Exclusive: Watchdog’s new report will say agency’s prosecutions and compliance statistics were seriously overstated

This article is more than 2 years old

This article is more than 2 years old

The New South Wales ombudsman is investigating whether WaterNSW – the body responsible for compliance with the state’s water laws – has misled it when it provided data last year on the number of prosecutions and enforcement actions it had taken in the 15 months prior.

The ombudsman confirmed a second special report will be tabled in the first week of March, but declined to outline its contents. Special reports are a last resort when the ombudsman deems that a report to the minister is insufficient.

The new report will say that statistics provided to it by WaterNSW on prosecutions and compliance activities since July 2016 were seriously overstated by the agency.

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They were then used in the ombudsman’s earlier special report to the state parliament in November last year, which outlined the ombudsman’s frustrations in getting adequate action on complaints over the past decade.

The November 2017 report outlined the handling of several specific examples of breaches of the water laws highlighted by the ombudsman since 2007. These included reports of illegal structures being built to divert water and other serious breaches of NSW’s water laws.

Three earlier reports had gone to the minister and the head of the department with little effect.

In July 2017 Four Corners aired an explosive report on the management of the Barwon-Darling system that featured NSW water compliance officers saying that despite reporting wrongdoing, they received little support from their superiors to take action. This prompted the ombudsman to go public with the special report in November.

As well as detailing its findings in the three earlier reports, the ombudsman zeroed in on systemic failures. It said the constant bureaucratic shuffling of responsibilities between agencies had been “devastating” and had resulted in “a shell game” when it came to enforcing the law.

But it now appears the statistics provided to the ombudsman may have been inaccurate and the record on prosecutions is even worse than outlined.

The ombudsman’s November report revealed that in 2009 only 20% of 600 breach allegations were investigated – a rate it considered inadequate.

In response, a strategic investigations unit was established, which led to improvements until the unit was depleted of staff during yet another restructure in 2015. The compliance function was transferred to WaterNSW.

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The ombudsman said under WaterNSW there had been a 72% drop in enforcement actions between 2015-16 and 2016-17. There were no prosecutions in 2016-17.

However, the ombudsman noted WaterNSW had assured its office that it had taken “significant steps” to resource and perform the compliance function since 1 July.

The adjusted number of enforcement outcomes for the period 1 July 2016 to 3 November as provided by WaterNSW were 115 formal warnings, 192 advisory letters, 105 penalty infringement notices and 12 prosecutions.

It is these figures that are now under scrutiny by the ombudsman and whether the error was deliberate.

A spokesman for WaterNSW said the organisation “is not aware of the ombudsman making any such findings”.

A third body, the Natural Resources Access Regulator, has recently been established to take over some of the compliance functions, after stinging criticism by both the NSW ombudsman and Ken Matthews, who chaired an independent inquiry.

Despite the Four Corners program going to air seven months ago, there have been no prosecutions arising from the allegations of water theft and meter tampering raised by the program.