Spring water war: SA Royal Commissioner vs the Commonwealth in October

By Stephen Easton

Friday August 3, 2018

The battle over whether Murray-Darling Basin Authority staff can be compelled to appear before the South Australian royal commission into the troubled multi-government water management plan will be fought in the High Court over two days in October.

Justice Patrick Keane set the date on Monday for a jurisdictional showdown before the Full Court between the Commonwealth and South Australia, in which the governments of New South Wales, Queensland, Tasmania and Western Australia are all “intervening” parties.

Royal Commissioner Bret Walker has held off on seeking warrants to enforce summonses he issued to Commonwealth officials after the federal government decided to challenge them, but with his inquest due to report in February, time is of the essence.

“I am sorry, we just cannot do better than that,” Justice Keane said. He explained that even “with the best will in the world” the court could not hear the arguments in September.

NSW supports the federal government’s position that Walker cannot compel the MDBA staff to give evidence or produce documents. The three other states, including the two that aren’t part of the Basin Plan agreement, are aligned with SA.

Walker has expressed extreme displeasure at federal Agriculture Minister David Littleproud’s decision to comment on the inquest and respond to some of the questions and issues it is considering in a published letter to the SA Environment and Water Minister David Speirs, with a lengthy exposition on the Commonwealth’s position.

Littleproud’s decision to make a series of arguments, regarding the federal Water Act and the federal agency’s role, while refusing to participate in the royal commission in the usual way, was “irregular and deplorable” in the respected silk’s view.

“Whilst these reports may come as a shock to the general public, they are well known by governments and water agencies.”

Walker argued the Turnbull government’s combative approach “prevents the very kind of engagement, confrontation, challenge and refinement of legal and factual positions, which would be permitted, were submissions to be put and evidence to be tested” in his July 11 hearing.

The royal commissioner noted that Littleproud’s detailed arguments looked a lot like “a submission addressing some of the matters raised in this royal commission’s issues paper number 2” and were probably the work of the Department of Agriculture and Water Resources.

He added that the pseudo-submission looked like a series of defensive legal arguments, which one could infer were partly or fully developed and advanced by the MDBA itself.

“There are two things I want to say at the outset,” Walker began.

“The first is that this is no way for anyone, least of all, a Commonwealth department and minister, to communicate with the royal commission, and it is in particular a highly irregular and inappropriate way for a submission to be put to a royal commission that has published procedures with which many, many other persons and entities have complied.

“The second thing is that there are a number of highly contestable propositions of fact, law and mixed fact and law contained both in the letter and in the so-called submission.

“Why it was thought appropriate for the Commonwealth minister to send this to the state minister, when the state minister is neither a royal commissioner — nor, as I understand it, is the state minister conducting any inquiry of his own — is a matter for someone else to explain, but it raises questions which do no credit to those responsible for this publication.”

Senior counsel assisting Richard Beasley agreed there were “contestable matters” in the document. “There are also some straight-out inaccuracies that I would be happy to take you through at a convenient time,” he told Walker. The next day Beasley detailed the “highly contestable and potentially misleading statements” he considered most serious, and the frustrated commissioner had a lot more to say on the matter as well.

High Court challenge ‘not about water’

Littleproud says the decision to challenge the royal commission’s powers in the High Court “is not about the content of the Water Act, or the content and implementation of the Basin Plan” in his letter. SA Attorney General Vicki Chapman agrees, while her political opponents who established the royal commission when last in government and other South Australian politicians across the spectrum are generally disgusted by the challenge.

“There are broader issues at play, as demonstrated by the involvement of non-basin states in the proceedings,” the federal minister told his SA counterpart. He doesn’t say any more or even explain what those broader issues are, but does provide a very long discussion of the exact issues the royal commission is examining, and claims to correct errors made by Walker.

The commissioner later explained the federal minister or his advisers had obviously misread or misunderstood a somewhat arcane point in the second issues paper for the royal commission, leading Littleproud to wrongly suggest Walker had cast doubt on the constitutional validity of the Water Act.

On July 12, this bizarre slanging match by proxy between a minister’s office and a highly respected independent jurist appointed by a state government continued. Walker had learned Littleproud had said the document was not a submission. It “quite plainly” was, the royal commissioner said, making equally plain his distaste with Littleproud’s “very odd” approach.

Walker noted the minister appeared to be saying the Commonwealth did not want the royal commission to pay attention to his arguments, even though they explicitly and publicly addressed it. “That would be, I repeat, very odd,” he said.

“It would be, in my experience, an unprecedented approach by someone to wish, as Minister Littleproud is reported to have said, to correct supposedly incorrect statements I have made, but not by way of submission and not by way directly of communicating with this royal commission.

“So much for process.”

Walker wasn’t sure what to make of Littleproud’s “Clayton’s submission” since he and Beasley couldn’t probe the “seriousness or genuineness” of the confusing claims, to see whether they were intended as real legal arguments.

The commissioner noted Littleproud and the Commonwealth had ample opportunity to participate properly in the inquest and have their arguments considered fairly, and said he would “invite and commend” any genuine attempt to contest any of his statements from anyone.

“It is, I repeat, regrettable that the minister insists that what he included in his letter to Minister Speirs, under an explicit statement that he will be publishing it because of its public importance, should nonetheless not be regarded by me as a submission,” said the commissioner.

“I am at a loss to understand what message, subliminal or otherwise, to me or anyone else is to be gathered from that fiction.”

What is the honourable minister talking about?

The key question is a measure of how much water can be taken by farmers at most — the sustainable diversion limit (SDL) — and the estimated environmentally sustainable level of take (ESLT) it is based on. Both are singular figures for the purposes of the MDBA’s practices and the Water Act.

Littleproud, however, talks about how the SDL should really be more like a “range” and Walker commented this was absurd and logically impossible, given it is a maximum limit under the legislation.

“I don’t understand, with respect to those who devised it, the argument that is presented in the attached Clayton’s submission to the ministerial letter,” said the commissioner.

He added, however, that he “wholeheartedly” accepted the SDL was ultimately based on estimates and judgement calls and had agreed all along that these figures could never be perfectly precise or objectively correct.

“It is a travesty of the approach that this royal commission has attempted to take in relation to interpretation for it to be suggested that I have committed the elementary error of regarding these matters as lending themselves to real world precision,” he said, again taking offence at Littleproud’s non-submission.

It is a fact that the SDL is correctly expressed as a single figure. Walker said nobody had suggested it “could, should or would be expressed by a range” until the federal minister’s letter muddied the waters.

“I presently don’t intend to treat that as a serious submission by anyone,” he said.

“No one else has come up with it, and the MDBA by its historical conduct has certainly not committed what I regard as an egregious error.

“However, if I am wrong in relation to whether this is a submission on the part of the Commonwealth concerning the SDL requiring to be expressed as a range, then the sooner I am told of what the Commonwealth’s submission is on that point, the better.”

How did we get here?

At face value, the plan is simply about working out how to fairly share water for agriculture across different states, scientifically estimate how much should be left to the natural environment, and make sure the determinations are being honoured.

It is now mired in complex arguments around the administrative and regulatory processes involved, fuelled by a long list of allegations of cheating by governments and maladministration by both state and federal public servants.

Much of this is detailed for the royal commission by Maryanne Slattery, a former director of environmental water policy at the MDBA who is now a researcher at The Australia Institute. Her submission to Walker’s inquest, and several others, paint an extremely unflattering picture of the federal agency as one that manipulates data and had caved in to political pressure to preference agriculture over the environment.

In her current role, Slattery has also co-published The Basin Files, summarising allegations of corruption and dodgy water administration from over 100 news articles that have come out since the Four Corners episiode that cast serious doubt on the plan to manage the river system.

“Whilst these reports may come as a shock to the general public, they are well known by governments and water agencies,” write Slattery and TAI director Rod Campbell.

They note the sudden increase in scrutiny came just as federal parliament was due to debate amendments to the northern and southern water allocations for irrigated farms, based on a statutory scientific review by the MDBA that was also seized by irrigators as an opportunity to lobby aggressively for a bigger share. That is what was recommended and put into the amendments.

Despite the uproar among Basin Plan states caused by the apparent impropriety and administrative malaise that was exposed by all this heightened media scrutiny, the federal opposition agreed to up the limits for irrigation.

Slattery and Campbell argue this means Bill Shorten’s Labor team “effectively endorsed the maladministration exposed over the past year” in exchange for a bunch of commitments governments had already made, in agreements going back to 2014, particularly around measuring water use to ensure the environmental flows really were left in the waterways as agreed.

They’re far from alone in their assessment, on in saying the Commonwealth has paid hundreds of millions of dollars to these states on the basis of those commitments but done a poor job of checking they lived up to them, and has never withheld a payment.

“Given the regular reporting of scandals last year, it is hard to know what scandal could have persuaded our parliamentarians to support the disallowance [of the amendments],” conclude Slattery and Campbell.

The same could be said of the Commonwealth’s refusal to participate in the South Australian Royal Commission, and its position as stated by Littleproud, that the inquest amounts to “a fundamental review of the Basin Plan and its legislative underpinnings” and this is unnecessary. If not now, when?

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