On January 29, 2019, Bret Walker SC delivered his 764-page report on the Murray Darling Basin Royal Commission to the Governor of South Australia. It is in part based on the 1113 exhibits tendered at the hearings, which lasted from June to October 2018. Many of those exhibits are expert reports of several hundreds of pages each. The transcript includes 3500 pages, consisting mainly of evidence from witnesses with scientific expertise from a wide number of disciplines.
The SA Government response to the commissioner’s findings and recommendations (see below) is 26 pages. Half of its content consists of photographs. These include a photo of a man pushing a button on a pump. There’s a photo of some grapevines. A few pages later, there’s another photo of grapevines (apparently, wine is made in South Australia). There is a photo of a tree by a river. It is a big tree. There is a photo of people standing around, some with hands in their pockets. One is holding a reed. They appear to be at a funeral, based on the solemn look on their faces. Perhaps it’s for the Murray River.
There is nothing wrong with brevity. The Gettysburg Address, itself delivered on a solemn occasion, is just 271 words in length. No reasonable person could expect any government to reach the standards of Lincoln in its publications. But the citizens of South Australia – and especially those who give a damn about the state’s environment – are entitled to a comprehensive response to a Royal Commission report that concerns the state’s most precious resource: water.
The SA Government’s response to the commissioner’s report is short on words, but also – and this makes it unacceptable as an official government document, tabled in parliament – it is short on crucial facts, and contains an inaccurate attack on the Royal Commissioner.
In response, I’ll restrict myself to the most glaring omissions.
In his foreword, to which I will return, the Premier suggests that Walker “recommended going back to the drawing board and resetting core elements of the Basin Plan” including its most vital component – the determination of how much water needs to be returned to the environment to save what is a dying system.
Hang on – some context, please.
What Bret Walker found was that this figure had been determined unlawfully, in both a legal and a factual sense. That the Basin Authority (MDBA) has misconstrued the Water Act is bad enough, but Walker found that the volume of water the environment needs – which the law says must only be determined on the basis of the best science – had instead been determined by a political fix. Instead of considering what the scientists said, the MDBA had to come up with a figure that started with “2”.
So, despite originally stating that the environment needed 4000-7000 billion litres (GL) more per year to not be endangered, a year later that figure had become 2750GL. It was a “postcode job”, one whistleblower told the commissioner. A NSW postcode, not a Queensland postcode. This political fix is depriving the environment of billions of litres of water per year. Isn’t Steven Marshall outraged by that? Isn’t his cabinet?
The commissioner recommended a redetermination of the volume of water the environment needs so that it could be done in accordance with law and science, something that has not happened. He did so, while also finding that the MDBA pressured the CSIRO to change a report to indicate that the environmental benefits of a 2800 GL plan would be substantially greater than the scientists at the CSIRO thought. This, a former CSIRO scientist said, amounted to “scientific censorship”. The commissioner described it, politely, as maladministration. Isn’t Mr Marshall appalled that this happened? Doesn’t his government want heads to roll for this kind of conduct? Or do we forget that, and not care that the Basin Plan is an unlawful political fix that fails to reflect what the best science tells us the environment needs?
The SA Government has no problem with another matter that Commissioner Walker found demonstrated illegality – supply measures. Projects that apparently mean you can get “equivalent environmental outcomes” from less water. These projects allow for a trade-off between, for example, helping a gum tree on the one hand, while not being so great for a native Cod on the other. Does that sound a bit Brave New World? It is.
Most of these measures are still at the concept stage. Yet they have already meant that the eastern states do not have to recover 605GL of water that they otherwise would have. I wonder if people within the SA Government have read the reports on these measures, which the MDBA says gives them a tick? They talk of this whole environmental equivalency idea as being “novel”, “risky”, and having a “large error space”. I’m sorry, but the law does not authorise the Basin Plan to play roulette with our environment. The SA government should now be rejecting these measures, and asking for that 605GL to come down the river.
Then there’s the extra 450GL of water promised under the Basin Plan, entirely for South Australia’s environmental assets like the Coorong. That water is meant to come through “efficiency measures”, like funding an irrigator to go from spray to drip irrigation, with the allegedly “saved” water being returned to the environment. The Commissioner recommended that this 450GL be obtained from buybacks of water licences, not efficiency measures.
He made that recommendation because it would be three times cheaper for Australia’s taxpayers. Because there are decades of peer-reviewed science suggesting efficiency measures don’t work. Because NSW and Victoria have shown no interest in engaging in such measures to get this water for South Australia. In the face of this, the SA Government response is that it favours efficiency measures for getting the 450GL because “buybacks are a blunt tool and can harm local communities”. I wonder where this unsupported claim comes from? Was it borrowed from the National Irrigators Council?
Independent, peer-reviewed economic work has debunked this myth. A reduction in water does not lead to a proportional reduction in farm production. Buyback can help local economies – most water licences are only sold in part, and funds received are spent locally. There are a range of factors hurting rural economies or reducing jobs unrelated to the Basin Plan – mechanisation, reductions in soil fertility, urbanisation, productivity price fluctuations, etc. In the 11 pages of print of the SA Government response to Walker’s report, there is no analysis of this.
This brings me back to the Premier’s foreword. In his report, Commissioner Walker referred to the agreement made by the SA Water Minister with the other Basin States in December 2018 to expand the socio-economic criteria needed to be met before an efficiency measure can be approved. Participation was the only test required under the Basin Plan. Environment Minister David Speirs agreed to vastly expanded criteria. They are a lawyer’s picnic. They are ill-defined. Their meaning is uncertain.
On one view, the loss of one job would prevent approval of an efficiency measure – meaning no extra water for SA. The commissioner found this decision so contrary to the interests of South Australia, he considered it a breach of the Ministerial Code of Conduct. The Premier – one assumes on legal advice – has accused Walker of denying Minister Speirs “natural justice”.
If the Premier believes his minister has been denied natural justice, he must reopen the royal commission. One day should suffice.
The SA Government made three submissions to the commission, the last in September 2018. It contended for no change to the socio-economic criteria for efficiency measures in the Basin Plan. It made the same submission to the Productivity Commission.
Three government witnesses gave evidence to the commission at public hearings. They said the criteria should not change.
The commission hearings finished in late October. The commissioner had asked for an extension. It was refused.
The SA Government’s about-face on socio-economic criteria that the Commissioner criticised took place on December 14. The report was due at the printers a couple of days later.
Minister Speirs’s staff did not contact the commissioner to advise him of the Minister’s changed position, and that his submission to this extent was now otiose. He did not lodge a supplementary submission. He did not provide any explanation to the commissioner as to the change made by the SA government on December 14. No explanation has yet been made that is comprehensible to me.
In its final report, the Productivity Commission noted that if socio-economic criteria were changed to something like what they have now been changed to, it will be “unworkable”.
Minister Speirs was not denied “natural justice”. He denied to the commissioner an explanation as to why he conceded what he did to the eastern states. It is arguable he has denied the South Australian public such an explanation.
But this can be fixed. If the Premier believes his minister has been denied natural justice, he must reopen the royal commission. One day should suffice. There was plenty of money left in the budget for that. Minister Speirs should lodge an explanatory statement. Then he can spend the day being cross-examined. The whole state will be better informed. I’ll buy him a South Australian wine afterwards. He should not necessarily expect the commissioner to do so.
All Australians should pause to reflect that now there is a terrible drought on in much of the basin. People are suffering. Government should assist. Then it should shut up. Drought is the time for a proper and lawful Basin Plan. A time to listen to our best, independent scientists and economists. The country has many. They should guide our policymakers about how much food and fibre we can produce, and how much of the environment we can save. They can do this with an eye to the future, which is going to be hotter and dryer, no matter what the climate change deniers say.
What’s ruined the Basin Plan to date, and caused so much distrust and damage, is dressing up politics as science.
The SA government has now gone further than that. It has tabled what arguably is more accurately described as a press release in parliament in lieu of a comprehensive and substantive response to Bret Walker’s Royal Commission report. That is nowhere near good enough for the government of the driest state, and in the driest continent.
Richard Beasley SC was senior counsel assisting the Murray-Darling Basin Royal Commission.
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