Flooded with criticism, MDBA finds a small island of common ground

By Stephen Easton

Thursday February 21, 2019

Key points:

  • MDBA formally rejects nearly all royal commission findings.
  • Authority finds some "useful analysis" and a few areas of agreement.
  • Legal opinions differ, maladministration is in the eye of the beholder.

The Murray-Darling Basin Authority says the recent South Australian royal commission produced some “useful analysis and insights” and notes a few “areas of agreement” in its formal response, but argues it would be too risky for governments to follow the inquiry’s main recommendations.

The views of the MDBA’s five current members, led by acting chair Joanna Hewitt, are worlds apart from those of royal commissioner Bret Walker and a host of independent lawyers, scientists and former MDBA employees who gave evidence to his inquiry.

From their perspective, they have to be. According to the statutory authority, to agree with Walker’s main recommendations would mean “effectively … abandoning the Basin Plan and starting again” and they contend that would be a “reckless act” that slows progress towards the aims of the water-sharing agreement.

Update, Friday February 22: chief executive Phillip Glyde and other officials are being questioned in Senate estimates on these matters this morning. See below.

MDBA acting chair Joanna Hewitt.

The MDBA is willing to accept the royal commission drew attention to “important issues” that must be addressed in the near future, while claiming these were also highlighted in their own late-2018 Murray-Darling Basin Plan report card and the Productivity Commission’s recent five-year review.

The PC found the MDBA had a conflicted role, ensuring compliance while acting as an agent for the state governments, and recommended it should be split in two. While not as harsh as the royal commission, its review cast serious doubt on the future success of the basin plan under current assumptions and called for new “institutional and governance arrangements” along with updated scientific modelling and a significantly improved evaluation framework.

In a formal response to Walker’s stinging findings, published on Wednesday, the authority members disagree with nearly every one of the royal commissioner’s findings and recommendations. They list a broad set of issues and challenges they are pursuing, forming a small island of common ground from which to move forward:

“Some of the highest priority challenges and issues that need addressing are:

  • completing the water recovery task, including the 450 GL of efficiency measures, due to be finalised by 2024
  • implementing the supply and constraints projects put forward by New South Wales, Victoria and South Australia, including to reduce losses and improve environmental outcomes at Menindee Lakes
  • reforming water access rules and river operations to achieve synergies between the delivery of water for environmental outcomes and extractive use
  • improving the protection of environmental flows, including low flows in the northern Basin
  • strengthening the participation of Aboriginal Nations
  • improving regulation, management and accounting of floodplain harvesting
  • strengthening our understanding of climate change and it’s likely effect on the Basin’s water resources
  • improving community access, involvement and transparency of the reform
  • enhancing the monitoring of the Basin’s ecological health, including better coordination amongst government agencies
  • improving compliance arrangements across the Basin.”

Most state and federal politicians are of a similar mind to the MDBA, which denies most of the royal commissioner’s damning charges: that it failed to follow the relevant legislation; did not sufficiently take account of the best available science, including with regard to the effects of climate change; operated in unjustified secrecy; and largely ignored Indigenous perspectives.

One ex-staffer, Maryanne Slattery, recently said the opinion that “a badly implemented plan was better than no plan at all” had been common among her colleagues when she worked for the statutory authority. This appears to have been the predominant guiding philosophy for most of the governments involved in the agreement as well.

Its five current members resolved to reject Walker’s key findings of unlawful, secretive and highly politicised administrative fudgery in a two-day meeting the week after he published his final report.

They maintain this position in the formal response, arguing maladministration is in the eye of the beholder, and the legal opinion of the Australian Government Solicitor is just as good as that of Walker.

The royal commissioner rejected a crucial legal interpretation of the Water Act that underpins the Murray-Darling Basin Plan, calling it an “outlier” because “many highly qualified and regarded lawyers” disagreed with it as well.

“The fact that the South Australian Royal Commission report puts forward a different legal opinion on some aspects is not conclusive,” the authority states in its response. “It is simply a different opinion.”

The commissioner presented “no specific evidence” of maladministration on the part of the MDBA’s public service staff, argues the authority, which has been chaired by a string of former politicians and is now due for another, with former Liberal MP Neil Andrew’s term recently ending. Hewitt, in contrast, is a career public servant with lots of relevant experience.

“The MDBA is a principled organisation that abides by the Australian Public Service Code of Conduct,” the five current members assert. “We demand the highest standards of ethical behaviour from our staff and from Authority board members.”

They suggest that “any science-based organisation” should be expected to have room for improvement in terms of transparency, whereas the royal commission found that much of their work simply does not meet the definition of science, as it is not sufficiently open for analysis, replication and challenge by peers.

“With the help of our independent Advisory Committee on Economic, Social and Environmental Sciences, we are committed to strengthening our links with the science community,” says the MDBA’s offical response.

It also released a discussion paper on climate change this week ahead of a “new phase” of research on how the warming atmosphere affects the river systems, involving more collaboration with the CSIRO, Bureau of Meteorology and Geoscience Australia.

As for the Indigenous communities, the MDBA says its engagement activities have been extensive and genuine, contrary to what the South Australian inquiry heard from some witnesses. “We welcome the appointment of an Aboriginal member to the Board as proposed at the recent Basin Ministerial Council meeting,” the authority states.

Freshly grilled water bureaucrats

Phillip Glyde, MDBA member and the agency’s CEO, maintained these denials under questioning in Senate estimates on Friday morning about the formal response to the royal commissioner’s findings.

Glyde and other staff asserted once again that the agency had been transparent about its supposedly scientific decision-making processes and disputed the accounts of witnesses who gave evidence to the royal commission on the basis of their experience working in the relevant public sector agencies.

Senator Rex Patrick asked where Walker called for the plan to be abandoned — well aware he did not, explicitly. Glyde explained this view was the authority’s extrapolation of the findings that the MDBA had set the level of water available for agricultural use unlawfully. “And so going back and revisiting that means restarting, again,” the CEO said.

“Does it really?” asked Patrick. “You don’t think that … as you identify a problem, you correct it?”

Glyde argued once again that the fragile political agreement between multiple governments would be put at risk by any change, noting that various state premiers and ministers had threatened to walk away from the plan over the years.

Assistant Minister for Agriculture and Water Resources, Senator Richard Colbeck, confirmed the government would be “falling back on long-standing practice” to refuse to release the legal advice, which he claimed was privileged. Colbeck said the minister, David Littleproud, would make an official claim for public-interest immunity from releasing it.

That did not wash with Senator Patrick, who pointed to several recent examples of the government releasing its legal advice and argued there was no basis for keeping government legal advice confidential from the Senate.

“It has never been accepted in the Senate, nor in any comparable representative assembly, that legal professional privilege provides grounds for refusal of information in parliamentary forums,” he countered, quoting the source of all wisdom on such matters, Odgers’ Australian Senate Practice.

Patrick also noted the New South Wales Supreme Court has ruled that parliaments are generally entitled to see the legal advice governments rely on to make decisions, pointing out it is paid for by the public and is provided for a public purpose. He argued it should only be kept confidential if “harm” could be caused by publishing it.

“You’ve had officers walk in here, seeking to rely on that advice, you’ve had a significant challenge as to the legalities of the plan, which is spelt out in detail in the royal commissioner’s report, yet you expect the committee to simply accept a proposition that ‘the commissioner is wrong because we have secret legal advice that we’re not prepared to share with the Australian public’.”

Patrick strongly disputed the implication that changing the amount of water to be kept in the environment could be “fatal to the plan” as the MDBA suggested, pointing out that there had been various adjustments, including the northern basin review, which allowed more water to be taken out for farms.

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