Rex Patrick (SA, Centre Alliance) Share this | Hansard source

I rise to speak on an issue that I have spoken about several times, but it's not an issue that's only restricted to South Australia; it's an issue that deals with a national asset of ours, which of course is the Murray-Darling Basin. Those who've been following events in the Senate relating to the Murray-Darling will know that I have been a fierce advocate for transparency across the Murray-Darling Basin Plan. This is why, since I've been in this place, I've moved three separate orders for the production of documents and will be moving another motion ordering the production of further documents this afternoon. These motions are underpinned by the need for increased transparency and openness when it comes to implementing the Murray-Darling Basin Plan. Basin communities have a need, indeed a right, to be able to study and understand all that sits behind the plan. It's essential to building and maintaining confidence in the plan.

I will now set out the disturbing situation that has led me to my latest motion in the chamber for access to documents. In June this year, the South Australian Murray-Darling Basin royal commissioner summonsed the Murray-Darling Basin officials past and present and ordered the production of documents from both the MDBA and other Commonwealth departments. In response, and in defiance of the Murray-Darling transparency it has committed to, the federal government commenced proceedings in the High Court challenging the commissioner's authority to call Commonwealth witnesses and to subpoena documents.

I want to point out an irony here. The legal case centres around whether the SA royal commissioner has powers to compel the production of federal documents or to compel the appearance of federal officials. An astute observer would appreciate that this problem would simply not have existed had the federal government initiated a federal royal commission, which is what many in this place had called for.

The High Court matter has been set down for hearing in October. But the need for the commissioner to afford procedural fairness to the Commonwealth means he will not be able to hear from the witnesses and examine the documents without an extension to his reporting date. In an extraordinary departure from the norm of supporting royal commissioners, the South Australian Attorney-General has indicated to the royal commissioner that he has to report in the original time frame. So we've now got a royal commissioner who is snookered between the federal government's refusal to assist and the state government's refusal to grant extra time such that the legal situation can be clarified.

A critical issue that the royal commissioner has been exploring is how the MDBA reached 2,750 gigalitres as the amount that needs to be recovered from irrigators, other consumers and the environment. As Karen Middleton in The Saturday Paperand I'm going to read from it because it's very succinct and to the point—wrote:

What the commission has established so far is that the science was referenced initially.

A 2010 preliminary guide to the then-proposed basin plan used hydrology modelling to identify how much water should be recovered from irrigators and other consumers and returned to the environment.

Scientific experts recommended a range within which a "sustainable diversion limit" should be set. They based their work on the Water Act's requirement that the limit must reflect an "environmentally sustainable level of take".

In the Act, that level is defined as the amount of water that can be used for consumption, including for irrigation and industry, without compromising key environmental assets and outcomes, ecosystems or the productive base of the water resources themselves. The legal definition says that the level of take—and therefore the diversion limit—must be based on environmental considerations.

While the Act stipulates that economic and social impacts should be considered in managing the basin plan overall, it does not allow them to form part of those calculations at the start—

when they were trying to determine the 2,750. The article then goes on to say:

The expert work presented in the guide—and peer reviewed following scientific protocols—suggested that the amount of water to be recovered from irrigators should be somewhere between 3856 gigalitres and 6983 gigalitres a year.

But it warned that the lower amount had a "high degree of uncertainty" of achieving the desired environmental outcomes.

That meant 3900 gigalitres was the bare minimum that should be recovered for the environment. Even then, that was unlikely to be enough to do the job.

But between the publication of the guide and the finalising of the plan, something changed. Suddenly, it had to begin "with a two".

When the basin plan was produced, the amount of water the authority said had to be recovered was significantly lower—at just 2750 gigalitres a year.

The article explores—in fact, in some senses jokes, as has happened in the commentary around the royal commission—that the number was chosen by picking a postcode. They started with Tony Windsor's postcode. He was then chairing the Murray-Darling parliamentary inquiry that was on foot at that particular time.

So we have a controversy. Perhaps it's an uncomfortable controversy for some, but that doesn't mean we should muzzle the commissioner. The royal commissioner has advised the SA government in writing that he could make a useful report but 'would much prefer to obtain the benefit of the material and evidence sought by the summons'. He also stated:

That material and evidence, I stress, is regarded by me as highly desirable to be considered by my commission, in the interests of everyone, including South Australia and South Australians, affected by the Basin Plan.

I suspect Bret Walker is being conservative in his language, as royal commissioners tend to be. In my view, it's more likely a much more significant issue than that. The whole plan may be based on a lie, and that would mean we will have spent $13 billion only to see South Australia and the nation ending up with a disaster on its hands.

We are not talking about submarines. We're not talking about fighter jets. We're talking about a river. There can be no secrets here. Secrecy is a powerful fuel for suspicion, conspiracy theories and mistrust. There's no place for it. Either the federal government consent to requests for witnesses and documents, thereby avoiding the need to proceed with the High Court case, or they put appropriate pressure on the South Australian government to extend the royal commission's time frame to allow it to do its work properly. Appearing by consent creates no precedence that the federal government should be worried about. Appearing by consent would cost six airfares to Adelaide. Passing these documents over to the commissioner by consent creates no precedence.

The motion that I'll move today in this chamber will call for the relevant documents that the royal commissioner has asked for. There can be no jurisdictional error with the Senate asking for those documents. This is a very important issue. It's an important issue for South Australia; it's an important issue for the nation. It's a national river system. It's actually an important issue for the rule of law, because we might find that the plan has been formed in legal error. Whatever we might think about what the royal commissioner might come up with, we need to see what he's got to say. I'd like to think that we get to see what he has to say having considered the Commonwealth's position.

Why doesn't the Commonwealth turn up and put its position such that it can be considered properly by the commissioner? What is the federal government afraid of? What is the federal government trying to hide here? There is a simple remedy to this. I'm hopeful that the Commonwealth will, in fact, reverse its decision to fetter the commissioner, but, as a contingency to that, I am hopeful that the Senate will support my motion today. Thank you.