The proposed Basin Plan was made under Part 2 of the Water Act 2007 (Cwlth) (the Act) and needs to comply with its provisions. A number of submissions raised concerns about legal aspects of the Plan.
157.Issue
Some submissions questioned the proposed Basin Plan’s level of compliance with the provisions of the Act.
RESPONSE
MDBA obtained external legal advice on compliance with the Act at all stages prior to the release of the proposed Basin Plan and prior to providing the proposed Basin Plan to Ministerial Council for comment. On the basis of this advice, MDBA is satisfied that the proposed and proposed Basin Plan comply with the Act.
158.Issue
Submissions included that the proposed Basin Plan did not adequately apply the precautionary principle.
RESPONSE
An overarching requirement of the Act (section 21) is that the Minister and MDBA must ‘act on the basis of the best available scientific knowledge and socio-economic analysis when developing the Basin Plan’. This does not justify inaction on the basis that scientific information is lacking.
On the contrary, paragraph 21(4)(a) of the Act requires the Minister and MDBA to take into account the ‘principles of ecologically sustainable development’ in exercising their powers and performing their functions relating to preparation of the proposed Basin Plan. That term is defined in section 4 (2)(b) of the Act to include the precautionary principle, that is, that ‘if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation’.
MDBA is satisfied that it has taken into account the precautionary principle in developing the proposed Basin Plan in accordance with legislative requirements.
159.Issue
Submissions raised issues relating to whether the proposed Basin Plan addresses matters within the Australian Government’s legislative power, for example, the heads of power listed in section 51 and section 52 of the Australian Constitution.
Submissions also raised issues relating to whether the Basin Plan complies with restrictions on the Australian Government’s legislative power, for example, section 100 of the Constitution relating to reasonable use of water.
RESPONSE
The constitutional basis for the Act is set out in sections 9 and 9A of the Act. Section 11 of the Act addresses issues associated with sections 99 and 100 of the Constitution.
The Act relies upon the referral of certain state powers relating to water to the Australian Government. The ‘Agreement on Murray–Darling Basin Reform – Referral’ was signed in 2008, enabling the referral of those powers to the Australian Government. Legislation implementing the referral was passed by relevant state parliaments.
160.Issue
Submissions claimed that the proposed Basin Plan might be legally invalid as the ESLT and SDLs were set taking into account considerations such as physical constraints and socioeconomic impacts that did not accord with the requirements of the Act.
RESPONSE
MDBA has in fact taken into account constraints and socioeconomic considerations when setting the ESLT and SDLs. External legal advice sought by MDBA prior to the release of the proposed Basin Plan is that the methods used are compliant with Act.
161.Issue
Some submissions were concerned about legal liabilities related to the delivery of high flows that risk flooding private land and assets.
Some submissions welcomed the likely increased availability of water on floodplain areas resulting from the Basin Plan, and its potential for both improved productivity and environmental outcomes.
RESPONSE
The method used by MDBA for setting the ESLT and SDLs assumed that existing operating rules and physical constraints would continue, and hence regulated releases for delivering environmental water would not go beyond minor flood level. Notwithstanding this, MDBA recognises the complexity of this issue and has commissioned further modelling and assessment of these risks and will discuss this work with potentially affected stakeholders. MDBA has also committed to considering this issue in the proposed river management review to be undertaken jointly by the Basin states and MDBA, and in the development of environmental water plans. Constraints are discussed further in the response to issue No. 172 and 173.
162.Issue
It was submitted that the proposed Basin Plan’s use of the term ‘have regard to’ is internally inconsistent. It was argued that this raised risk of third-party legal action against states.
RESPONSE
The term ‘have regard to’ is commonly used in drafting legislation and legislative instruments. Its meaning has been the subject of judicial interpretation. This term has been consistently used across the proposed Basin Plan.
163.Issue
Submissions questioned whether the proposed Basin Plan was consistent with the Native Title Act 1993 (Cwlth).
RESPONSE
Yes, this is the case. Section 13 of the Act specifies that the Act does not affect the operation on the Native Title Act 1993 (Cwlth)
Section 21 of the Act requires that both MDBA and the Australian Government Minister for Water consider ‘social, cultural, Aboriginal and other public benefit issues’ during the development of the Basin Plan. External legal advice sought by MDBA prior to the release of the proposed Basin Plan is that the proposed Basin Plan complies with the Water Act.
164.ISSUE
Submissions questioned whether the proposed Basin Plan complied with the Racial Discrimination Act 1975 (Cwlth).
Response
Section 21 of the Act requires that both MDBA and the Australian Government Minister for Water consider ‘social, cultural, Aboriginal and other public benefit issues’ during the development of the Basin Plan. MDBA took Aboriginal issues into account in developing the proposed Basin Plan and, following extensive consultation, is satisfied that the Basin Plan is not racially discriminatory.
165.Issue
Submissions questioned whether the proposed Basin Plan adequately gave effect to obligations under international agreements, in particular the Ramsar Convention on Wetlands of International Importance.
RESPONSE
The proposed Basin Plan was developed in accordance with the Act, which includes requirements for the Plan to implement certain international agreements such as the Ramsar Convention.
In fact, the proposed Basin Plan is an example of giving effect to the agreement by determining a sustainable level of water use in the Basin and an approach to the future management of the Basin’s water resources.
MDBA modelling indicates that the proposed 2,750GL/y to be returned to the environment will provide significant benefits to important environmental sites across the Basin, including the Ramsar sites at Narran Lakes, Macquarie Marshes, on the Chowilla floodplain and at the Coorong, Lower Lakes and Murray Mouth.
166.Issue
Submissions expressed the opinion that the Act should require the Basin Plan to consider Aboriginal values.
RESPONSE
Section 21 of the Act requires that both MDBA and the Australian Government Minister for Water consider ‘social, cultural, Aboriginal and other public benefit issues’ during the development of the Basin Plan. Section 13 of the Act also specifies that the Act does not affect the Native Title Act 1993 (Cwlth).
167.Issue
Submissions argued that the Act was clearly biased towards the environment.
RESPONSE
Section 3(d) provides that an object of the Act is, in giving effect to relevant international agreements, to promote the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes.
Similarly, section 20 of the Act specifies that the Basin Plan’s purpose is to provide for the integrated management of the Basin water resources in a way that promotes the objects of the Act, in particular, by providing for ‘the use and management of the Basin water resources in a way that optimises economic, social and environmental outcomes’. This requires consideration of economic, social and environmental factors when making a discretionary choice in applying the particular provisions of the Act.
168.Issue
Submissions questioned whether the proposed Basin Plan took into account water ownership issues arising in individual court proceedings and associated settlements.
Response
The proposed Basin Plan addresses water management issues and does not purport to address matters relating to particular disputes between individuals.
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