BOLD CHANGE REQUIRED TO AVOID AUSTRALIA’S OWN ARAL SEA
Introduction
I thank the Committee and the Secretariat for the work that was done in relation to this important inquiry and thank the many people and organisations that made submissions and gave evidence at the Committee’s hearings.
The Murray-Darling Basin
The water resources of the Murray-Darling Basin and the Great Artesian Basin are of tremendous importance and must be managed on an environmentally sustainable basis in the interests of our nation as a whole.
The Murray-Darling is the largest and most complex river system in Australia. Its 77 000 km of rivers and estuaries runs through five jurisdictions – New South Wales, Queensland, Victoria, South Australia and the Australian Capital Territory. Some three million people access drinking water from the Basin. Agriculture in the Murray-Darling Basin is worth $24 billion annually while its river system supports unique and diverse ecosystems including habitats for some 120 water bird species and 46 native fish species.
A Nightmare
The Committee’s report readily acknowledges that the management and implementation of the Murray-Darling Basin Plan is a complex undertaking requiring effective cooperation between the Commonwealth Government, and the governments of New South Wales, Queensland, Victoria, South Australia and the Australian Capital Territory.
The Committee rightly highlights the frustration of many, indeed just about all, Murray-Darling Basin stakeholders with the complicated maze of multijurisdictional and multiagency bureaucracy in relation to the Plan.
Despite the passage of the Commonwealth Water Act 2007 and the implementation of the Murray-Darling Basin Plan, we still have different water rules in each state, different compliance measures in each state, different governments distributing money for different elements of the Basin Plan, different accountability measures and general opaqueness in the execution and oversight of the Basin Plan caused by its multi-jurisdictional nature.
The administration of the Plan has been described as a bureaucratic and political mess in which stakeholders are obliged to navigate a complex administrative maze that inhibits effective operations, blurs transparency and confuses accountability for outcomes.
These problems were well summed up by Mr Geoffrey Kendall, Chair, Central Murray Environmental Floodplains Group, Southern Connected Basin Communities, who observed:
The whole lot of us asked the question, 'Who actually owns the water and who makes the changes?' I've listed some here that come to mind straightaway. We've got the Department of Agriculture, Water and the Environment, the MDA, the CEWH, BOC, DELWP, NCCMA, Parks Victoria, VEWH, GMW, NSW DPI, NSW DPI Water, the South Australian government, SA Water, the Victorian government, the Queensland government, MINCO, the federal minister for water, the water ministers for Victoria, South Australia, New South Wales and Queensland—and we just go on. We're just duck shuffled around all over the place…
Environmental research and policy consultant Maryanne Slattery raised similar concerns with the committee:
In terms of crossing borders, I think it's definitely a challenge, particularly in terms of accountability. You've got so many players and so many levels that no one jurisdiction or one agency, typically, can be held accountable. It's challenging enough trying to deal with multiple agencies at the Commonwealth level…Each agency points the finger at another and deflects the question to another agency, and when you add jurisdictions into that as well it compounds the problem. There's definitely a real issue in the Murray-Darling Basin Plan space, in terms of holding one agency to account.
And finally, the telling evidence to the committee by Mick Keelty, the first interim Inspector-General of the Murray-Darling Basin:
I asked three simple questions. The first question was: what are my water entitlements? If you go to the Queensland Department of Natural Resources, Mines and Energy, you can have over 2,700 responses to that question. If you go to the Murray-Darling Basin Authority, you can have five. If you go to the New South Wales Department of Primary Industries, you can have 118. If you go to the Australian Department of the Environment and Energy, you can have up to 34,066. If you go to the New South Wales Natural Resources Access Regulator, NRAR, you get 1,372 responses to that simple question. How that aids compliance is beyond belief.
I asked a second question: how much water can I take today and from where? For Queensland there are 182 places to get the actual answer to that question. For the Murray-Darling Basin Authority there are consistently five. For New South Wales Primary Industries there are 906 potential places where we can get that answer. For the Australian government Department of the Environment and Energy there are 2,681 places to get the answer to that question. For the New South Wales Natural Resources Access Regulator there are 572.
The third question I asked was: how much water can others take today and from where? The numbers are similar, though not as bad. Queensland is 174, Murray-Darling Basin Authority is consistently five, Primary Industries in New South Wales is 562, Australian government Department of the Environment and Energy is 2,710 and the New South Wales Natural Resource Access Regulator is 363.
He went on to call it a nightmare.
The Committee’s Recommendations
The Committee’s response is to make a series of recommendations broadly aimed at streamlining and better communicating the division of jurisdictional responsibilities in relation to the Basin Plan.
The Committee identifies a need to improve transparency in relation to the management and implementation of the Basin Plan. There is certainly a case that much improved transparency is essential given the enormous complexity of the legislative, policy and institutional matrix that overlays the management of its resources.
The Committee recommends commissioning an independent audit of the underlying systems and processes of Basin governments’ water accounts to provide a Basin-wide perspective.
The Committee further recommends improvements in engagement and communication with key stakeholders, including Indigenous Communities, in the management and implementation of the Plan.
Overall, the Committee urges the development of a more 'coordinated, whole-of-basin and long term approach to the overcoming of current and future major water-related challenges in the basin.'
All this is quite laudable, and I am supportive of the Committee’s recommendations in this regard.
However, the Committee’s recommendations only treat the symptoms of malaise, not the underlying and deep dysfunction of the multijurisdictional politics of the Murray-Darling Basin.
Anxious not to offend powerful stakeholders and in some cases eager to safeguard the interests within their particular States, members of the Committee have very deliberately chosen to tinker with the status quo and not confront the underlying problems with the dysfunctional administration of what is Australia’s most important national water resource.
Notwithstanding the considerable work undertaken and the numerous submissions received, the Committee appears to have lost sight of the national stake at risk.
While seasons vary from year to year, there is absolutely no doubt that the environmental trajectory of the Basin is a matter of grave concern.
The findings of the South Australian Murray-Darling Basin Royal Commission and the Australian Academy of Science's investigation of the causes of mass fish kills in the Menindee Region of New South Wales left little doubt that the management of the water resources of the Murray-Darling Basin has already produced significant adverse environmental impacts.
The Murray-Darling is highly likely to face more severe challenges as a consequence of climate change.
Abundant evidence presented to the Committee underlined these judgments and the fact that implementation of the Basin Plan has been highly unsatisfactory, lacking in transparency, accountability but most importantly effectiveness – in large measure because of the competing interests across jurisdictions and the inability of Governments to agree on measures that would safeguard what is a common resource of enormous importance to our nation.
However, the Committee has decided to favour incremental reform of the status quo.
A policy mouse when a lion’s roar is needed
Political timidity has produced a policy mouse, not the lion’s roar required to make Governments and vested interests sit up and take notice.
Laudable as they are, it is highly doubtful that the Committee’s recommendations will make a serious difference to the overall management, or rather mismanagement, of the Basin and its long-term environmental trajectory.
Arguments about the Federal administration of the Murray River are, of course, not a new story. They are as old, indeed older, than the Australian Federation itself. During the federation debates in 1890, South Australia argued that the proposed Commonwealth of Australia should be given the power to determine rights to the waters of the River Murray, but the idea was resisted by New South Wales and Victoria.
One hundred and thirty years later, the parochial interests of Basin states continue to prevail over the common good.
Little progress can be made while vested interests can exert an effective veto through their state governments over any proposed reform to Basin-wide water management. Every time substantive changes to the Murray-Darling Basin Plan are proposed state water ministers threaten to pull their state out of the Basin Plan.
The failure of Federal and state governments to make a substantive response to the recommendations of South Australia's Murray-Darling Basin Royal Commission made clear the bankruptcy of the current management of Australia's most important river system.
Mr Richard Beasley SC, who acted as counsel assisting to the Murray-Darling Basin Royal Commission, well expressed the need to move beyond state interests to a national approach in Basin management:
I've also come to the same view about the Commonwealth being provided or referred powers to take control of the rivers and watercourses of the basin authority. In the last year that he was Prime Minister, Mr Howard gave an excellent speech setting out his plans for a Basin Plan. He said it would all depend on a referral of power from the states to the Commonwealth. Unfortunately, Victoria said no. But Mr Howard was right. This can't be managed unless it's managed by the Commonwealth. The states have too many looking after their own interests, understandably, in some ways. This needs a national approach, a Commonwealth approach.
The inquiry has considered my proposed law to provide the Commonwealth Parliament with unambiguous authority to make laws relating to water resources that extend beyond the limits of a state.
The Constitution Alteration (Water Resources) 2019 bill would put beyond doubt the power of the Commonwealth to legislate to manage the Murray-Darling river system without relying on the referral of power from state parliaments and if necessary, to override state water management legislation.
The proposed alteration would further ensure that any law of the Commonwealth that relates to water resources must not affect water resources in a way that has an overall detrimental effect on the environment. This requirement would apply to all laws relating to water resources made by the Commonwealth Parliament under section 51 of the Constitution.
This provision would reflect the Commonwealth Parliament's already stated view, as expressed through the purposes of the Water Act, on the importance of protecting and restoring ecosystems reliant on the Murray-Darling Basin. More broadly it would give constitutional recognition to the vital importance of protecting and preserving Australia's major national water resources.
Such legislation would affirm the Parliament's intention to rely on the new legislative power to create a nationally consistent regulatory framework for the use and management of all or particular water resources that extend beyond the limits of a State. This would not necessarily mean of one-size-fits-all approach, but it would give the Commonwealth the power cut through the legal and administrative thickets that so bedevil current management of the Murray-Darling.
The proposed legislation would not involve any amendment or change to section 100 of the Constitution which provides that the Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or its residents to the reasonable use of the waters of rivers for conservation or irrigation.
Nor would this legislation involve any change to section 99 of the Constitution that provides that the Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.
Regrettably the Committee has declined to support such a proposed change in the constitutional framework for management of what is a vital national water resource.
The Committee’s report is ultimately part of the problem, as the Coalition Government and Labor Opposition are both unwilling to challenge the fundamentals of a dysfunctional status quo. The Committee is indeed all too keen to highlight the practical difficulties of Constitutional change.
Yet it is precisely the constitutional reset envisaged in my Constitution Alteration (Water Resources) 2019 bill that must be considered if we are to change the current trajectory of the Murray-Darling Basin.
If nothing else, a Federal constitutional referendum would put the future of the Murray-Darling Basin into the hands of the Australian people as a whole rather than leave it to parochial politicians and state governments representing regional vested interests.
Regrettably this inquiry and report may well in the future be seen as another missed opportunity to avoid a slow-motion disaster of tremendous proportions.
In the absence of bold change to the governance of the Murray-Darling Basin, and the adoption of a truly national framework to manage a national resource, we are all too likely to see further environmental decline, no doubt accelerated by climate change, such that the Basin will become an over-exploited wasteland, Australia’s own version of the Aral Sea.
Recommendation
Senator Rex Patrick
Deputy Chair