Murray-Darling Basin royal commissioner Bret Walker, SC, has savaged successive governments and found the basin’s management authority is ‘unwilling or incapable of acting lawfully’. By Karen Middleton.

‘Gross negligence’ on Murray-Darling

Dead fish floating in the Menindee weir pool this week.
Credit: AAP Image / Supplied by Graeme McCrabb

Murray-Darling Basin royal commissioner Bret Walker, SC, begins his 734-page excoriation of the management of the nation’s most significant river system with a compliment. His first impression, he says, is one of “admiring praise” for the fact that the Water Act was created in 2007 and – with some qualifications – that the Murray-Darling Basin Plan was made five years later.

But that is where the cheering ends.

His second impression, after a year hearing about the state of the rivers and studying the legislation and practice underpinning their management, is one of “deep pessimism” about whether the objectives will ever be achieved.

“There are many ways in which study of the grand national endeavour in question leaves a decidedly sour taste,” the commissioner laments in opening.

What follows is a detailed outline of what he calls maladministration and “gross negligence” on the parts of successive governments and agencies, which have put politics before the environment and led to persistent and sometimes wilful breaches of law and the serious degradation of the rivers.

Walker says good law was made, but that decisions on how much water could be extracted for irrigation were based on “sectional or political tolerance”.

He says the degeneration of the process seemed to begin after the Murray-Darling Basin Authority (MDBA) drafted its basin plan in 2010 and made it public. Angry protests followed in the New South Wales Riverina, where copies of the plan were piled up and burnt outside the authority’s offices.

The plan said at least 3980 gigalitres would need to be recovered and returned to the environment, and probably a lot more. Farmers and irrigators revolted.

In his report, Walker takes a swipe at what he calls the “mindless admonitions” from politicians at the time, with platitudes such as “don’t look back” and “moving forward”, the latter being a slogan used by Julia Gillard after she seized the prime ministership from Kevin Rudd the same year.

The royal commission heard that after the protests, the MDBA redrafted the plan and lowered the amount of water that had to be recovered for the environment.

Former basin authority officials gave evidence that they had been told the number “had to have a two in front” and that they had joked about just picking a NSW postcode, possibly even the one for the home towns of Nationals MP Barnaby Joyce or his New England nemesis, former MP Tony Windsor. It ended up being set at 2750 gigalitres.

The royal commissioner reserves his greatest savaging for the MDBA itself. He accuses it of making “unexplained, unattributed, blank assertions” and having “an unfathomable predilection for secrecy” in refusing to release its modelling.

Walker writes that it has “shown itself to be unwilling or incapable of acting lawfully” and says the authority ignored science-based advice from the Commonwealth Scientific and Industrial Research Organisation (CSIRO) and that this “amounts to negligence and maladministration”.

He suggests the current senior management and board should be replaced, saying some officials manipulated the processes with a “cynical disregard” for the law.

In providing his report to the South Australian government, Walker emphasises that he makes “no recommendations that South Australia should sue” either the federal or state governments or the MDBA.

Nevertheless, he says officials were bound by law to set the limits based on the best available science to prevent environmental compromise and they had not done so – and deliberately.

He also warns those who might seek to dismiss his findings of unlawful behaviour as “pedantic quibbling” that they threaten “a great environmental asset, the relation of science to policy and the rule of law”.

Walker says that with the river systems and the climate changing, adjustments must be made to the designated levels of water that can be taken without damaging the environment. “The MDBA show no sign of aligning itself with that clear, scientifically mandated course,” he writes.

He is scathing at the lack of consideration given to climate change in implementing the basin plan, despite it and the Water Act expressly mandating that the risk must be addressed.

In a further gibe aimed at the authority, Walker referred indirectly to its interpretation of the word “compromise” when implementing the Water Act.

During evidence last year, counsel assisting, Richard Beasley, SC, told the commission that the authority had chosen to interpret the word “compromise” in the Water Act as meaning a negotiated agreement – in this case one that balanced social and economic considerations alongside those of the environment – when it actually meant endangerment.

In his report, Walker notes that in the context of the Act “the word ‘compromise’ has nothing to do with tradeoffs, give-and-take, split-the-difference, or the like”. Walker also accuses the MDBA of failing to properly consult either the farming communities around the basin or Indigenous people, whose rights were supposed to be legally protected.

He says the northern basin review, recently endorsed by federal parliament after Labor joined the Coalition to support it, had been conducted unlawfully and against the best available science.

MDBA chief executive Phillip Glyde rejected the criticisms on Thursday, saying the authority’s science was peer-reviewed and its findings published.

“My experience of the Murray-Darling Basin Authority is that we have done everything legally, appropriately and accurately,” Glyde told Sky News, saying he looked forward to reading the report.

But a former MDBA official, Maryanne Slattery, now of The Australia Institute, backed Walker’s findings, telling the ABC the authority became too focused on politics. “I was first cognisant of it in about 2014 when you could see the science really being retrofitted for political outcomes,” Slattery said after the report’s publication.

She endorsed Walker’s criticism of a lack of transparency and what she called “spin and propaganda”.

In an extraordinary condemnation of fellow lawyers, Walker shreds a crucial legal opinion that the government’s own lawyer, the Australian Government Solicitor, provided in October 2010, which the then Labor water minister Tony Burke tabled in parliament and used to justify giving social and economic considerations equal weight with those of the environment.

“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 [environmentally sustainable level of take],” Walker writes.

He says that to the extent the opinion was relied upon to determine what ESLT actually meant, and how to set it, “it has resulted in unlawful conduct”.

Walker refers to the repeated use by various governments of the phrase “triple bottom line” to describe the equal treatment of social, economic and environmental considerations as a “very unhelpful slogan”. He says the colloquialism was probably conceived innocently but it had “morphed into a misleading and dangerous misunderstanding, not always innocently” and has been used to breach the provisions of the Water Act that environmental considerations took precedence.

In response, the federal agriculture minister, David Littleproud, said: “The legal advice to the Commonwealth government under both sides of politics for the last seven years has been consistent – the basin plan is lawful and was lawfully made.”

Walker’s report was supposed to have gone to the printers on December 10 but a delay meant it had not yet been printed when fish kills occurred on the Lower Darling River near Menindee in December and January.

Clearly furious at both the events and the initial political response, Walker amended his report to include his observations. He prefaces his response by saying politicians’ immediate reactions may be seen, charitably, as “bluster” and not necessarily their fixed views.

But he accuses NSW regional water minister Niall Blair of making “grossly irresponsible” statements and challenges Blair’s reported comment – that despite the fish kills, the NSW government should proceed with its proposed project to take more water from the Menindee Lakes as part of efficiency measures that include a pipeline to Broken Hill.

Walker says that to assert this before all the safeguards are in place and steps taken “beggars the imagination”.

“It threatens a travesty of lawful administrative decision-making, along the lines of ‘the fix is in’,” Walker writes, adding that the supply measures being considered for the Lower Darling risk “serious adverse ecological impacts”.

Walker does not spare other individuals, either.

He chastises federal junior minister Anne Ruston for attacking the royal commission’s terms of references during a senate committee hearing and suggesting it was “dangerous” to be “reprosecuting” whether the basin plan was valid or legal.

Walker responds that if decisions have been made that don’t comply with the law, it is not dangerous to say so.

Former agriculture minister Barnaby Joyce earns a rebuke for his attitude to saving water for the environment. Walker says a letter Joyce wrote to his South Australian counterpart in November 2016 is proof that “for a number of years” neither the federal government nor the governments of Victoria and New South Wales were genuinely committed to recovering water to improve the environment. Walker further criticises Joyce over comments he made on radio in August last year, in his capacity as the newly appointed “drought envoy” – which Walker notes does not have the status of a ministerial position.

At the time, Joyce suggested basin water designated for the environment should be used instead to “grow the fodder to keep the cattle alive”. “This suggestion is not in the interests of the people who live and work in the Basin, nor in the interests of the broader Australian public, or that of the environment,” Walker writes. “It is contrary to the objects and purposes of the Water Act and Basin Plan. It is against the national interest.”

He praises both the MDBA and the Commonwealth Environmental Water Holder for rejecting the proposal outright.

In suggesting that governments and bureaucracies have been breaking the law in the way they allocated water, Walker is not only on the side of the environment. He expresses sympathy and understanding for those engaged in agricultural production along the rivers, both in dry-land farming and irrigation, and the importance of considering their welfare, too.

He notes that the whole reason the Water Act was created was because too much water was being taken out of the system, especially for irrigation, and it had to be reduced. By passing the legislation, parliament endorsed its national program for reducing water taken for irrigation.

Walker notes the “cardinal feature” of the Act is that less water must be taken than had been taken in the past, measured from a historical baseline in 2009. He says it is impossible to do that – and reduce agricultural output – without having a “sometimes grievous” effect on farmers. As such, he endorses buybacks over the government’s “efficiency measures”.

After all that, Walker still seeks to end on an optimistic note. “Whilst this work represents a challenge,” he writes, “it is not insurmountable.”

This article was first published in the print edition of The Saturday Paper on Feb 2, 2019 as "Dead river".

A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.

Karen Middleton is The Saturday Paper’s chief political correspondent.