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Terms of Reference – Explanatory Memorandum


THE PURPOSE OF THIS PAPER

In late March, the Murray-Darling Basin Royal Commission (The Commission) posted an Issues Paper on its website (Issues Paper No 1), and circulated it to various persons and organisations known to have an interest in the Basin Plan. Its purpose was to briefly set out matters from the Terms of Reference that are the subject of focus by the Commission, so as to assist any person or organisation wishing to submit a submission, or in the process of preparing one. The Commission also hoped that it would help people in the preparation of oral contributions they may wish to make at community consultations, which are currently being held by the Commission across the Basin.

The Commission has now concluded site visits and focused consultations in Goolwa, Murray Bridge, Deniliquin, Albury and Wodonga, and community consultations in Murray Bridge and Albury. The Commission will soon be travelling to Bourke (1 May), and to other regions and towns in the Basin (Mildura, Shepparton, SA Riverland, Goondiwindi, St George, Moree and Broken Hill) throughout May.

At the focused sessions, and community consultations held to date, information has been received and discussions held concerning the matters identified in Issues Paper No 1.

As a result of further work and submissions received, the Commissioner Mr Walker SC has determined that this Explanatory Memorandum should be published in relation to the Terms of Reference.

The Commission is obliged to act expeditiously, and must provide its report to the Governor by 1 February 2019. The purpose of this Issues Paper is to explain the manner in which the Commissioner is interpreting his Terms of Reference, which may in turn highlight the matters upon which the Commission is focusing.

All readers of this Explanatory Memorandum should note that it is best read in conjunction with Issues Paper No 1.

The scope of the Commission’s work continues to be defined by the Terms of Reference, which are in no way altered by this document. It follows that persons interested to do so should feel free to raise (by written submission) with the Commission any concerns they may have to the effect that the Commission may, by way of this Explanatory Memorandum or otherwise, be departing from its Terms of Reference. Any such concern will be considered by the Commissioner, and any response that the Commissioner considers appropriate to be published, will be published.

It also follows that the Commission will consider any concerns that persons interested to do so may wish to raise (again by written submission) in light of aspects of intended focus, emphasis and intensity of the Commission’s work in relation to specific topics, as indicated below.

INTERPRETATION OF THE TERMS OF REFERENCE

In Issues Paper No 1, the Commission identified 12 areas of focus ((a) to (l) in the Section dealing with “Areas of Focus”). The Commission remains interested in receiving submissions engaging with those issues, but now provides further clarification of the interpretation being given to the Terms of Reference: 

Terms of Reference 1 and 2

1. Whether the Water Resource Plans defined by the Act and Basin Plan (which are to include the long-term average sustainable diversion limits for each Basin water resource) will be delivered in full and in a form compliant and consistent with the Basin Plan by 30 June 2019.

2. If any Water Resource Plans are unlikely to be delivered in full and in a form compliant and consistent with the Basin Plan, the reasons for this.

These Terms of Reference speak for themselves. The particular questions concerning the adjustment of limits and amendment of the Basin Plan accordingly, involve matters of statutory interpretation that may affect administrative processes currently being undertaken.

Terms of Reference 3 to 6

3. Whether the Basin Plan in its current form, its implementation, and any proposed amendments to the Plan, are likely to achieve the objects and purposes of the Act and Plan as variously outlined in ss.3, 20, 23 and 28 of the Act, and the ‘enhanced environmental outcomes’ and additional 450 GL provided for in s. 86AA(2) and (3) of the Act, respectively.

4. Whether the underlying assumptions in the original modelling used to develop the objects and purposes of the Act and the Basin Plan have been sufficiently adjusted for the impact of improved technologies.

5. If the Basin Plan is unlikely to achieve any of the objects and purposes of the Act and Basin Plan and/or the ‘enhanced environmental outcomes’ and the additional 450 GL referred to above, what amendments should be made to the Basin Plan or Act to achieve those objects and purposes, the ‘enhanced environmental outcomes’ and the additional 450 GL?

6. Any legislative or other impediments to achieving any of the objects and purposes of the Act and Basin Plan and/or the ‘enhanced environmental outcomes’ and additional 450 GL referred to above, and any recommendations for legislative or other change if needed.

Whilst acknowledging that the hydrologic and other modelling that underpins the Basin Plan plays a pivotal role in the operation and cogency of it, the Commission does not intend to interrogate the detail of the modelling conducted by the MDBA. That is, investigations to date do not suggest any utility in the Commission acting as if it possessed independent modelling expertise or the capacity to contribute to the peer review of the historic modelling.

As to modelling, the Commission is interested to enquire whether the MDBA’s understanding of the requirements of the Water Act has influenced its selection of modelling, rather than investigating or inquiring into the modelling itself.

Terms of Reference 7 to 10

7. The likely impact of alleged illegal take or other forms of non-compliance on achieving any of the objects and purposes of the Act and Basin Plan, and the ‘enhanced environmental outcomes’ and the additional 450 GL, referred to above.

8. In relation to any found instances of illegal take or work, whether appropriate enforcement proceedings have been taken in respect of such matters and if not, why.

9. Whether, in any event, the enforcement and compliance powers under the Act are adequate to prevent and address non-compliance with the Act and the Basin Plan, and any recommendations for legislative or other change if needed.

10. Whether monitoring, metering and access to relevant information (such as usage data) is adequate to achieve the objects and purposes of the Act and Basin Plan and the ‘enhanced environmental outcomes’ and additional 450 GL referred to above.

As indicated in Issues Paper No 1, given the number of past and ongoing inquiries in relation to issues of illegal take, compliance and enforcement, the Commission intends to avoid interfering in any way with police investigations or investigations that might be undertaken by bodies like an Independent Commission Against Corruption, or current prosecutions. To do so would in many cases amount to wasteful duplication. Experience to date makes it reasonable to expect mutual assistance between this Commission and other investigatory authorities in relation to allegations of illegal take and other forms of non-compliance. 

Further, and fundamentally, the Commission must avoid the improper use of the powers of a Royal Commission, which may amount to a contempt of court in the case of impending prosecutions.

Accordingly, the Commission does not intend to repeat the work of other agencies or inquiries that have considered matters of illegal take, compliance, and enforcement. Allegations referred to the Commission of this kind will in the ordinary course be examined as far as appropriate, but then referred to the necessary investigative authority. The Commission intends to continue co-operating with such bodies and authorities as needed.

To the extent that issues of compliance and enforcement give rise to questions of systemic weakness in the legislative approach to the issue, the current intent is that these matters will be thoroughly reviewed by the Commission. The Commission is aware of several important reports that have recently been published on these matters, and of certain germane law reforms that have recently been made. 

Term of Reference 11

11. Whether water that is purchased by the Commonwealth for the purposes of achieving the objects and purposes of the Act and Basin Plan and/or the ‘enhanced environmental outcomes’ and the additional 450 GL referred to above will be adequately protected from take for irrigation under water resource plans, and any recommendations for legislative or other change if needed.

This term speaks for itself.  

Term of Reference 12

12. Whether the Basin Plan in its current form, its implementation, and any proposed amendments to the Plan, are adequate to achieve the objects and purposes of the Act and Basin Plan, the ‘enhanced environmental outcomes’ and the additional 450 GL referred to above, taking into account likely, future climate change.

The Commission’s interpretation of this Term of Reference is that it does not substantively add to the issues raised in Term of Reference 3, insofar as those issues implicitly embrace considerations of future climate change.

24 April 2018