scaled and made operational for individuals, with individuals being given personal carbon credis in which they could trade. Perhaps such a personalised scheme is transferable to the water context so that individuals may be given a specified number of water credits. However, it is anticipated that serious outcomes would arise if the poor sold off their water credits, leaving themselves unable to sustain life. Such a scheme, if it were to come into operation would need to ensure that trading in water credits was restricted to credits above a specified level; that level marking the minimum amount of water an individual needed for health, hygiene and basic enjoyment of life (see Button).


69The WMA is the tool by which trading of water entitlements, in NSW, has been effected. The objectives of the WMA are inclusive of many stakeholder perspectives and in so being they are potentially inconsistent. Whilst they amplify the key COAG platforms of environmental sustainability on one hand and economic efficiency on the other, they also import the tensions inherent in those two divergent goals. To explain, if there is a limited consumptive pool, the water for environmental flows is in competition with the water for trading. On at least one occasion so far this tension has been resolved in favour of trade, with the relevant Minister reducing environmental flows. Many environmentalists argue, with some force, that there is no point ensuring trade if there is nothing left to trade in.

  • 4 As at least one judgement saw native title in Mabo v State of Queensland (No 2) (1992) 107 ALR 1.

70Another effect of the introduction of the WMA, as a tool of water management, has been the highlighting of the uncertain nature of the right being traded. Even if it were conceded (which it is not) that trading assisted water management, such uncertainty about the nature of the right which is the subject of the trade, would be unlikely to aid the development of a reliably strong water market. Traders need to know exactly ‘what’ it is that they are trading (Gray). Although WALs look to have many of the indicia of real property, the drafters of the WMA have assiduously avoided classifying WALs as property rights; a property right being a right enforceable against all of the world as opposed to a contractual right which is only enforceable between the parties to the contract (Gray et al). Perhaps this resistance to classifying a WAL as real or personal property may, in fact, be prudent. Ultimately, it may be better to recognise water entitlements as being special and therefore the subject of either a new form of property (perhaps statutorily based) or alternatively as a sui generis right.4

71Nevertheless, we have seen an increase in trade, both temporary and permanent, particularly in the Murray Darling basin, for example, where irrigators are continuously moving water from one activity to another. Craik, has noted that ‘commodity markets are competitive, fluctuating and global. The speed of change in supply, demand, technology and evolution of substitute goods are increasing. Water is just one of a range of input costs which are highly variable from one season to the next. Irrigation dependent industries need maximum flexibility to compete and adjust.’

72Inherent in these words is a strong commitment to water trading as a means of protecting the resource itself and simultaneously maintaining an efficient system of supply. This approach reflects the view that water is a product like any other. Yet whether privatisation and commodification is in fact, the answer to the water problem remains a moot point. The view is open that there is perhaps something different or special in the nature of water which suggests that it should remain outside the sphere of privatisation. It is, as noted earlier, essential to human existence or put more strongly, it is ‘one of the few universal, non-negotiable, non-contestable realities of life that no person, plant pet household, neighbourhood, suburb, town city or country can be secure without a reliable supply of fresh water.’ (Sheil: 6). To the economist, Adam Smith it was regarded as a precondition of commerce rather than an ordinary branch of commerce. It was part of the infrastructure that helped support commerce. Such a conclusion invites consideration of whether water should, therefore, be treated differently, by virtue of the fact that it is not simply a product. Water is like air. It is special. (Yet, running counter to this argument is the proposition that water is no different from food, in that food is needed to sustain life but we accept food’s commodification without question.)

73Craik could be correct in her observations about commodification and trade serving the needs of larger scale irrigation-dependent industry and providing it with the flexibility it desires to buy in entitlements in times of need, but one is left wondering how effective water trading is for small-scale holders of water entitlements? Perhaps they are less well served by the move to allow the market to determine efficiencies. One worries that in times of desperate need these small-scale holders will sell off their WALs and be left with dry-lots which not only become unproductive but also lose the value they once had to act as security for loans etc. If these outcomes occur it is possible that the market approach to selling off water access entitlements may contribute to the rural poverty trap and cause greater burdens including those on individuals, as well as the social security and health systems, for example.

Indigenous Australians – a subset of the poor

74In reflecting on the effects of water trading on the poor, it is important to consider the position of Indigenous/Aboriginal Australians. They are some of the poorest members of the community and experience significantly higher levels of unemployment compared with non Indigenous Australians. They are less well qualified in terms of school and vocational training (Introducing Indigenous Australia; Causes of Aboriginal Poverty). They are also under-represented in tertiary education. They do not exhibit high levels of home ownership and are more likely to live in social/public housing, often in overcrowded conditions. It is notable that many Indigenous Australians reside in temporary accommodation and where they do reside in permanent accommodation, the dwellings are often in a seriously poor state of repair. Further, Indigenous Australians present with more health problems than non Indigenous Australians and are also more susceptible to environmental and behavioural health risk factors because of their relative socio-economic disadvantage (ABS Health and Welfare). The life expectancy of an Indigenous Australian is 20 years less than that of a non Indigenous Australian (Balkanu). Indigenous Australians’ life expectancy is, therefore, similar to that of people in Bangladesh but Australia is ten times richer than Bangladesh.

75Water management issues, which have both urban and rural dimensions, have serious implications for Indigenous Australians but as Jackson argues where Indigenous values have been taken into account ‘there has been a tendency to assume that a surrogate environmental flow will address cultural requirements’. Further, according to Toussaint the importance of water to Indigenous Australians has been overlooked because Western environmental consciousness is inclined to favour recognition of land rather than water.

76In the rural context, s 55 of the WMA 2000 is relevant to Indigenous Australians because it makes provision for Aboriginal people to exercise their native title rights without having to apply for WALs or a water use approval. Yet, the permissible exercise of native title would appear to be limited to using water for traditional purposes only. The section precludes native title holders from using water to construct a dam or bore unless a ‘works supply approval’ is granted and it also prohibits a native title holder from constructing or using a water supply work otherwise than on the land that he or she owns. Finally, the maximum amount of water to be used by native title holders is limited to that prescribed by the regulations.

77Meanwhile the Native Title (NSW) Act 1994, which codified native title (first recognised in the Mabo decision) has the effect of upholding and protecting rights obtained through a ‘valid act’. An example of a ‘valid act’ would be the granting of a WAL. If, by the protection of a valid act, native title is impaired, the loss is compensable. Applying this law, it is possible to imagine a case where Aboriginal people established native title in the waters of a particular river. If those people were also involved in aquaculture on a substantial scale, perhaps by the setting of fish traps, the right to high volumes of water (needed to make the traps work properly) would be subordinate to the rights of WAL holders (McAvoy’s example). Aboriginal people would miss out. In such a case it has been noted that ‘money doesn’t fix the problem. The loss is not only the fish that are not caught in the fish trap but the damage to the continuation of the culture through loss of use and [the] contextual relevance of the fish traps.’ (McAvoy). Hence, it is possible to see how the WMA could operate to the disadvantage of the poorest group in Australia.

78The creation, under the WMA, of a semi-regulated water market marks a significant change for water use by Indigenous Australians. Now that rights to access water are not tied to land and WALs can be traded, the value of water has increased. Governments can no longer simply reallocate water. Instead, as noted above, trade is now used as a tool of re-allocation. Accordingly, government is limited in the ways it can acquire water. It can reserve water for environmental flows or it can compulsorily acquire water but it cannot simply reserve access to water for Indigenous Australians, known as cultural flows (see Jackson). Hence, it is arguable that some of the poorest members of the community are not well protected by the introduction of a partial water market. In 2000, it was suggested by the NSW Aboriginal Land Council and the NSW Native Title Services that a supplementary scheme should operate in the form of an Aboriginal Water Trust. It was envisaged that the Water Trust would buy WALs (and related rights) from money which was paid into the Trust (NSWALC). The plan was for the Trust to keep the water on the market and available to users, through leasing, for the first ten years. In that time 10% of water could be allocated to cultural purposes and 10% to commercial purposes whilst at the end of the ten-year period, the rights in land and in relation to water could be divided between traditional owners, or the trust could continue to manage the water on behalf of the traditional owners.

79The Water Trust proposal was an acknowledgement that involvement in the market, through ownership of the commodity, yielded power. In turn, that power, could, if Indigenous people owned WALs, be exercised by those most closely affected. They could make decisions about whether water was extracted or remained in the river to support traditional activities, for example. Further, the idea of a Water Trust found justification in the policy underpinnings of the Aboriginal Land Rights Act 1983 (NSW) which provided a mechanism for compensation to Aboriginal people if they were dispossessed from their land. Application of the Act meant that Aboriginal people could receive money while the non Indigenous dispossessors received rights in land, recognised by the common law. Those rights in land included rights to access water through a system of riparian rights; riparian rights (as noted above) being a concomitant of land ownership. When, as we have observed, entitlements to water were eventually severed from land rights (under the WMA), it was the non Indigenous dispossessors who were able to apply for WALs; licences which are now the subject of trade and potential profit. Initially, the NSW Government and Cabinet were persuaded by the reasoning in favour of an Aboriginal Water Trust and they agreed to an initial payment of $5 million over two years but their position changed and uncertain of how the water market would perform, they withdrew support for the idea. As McAvoy has noted approximately six months after the Aboriginal Water Trust idea was submitted to the Commonwealth for consideration in the NWI, the eminent group of scientists known as the Wentworth Group, floated a similar idea in relation to an environmental water bank or trust whereby the government was to pay money into a trust from which WALs would be purchased on the open market (Note that this discussion is heavily based on McAvoy). The water entitlements under the WALs would then be leased back to industry for a limited period so that more funds could be accumulated to fund the purchase of further WALs. The idea gained governmental support, unlike the Aboriginal Water Trust which for a time fell out of favour with government, particularly after legal advice suggested that the grants program which would fund the Aboriginal Water Trust could not be classified as a charitable trust for taxation purposes. Eventually, however, the New South Wales government committed funds to an Aboriginal Water Trust, the purpose of which is to help increase the level of Indigenous participation in the commercial water market and to assist water-related enterprises where water is a key aspect of the project or business. Aboriginal individuals or groups may apply for funding for new businesses or the expansion of old businesses, for example. In accordance with the objectives of the WMA the Trust is designed to provide ‘benefits to Aboriginal people in relation to their spiritual, social, customary and economic use of land and water’. It is anticipated that through the acquisitation of WALS and involvement in the water market, Indigenous Australians will exert some influence over the health of the rivers and other water sources which are so important to their being.


80This paper has found that there is no single solution to the water problem in Australia. The problem exists on many fronts and not surprisingly it affects the poor more harshly than those better off. The problem has been caused by many factors including high consumption levels, drought, faulty infrastructure, environmental degradation, population growth and poor water management. Clearly, no individual response can deal with all the diverse aspects of the problem.

81Accordingly, the range of potential responses to the water problem discussed in this paper is also diverse. It includes water restrictions, the subsidisation of water-saving devices, transferring water from one place to another, recycling schemes, desalination plants, air filtration schemes, new pricing regimes, and water entitlement trading. In particular, this paper has highlighted some of the potential difficulties associated with the commodification of water entitlements and the use of trading as a tool of water management. It also considered the methodology of supply pricing and its impact on the poor. In that regard it is perhaps salutary to observe as a postscript, that in Argentina’s Tucuman province, since the water sector was privatised and the French company, Vivendi, became involved, water prices purportedly doubled. Further, in Chile (which is often cited as a positive model for privatisation) in the four-year period following privatisation in 1998, private water companies’ water prices are alleged to have gone up by 40%, which is twice the rise of public companies (World Development Movement News). It is hard to predict, but if profit making is behind the willingness of investors to enter into BOOT (build, own, operate, transfer) contracts such as the one for the Prospect Filtration Plant in Sydney, then it would seem logical that price increases may follow in an attempt to bolster profits.

82Another concern of this paper was to highlight the manner in which water trading could disadvantage Indigenous Australians unless mechanisms were set in place to avoid this. One such mechanism that was considered was the establishment of an Aboriginal Water Trust.

83Clearly some of the individual initiatives that comprise the response package considered in this paper are likely to be more effective than others. The most appropriate of them will need to be selected and implemented by virtue of a process that is dependent on consideration of their impact; an understanding of which was provided in Part 3 of the paper. Yet, like all composite response packages the one mooted here represents a site of potential tension where inconsistent objectives seek fulfilment. What then should be the aim of the selection process? How should it be resolved? Which elements of water reform initiatives should be embraced and which should not? Perhaps the answer to these questions may lie in learning to accept some degree of tension rather than seeking to eliminate it altogether. Fashioning a multipronged response that retains at least some elements of diversity, tension and difference may ultimately better serve the concerns of the voiced along with the voiceless.



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1 Note that these ages vary across the states.

2 See Brent Lobel’s AirWater System <> and the SkyWater 30

3 Specific ground water trading is not discussed in this paper.

4 As at least one judgement saw native title in Mabo v State of Queensland (No 2) (1992) 107 ALR 1.


Janice Gray is a Solicitor of the Supreme Court NSW and a Senior Lecturer, in the Faculty of Law, at the University of New South Wales, Sydney, Australia. She has published nationally and internationally in the field of Native Title and nationally in the fields of Property Law, Equity, Legal Education and Water Law. Her book (co-authored), Property Law in New South Wales was published by Butterworths, Lexis Nexis, in 2003 with a second edition in May, 2007. Her current research interest is in Water Law, particularly in the areas of commodification and the nature of rights. She has presented papers nationally and internationally in that field. Janice Gray also teaches the Master of Laws course, ‘Water Law’, at the University of New South Wales. The author retains copyright in this paper. Email:

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