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Legal and Constitutional Affairs References Committee
18/05/2011
Water Act 2007

BRISCOE, Professor John, Private capacity

Committee met at 9:52

Evidence was taken via teleconference—

CHAIR ( Senator Barnett ): This public hearing is for the Senate Legal and Constitutional Affairs References Committee inquiry into the provisions of the Water Act 2007. It is a public hearing and a Hansard transcript of the proceeding is being made. The inquiry was referred to the committee by the Senate on 9 February for report by 11 May. This reporting date was subsequently extended by the Senate until 6 June. The terms of reference for the inquiry are on the committee's website.

The committee has received 98 submissions for the inquiry, the majority of which have been authorised for publication and are available on the committee website. I remind all witnesses that in giving evidence to the committee they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

The committee prefers all evidence to be given in public but under the Senate's resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice if they intend to ask to give evidence in camera. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer having regard to the ground which is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course be made at any other time.

I now welcome Professor John Briscoe who is to give evidence via teleconference. Professor Briscoe, do you wish to make any amendments or alterations to your submission which is submission No. 2?

Prof. Briscoe : No, I stand by that submission.

CHAIR: Thank you very much. We note that you are giving evidence from overseas. While parliamentary privilege protects overseas witnesses in Australia in respect of their evidence they cannot be protected by Australian law in another country. Do you understand that?

Prof. Briscoe : I do.

CHAIR: Thank you. I invite you to make a short opening statement, at the conclusion of which I invite other members of the committee to ask questions.

Prof. Briscoe : Thank you very much, and it is a privilege to be asked both to submit and then to appear before your committee. I assume my statement has been read by you all. It is clear that I have limitations in the knowledge that I have of water management in Australia. I have been engaged in part as an expert commenting on the draft of the guide to the Basin Plan, but also as an interested international water person who looks to Australia to continue the leadership that Australia has developed over the last 20 years in water management.

I believe that you are confronting a very fundamental issue, which is how to balance environmental needs and human needs in the Basin. The outcome of your process is of obvious great importance to Australia, but also of greater importance to the world beyond Australia. So it is in that capacity that I have engaged with this process, and I am very happy to take questions on my statement.

CHAIR: Thank you very much, professor, for that introduction.

Senator JOYCE: In your knowledge of acts, would you see this as a very prescriptive act?

Prof. Briscoe : I am not sure what you mean by 'very prescriptive'.

Senator JOYCE: That means not much latitude for a movement away. The ministerial power has been precluded; I can refer to you section 44 subsection 5 where it starts by saying 'The minister must not,' and giving a whole list of things which the minister cannot do—or the authority. Basically, if it is not within the act you are in trouble.

Prof. Briscoe : Yes, I would defer on that question because that sort of detail is not really the way in which I have looked at the act. But I would say that the act is, if not prescriptive, highly directing. And there it seemed to me, and I think to the external peer review group of which I was part, that the act is extraordinarily specific in what is to be given primary importance, how science is to be deployed and how the act is to be translated into action. In that sense, indeed, I find it very prescriptive.

Senator JOYCE: So, would you say it is prescriptive in a form that puts environmental outcomes at a precedent and at the forefront over those of socio and economic outcomes?

Prof. Briscoe : Yes, if you look at both my own submission and the submission of the peer review panel of which I was part, this was very clear to us. This was an act where the assumption of powers by the Commonwealth, as we understood it, was based on the Ramsar convention, which is an environmental act. The spirit of the act—long as it is—to us was unequivocal in that it mandated that the environment be a first and overriding priority, that what the environment needs is to be determined by a process which is not political but which will take judgment into account that is determined, so the act says, by science, and that then socio-economic, human and social factors are to be taken into account once that primary process is done.

Senator JOYCE: So basically, the way you would have to look at it is that you might want to argue about the science, but you cannot argue about the fact that the environment comes first. You are left with arguing about the possible scientific interpretations of what an environmental outcome is. You certainly cannot argue that the environment comes first.

Prof. Briscoe : I would not argue that; it seems very clear to me.

Senator JOYCE: You would be very aware of the Ramsar convention, and I also know that when they talk about Ramsar they say that it also assists the social condition; but really it only does it in such a form that it says it looks after the environment and people feel happy in a happy environment. The Ramsar convention does not give any position on maintaining the economic fabric of a town or an area, does it? Or does it?

Prof. Briscoe : I think if you see the Ramsar convention is an environmental convention, and its focus is appropriately on environmental outcomes, it is then up to sovereign states to interpret their compliance with that convention, presumably in light of their own national laws and priorities.

Senator Joyce: Does the Ramsar convention give any capacity for someone to say, 'Well, on certain environmental assets you can reduce the amount of water because you have got to look after the economic or social fabric' or does it say, 'You must maintain the amount of water to maintain the environmental asset, and that is first and foremost'?

Prof. Briscoe : I do not believe that the Ramsar convention has been interpreted as a legally binding convention on which states have to then willy-nilly follow the dictates of the convention. My understanding is that where states have signed the convention it essentially is for those states to give particular attention to the maintenance of wetlands for migratory birds. But I have never seen another country take it as the convention itself dictates what sorts of balances you are to strike between environmental and human uses.

Senator Joyce: Just correct me if I am wrong so I do not put words in your mouth. Are you saying that Australia's reliance on the Ramsar convention as a crucial pillar to this act is way and beyond what is being used throughout the world in the reliance of other countries on the Ramsar convention—that we have basically taken this as the truth, the way and the light, and it sits at the cornerstone of this piece of legislation?

Prof. Briscoe : As I said in my deposition, Senator, my reading—and this is obviously from somebody who is not Australian and does not swim in your politics—is that the Ramsar convention, for the purposes of elevating the environment and elevating Commonwealth powers to a level that was perceived to be desirable for domestic purposes, was used as a justification for that. In my understanding, no other country has sort of taken the conveyor belt from the convention and said that therefore they have to do this in terms of balance between human and other uses. So this would be a very unusual interpretation of the convention—so unusual that I do not know of another country which has taken that very literal interpretation of the Ramsar convention.

Senator Joyce: Thank you. I want to go to a section in your submission, and it is the substance of the act, the role of science and politics. At the bottom of page 4 you say:

The Act is based on an extraordinary logic, namely that science will determine what the environment needs and that the task for government (including the MDBA), is then just to "do what the science tells it to do".

So therefore you are in that sense saying it is prescriptive, that basically what the science tells you to do is what you must do. There is no science of socio-economic conditions—there is the science of delivering an environmental outcome.

Prof. Briscoe : As I explain elsewhere there, to me this is indeed very, very unusual and a very unusual, if you will, aggregation of the authority of a government to make value judgments and then to make trade-offs. Science in this particular case happens to be very imperfect and very rudimentary. But if the science were certain, this would essentially take away from a parliament and a government what has always seemed to me to be the ultimate responsibility of elected officials to make trade-offs. So this is very peculiar. And this struck us, when we were on the peer review panel, as very strange, because the instructions we got from the chairman and the chief executive of the authority was, 'All we want to know from you is: is it best science and does it tell us that?' If you have seen the submission, I and the three others on the panel said, 'We are not going to in fact come to any conclusion on that because we believe that this is not the role of science. Science is to provide input into political processes in which value judgments are transparently and explicitly made to come to conclusions.' So this is a very peculiar way of formulating public policy.

Senator CROSSIN: Professor Briscoe, thank you for joining us. Have you read the statements by Minister Burke in the parliament on 25 October?

Prof. Briscoe : The answer is no, Senator. I do not live in Australia and this matter is not my unique occupation. I follow it pretty closely in the press but I do not know that statement or what he said there.

Senator CROSSIN: The legal advice that he tabled that day from A-G's that is the essence of his ministerial statement is to not only talk about the international agreements that underpin the Water Act, but also refuting the idea that those agreements prevent socioeconomic factors being taken into account. He re-emphasises the fact that the act actually has to optimise economic, social and environmental outcomes. You are telling us that is a view you would dispute?

Prof. Briscoe : Yes, I would.

Senator CROSSIN: How then can you determine the environmental outcomes for a river, and the amount of water to flow in that river, if you do not make an assessment of not only the environmental surrounds of that river but the economic impact those surrounds would have? Surely you would look at environmental areas that might be in a sad and sorry state and also do an assessment of the economic impact of that as well.

Prof. Briscoe : If I understand your question, Senator, it does seem to me to be a very peculiar process. In fact it is so peculiar a process that it would never actually be done exactly like that, whereby you would simply say that the science will tell you what the environment needs and you would pay literally no attention to the other factors.

Senator CROSSIN: But it is not going to do that. Minister Burke is saying the act specifically does not do that, that if you are going to determine what environmental outcome you have it integrates quite closely with the social and economic outcomes and determinants.

Prof. Briscoe : I beg to differ. I do not think that follows logically. It seems to me perfectly conceivable that you might say whatever the environmental assets you have, be it the red gums or the quality of the lower lakes, or whatever it might be, you could well say, 'I want to know what water management policy I have to follow simply to produce the best possible outcome for those environmental assets.' That is logically conceivable. And to my mind that is largely what the act told you to do. Now, as a matter of reality, with human beings living there, of course that has to come into play at some level but, as I understand it, the question is whether that is something that is given equal weight, or it is something that comes along as a bit of an afterthought and in second place, as it were.

Senator CROSSIN: Just to follow up on that, Professor Briscoe, how could it come as an afterthought if in fact the environmental consideration is the amount of gigalitres that are allocated but quite clearly that amount is not set unless you actually look at the economic and social conditions as well?

I think the act and the minister's tabled advice and ministerial statement quite clearly identify that the environmental issues have to optimise the social and economic issues as well. There would be no point in withholding water in a certain part of the Murray-Darling Basin if in fact the health and wellbeing of the farms and the agriculture in that area were not considered as well.

Prof. Briscoe : I understand what you are saying. I do not think that is what the act says to me. I sat for two weeks with the staff on the authority, understanding how they went about doing this. When they looked at the process—which I am sure you know better than I do—of identifying environmental assets and doing analyses which were entirely in the biological, chemical, hydrological realm of what water was required to maintain those assets, in none of those calculations did socioeconomic impacts of such an assignment come into play in determining those.

Should it be so? I agree with you. If I were the writer of the act, absolutely it would have been the case that you looked at those things together. Does the act say that you do those things simultaneously? It is a long act ,and there are lots of places where they talk about triple bottom line, but the overriding sense of the act, in my view, is not what you are describing; it is one in which you give primacy to environmental outcomes. Once those are determined, you then pay some attention to what the social and economic impacts of those are.

Senator XENOPHON: Mr Briscoe, you have a distinguished history as an environmental engineer and a background in civil engineering; is that is correct?

Prof. Briscoe : That is correct.

Senator XENOPHON: And you worked in Bangladesh as an epidemiologist at the cholera research centre a number of years ago, so you understand—

Prof. Briscoe : I have a chequered background, as you would say.

Senator XENOPHON: Yes, but you understand the importance of water quality. Do you consider, from the information you have been provided about the Murray-Darling Basin, that there have been issues of overallocation in the past and also issues of water efficiency and the appropriate use of water allocations?

Prof. Briscoe : My understanding is that yes, there was overallocation in the basin but when the cap was put on, whenever that was—in 2000 or the late nineties; you will know better than me when that was—it was put on precisely because the commission, as it was at that time, with the states had determined that there was indeed overallocation and therefore they started the process of some buyback of water to bring the demands and the sustainability of the basin into balance. So yes, it is my understanding that there was.

Senator XENOPHON: Sure. I just want to touch on a couple of other issues. Do you believe that in the Murray-Darling Basin there has been less predictability—that is, that there is a greater variability in water flows in the basin? I will not get into a debate now about anthropogenic climate change, but do you have a view on whether the climate is more variable than it was, say, 30 or 40 years ago?

Prof. Briscoe : I do not have a view. What I do know is that if you look at the Colorado basin, for example, there is a very similar perception.

Senator XENOPHON: Is that perception based on fact, in your view?

Prof. Briscoe : It depends how long your record is. In the Colorado basin they have 100 years of records that show the last 40 years are much lower than the 60 years before, and therefore there has been a lot of speculation about climate change and its impact on the Colorado basin. They have 500 years of years of records reconstructed through tree rings, and what you see is that the first 60 years of record were in fact unusually wet years. So it is extremely difficult in a variable hydrology—and you in Australia have probably the world's most variable hydrology—to draw conclusions from relatively short time periods about underlying drivers.

Senator XENOPHON: So you are saying 100 years may be a relatively short time period?

Prof. Briscoe : Yes, it is a very short time period. So you have a very highly variable climate, that is for sure, and I think there is prima facie case evidence that you can expect that this may a part of climate change—I do not think that is excluded—but from the hydrological record itself I think it is very difficult to make that conclusion.

Senator XENOPHON: Further to that, in relation to the CSIRO here in Australia, you may be familiar with their research where they say that in the next 30 or 40 years it is going to be hotter and drier with greater variability. Do you think that that is a reasonable conclusion on the part of the CSIRO?

Prof. Briscoe : I am not a hydrometeorologist. I have a very high regard for the CSIRO's work and for the tremendous Australian professionals who work in the water business, and there seems to be unanimity amongst them that this is an accurate assessment.

Senator XENOPHON: So on that basis of the CSIRO's assessment, and you have spoken about their reputation and expertise, from a risk-management point of view in terms of assessing the risk, and you do have an eminent background in environmental engineering, shouldn't we be looking at mitigating the risk by planning for appropriate allocations, given what the CSIRO has said about greater variability?

Prof. Briscoe : Yes, I do not only think that you should do that but, in my view, the adaptation that took place in the years from 2000 to 2008 during the drought in Australia showed the capability of making that adaptation, which is without peer anywhere in the world.

Senator Xenophon: I am conscious of time, Professor, because I think that others want to ask questions, but doesn't that mean both in terms of water efficiency measures and also being more prudent in allocations? For instance, you may be familiar with the managed investments schemes here, which were tax write-offs which gave huge tax incentives for forestry—they were tax minimisation schemes that spurred the demand for water—are they the sorts of things that ought to be looked at?

Prof. Briscoe : I do not know about those.

Senator Xenophon: No. Finally, there is an issue in my home state of South Australia, which is at the bottom end of the Murray-Darling system, where irrigators adapted earlier than others, in terms of water efficiency measures—they had to, because they were at the end of the system. Do you think that in terms of any prudent water policy, there ought to be an acknowledgement for early adopters of water efficiency measures?

Prof. Briscoe : It sounds like a loaded question, I think I will pass on that one!

Senator Xenophon: I will try and make it less loaded. Is it reasonable—we have a situation now where there is a $5.9 billion fund for water infrastructure upgrades and that has been taken up in NSW, Victoria and in Queensland—but particularly NSW and Victoria. That is based on closing open channels, piping water, aligning channels—all things to reduce evaporation and to increase water efficiency. If you have a part of the river system that has previously undertaken those works, for a range of reasons, a number of years earlier, is that something from a policy perspective that ought to be taken into account when you are looking at any reductions in allocations overall?

Prof. Briscoe : I think that the application of those resources, the implication would be, from what you've said, is that you would probably not be putting those resources into places that have already made large investments because the marginal return would in principle be less in those areas.

Senator Xenophon: That is agreed, Professor, that is a given, because there is not as much to be done by way of water efficiency in those areas, where they have already got pipes and closed open channels, but do you think from a policy point of view—given your role and the advice you have given to the World Bank as their senior water adviser—should early adopters be acknowledged or considered in the context of any overall water allocation?

Prof. Briscoe : I am sorry to disappoint you, but I don't know the answer to that question. What I have said in my written statement and which I will repeat very briefly now, is that in my view, focusing on water saving is too narrow a focus. In my view you should be looking at production and the maximum amount of production you can get from a limited amount of water, and this requires a great strategic look at the future of agriculture in the basin. It should be, in my view, not for saving water but for increasing production, and that may lead in directions of saving water, but it may also lead to other forms of investment that increase the value of productivity from a limited amount of resources.

CHAIR: Senator Birmingham, do you have a final question?

Senator Birmingham: I was hoping for more than a final question. Very quickly then, Professor Briscoe, you have talked about the prescriptive nature of it and the act detailing what is to be given primary importance, yet is there not scope within the act, as some argue, to decide what are key environmental assets and what are not key environmental assets? How flexible is that, particularly in light of the international agreements, to which you referred, and their role in the act?

Prof. Briscoe : My understanding is that, yes, indeed there is a lot—and this is a very important question because the number of assets which are included in the guide to the Basin Plan is a relatively small subset of all the assets that you could imagine. I am sorry that I do not recall the numbers exactly, but it is of the order of 20 or so that were analysed where there are, if I recall correctly, something like 4,000 on the long list. Now, the argument was in the past that by attending to those 20 there were a lot of spillover effects and the other 3,980 will be taken care of to a degree. I think there is no way in which you do not exercise some judgment on what assets and, if these assets are large, what proportion of those assets you wish to maintain and what degree of certainty do you want about the maintenance of those assets. So despite this very prescriptive science, the reality is that scientists have to necessarily in that process make a whole series of judgments about how many, how much, how much reliability, and in my view that should not be the role of scientists to make those judgments. The scientists should be telling you about those response curves—and those judgments should be judgments that are made by policy makers in the public domain, taking into account environmental outcomes and, ideally, other outcomes as well.

Senator Birmingham: Thank you for that Professor Briscoe. Lastly, I think my colleague Senator Joyce was eager to get on the record who the members of the high-level review panel are, aside from yourself.

Prof. Briscoe : It was Professor Asit Biswas, Mr Per Bertilsson and Professor Gene Likens.

CHAIR: Perhaps if you could email the secretary of our committee with those full names, that would be appreciated.

Prof. Briscoe : Yes, it is on the website—a month ago the authority made that public— but I would be happy to do so.

CHAIR: Thank you very much and thank you again for being available to the committee from such a long way away.

Prof. Briscoe : You are very welcome and thank you for giving me this opportunity.