Punishing Water ‘Theft’ in the Climate Crisis
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Climate change represents one of the most significant global challenges of our time, with far-reaching implications for environmental sustainability, economic development, public health, and social justice. As the impacts of climate change become increasingly evident, legal systems at the national, regional, and international levels are being called upon to develop effective frameworks for mitigation, adaptation, accountability, and resilience. Given the pivotal role that law can play in shaping climate governance, this blog series, edited by Dr Azadeh Chalabi, brings together academics, legal practitioners, and policymakers to contribute blog posts on the theme “Law and the Climate Crisis". Contributions to the series seek to foster critical engagement with the evolving relationship between law and climate change while exploring innovative legal responses to contemporary environmental challenges.
Rachel Killean, University of Sydney Law School, Erin O’Donnell, University of Melbourne Law School and Cristy Clark, Monash University Faculty of Law
Keywords: water theft, aqua nullius, criminal justice, restorative justice, sustainable water management
In July 2025, Australian cotton farmer John Norman was sentenced to nine and a half years in prison for his role in an AU$8.7 million water fraud. The sentence attracted national attention, signalling just how far Australian governments are now prepared to go in punishing water crime.
Norman’s case is part of a broader global trend. As climate change deepens droughts and sharpens competition for scarce resources, governments are increasingly reaching for criminal law to respond to environmental harm, in what we describe as ‘carceral creep’. This expansion of a deter-and-punish mindset into areas of environmental governance previously managed through administrative regulation is visible internationally in, for example, the EU’s revised Environmental Crime Directive and the global campaign to criminalise ecocide. In Australia, it is particularly visible in water governance. Since 2020, the state of New South Wales has conducted more than 7,600 investigations into suspected water offences, and Victoria has declared ‘zero tolerance’ for water theft.
But can criminal punishment address problems rooted in scarcity and market pressure? In our recent research, we explore this question through an analysis of the regulatory response to water theft in Australia’s Murray-Darling Basin, asking what happens when environmental harms are recast as crimes.
Water theft in the world’s largest water market
The Murray-Darling Basin is home to over 2.4 million people, including people from 50 First Nations, and generates around 40% of Australia’s agricultural produce. It also hosts the world’s largest water market, with entitlements in the southern Basin valued at almost AU$32 billion in 2025. Water is scarce and access to it is fiercely contested. When drought bites and prices climb, the financial incentive to take water unlawfully can exceed the expected penalty.
Water theft became a national scandal in 2017, when an Australian Broadcasting Corporation Four Corners investigation alleged large-scale unlawful extraction by irrigators and maladministration by officials in New South Wales. The fallout included new criminal offences, dramatically increased penalties, a reversal of the onus of proof, and the establishment of a dedicated compliance agency, the Natural Resources Access Regulator (NRAR). In late 2025, New South Wales almost doubled its maximum penalties again, to nearly AU$5 million for individuals and AU$10 million for corporations.
The language of ‘theft’
The choice to call unlawful water use ‘theft’ matters. The label transforms a breach of licence conditions into a moral wrong, supplying the rhetorical frame through which punitive responses become expected. It can also illuminate the victims of water misuse: the rivers and wetlands deprived of environmental flows, and the downstream users and communities left to bear the loss. When over one million fish died in the Baaka/Darling River at Menindee in 2019, the event was described in the language of stolen water and murdered fish, making the harm visible in a way that ‘non-compliance’ never could.
However, the ‘theft’ label also carries risks. Theft presupposes property, and framing water as property that can be stolen entrenches its construction as an individually owned commodity. The theft frame also focuses attention on the individual ‘thief’, obscuring systemic drivers of unlawful take such as the over-allocation of entitlements and weak monitoring and enforcement. Further, it valorises the existing allocation of water rights as just, even though the foundations of settler-state water law (such as that applied in Australia) remain contested by Indigenous Peoples, who have never ceded their rights to water. Where basic human needs go unmet, the theft frame can also position the state-sanctioned rights of commercial users above the human right to water itself.
Restorative possibilities
In Australia, the two states of New South Wales and Victoria face comparable water theft challenges within the Murray-Darling Basin but have responded differently. Victoria relies on a conventional enforcement model: water corporations investigate, warnings dominate, and prosecutions pass to the Department of Public Prosecutions. New South Wales has built a specialist regulator with prosecutorial powers (NRAR), much higher penalties, and a distinctive tool: the enforceable undertaking.
Enforceable undertakings are legally binding agreements entered into in lieu of prosecution. NRAR has concluded eleven, and they can require offenders to pay for the water taken and NRAR’s enforcement costs, as well as to undertake restorative works. Grant Barnes, Chief Regulatory Officer of NRAR, speaking about the Boggabri Coal case, explains that enforceable undertakings are ‘an important part of what NRAR can do to give back to the community through our investigative and enforcement efforts.’
Tahmoor Coal, for example, was required to rehabilitate a riparian corridor and engage in ongoing consultation with a local Aboriginal organisation and a local community group. Illawarra Coal contributed close to AU$2.9 million to restoring the health of waterways and wetlands in its region. The most recent undertakings all include this kind of relational repair with local and Indigenous communities, potentially opening a door to more accountable and reciprocal forms of water governance. Discussing the Tahmoor Coal undertaking, an NRAR representative has described enforceable undertakings as allowing ‘unique and innovative outcomes that are not possible through the court process.’
Punishment as a bridge to repair?
While remaining wary of the turn towards criminal law as a method for managing social and environmental problems, we hypothesise that the severity of the available carceral response may be what makes the enforceable undertakings and their restorative measures meaningful. Faced with fines approaching AU$10 million, an alleged offender has a powerful incentive to agree to an undertaking that delivers both a financial consequence and restorative outcomes for ecosystems and communities. Punitive and restorative approaches may therefore be more complementary than existing literature tends to assume (Nurse 2022, 327), at least within market-based systems where the incentives for non-compliance are strong.
This gives cause for hope, and for caution. Criminal law alone cannot resolve the structural drivers of over-extraction in the Basin, which is facilitated by a market system that has rewarded short-term exploitation over long-term custodianship. If the carceral response is to serve as a bridge towards more just and relational forms of water governance (O'Donnell, Clark and Killean 2024), it must remain the means and never become the end. That will require sustained investment in restorative processes, alongside further research into how these measures are experienced by water users and affected communities.
In a climate crisis-stricken world, environmental harms may increasingly be subject to punishment. Whether that punishment can open pathways to repair, and to more just relationships with water, remains a more complex question that deserves further scrutiny.
Acknowledgements
We gratefully acknowledge the insights shared by NRAR, including the quotes from their staff members that appear in this document, and we note that aside from those specific quotes, this blog post does not represent the views of NRAR or its staff.
Original research that supported this blog has been accepted for publication:
R Killean, E O’Donnell & C Clark (2026) Rethinking the ‘Carceral Creep’ in Water Governance: Enforcement, Accountability and Restorative Possibilities in Australia’s Murray-Darling Basin. Journal of Environmental Law (forthcoming).
Author bios
Cristy Clark is a white settler who lives and works on Wurundjeri Woi Wurrung and Bunurong Boon Wurrung Country. She is a socio-legal scholar whose research bridges environmental law and human rights to advance more effective and just water and environmental governance. Cristy is Associate Professor at Monash University Law School, and the co-lead of the Climate Justice Lab.
Rachel Killean is a Scottish migrant living on the lands of the Gadigal People of the Eora Nation. She is a Senior Lecturer at the University of Sydney Law School, and the Deputy Director of the Australian Centre for Climate and Environmental Law. Rachel combines criminology and socio-legal research to investigate responses to violence, broadly defined.
Erin O’Donnell is a non-Indigenous person living on unceded Wurundjeri Woi-wurrung Country, with over 25 years’ experience in water law and policy. Erin is Associate Professor at University of Melbourne Law School where she researches Indigenous water justice and river personhood. Erin is also Deputy Chair of Birrarung Council, the voice of Birrarung, the first river to be recognised in settler law as a living entity.