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A Governance Solution to Australian Freshwater Law and Policy
Abstract
This chapter presents research outputs on three governance players: the law, the organisations and a collective look at civil society through epistemic communities and non-government organisations. All three players seem to be holding different shaped balls and rules and hence are poorly coordinated. The chapter points to ways to increase co-ordination and places that burden on the law. The conclusion reached is that the Water Act 2007 should be applied to the entire nation and water supply organisations need a harmonised corporate form. Civil society has played crucial roles in the past but their eye is off the ball at present. There is a need for stronger epistemic communities and NGOs. The chapter compares urban water supply laws and organisations in Australia and China. China was selected as it shows a change in governance process. Driven by acute need, China accepted foreign investment in the water sector and developed individual cities. Of late, China has changed this process and adopted a catchment approach to integrate urban water supply in the context and created an innovative position of Chief of the river.
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In this article, we analyze the disparity in access to water resources between indigenous and non-indigenous Australians, the regional differences in the effectiveness of indigenous strategies to assert and negotiate their interests in this reform process and the consequent regional disparity in indigenous water rights recognized or contemplated in policy and at law. We provide a case study of New South Wales' (hereafter NSW) only Cultural Access Licence held by the Nari Nari Tribal Council of Hay to exemplify trends in the recognition of indigenous water rights. This case study raises questions not only about the efficacy of 'cultural' entitlements but also matters of equity, particularly the transaction costs that indigenous groups may bear when accessing water under this special measure. In light of these limitations, we ask whether a group like the Nari Nari Tribal Council could satisfy their diverse and evolving water management strategies by alternate means or must they and other indigenous groups rely upon an obscure and restrictive form of entitlement that privileges pre-colonial practices? Two distinct possibilities are environmental water allocations and commercially valuable tradeable licences. For either to work, governments would need to commit to reallocating entitlements to indigenous people with direct purchase of entitlements from willing sellers being the least contentious. Strategies that seek indigenous participation in mainstream environmental water management along with substantive water property rights to underpin economic activity are more likely to result in a reallocation of water to meet the needs of indigenous populations than 'cultural' entitlements.
There is a growing scientific debate regarding the suitability of certain modes of governance for promoting sustainable development (SD). However, thus far there is neither agreement on ways to meaningfully distinguish and understand governance modes nor a foundation of the aspects to be chosen for this endeavour. In order to overcome this conceptual vagueness, this paper presents a meta-framework for a sound conceptualization of governance modes. Founded on a reinterpretation of the discourse ‘from government to governance’, we argue that only a multi-dimensional approach giving consideration to political processes (politics), institutional structures (polity) and policy content (policy) adequately captures the complexity of governance phenomena. We furthermore highlight possible key features for exploring these dimensions and compare three recently published frameworks for modes of governance. By offering a sound conceptual clarification of governance modes, we facilitate both their meaningful differentiation and a more systematic understanding of their inherent complexity. In so doing, we inform both theoretical and empirical research on governance for SD. We pave the way not only for making more differentiated theoretical statements on the relationship between governance modes and SD but also for empirically exploring this relationship on a profound basis.
The Australian water crisis can be addressed in many ways: ranging from increasing water conservation behaviours to minimize demand, through to producing water through large scale water augmentation projects. Due to the extended drought experienced in many locations across Australia in recent years, there has been a recent focus on developing wastewater recycling and seawater desalination plants. While this is an important measure for emergency water supply, water conservation should still play a major role in reducing demand for water. The aim of this study is to provide much-needed empirical data about Australian attitudes towards water conservation, and their water conservation behaviours. This market insight provides a knowledge basis for the development of public policy measures and social marketing campaigns aimed at increasing water conservation among Australian residents. Results from a survey study of 1495 people indicates that Australians generally have very positive attitudes towards water conservation and water saving appliances, however these positive attitudes are not consistently translated into actual behaviour. The main barriers to adoption of water conservation behaviours identified in the study are: the perception of inconvenience and impracticality, as well as costs associated with purchasing water saving appliances. These findings highlight the fact that there is still substantial potential to be harvested in Australia though water conservation measures. Opportunities for public policy makers to stimulate this process are identified.
The growing technical uncertainties and complexities of problems of global concern have made international policy coordination not only increasingly necessary but also increasingly difficult. If decision makers are unfamiliar with the technical aspects of a specific problem, how do they define state interests and develop viable solutions? What factors shape their behavior? Under conditions of uncertainty, what are the origins of international institutions? And how can we best study the processes through which international policy coordination and order emerge? While a variety of analytic approaches have been used to address the problems of international cooperation, the approaches have yielded only fragmentary insights. At its core, the study of policy coordination among states involves arguments about determinism versus free will and about the ways in which the international system is maintained and transformed. Among the overlapping topics of debate are whether national behavior is determined or broadly conditioned by system-level factors, unit-level factors, or some complex interplay between the two; whether state policymakers can identify national interests and behave independently of pressures from the social groups they nominally represent; and whether states respond consistently to opportunities to create, defend, or expand their own wealth and power, to enhance collective material benefits, or to promote nonmaterial values.' A related question of
The status of rights and interests in relation to water has never been unambiguous. Are they rights of access, of use or of property? Is the status of individual rights the same as the status of the statutory rights of the State to the use and control of water? Much depends upon which stage of the hydrological cycle is relevant: water in its natural state, water stored in a reservoir, water piped to a distant destination, or water contained in a receptacle. The High Court has recently addressed some of these issues in the context of s 51(xxxi) of the Commonwealth Constitution restricting acquisition of property to acquisition on just terms. In undertaking this analysis the High Court has revealed an interesting range of approaches to legal reasoning. This article seeks to review some of these issues.
Both the Water Act 2007 (Cth) and the Murray-Darling Basin Plan rely to a significant extent upon Australia's international legal obligations under "relevant international agreements" to provide not only a constitutional basis for the legislative schema but also a foundation for how the Commonwealth has sought to develop the Plan. This raises issues regarding the extent of the international legal obligations in those agreements, the relevance of each agreement, and whether - consistent with High Court jurisprudence - the Act and Plan are consistent with aspects of the Commonwealth's s 51(xxix) power with respect to "external affairs". This article reviews these issues and comments on the relationship between international law and the Act and the Plan.
Although water supply diversification has been proposed as a solution to dwindling water reserves, the optimal mix of natural
and manufactured sources of water remains largely unexplored. We develop a dynamic portfolio model of water supply that hedges
against the supply risks from all potential water sources, by taking into account the size of water reserves, uncertainties
of water flows as well as differences in supply costs. The optimal portfolio shares for an existing water supply system are
derived and compared with the observed contributions to total water stock, revealing unexploited hedging opportunities between
various naturally occurring water sources as well as a general over-reliance on manufactured water. The optimal solution implies
that future supply augmentations should target natural sources of water ahead of manufactured water. It is estimated that
the optimization of the water supply portfolio for a medium-sized city results in annual cost-savings of up to $463 million.
This book is an original study of the challenge of implementing sustainable development in Western democracies. It highlights the obstacles which sustainable development presents for strategic governance and critically examines how these problems can best be overcome in a variety of different political contexts. The renowned international contributors, including leading policy experts, try to identify the forms of governance necessary to realize the functions of sustainable development. With the help of detailed case studies, they document and analyze specific governance mechanisms for pursuing and achieving this aim. They move on to offer clearly formulated conclusions on the relationship between the demands of sustainable development and the current norms and practices of Western democracy. The book also raises the fundamental question of whether change can ever be achieved if the overriding goal of development is not firmly stated as 'sustainability' rather than 'business as usual'.
The concept of ‘governance’ has become a central catchword across the social and political sciences. In Governing and Governance, Jan Kooiman revisits and develops his seminal work in the field to map and demonstrate the utility of a sociopolitical perspective to our understanding of contemporary forms of governing, governance and governability. A central underlying theme of the book is the notion of governance as a process of interaction between different societal and political actors and the growing interdependencies between the two as modern societies become ever more complex, dynamic and diverse. Drawing upon a wide range of interdisciplinary insights, the book advances a comprehensive conceptual framework that seeks to capture the different elements, modes and orders of governing and governance. A series of useful distinctions are employed, for example, between self, ‘co’, and hierarchical modes, and between first, second, or meta orders to illustrate the many different structures and levels of modern governance today. Theoretically rich and illuminating, Governing and Governance will be essential reading for all students and academics across the social and political sciences, public management and public administration.
The dominant legal discourse in Australian water law and policy since 2004 has been about incorporating several definitions of Ecologically Sustainable Development (ESD) rules into freshwater management. The strategy selected to achieve this has been the Regional Water Allocation Plan (RWAP), which is based on hydrological and biological information about the impact of water use. Several aims of the ESD policy reflect the three pillars (environmental, economic, and social outcomes) common to the use of the term in international instruments, such as the 1987 UN Declaration; all ESD formulations in several state laws and the recent Federal Water Act 2007 look at the integration of the three pillars. The State Acts and the Federal Act insist on the adoption of the precautionary principle and achievement of intra- and inter-generational equity—a stunning reversal of previous policies, where the economic use and social aspects of water use were the primary concern. The ESD policy is not without its critics, especially from the farming communities, hard hit by new water plans that have reduced the amount of water able to be allocated by up to 52%. City dwellers have also been critical of water restrictions in urban areas and the higher cost for water supplied through desalination plants where the groundwater is severely depleted. The RWAP is the tool that must bear the brunt of these conflicts; at present, there are 190 such plans. This paper outlines a research agenda, but also makes preliminary comments on the types of conflicts that have existed, and the potential future conflict types. This is based on legal case analysis and some field work, reports of other authors, as well as observations and discussions with key informants in the several jurisdictions. It finds that there are conflicts between users, between the environment and users, as well as several conflicts related to processes used to consult the community, the science used to reduce allocations and the way the water reductions have been administered. The social capital of the community, the extent of the water allocation reductions and the level of trust in the science are key determinants of how many conflicts will exist in any given WAP region. The paper suggests a law reform that could reduce conflicts, i.e. that a duty to co-operate be added to state laws to require persons working on water plans to work cooperatively in the region and with others in the next water plan region. Such a duty would go some way to increasing the achievement of ESD and overcome the fragmentation and introspective approach of some of the early regional water plans.
Citation McKay, J. M. (2011) Australian water allocation plans and the sustainability objective—conflicts and conflict-resolution measures. Hydrol. Sci. J. 56(4), 615–629.
With a brief description of the physical setting and institutional history of the Australian water sector, this paper reviews the water institutional reforms in Australia focusing especially on the nature and extent of reforms initiated since 1995 and provides a few case studies to highlight the issues and challenges in effecting changes in some key reform components. The reforms initiated in 1995 are notable for their comprehen-siveness, fiscal incentives and clear and time-bound targets to be achieved. Although water institutions in Australia have undergone remarkable changes, thanks to the reforms, there are still issues and challenges inherent in reforming maturing water institutions. Regional diversity in legal systems and quality standards as well as conflicts between private interest and public welfare are still serious to constraining market-based water allocation and management. While Australia still needs further reforms, its recent reform experience provides considerable insights into the understanding of both the theory and the practice of water institu-tional reforms.
In this article, it is argued that while there has been an apparent eclipse in discourse regarding the publicness or public quality of public service, the recent transition toward a market-driven mode of governance has created a serious challenge to such publicness. More specifically, the contemporary businesslike changes in the objectives, structures, functions, norms, and users of public service tend to diminish its publicness in terms of its current trends toward eroding public-private distinction, shrinking socioeconomic role, narrowing composition of service recipients, worsening condition of accountability, and declining level of public trust. Based on the existing studies, empirical findings, and country experiences, this article delineates the basic criteria determining the publicness of public service, uses these criteria to demonstrate how the recent businesslike reforms have led to the erosion of such publicness, and makes recommendations for reviving the quality of publicness in public service.
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