Australia: SA Royal Commission finds Murray-Darling Basin Plan partly unlawful

Last Updated: 11 February 2019
Article by Joseph Monaghan

Most Read Contributor in Australia, July 2019

On 29 January 2019 the South Australian Murray-Darling Basin Royal Commission (Royal Commission), constituted by Bret Walker SC as Commissioner, delivered its almost 800 page report to the South Australian Government. 

The Murray-Darling Basin Royal Commission Report (Report) was promptly released to the public. 

Climate change

The Commissioner's findings in relation to climate change were that climate change had not been considered by the Murray-Darling Basin Authority (MDBA) in relation to the setting of the Sustainable Diversion Limits (SDLs) under the Basin Plan. This was a fundamental problem from a legal perspective and from the perspective of ensuring the Basin Plan achieved the environmental objectives of the Water Act 2007 (Cth) (Water Act). In the course of investigating the climate change issue the Commissioner also came to form a view that the MDBA had ignored advice from the CSIRO in relation to climate change. Some of the Commissioner's key findings were:

  • 'The best available scientific knowledge developed worldwide continues to point toward significant warming in the Southern Basin to 2030 and beyond, and a significant if not catastrophic reduction in run-off depending on global greenhouse gas emission scenarios.'i
  • 'In 2009, the CSIRO advised the MDBA that ... the MDBA should consider the recent climate of the past 10–20 years, and its climate change projections. This advice was ignored by the MDBA. This amounts to negligence, and maladministration.'ii
  • 'The MDBA's failure to heed the advice of the CSIRO, and to follow the requirements of the law, imposed by the Water Act, has not been explained and cannot be justified.'iii 

Environmentally Sustainable Level of Take (ESLT) interpretation

One of the debates that arose when the Basin Plan was prepared centred upon whether the Basin Plan was lawful and in accordance with Water Act requirements. The MDBA's 2010 Guide to the proposed Basin Plan (Guide) had been prepared on the basis that in setting the SDLs, the environment was prioritised, as required by the Water Act. By contrast, the SDLs under the 2012 Basin Plan were set on the basis of a 'triple bottom line approach'. This, it was said by some at the time,iv contravened the requirements of the Water Act and made the Basin Plan unlawful. These questions of statutory interpretation were considered by the Royal Commission which found that parts of the Basin Plan were in fact unlawful on the basis it was prepared in accordance with the triple bottom line approach. Some of the Commissioner's key findings were as follows:

  • 'The Water Act requires environmental priorities to be given primacy when determining an ESLT and a SDL.'v]
  • 'There is no 'triple bottom line' legislated in the Water Act concerning the setting of a SDL that must reflect an ESLT, or in the scientific judgement to be made as to what are key environmental assets, ecosystem functions and environmental outcomes. That phrase is an inappropriate figure of speech or political slogan that the MDBA has unwisely adopted. Any optimisation of environmental, social and economic outcomes must come later.'vi
  • 'The process for determining the Basin-wide ESLT was undermined by an incorrect construction of the Water Act, in particular the term ESLT. The MDBA has impermissibly adopted a so-called triple bottom line approach.'vii

Buybacks and efficiency upgrades

With respect to buybacks and efficiency upgrades, which are means by which the SDLs are achieved, the Royal Commission compared the cost of buybacks and structural adjustment programs versus the cost of infrastructure projects, finding that from a cost perspective, buybacks and structural adjustment programs were significantly better. The Royal Commission also stated that there was little evidence to support claims in relation to mass exodus of people from farming where buybacks have been implemented:

  • 'Buyback was the subject of considerable criticism by some persons and representative bodies during the Commission's consultations. That criticism is misplaced on the basis of the evidence.'viii
  • 'The asserted negative impacts of buyback either do not exist, or have been greatly overstated. Buyback did not cause a mass exodus of people from farming or irrigation — most buyback agreements related to partial sales of entitlements only. The vast majority of those who sold entitlements retained water delivery rights. The so-called 'Swiss cheese' effect has been frequently cited, but appears to be more myth than fact.'ix

Governance

The Royal Commission was highly critical in relation to what it saw as a disconnect between claimed openness and accountability on the part of MDBA, and actual openness and accountability in the conduct of MDBA.

In particular, the areas of limited or no disclosure highlighted by the Commission were: 

  • legal advices and construction of the Water Act
  • the modelling for the Guide to the proposed Basin Plan/ESLT 
  • the modelling to justify the 70 GL per year reduction in recovery of water for the Northern Basin
  • the SDL adjustment mechanism, which the Commissioner found 'has been made with a wholly inflated air of secrecy'. x

The Commissioner's criticisms in turn extended to the MDBA's reliance upon Australian Government Solicitor (AGS) Legal Advice, which purported to support the critical 'triple bottom line' approach to the setting of SDLs, and implicit criticism by the AGS itself:

  • 'The AGS Opinion contains a number of dubious propositions about the meaning and effect of particular provisions in the Water Act and relevant international conventions, and an unlikely and incorrect conclusion about the role of economic and social considerations in determining the ESLT...' xi

The Commissioner was critical of the loss of the National Water Commission (NWC)'s monitoring function from a governance perspective, relevantly finding:

  • 'The [NWC] formed an important part of the governance structure in the Basin's legislative scheme, and since its abolition in 2014, there has been an erosion of the national oversight of water reform in the Basin.' xii
  • 'The NWC played an important role in the governance of the Murray Darling Basin which worked well, and was abolished without justification. It warrants renewed consideration in the context of achieving the best and most effective governance arrangements.'xiii 

One area focused upon by the Royal Commission was the Northern Basin Review (NBR), a project which resulted in a 70 GL reduction in the amount of water to be recovered for the environment in the Northern Basin. The Royal Commission was interested in how the NBR came to pass and the basis for its conclusion to reduce environmental water. The Royal Commission relevantly found:

  • 'The [NBR] is an example of gross maladministration by the MDBA. It is an example of how the current management of the MDBA has shown itself unwilling and incapable of fulfilling their statutory functions and obligations.' xiv

Where to next?

The Report constitutes the most comprehensive analysis to date in relation to the Murray-Darling Basin Plan. The question now is what weight will law and policy makers, and the MDBA, give to the recommendations and findings? Some have already suggested the Royal Commission's findings have fallen on deaf ears.xv

The MDBA's response to the Royal Commission, which broadly rejects its criticisms, can be found here.

In the writer's opinion it may take a Federal Royal Commission for the recommendations and findings of the Royal Commission to drive change; not because the South Australian Royal Commission was inadequate - to the contrary, the Royal Commission seems to have conducted itself with rigour and integrity. Rather, it may be that a Federal Royal Commission is needed to ensure meaningful engagement by each of the Basin States and the Commonwealth in the Royal Commission process and its outcomes.

Footnotes

i South Australia, Murray-Darling Basin Royal Commission, Report (2019) 56

ii Murray-Darling Basin Royal Commission above n 1, 55

iii Murray-Darling Basin Royal Commission above n 1, 267

iv See for example G Williams and P Kildea, 'The Water Act and the Murray-Darling Basin Plan' (2011) 22 Public Law Review 9, 13. See also Australian Network of Environment Defenders Offices, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into Provisions of the Water Act 2007, March 2011

v Murray-Darling Basin Royal Commission above n 1, 52

vi Murray-Darling Basin Royal Commission above n 1, 53

vii Murray-Darling Basin Royal Commission above n 1, 54

viii Murray-Darling Basin Royal Commission above n 1, 61

ix Murray-Darling Basin Royal Commission above n 1, 61

x South Australia, Murray-Darling Basin Royal Commission, Report (2019) 716.

xi Murray-Darling Basin Royal Commission above n 1, 153.

xii Murray-Darling Basin Royal Commission above n 1, 68.

xiii Murray-Darling Basin Royal Commission above n 1, 683.

xiv Murray-Darling Basin Royal Commission above n 1, 62.

xv Tingle, L, 'The fury of the Murray-Darling royal commission findings has fallen on deaf ears', ABC Newsonline.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Australia
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Australia
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions