Richard Beasley | Tanya Plibersek, water minsters chance to save Murray-Darling drying up

The basin's water ministers will meet again in August this year. Recent history tells us that some states will demonstrate an ongoing contempt for the environment. But for the federal government, it will be its last chance to honour the promise made in May 2022.

A claim that our most critical federal environmental law is unlawful requires explaining. Let me begin this way.

In January 2019, the Darling (Baaka) River looked like a site of an Old Testament plague. A million dead fish. A series of pools, full of toxic algae. Four years later, and the Baaka was in flood. Once more, there were a million dead fish. Soon enough, the river will be in drought again.

A land of (frequent) droughts and (sometimes) flooding rains must manage water carefully.

Instead, our politicians have conducted water policy in the Murray-Darling like a long running scam. On the First Nations owners, and on taxpayers in our capital cities.

The basin contains 60 per cent of our farms. It is home to 16 wetlands over which Australia has treaty obligations. It is of economic significance. In 2006, large parts of it were near environmental collapse, caused by a changing climate, and decades of overallocation of water by state governments. Federal Parliament's response was the Water Act 2007, and a legislated measure to stop ongoing environmental harm - the Basin Plan.

The Basin Plan was not designed to end irrigated agriculture. We still grow crops. The idea though is that we don't use so much water that we wreck the joint. It's amazing how much hostility this idea provokes. No one should be embarrassed if they "prefer people to fish", but most Australians have a preference that we don't endanger our wetlands and wildlife. Tourists, that generate enormous revenue by visiting the basin, tend not to go to see dead fish, or to swim in algal blooms.

How much more water the environment needs to stop its decline is a matter for scientists. But with the Basin Plan, unlawfulness became more convenient than legality.

Throughout 2018, Bret Walker AO SC considered decades of peer-reviewed science, and heard from dozens of expert witnesses about water management in the basin, and about the plan itself. In his royal commission report he made findings of "negligence" and "maladministration" about every critical aspect of the drafting of the Basin Plan. His findings are irrefutable - but the government ignored them.

It's rude to reduce a 764-page report into "takeaways", but I'll have to.

Walker found the Basin Plan wasn't based on the "best available scientific knowledge", as the law says it must. Its water recovery target was determined by lawmakers after a pep talk from lobbyists. Walker found this "unlawful". It risks the constitutional validity of the core of the plan.

He also noted that the recovery target was determined without the use of climate change projections, something the CSIRO advised was not scientifically "defensible" and risked "irreversible environmental degradation". Walker called it "gross negligence", likely to lead to "decades of inertia" (we are at 11 years of inertia now). The Basin Plan relegated climate science to the status of "hoax". To those that support this approach, I argue that our taxes should be spent on the assumption that the laws of physics exist.

Finally, Walker said that the extra 450GL of water the subject of the ALP's election promise last year should be recovered immediately by the voluntary purchase of water entitlements in the southern basin. This is water legislated for the southern Murray, including our greatest wetland, the Coorong. Barely four of the 450GL has been recovered in more than 10 years.

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Fast forward to 2023 and Tanya Plibersek should not wait until August for another meeting of water ministers. Based on the past decade, nothing but nonsense or insults will be said about the plan anyway. She does not need to further justify the promise Anthony Albanese made in Adelaide in May 2022 - she has the law on her side. And an election promise to honour. Plenty of entitlement holders want to sell their water. She should tell her colleagues that's what the government is going to do right now, and drop the mic.

Of course, should the government purchase the water, opponents of the Basin Plan will loudly accuse it of destroying the economy of rural Australia. Such claims will not be supported by defensible economic reports, but will be made even if, as Walker found, they could be "debunked by an economics undergraduate".

Leaving that aside, those that oppose the voluntary sale of water entitlements are effectively saying this - Australians should not be able to sell their water to their government to help the environment. The ethical justification for this position is yet to be made clear.