MDBA chief denies maladministration, says whistleblowers ‘entitled to their opinions’

By Stephen Easton

Monday February 25, 2019

Under pressure in Senate estimates on Friday, Murray-Darling Basin Authority chief executive Phillip Glyde maintained the recent South Australian royal commission failed to prove its claims of maladministration and respectfully dismissed sworn testimony it heard from former agency staff as their own incorrect opinions.

Maladministration is a term that gets thrown around a lot, not always with good reason, and the sting of the dreaded label depends very much on who is applying it.

The Department of Home Affairs and its minister, under fire on several fronts, probably aren’t very worried by a seafarers’ union applying the tag to the department over a waterfront dispute earlier this month. It’s far more consequential when a state ombudsman levels the charge against an entity clearly within their jurisdiction, as South Australian watchdog Wayne Lines did regarding Coober Pedy council, to take another recent example.

However, when it’s a royal commissioner decrying the actions of a federal agency on behalf of a state government, on the basis of its involvement in an agreement between several states and the Commonwealth, the consequences are much less clear. The source of the accusation is highly credible but their jurisdiction, and where the responsibility for their recommendations lies, are matters of debate.

For Glyde and the MDBA, the strategy is deny, deny, deny — a position that would be much harder to maintain if a Commonwealth-appointed royal commission were to make similar findings at some point in the future, or less likely, an Australian Public Service Commission investigation. As South Australian Senator Alex Gallacher noted, it seems like there are “two different universes” — one occupied by the agency and the other by those who, like SA royal commissioner Bret Walker, think the Murray-Darling Basin Plan has gone off the rails.

Senators Rex Patrick and Sarah Hanson-Young both joined the opposition in turning the screws on the authority’s CEO in Senate estimates on Friday over the alleged maladministration and a lack of transparency that was also criticised by Walker.

Patrick suggested the authority was in denial about serious problems in the river system, while Hanson-Young put it to Glyde that Walker’s findings showed he had done a poor job over the past three years.

The CEO calmly responded that the agency considered the allegations of maladministration very seriously.

“We take, as 288 civil servants, allegations of misconduct, maladministration and unlawful behaviour very seriously,” he said, referring the senator again to his formal response.

He said the authority had considered whether there had been any breach of the public service code of conduct or its internal guidelines by the authority’s staff, who are public servants.

“Allegations of this nature are pretty shocking, and very concerning, so if these were being made by any other individual, we would treat them under our normal process,” said Glyde.

He repeated the MDBA’s position that Walker did not back up the allegations with sufficient evidence, and said he had asked the royal commissioner to provide further information. “And it’s my obligation as the CEO to put that through our … internal processes, to see, to weigh that evidence and to see what we need to do.

“We said in our response… that if there is any specific evidence of inappropriate behaviour by current or former authority members and/or staff, then they should be referred to the appropriate authorities for consideration and investigation.

“… and we’ve also advised the Australian Public Service commissioner of the steps that we’ve taken to date, and we’ll continue to seek that advice.”

At the same time, Glyde said the authority would continue to implement the Murray-Darling Basin Plan according to disputed legal advice that would remain secret, as confirmed by Senator Richard Colbeck, the assistant minister for Agriculture and Water Resources.

One can always be more transparent

Since the legal advice is confidential, Hanson-Young demanded more “documents, minutes and notes” of how the environmental allocation of 2750 gigalitres was determined. The MDBA chief argued the agency had been transparent enough already.

“We believe we’ve done that, Senator,” said Glyde, “and it was exposed, certainly well exposed, in the lead-up to the setting of the basin plan, there was several years of consultation in that regard and we, as we outlined in our response to the royal commission, we documented those for all for the community to go and have a look at.

“There’s always more we can do to be more transparent and more open, and we’re happy to take on board any suggestions in relation to that, but in relation to the specifics, that information’s out there,” he claimed.

MDBA compliance boss Russell James said there were already a lot of minutes describing meetings related to these decisions “in almost an absurd amount of detail” and referred again to the authority’s formal response to Walker’s findings, which runs to 76 pages.

Former staff notoriously told the royal commission the figure for the amount of water that would be kept in the environment was totally arbitrary – that the authority decided it had to start with a two, for political reasons, and staff joked they should choose a NSW postcode.

Hanson-Young asked if anyone from the MDBA was willing to give evidence under oath to refute the claims made in the royal commission, and deny this political “fix” ever happened, as former staff had described it in their testimony.

Glyde simply said the MDBA had not been able to find any evidence of this happening.

“The whistleblowers, the former members of staff, they are obviously entitled to their opinions,” he said, asserting once again that the decisions were made on the basis of the best available information.

What do masses of dead fish mean?

Senator Patrick was particularly concerned about the recent mass fish deaths in the Darling system, which are the subject of two reviews: one commissioned by the minister that released interim findings and recommendations last week, and another by the Australian Academy of Science, commissioned by the opposition.

Glyde agreed “the fish kills are a symptom of a river in crisis” a few hours into the questioning.

The government’s review suggests extreme heat was the main cause and notes this should be expected to continue, and recommends more fishways that let native fish move past weirs and dams among other measures. The AAS report says there simply isn’t enough water being left in the Darling, and blames “serious deficiencies in governance and management” which have undermined the aims of the basin plan and the Water Act:

“The root cause of the fish kills is that there is not enough water in the Darling system to avoid catastrophic decline of condition through dry periods.

“This is despite a substantial body of scientific research that points to the need for appropriate flow regimes. Similarly, engagement with local residents, Indigenous and non-Indigenous, has been cursory at best, resulting in insufficient use of their knowledge and engagement around how the system is best managed.”

Patrick also pointed to the Productivity Commission’s five-year review of the basin plan, which, while not as damning as the SA royal commission, also found serious risks ahead and a need for major reform if the plan is to achieve its goals.

Glyde said the MDBA was looking at all three but this would take time; the authority had not had a chance to study the Academy’s alarming report in great detail. Taken together, Patrick said the various reports and the mass fish deaths themselves indicated the authority had put its head in the sand and was essentially taking a business-as-usual approach with minor adjustments in the face of a looming crisis.

“This is a train smash,” said the Centre Alliance senator, who often refers to his experience as a project manager when questioning public servants in various hearings.

“And if you can see the train about to go off the track, you can stop, but not if you’ve got an attitude that ‘we’re not going change the plan’.

“The plan is a means to an end, not the end in itself.”

Glyde agreed with that final point, but before he could go on, Senator Colbeck intervened to once again raise the spectre of state governments withdrawing from the basin plan.

The royal commissioner found this constant political threat has been at the heart of the issues with the basin plan all along and the biggest challenge for the MDBA to overcome, leading to it unlawfully implementing the plan with a so-called “triple bottom line” approach, referring to a balance between economic, social and environmental concerns.

Walker also found the economic concern that cutting irrigation hurts rural communities was often overstated. One also might observe that the triple bottom line arbitrarily separates three interests that are intrinsically linked; the environment’s value is both economic and social, after all.

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

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