The Murray Darling Basin (MDB), a large region covering more than one million square kilometres in south-eastern Australia, is a precious environmental resource which has long been subject to political machinations. Now more than ever, the MDB is caught up in political trade-offs and the future of the basin is uncertain.

The MDB is made up of thousands of interconnected rivers and creeks, most of which eventually connect to the River Murray, and is home to 2 million people. Managing the water allocation in the MDB is a complex and often politically-charged process as the water allocation between irrigators, non-farmers and the natural environment is delicately balanced.

The Basin Plan, made under the Water Act 2007 (Cth) (the Act), came into effect in 2012 and is designed to ensure that water is shared between all users and the environment in a sustainable way. The Basin Plan is an agreement between the five basin states and territories. Thirty-six individual Water Resource Plans are also used to outline how water will be managed in a particular area, setting out items such as annual limits on water take and strategies to achieve water quality standards. It has now been 5 years since the Basin Plan was implemented but it is unclear whether the Plan is meeting its objective of ensuring that the MDB ecosystem remains healthy and that there is sufficient water for all users in the long term.

The spotlight was focussed on the MDB in mid 2017 when the ABC’s 4 Corners program publicly raised the issue of water theft and widespread lack of compliance with the MDB Plan. Following this, the MDB Authority and an Independent Panel conducted a review into compliance with and enforcement of the MDB plan. This review found widespread variation in compliance and recommended more transparent compliance policies and stronger penalty regimes.

The effectiveness of the Basin Plan and the Water Resources Plans has been back in the spotlight this year as a State-led Royal Commission into the MDB was announced and last month the Senate voted to block the Federal Government’s proposed changes to the MDB Plan. These changes would have seen a reduction in the amount of water being returned to the environment in Queensland and NSW. Following this vote NSW has already indicated that it intends to withdraw completely from the MDB Plan. The Victorian Government has also previously indicated that it would withdraw from the MDB Plan if the proposed changes to the MDB Plan were not implemented.

Royal Commission into MDB

On 23 January 2018 the Governor of South Australia announced a Royal Commission into the MDB. The MDB Royal Commission is to investigate the operations and effectiveness of the Murray-Darling Basin system. Mr Bret Walker SC, a Sydney-based Barrister, has been appointed as the Commissioner.

The MDB Royal Commission has been given the broad task of investigating and reporting on the state of the basin, whether objectives are being met and whether there are appropriate enforcement mechanisms in place. In particular, the Royal Commission has been tasked with reporting on:

  • the effectiveness of the MDB Plan and Water Resources Plans
  • whether the Basin Plan and any proposed amendments are likely to achieve the outcomes of the Act, any impediments to achieving these objects as well as steps required to ensure that the objectives of the Act are met
  • the impact of illegal take or other forms of non-compliance
  • whether appropriate enforcement proceedings have been taken and whether changes to enforcement powers are required
  • whether water that is purchased by the Commonwealth will be adequately protected from take for irrigation under water resource plans and any recommendations for change, if needed.

The MDB Royal Commission has be tasked to begin the inquiry as soon as possible and to provide the final report by 1 February 2019. Submissions from the public can be made to the Commission until 30 April 2018.

Those who live or work in the MDB or are involved in water take from the basin may wish to consider making a submission. Following the submission period, the Commission will hold hearings where witnesses may give oral evidence on issues contained in the Terms of Reference. If an individual or organisation proposes that they or another witness should be called to give oral evidence at a hearing (including an expert witness), they need to attach a witness statement to their submission containing the evidence that the person would give at the hearing. Given a witness statement will form the basis of the Commission’s decision as to whether or not to call the witness at a hearing, persons proposing to attach a witness statement to their submission should consider obtaining legal advice in preparing the statement.

Proposed Changes to the MDB Plan

Late on 14 February 2018 the Senate voted against the Federal Government’s proposed changes to the MDB Plan.

The proposed changes to the MDB Plan would have seen a reduction in water recovery targets in the north of the basin from 390GL to 320 GL, an 18% decrease in the target. Water recovery is usually achieved either by the government buying back water rights or by funding efficiency measures. The changes proposed by the Federal Government were designed to ease pressure on farmers in northern NSW and southern Queensland and to save jobs in irrigation-dependent communities by reducing the amount of water which has to be returned to the environment in these irrigation intensive areas.

However, Labour and the Greens strongly opposed the changes on the basis that the Murray River could not withstand a reduction in water flow and argued that there had not been adequate studies into the effect which the proposed reduction in water recovery would have on the environment. The Green’s proposal to block the Government’s changes was carried 32-30.

The Commonwealth has also proposed changes to the southern basin, including a plan to achieve water savings through projects which use water more efficiently as well as for a further 450GL to be made available for environmental flows to the lower Murray. The vote on this proposal has been postponed under 7 May 2018. However, Labour and the South Australian Government have already indicated that the 450GL promise is too vague and will take too long to be delivered.

Any future changes to the MDB Plan may be mute if NSW and Victoria follow through on their threat to withdraw from the MDB Plan. Any collapse of the MDB is likely to benefit large-scale upstream users such as irrigators in the north of the basin. If the plan collapses, there may be an opportunity to develop a new plan. However, the process of developing a new plan would be lengthy and in many ways more difficult to negotiate than the process for the current MDB Plan. It is clear that there is a need for the share of water amongst those in the MDB to be regulated but it is less clear how it is best to balance these competing interests so that established land uses may continue without impacting on the long term health of the Murray River. Whilst the Royal Commission will shed some light on how the MDB Plan can be improved, all states and territories need to implement the plan for it to be effective. It is an uncertain time for those involved in large scale water take in the MDB