Murray-Darling Basin Plan may be unlawful, says Royal Commissioner Bret Walker SC

THE Royal Commissioner examining the allegations of water theft and rorting in the Murray-Darling Basin says there is a “real risk” the $13 billion plan is unlawful.

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THE Royal Commissioner says there is a “real risk” the $13 billion Murray-Darling Basin Plan is unlawful.

Top silk Bret Walker SC is heading South Australia’s Murray-Darling Basin Royal Commission, which was set up by the former Labor Government.

Allegations of water theft and rorting sparked the commission, but it is also looking at much broader issues in the Basin.

The Commission released a shock Issues Paper on Monday night in which Mr Walker warns that the Murray-Darling Basin Authority may have “fallen into legal error” and that part or all of the Plan could be challenged in court.

At the heart of the disagreement is the Water Act, which underpins the Plan. The Act focuses on the environment, saying there must only be an “environmentally sustainable level of take”, to ensure the protection of the Coorong, the Murray Mouth, as well as native fish and birds and ecosystems in general.

Commissioner Bret Walker in SC with Senior Counsel assisting Richard Beasley at the Murray mouth, where dredging is continuing. Picture: Leon Mead

That forms the basis of the Plan, but the Plan and the Murray-Darling Basin Authority have also focused on social and economic outcomes, such as jobs.

Mr Walker writes that social and economic outcomes are obviously vital to Basin communities, but the legal issue is whether they should be considered when deciding how much water can be taken out of the Basin, or only considered once that level of take has been decided.

Mr Walker writes that the Act uses the word “compromise” to say that changes to the amount of water necessary could endanger outcomes, whereas the Plan seems to use it to indicate there could be a “compromise” between environmental outcomes and other criteria such as social and economic outcomes.

Since the Plan was conceived, there has been controversy over how much water should be allowed to be taken out of the Basin for irrigation and human needs. Groups of scientists have said that the original savings of 2750GL were not enough. There are plans to reduce that amount further, with the promise that environmental outcomes will be met in other ways.

Two mechanisms to reduce the direct savings have been proposed — one (for 70GL) was disallowed by the Senate and the other (for 605GL) is due to come before the Senate next week. According to the Issues Paper, if the amount of water that can be taken out of the Basin is not an environmentally sustainable amount, “there is a real risk that all or part of the Basin Plan is unlawful”.

The Commissioner invites submissions on the issue. But he says the opinions in the Issues paper have “considerable force”. He says it is not his place for now to consider what remedies there might be if the Plan was challenged in court.