Submitters to the inquiry were divided on whether or not to support the Bill. Those who supported the Bill did so on the grounds that a Commission of Inquiry could help address issues that have arisen during implementation of the Murray-Darling Basin Plan (Basin Plan). The majority of submitters—who commented on or did not support the Bill—contended that a Commission of Inquiry is not necessary to resolve those outstanding issues.
Regardless of their position on the Bill, submitters supported the effective delivery of the Basin Plan and its objectives. Some submissions described the Plan in highly positive terms. For example, the National Irrigators' Council stated:
It is a unique and historic agreement between the Basin States and the Commonwealth. It represents world leading reform, it is complex and challenging, and it will not succeed without continued bipartisan and inter-jurisdictional cooperation.
This chapter discusses the key issues raised in relation to the Bill.
Justification for the Bill
Some submitters supported the establishment of a Commission of Inquiry, as proposed in clause 6 of the Bill. These submitters argued that the South Australian Murray-Darling Basin Royal Commission (SA Royal Commission) and Four Corners have raised important questions about water management in the Murray-Darling Basin (Basin). For example:
Lifeblood Alliance argued that the Four Corners' episode 'Cash Splash' exposed shortcomings in implementation of the Basin Plan and immediate action is required to get the Plan 'Back on Track';
The Australian Floodplain Association argued that the SA Royal Commission exposed 'numerous flaws in the implementation of the MDB Plan'.
The Australian Taxpayers' Alliance would welcome a Commission of Inquiry, in view of taxpayers' $8.5 billion contribution toward the health of the river system. The Alliance expressed concern:
…that this exorbitant and substantial expenditure has not delivered adequate environmental or economic returns and has failed to meet the purported objectives of the laws that govern Australia’s water management.
The Australian Taxpayers' Alliance supported:
…a rational appraisal and investigation of the scheme and its outcomes… A commission of inquiry which undertakes this task is desirable in order to reform our existing laws and operation of the Murray‑Darling Basin Authority sensibly and in the national environmental and economic interest.
Professor Quentin Grafton and Professor John Williams, from the Australian National University, agreed that there is an 'urgent need for much greater transparency, improved and more accessible data, and much better analysis, in relation to Basin water reforms'. Their submission added:
We recognise that, despite the detailed and valuable findings delivered by the South Australia Murray-Darling Basin Royal Commission, missing evidence from federal public servants (who were not permitted to appear as witnesses before the South Australia Royal Commission) remains a substantial obstacle to improving water policy and governance in the Murray-Darling Basin.
Although the Wentworth Group of Concerned Scientists agreed with submitters—such as Professors Grafton and Williams—that there is a need for urgent reform, its focus was on recommendations from the many already concluded reviews:
Wentworth Group considers that Plan implementation improvements could be addressed in a more timely fashion through implementing recommendations from a variety of inquiries and reviews that have already been completed.
SA Royal Commission
Some submitters noted the findings and recommendations of the SA Royal Commission. The National Irrigators' Council questioned whether the Bill was an appropriate response to that Commission, as indicated in the Explanatory Memorandum to the Bill. Its submission noted that some independent inquiries have disagreed with the views articulated by Commissioner Bret Walker SC.
Basin inquiries and reviews
Most submitters referred to the various previous inquiries and reviews regarding water management in the Basin.
Number and outcomes of previous inquiries and reviews
Several submissions noted the large number of such investigations (both government and non-government). For example, the MDBA commented that 'the Basin Plan has been examined and reviewed and subjected to more scrutiny than just about any other major policy'.
These previous inquiries and reviews include, for example: the Productivity Commission's statutory review, whose recommendations were strongly supported by some submitters; the Independent assessment of the 2018-19 fish deaths in the lower Darling (chaired by Professor Robert Vertessy); and the MDBA's Northern Basin Review.
A number of submitters argued that Australian and Basin State governments should focus on the outcomes of previous inquiries and reviews, as a way of improving implementation of the Basin Plan. The NSW Irrigators' Council argued, for example:
It is critical that sufficient knowledge is available to inform evidence-based policy, but it is equally important the findings and recommendations are actually addressed.
EDO NSW commented that 'implementation of some of the completed inquiries has been slow':
If accepted by government and properly implemented, the recommendations of…various inquiries would establish a work program to remedy the most significant of the ways in which the implementation of the Water Act 2007 has been deficient.
Ongoing inquiries and reviews
Submitters also noted the ongoing inquiries, reviews and actions aimed at addressing implementation issues. The National Farmers' Federation, for example, referred to extensive work that has already identified challenges and pathways for implementation of the Basin Plan:
Challenges are already well-documented; they are complex; and there is a substantial ongoing body of work attempting to address these issues.
Some submitters expressly argued that the terms of reference set out in the Bill duplicate the work of previous and ongoing reviews and inquiries. The National Farmers' Federation, for example, submitted that 'another inquiry with terms of reference already captured by other inquiries is unwarranted, duplicative, costly, and will delay progress'. The NSW Irrigators' Council similarly commented on 'the breadth of current or previous inquiries/reviews already addressing the Terms of Reference'.
EDO NSW agreed and suggested a potential remedy: amendment of the terms of reference to focus on areas not already investigated elsewhere; and building on the findings of past inquiries.
Value adding to management of Basin water resources
The NSW Irrigators' Council argued that there is nothing new to be gained from the establishment of a Commission of Inquiry:
It is only worthwhile conducting an inquiry of this nature (powers of a Royal Commission), if there is a clear gap in knowledge which is otherwise unaddressed by previous or ongoing reviews, or that could not simply be addressed through less drastic (time-consuming, and costly) means. Given there has already been over 37 reviews/inquiries/commissions conducted on the Basin in recent times, it is doubtful that there is new territory that has not already been covered. Rather than adding to the existing constructive recommendations already available, it is likely this Commission of Inquiry would only be inflammatory, and further weaken public confidence in the way water is managed.
The Wentworth Group of Concerned Scientists observed that previous reviews have produced similar results:
The vast majority of governmental…and non-governmental reviews…have identified common findings and produced similar recommendations revolving around changes to critical implementation issues which continue to plague the Basin Plan, including:
Use best available science and not politics to guide decision making;
Improve transparency through monitoring, evaluation, auditing and reporting;
Improve governance structures and compliance actions;
Support for regional communities adapting to a future with less water; and
Allocate sufficient resources to fund these programs.
The majority of recommendations issued from these reports have never been adopted.
Some submitters recognised that there is merit in a Commission of Inquiry that could compel evidence and information from the Commonwealth. EDO NSW alluded to the situation recently experienced by the SA Royal Commission (see Chapter 1) and described the Bill's proposal as beneficial to the investigation of misconduct and improper influence.
The Wentworth Group of Concerned Scientists argued however that this is not germane to the critical issues affecting water management in the Basin:
While this may bring to the fore various individuals as accountable for decisions or actions, it is unlikely to change the core recommendations found in the previous 39 reports.
Basin Plan implementation period
The Department of Agriculture (Department) noted that the Basin Plan is a long-term term reform and is only seven years into a 12-year implementation period.
The National Irrigators' Council added: 'the Plan establishes a framework for environmental recovery, but it may (and was always expected to) take many years to show its full benefit'.
Some submitters observed that there have already been positive outcomes from partial implementation of the Basin Plan. For example, the National Farmers' Federation highlighted the amount of water already recovered for the environment (over 2000 gigalitres).
On this point the MDBA added:
Once fully implemented, the Basin Plan will reduce water extractions by around 20 per cent or equivalent, and will improve river operations to achieve the best use of increased water for the environment. While water recovery is not yet complete, over 2,000 gigalitres per year on average has been returned to the environment. Irrigation will be substantially more efficient than before, helping to partly offset the economic impact of reduced water availability.
A number of submitters expressed concern about how the proposed Commission of Inquiry could affect full implementation of the Basin Plan. The MDBA submitted that 'implementation is at a critical point' and the Law Council of Australia envisaged a potential delay in implementation of 12 or more months.
The Law Council of Australia emphasised that urgent action is required to protect the environment and dependent ecosystems in the Basin. Alternatively, the National Irrigators' Council focussed on the need to provide stability and certainty for water users in the Basin:
It is critical that the raft of recent and current inquiries into Basin Plan and water issues do not impede progress on the rollout of the Basin Plan to continue to meet its statutory requirements. Irrigated agriculture industries and dependent communities must be afforded certainty and a clear space that enable the Plan to continue under its many and sometimes complex moving parts.
The Department described the Basin Plan, as 'a once-in-a-generation opportunity to address historic over‑allocation of water entitlements and improve the health of our river systems'.
The Department stated that the Basin Plan is a partnership between the Australian and Basin State governments, which requires strong and continued commitment. The submission affirmed:
The Australian Government remains focussed on working with Basin states and the Australian Capital Territory to address issues raised in… inquiries and reviews to more effectively implement the Basin Plan.
The Department acknowledged recent challenges in implementing the Basin Plan and noted that such challenges continue to be addressed, including through two current investigations:
a proposed review by the Australian Competition and Consumer Commission into the water market and its functions; and
an Independent Assessment of Social and Economic Conditions in the Basin.
The Department referred to the independence and expertise of the MDBA, as well as the mechanisms used to ensure responsive management of the Basin:
The Basin Plan has built-in adaptive mechanisms so that management of the Basin's water resources can be adjusted in response to new information. Statutory reviews of the Basin Plan are undertaken every ten years and the Productivity Commission's five-yearly reviews of the Plan's implementation provide opportunities for new information, tools and techniques to be considered.
The committee recognises that Australia has a variable climate and is currently experiencing a devastating drought.
In 2012, the Australian and Basin State governments agreed a 12-year plan to better manage water resources in the Basin. The committee heard of overwhelming support for the objectives of the Basin Plan but acknowledges some submitters' concerns regarding the speed and manner in which certain implementation issues have been addressed.
The committee notes that the Basin Plan is just over half-way through its implementation period. It is already recovering significant volumes of water for the environment, while also supporting a diverse range of water users in the Basin. The committee acknowledges the Department's advice that Australian and Basin State governments will continue to work collaboratively—and with stakeholders—on the best ways to implement the Plan.
The committee further notes that, in progressing implementation of the Basin Plan, the Australian and Basin State governments have, and will continue to have, the benefit of considerable expertise, including the outcomes of numerous past inquiries and reviews (such as that of the Productivity Commission).
The committee welcomes the recent establishment of the position of Inspector‑General for the Murray-Darling Basin, and the appointment of Mr Mick Keelty to this role, who has been tasked with oversighting the integrity in the Basin Plan.
The committee notes submitters' comments that the terms of reference proposed for the Commission of Inquiry would cover little new ground. Further, that the Commission of Inquiry would likely delay current efforts to address the parlous state of the river system.
Accordingly, the committee does not consider that a Commission of Inquiry, as proposed in the Bill, would meaningfully progress the objectives of the Basin Plan.
The committee recommends that the Bill not be passed.
Senator the Hon David Fawcett