Why does water administration require ‘cloak and dagger’ secrecy akin to ASIO?

By Harley Dennett

Friday February 1, 2019

File folders in a filing cabinet

‘The MDBA doth protest too much, methinks,’ writes Commissioner Bret Walker in a rebuke that drew upon the works of George Orwell and William Shakespeare to describe how bureaucrats twisted the language of transparency.

After dealing with the legal and scientific issues of the Murray-Darling Basin Plan administration, Walker waited until the very end of his Royal Commission report, published online yesterday, to call out how misplaced any public faith is in the plan’s scientific credentials and claims of transparency and accountability.

“Whether Australia is meeting its international obligations under environmental treaties is not a ‘cloak and dagger’ matter.”

Commissioner Walker found Murray-Darling Basin Authority bureaucrats consistently chose to quash public release of its scientific and legal advice — “unlawfully” according to Walker — despite dozens of mandated reviews, the findings of which the agency is required to publish, plus audits and other statutory disclosures.

The commissioner described the agency’s “weasel word” claims of being a transparent and accountable organisation as Orwellian in the face of its refusal to cooperate with the commission or the external scientific community. Walker appears to have ample justification for his belief that claims of transparency were disingenuous: the MDBA undertook proceedings against the state of South Australia and the commissioner to prevent its people from being summoned to give evidence.

“The MDBA is not ASIO. Its scientific inquiries and work should never remain private. Regrettably and inappropriately … the MDBA has preferred to avoid making itself accountable to the public and to the wider scientific community.”

Secrecy of water adminstration included virtually all aspects of modelling used to determine environmentally sustainable level of take, and legal advice from the Australian Government Solicitor on the construction of the Water Act. This extended to other government agencies tasked with providing independent accountability, including the Productivity Commission and CSIRO, which were left to make their evaluations while “wearing a blindfold”. Member governments to the Basin Plan were also refused access to the modelling, according to state government officials testifying before the commission.

The Basin Plan, which involves three subnational governments — Queensland, New South Wales, ACT, Victoria and South Australia — is a component of how Australian environmental law fulfills international agreement obligations. Walker calls it a vital reform, involving huge amounts of public money, and therefore requires public scrutiny:

“Public disclosure of all aspects of science-based environmental restoration and protection seems both fitting and desirable as a matter of obviousness. Nothing about it suggests either a need for, or public benefit from, secrecy. Whether Australia is meeting its international obligations under environmental treaties is not a ‘cloak and dagger’ matter.”

Witnesses who gave evidence at the commission frequently cited a core requirement of the scientific process: a conclusion is not scientific if it isn’t capable of being tested and proved wrong. Walker noted this self-evidently implied sharing was also a core requirement: “Knowledge that cannot be scrutinized because of a lack of information is not science. Equally, scientific knowledge not publicly disclosed obviously cannot be checked.”

In addition to enabling public faith that the MDBA is complying with the law, Walker noted that transparency is imperative in Australia’s system of democratically elected government, so that the work of public servants can be checked, queried, test and improved.

“The public deserves a far higher standard of intellectual honesty, engagement and disclosure from a Commonwealth Department”

The MDBA does claim to be a transparent and accountable organisation in its response to the commission, but it did not answer or explain why disclosures were rebuffed, for example to state government officials.

The insistence on secrecy is both an unacceptable way for a public-funded Commonwealth science-based authority to act, he writes, but is also contributes to the probability that many of the objects and purposes of the Water Act and Basin Plan will not be achieved.

In its response, published online yesterday, the MDBA says it is confident that the Basin Plan has been made lawfully and based on best available science. “There is extensive documentation in our published reports to support this,” the statement says.

The Department of Agriculture and Water Resources was also criticised for a lack of public disclosure with respect to its decisions, including why it has prioritised effiency measures over buybacks at additional public expense. Walker accused DAWR of perpetuating a discourse of myth and exaggeration over the policy’s potential impact: “The public deserves a far higher standard of intellectual honesty, engagement and disclosure from a Commonwealth Department attempting to defend such a contentious policy.”

The DAWR recently announced that it will publish online a range of details about projects funded under its new Murray-Darling Basin Water Infrastructure Program, but Walker says it’s too little, too late: “The issue cries out for the ministrations of the Auditor-General.”

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