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.
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:
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:
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:
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:
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 Commissioner was critical of the loss of the National Water Commission (NWC)’s monitoring function from a governance perspective, relevantly finding:
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:
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.
Author: Joseph Monaghan
Dr Joseph Monaghan is a planning and environmental law partner at Holding Redlich. In 2017 he was awarded his doctoral degree in law for his thesis titled ‘Law and policy of the Murray-Darling Basin’.
[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.
Joseph Monaghan, Partner
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Jenny Humphris, Partner
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