Senate debates

Monday, 25 June 2018


Water Amendment Bill 2018; Second Reading

8:04 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

When I was interrupted before question time, I was noting how the Water Amendment Bill 2018 is the result of a dirty deal between the Labor Party and the Nationals and how tragic this was, and the sad and sorry history of how the Basin Plan has been a political fix-up since day 1.

Let's listen to some more evidence from the South Australian royal commission that backs this up. How about the evidence from David Bell, a water planner who worked at the authority from 2009 until his retirement in 2017?

He said in his submission that he was hastily given the task of identifying the key environmental sites in the basin and to go away for half an hour and come up with an estimate of the sustainable diversion limit. He said, 'From memory, I came up with a recovery number in the vicinity of 4,000 to 4,500 gigalitres.' The target, though, was subsequently reduced to a number beginning with two because those responsible for landing the plan politically, including the then federal Labor water minister, Tony Burke, didn't think they could get away with a number as high as he and other scientists were recommending. That is how we ended up with a Basin Plan with only 2,750 gigalitres of environmental flows—and we are talking about reducing that level.

I want to paint a picture of what this lack of water means in a pretty special part of Victoria. Sadly, the devastation of not having enough water isn't just restricted to iconic localities like the Coorong or the Darling River. I had the great privilege last month of visiting the Murray near Swan Hill in northern Victoria to attend a local forum about the water in the river, meet some farmers, visit a local orchard whose future depends upon a healthy river and visit the Nyah-Vinifera river red gum forests with one of the traditional owners of this land, Wadi Wadi man Cain Chaplin. I want to give a call-out to Jackie Kelly and Morgana Russell, who organised my trip, orchardist Peter Thornton, from Woorinen, and the local campaigners for the river that I met with, including Nicky Mackay and, in particular, Cain, who was so generous with his time as he led us on a tour of the forests.

These are the people that I'm thinking about as we debate this bill. I'm thinking about the attendees of the public forum that I attended. They were ordinary residents of country Victoria—farmers, irrigators, townspeople from Swan Hill, Nyah and as far afield as Mildura, the local Indigenous community and representatives of Murray Lower Darling Rivers Indigenous Nations. Many were older folk who had lived on and near the river all their lives. They were absolute salt-of-the-earth folk. They had some simple requests at this forum. They asked that any amendments to the Basin Plan secure enough water for the Murray to flow across flood plains and all the way out to sea. They wanted to see guaranteed delivery of the additional 450 gigalitres of water that was promised as part of the Basin Plan recommendations for rivers, wetlands and flood plains. They wanted to ensure that any projects that justify taking more water from the river will unequivocally benefit communities and wildlife and meet the requirements of the Basin Plan, and they wanted to see the removal of physical barriers and rules that stop water getting to wetlands. By this bill tonight, these people are being sold out.

I'm thinking of irrigation farmers Peter and Graeme Thornton, whose orchards we toured. They know that they haven't got a healthy future unless the river has a healthy future. They want to see more water returned to the river, not less. Peter and Graeme and other irrigation farmers of northern Victoria are being sold out. Today's Water Amendment Bill is going to remove another 70 gigalitres from the already compromised Basin Plan, on top of the 605 gigalitres of so-called southern SDL water, on the basis that somehow a series of yet-to-be-developed infrastructure projects—projects for which there are no business plans—will mean that that environmental water will be able to be used more efficiently, so the 675 gigalitres won't be needed anymore. It is patently ridiculous. It is scientifically, socially and economically unsubstantiated. Anyone who believes it's going to work, that it's going to ensure the health of the river, is in cloud-cuckoo-land.

The reality is that the tragic impact of not having enough water will continue to be felt across the basin from the Darling to the Coorong—and at Swan Hill and Nyah in between. It was a privilege, but it was sobering and sad to walk the Nyah-Vinifera river red gum forests with people who love them, who know them well and who are devastated as they see the forests dying before their very eyes. To stay healthy, river red gum forests need to be inundated with water every few years and these forests haven't been. These forests are used to getting by without enough inundation in dry years as long as they get flooded in wet ones. But since the millennium drought broke in 2010, these forests should have been getting enough water over the last eight years to revive them after the devastation of that long drought, but they haven't. Not enough water has been allowed to flow. Too much water has been captured and used upstream, and the results of not enough water are as inevitable as they are inexcusable.

It was obvious, as I toured this area, that this precious remnant of forest was under serious stress. Every large tree showed evidence of that stress. You could look up and see the branches dying on these wonderful river red gum trees. There were problems with weed infestation through the forest because of the lack of inundation. Previously if you got enough inundation, the weeds would get drowned out but, without enough water, the weeds are expanding. And there is a fire risk that's developing because of the lack of water. Again, if you get enough water, the fire risk disappears.

It was not just an environmental tragedy that we were seeing there; it was a cultural tragedy. Traditional owner Cain Chaplin shared his knowledge with us of this cultural landscape—one which, for tens of thousands of years, has supported thriving communities, abundant wildlife in a healthy system in a river of fertile soils and wetlands. And I felt his pain—his responsibility to his ancestors, to his elders and to future generations as he's doing the best he can to protect his country, to protect their traditional lands, but seeing the river red gum forest dying before his very eyes. This forest is just a small remnant of a forest that covered a much larger area presettlement, most of which has been lost due to logging and clearing and yet, now, even these small remnants that escaped being cleared are dying because of the lack of water. This is exactly the sort of water issue that the Murray-Darling plan was set up to resolve. Yet this bill and the previous one are signing off on taking more water away from the river, decreasing the water allocations to the environment, and signing off on decreasing the amount of water from an already inadequate 2,750 gigalitres by a massive 675 gigalitres—including the southern so-called sustainable diversion limits and the 70 gigalitres that this bill allows to be brought forward.

Let me share with you what these so-called sustainable diversion limit projects that mean the river environment can cope with less water look like in the Nyah-Vinifera forests. The SDL projects that are planned for these forests are levees, locks and concrete weirs that are going to open up and shut off parts of the flood plain. There are plans to raise the height of the currently very simple forest tracks to essentially make them almost super highways, separating the river from the flood plain. These projects are planned around the theory that instead of allowing water to flow through the flood plains, you can make do with less if you let the water sit there for a while; therefore you don't need as much water. But even if they work, even if this irrigation model works and we don't end up with blackwater events because of the water being stagnant where it was once flowing through, these sustainable diversion limit projects are only going to allow 53 per cent of this forest to be irrigated. Only 53 per cent will have water flowing through it. So we are spending billions of dollars on these unproven projects that are going to industrialise the forest, that very possibly won't work, and we will still leave almost half the forest as sacrifice zones destined to die a long, slow death.

No, this bill will not meet the requests of the people attending the public forum in Swan Hill. It certainly won't be securing enough water so that the Murray can flow across flood plains and all the way out to sea. It will reduce rather than guarantee the delivery of additional water. There is no assurance that the projects proposed under the sustainable diversion limits will benefit communities and wildlife, and it's going to create rather than remove physical barriers and rules that stop water getting to the wetlands. It is just making a bad plan worse, a plan in itself that is a fraud on the environment. It's being signed off by the Labor Party hand in hand with the Nationals and the Liberal Party. It's being signed off because the Murray-Darling Basin Plan, no matter how flawed, is seen as Tony Burke's legacy. To admit that his plan is not delivering from the basin is to admit that he got it wrong when he was minister. Labor are sacrificing our river rather than acknowledging that.

Politics has weakened the Murray-Darling Basin Plan every step of the way, and every time the plan gets weaker the river gets worse. We in the Greens think it is about time that politics worked for the river not against it. The Water Act says that the basin plan needs to meet an environmentally sustainable level of take. This is defined in the act on purely environmental terms. But the Murray-Darling Basin Authority has made it clear, time and time again, that it doesn't interpret that environmentally sustainable level of take purely on environmental terms. The big question before us, even before today's severely compromised bill, is whether the 2,750 gigalitres is an environmentally sustainable level of take. In other words, does our current water-recovery target actually allow the river to survive? If it doesn't, the biggest threat to the river is the basin plan itself. You can't compromise on the survival of a river.

In 2010 the Murray-Darling Basin Authority had a guide to the proposed basin plan. It said that a reduction in environmental flows of 3,856 gigalitres would still have a high uncertainty of achieving environmental water requirements. Almost 6,983 gigalitres would have a low level of uncertainty. So even if we had a 3,800 gigalitre recovery target that wouldn't be enough to guarantee the river's survival. Yet we are debating not only the 2,750 gigalitre target but also the removal of water from that target. It is destined to completely compromise and damage the river.

In the words of the South Australian royal commissioner, the legal basis for this compromise that we're voting to enable today is 'not maintainable'. It is 'a legal error'. Finally, he says that if the SDLs for the basin plan do 'not reflect an environmentally sustainable level of take', there is a 'real risk' that all or part of the Basin Plan is 'unlawful'. This is a hugely serious allegation and it has enormous and wide-ranging implications. We shouldn't be voting on this bill today. The whole Murray-Darling Basin Plan will need to be looked at again after the royal commission has concluded. We should not be making conditions even worse for the river while the royal commission's work is underway.

This is much more than a minor vote to correct a legal error, to get over the fact that the Senate disallowed the 70-gigalitre northern basin SDLs before Labor rolled over. If the Basin Plan is unlawful, then a vote on the northern basin amendment, which is not what's best for the environment, would be much more than a legal error. You can't call it a legal error when you've had it brought to your attention and you do nothing about it. It's a wilful dismissal of the law. It's not an honest mistake. It is something that's much worse.

The Greens do not support this bill and do not believe that the Senate should be supporting this bill. The Senate should not be voting on something as serious as the survival of the vast reaches and flows of the mighty Murray-Darling when we are aware that what we are voting on is potentially unlawful. To do so, to sell out every member of every community—every wetland, every billabong, every reach of every creek and river of the whole basin—is to sell out every Australian, all Australian society and all the precious environmental life-support systems that we all depend upon.

8:20 pm

Photo of Anne RustonAnne Ruston (SA, Liberal Party, Assistant Minister for Agriculture and Water Resources) Share this | | Hansard source

Can I just foreshadow that, at the end of my contribution, I will be moving an amendment which has been circulated in the chamber. This bill, the Water Amendment Bill 2018, introduces a new direction power to the Water Act 2007. This power will enable the Minister for Agriculture and Water Resources to direct the Murray-Darling Basin Authority to promptly prepare an instrument that has the same effect as a previously disallowed Basin Plan amendment. It is a bill that will provide certainty to irrigators and communities and to basin states. Importantly, it will allow the Australian government to achieve the key objective: to deliver the Murray-Darling Basin Plan on time and in full. As a nation, we want a sustainable, thriving basin to support farmers, communities and the environment, and this is what this bill supports.

The Basin Plan is now back on track, with the welcome support of the federal opposition. This bipartisanship is critical for communities, particularly the small towns and communities that rely on the Murray-Darling Basin for their very livelihoods. Since the 14 February disallowance of the Northern Basin Review instrument, there has been anxiety about the future of those communities. The government is pleased that the federal opposition could again join us on the journey to deliver the plan. It is exactly what these communities need from their representatives in Canberra.

We look forward to implementing the measures agreed through the bipartisan agreement as soon as possible. The measures will build confidence and enhance community engagement in the implementation of the plan. These measures were based on the best available science and data. They were recommended by the independent Murray-Darling Basin Authority, following a series of reviews and a long and fulsome consultation process, and were developed fully in line with the requirements of the Water Act 2007.

The Greens amendment that is before us proposes to remove the 'neutral or improved' socioeconomic test for the delivery of the 450 gigalitres of efficiency measures. This amendment is unnecessary and therefore is not supported by the government. This requirement for efficiency measures to achieve neutral or beneficial socioeconomic outcomes is absolutely fundamental to implementing the Basin Plan, and removing this test puts at risk the delivery of the 450 gigalitres of efficiency measures by the basin states. What the Greens amendment does is deliver more uncertainty for our river communities. Once again, the Greens are proving that they don't really care about the people who live and work along the river. They have no regard for a balanced approach. They simply ignore the science when it doesn't fit with their view of what they want. The Greens amendment is an unwarranted distraction from the important task that is before us: delivering the Murray-Darling Basin Plan.

The new directions power in this bill is subject to a number of strict limitations. The minister can only use the power within 12 months of the disallowance. The amendment prepared under the direction power must be the same in effect as the disallowance amendment. This means it must achieve the same outcome. The amendment prepared under the directions power is required by the Legislation Act 2003 to be tabled before both houses as a disallowable instrument for 15 sitting days. Therefore, the process of the disallowance remains. The power is only available if the previous disallowance instrument has been through the consultation requirements as set out by the Water Act. These limitations mean that the integrity of the consultation process that a disallowance amendment has been through is preserved.

In its report published on 12 June 2018 the Senate Rural and Regional Affairs and Transport Legislation Committee recommended that the Senate pass this bill. Not surprisingly, the Australian Greens put in a dissenting report. The Senate committee's report on the bill contained an error, which I'd seek to correct. The report states that the Basin Plan amendment made under the provisions of the proposed new section 49AA would not be a disallowable instrument. This is, in fact, incorrect. The amendment is made under section 49AA. The direction is a disallowable instrument. I believe that the committee secretariat has published and will table the correction.

In conclusion, the government can now get on with implementing the Basin Plan. The next steps on this pathway are the remaking of the Northern Basin Review. This will provide certainty to basin states and communities, as the states prepare Basin-Plan-compliant water-resource plans, in consultation with water users. More importantly, communities across the Murray-Darling Basin want to see the Basin Plan succeed. They want a healthy river system that supports both their livelihoods and the environment well into the future.

Before I commend the bill to the house I'd like to respond to Senator Bernardi regarding the South Australian royal commission. The South Australian royal commission into the Murray-Darling Basin Plan was announced by the South Australian government on 26 November 2017. This followed a number of allegations, including a Four Corners report about water theft and noncompliance, particularly in New South Wales and Queensland. At the time, the Commonwealth agreed to cooperate with the royal commission insofar as it related to compliance. In fact, the Prime Minister wrote to the South Australian government to this effect on 18 January 2018. On 23 January the South Australian government formally established the royal commission, and the terms of reference that we saw at the time were far broader than the compliance intentions originally flagged by the South Australian government as the reason for its establishment of the royal commission. At the time, there was certainly a change in position from the South Australian government and the royal commission as to what they would be seeking to prosecute by the establishment of the commission.

Again, in April and May 2018 the royal commission released two issues papers and two explanatory memorandums outlining the areas of particular interest that it intended to pursue. In the latest issues paper, on 30 April, the commissioner suggested that the Basin Plan 2012 was unlawful. In this regard, the Australian government is confident of the legal underpinnings of the Basin Plan. In addition to requiring that the Commonwealth produce legal advice on the validity of the Basin Plan in the Water Act 2007, the commission issued formal summonses to the Commonwealth officers on 31 May and 1 June 2018. The Commonwealth's view is that the royal commission cannot compel Commonwealth entities and officials to provide documents and give evidence, and has commenced proceedings in the High Court to obtain a ruling on this matter. It has been joined by the Western Australian and Tasmanian governments, as well as the South Australian government. As this matter is now before the High Court, it would be inappropriate for me to comment further. However, the South Australian royal commission must not be a distraction from implementing the plan, and the government's priority is to continue to ensure that the Basin Plan is delivered on time and in full.

Before I commend this bill to the house I'll move the amendment that I foreshadowed at the beginning of my contribution, which has been circulated in the chamber:

At the end of the motion, add:

"and for the purposes of subsection 48(2) of the Legislation Act 2003, the Senate approves the making of an instrument the same in substance as the Basin Plan Amendment Instrument 2017 (No. 1), which was disallowed by the Senate on 14 February 2018".

I commend this bill to the house. Thank you, minister.

Photo of Barry O'SullivanBarry O'Sullivan (Queensland, National Party) Share this | | Hansard source

The question is that the amendment moved by Senator Ruston be agreed to.

The question is that the bill, as amended, be read a second time.