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

RYAN, Ms Georgiena Jacqueline, Member, Rural Issues Committee, Law Society of New South Wales

[12:33]

CHAIR: Welcome. Thanks very much for being here. Do you have any amendments or alterations to your submission?

Ms Ryan : No, I do not.

CHAIR: It is numbered 51. I invite you to make an opening statement, after which we will have questions. That would be great.

Ms Ryan : Thank you for the opportunity to address you. Firstly, I want to point out that I am here on behalf of the Rural Issues Committee, not the broader Law Society of New South Wales. It is an important distinction. The rural and regional issues committee is a group of solicitors who look primarily at rural and regional issues. As a group, while we are not pre-eminent law professors or the like or specialists in constitutional law, we are people who probably deal with these issues and the impacts of legislation such as this at the coalface. Rural communities have been through a tough time over the last ten years and you really come to appreciate it when you are part of the community and you are messing around in people's lives and dealing with the stress that the drought brought.

Having read through some of the other submissions since we put in our submission, I am a little bit concerned about what people really think of when they think of social and economic effects. While at the time I thought it was a little bit outside the terms of reference, in our submission we dealt with the impact, on legal practices and the provision of legal services in these areas, of making any sort of plan that is going to impact so heavily on rural and regional communities. Social and economic effects are much broader than what happens at the farm gate. They extend right across the community. If you do not have a healthy functioning economic community you do not have things such as healthy, functioning legal practices and if you do not have them you do not have legal services.

Senator CROSSIN: Can you give me a bit of a background about what your rural issues committee does. Have you ever looked at a legal interpretation of the Water Act or intervened in cases that affect the application of the act?

Ms Ryan : Not the Water Act itself. Short of doing this submission, we have not intervened in the legal interpretation of the Water Act per se. As a committee we did have input into the Water Management Act in New South Wales. But at the Commonwealth level, at this point in time, no.

Senator CROSSIN: You said in your submission that following comments from the Murray-Darling Basin Authority website it appears that the government solicitor has provided two different legal interpretations. My understanding is that none of those legal interpretations has been made public. In fact, one might be an interpretation A-G's advisers provided and one may be advice Mr Taylor sought personally. Can you explain to me why you make that statement in your submission.

Ms Ryan : I have taken it from what was on the MDBA website, which seemed to indicate that. And, certainly, what you read in the media seems to indicate that. That is where the position comes from. Having said that and having now had the benefit of reading through some of the other submissions, I would have thought that there is probably a reasonably consistent legal interpretation of the act that seems to suggest that social and economic considerations are obviously a consideration that can be taken into effect. But at the end of the day, primacy is given to environmental considerations.

ACTING CHAIR ( Senator Crossin ): Yes. There is some dispute about how you cannot actually give environmental considerations any precedence without looking at the social and economic impacts, and that is the debate at today's inquiry. I draw your attention, though, to the fact that it has been custom and practice across all governments, both coalition and Labor. In fact, I have a quote from Philip Ruddock when he was A-G that says:

It is not the practice of the Attorney to comment on matters of legal advice to the government. Any advice given, if it is gi ven, is given to the government—

that is, not publicly released. So I wanted to make you aware that, to my knowledge, neither the coalition nor the Labor government has ever released any advice it has obtained, particularly from the A-G.

Senator BIRMINGHAM: Some of the stuff that Tony Burke released—

ACTING CHAIR: So I wondered if in that instance you would question the comments on the MDBA's website?

Ms Ryan : Noted.

Senator JOYCE: Chair, is the next question for us?

ACTING CHAIR: Sorry, what was the answer to that?

Ms Ryan : I just said 'noted'.

ACTING CHAIR: Okay, thanks.

Senator JOYCE: Ms Ryan, I want to also make you aware, on the back of the Australian Government Solicitor apparently not giving advice, that Minister Burke has tabled a whole swathe of advice from the Australian Government Solicitor, so apparently things have moved on a bit from when Philip Ruddock was around.

Ms Ryan : I read that very quickly this morning, yes.

ACTING CHAIR: Senator Joyce, Senator Crossin—

Senator JOYCE: On—

ACTING CHAIR: Senator Joyce, I think I am now chairing this.

Senator JOYCE: Sorry?

ACTING CHAIR: I think I am now chairing this committee with Senator Barnett gone.

Senator JOYCE: So?

ACTING CHAIR: I just wanted to ensure that that statement is accurate. My understanding is that Minister Burke tabled advice to say he would not be tabling that advice and that what we may have is just a summary of what people think that advice is. So we need to clarify that, perhaps.

Senator JOYCE: So, if we can give you something from the Australian Government Solicitor's advice such as what is right before me at this very moment with AGS on the top of it, would that do, Senator Crossin? Would this document do, or do you have in mind another one?

ACTING CHAIR: I think you need to be very careful about how that—

Senator JOYCE: 'The Australian Government Solicitor: summary.' I can go through it if you like; there are a few pages of it.

ACTING CHAIR: Yes, but it is a summary, it is not—

Senator JOYCE: Oh, right. I can go through the part that is not the summary if you would like me to do that. Do you want me to go to the discussion part? Which section do you want me to go to?

ACTING CHAIR: Senator Joyce, I think that for the public record we need to be very clear that it is a summary; it is not the actual advice that was provided to the minister or the Attorney-General. There may well be evidence of the legal advice; that is not in that summary, for very good reason.

Senator BIRMINGHAM: So, if we refer to it as the 'AGS prepared summary advice of the AGS prepared advice as provided to Minister Burke and tabled by Minister Burke in the House of Representatives on 25 October', will that suffice?

ACTING CHAIR: I think that would suffice, because it would be very clear that it may not be the full and complete legal advice.

Senator JOYCE: So you are saying there is advice out there that we do not know about.

ACTING CHAIR: That could well be the case.

Senator JOYCE: That is very important. You are the best witness here today, Senator Crossin. We want that advice because we want to know what it says, because it seems we have two different points of view: we have the point of view delivered by one group of people who say they are following the advice perfectly—

ACTING CHAIR: Senator Joyce, I do not think we need to—

Senator JOYCE: and we have the position of the minister. So maybe you should be a witness, Senator Crossin.

Senator HANSON-YOUNG: Senator Joyce, I cannot actually hear the—

ACTING CHAIR: I am chairing this, thank you. As chair, what I am saying is that it is the custom and practice across all levels of government to not table legal advice, and it is a matter you can take up with the department this afternoon.

Senator JOYCE: We understand you are hiding something; do not worry about that.

ACTING CHAIR: If you have questions of this witness, please ask those questions or we will move to another senator.

Senator JOYCE: You are doing all the talking.

ACTING CHAIR: I am the chair, thank you, Senator Joyce. If you have questions, please ask those.

Senator JOYCE: We certainly do. I just want to quote something to you from section 44, where it says:

The Minister must not give a direction under subparagraph (3)(b)(ii) …

We look at 3(b)(ii) and it says:

… direct the Authority, in writing, to make modifications to that version of the Basin Plan and give it to the Minister for adoption.

The minister does not give directions to do that on any matters referred to in items 1, 2, 3 or 8 in section 22(1). In section 22(1) it says quite clearly in item d under 'Specific requirements':

… the social and economic circumstances of Basin communities dependent on the Basin water resources.

So quite clearly it say that the minister must not give directions for changes based on the social and economic circumstances of the basin. Do you find that quite prescriptive and restrictive in how the minister could actually alleviate pressures on regional communities?

Ms Ryan : Off the cuff, yes, but as to a detailed response I would probably need to take time to consider that.

Senator JOYCE: We have, as I have said, almost a zealot-like approach to compliance with the Ramsar Convention, and we had Professor John Briscoe from Harvard on here this morning saying no, he is not aware of other countries that have dived into the sort of compliance that we have. Do you believe that there is the capacity for amendments within this act so as to placate some of the more onerous aspects that were so evident in the initial guide to the draft, as seen through so many regional towns?

Ms Ryan : I do think that there is. Again, I am not a constitutional lawyer and I am not an expert on international treaties. In our submission we looked at whether perhaps in any amendments to the act, or even regulations, the government could look to treaties beyond environmental treaties. It was an obvious place to go: if you were looking for a constitutional basis for the Water Act, you would look firstly to treaties that deal specifically with water and wetlands and then further to environmental treaties. But as a nation I think we have broader obligations than just obligations to our environment: we have obligations to our communities, including our rural communities, and we have obligations to international communities. As I said, I am not an international treaty expert or an expert constitutional lawyer, but we looked at things such as the Food Aid Convention and whether there is capacity for the government to draw upon those sort of treaties so as to give the act a broader base.

Senator JOYCE: In your submission you state:

There does not appear to be any requirement in the Basin Plan for the MDBA to consider the social, economic and environmental effects of State water planning over the previous 10 years.

That has been a common complaint all around the basin. Is there a way that the act could better consider these efforts? How would it practically do that?

Ms Ryan : It could simply refer to the existing state legislation and the existing state plans, yes.

Senator JOYCE: Tell me: in your own view, what is the process? We have heard and it is on the record that there has been the statement by the MDBA that 7,600 gigalitres would be the ideal amount to be delivered back to the river system. If the current process comes out with a proposition that, say, 2,000 gigalitres gets returned to the system, is there the capacity for someone to challenge that in the High Court?

Ms Ryan : I would have thought that in the way the act was framed at the moment there probably was, because it is an act that certainly asks the committee to take into account social and economic considerations. But it is meant to be subject to the environment, and it does seem to suggest that you take what the environment needs first and then you try to fit in a best fit for dealing with the social and economic ramifications of that. It would seem to me from a public policy view that that is probably not the approach we should be adopting.

Senator Joyce: Because it is such a prescriptive act, on it arriving at the High Court they would have a very literal interpretation of the act. I mean, they would not really care too much about what someone said or what someone did not say if it was not congruent with what was actually written in the act. What is written in the act is what matters, isn't it, not what someone says as an aside?

Ms Ryan : At the end of the day, yes.

Senator JOYCE: I want to go to another section of the act, section 4, which defines environmentally sustainable levels of takes. It says:

"environmentally sustainable level of take" for a water resource means the level at which water can be taken from that water resource which, if exceeded, would compromise:

(a) key environmental assets of the water resource; or

(b) key ecosystem functions of the water resource; or

(c) the productive base of the water resource; or

(d) key environmental outcomes for the water resource.

From what I have just described straight from the act, is there any section in there that talks to socio and economic circumstances of the towns?

Ms Ryan : No, there is not.

Senator JOYCE: So in an interpretation of the High Court, what are they going to say? They are going to say, 'If it looks after the environment, you're right, and if it doesn't we're going to kick it out.'

Ms Ryan : Yes, I would have thought that was correct.

Senator JOYCE: In your knowledge of how legislation is brought about, do you know of boards to just go off on a mindless frolic and develop a guide or a draft off their own bat or do you think they are pretty well guided by the act and have some pretty competent resources to guide them in that process of the act?

Ms Ryan : One would hope so.

Senator JOYCE: If these people are competent, diligent and honest and they are being guided by the act and they have come out with this guide to the draft and it has almost caused a riot, what is the only process that we could possibly follow to placate that outcome in the future?

Ms Ryan : I would have thought it was an amendment to the act. At this point in time it would seem that, if meeting those key environmental concerns comes at a social and economic cost that is simply too high, the act does not assist us.

Senator JOYCE: I find it interesting that an act the coalition wrote is so vehemently defended by parties that are not actually in our party—that is, they do not want any changes to it at all. Could there be any motivation as to why they would not want any changes?

Ms Ryan : I am sorry, that is outside my area.

Senator JOYCE: Could it be that they know full well that, if you end up at court, the numbers are stacked absolutely in favour of the environmental outcome?

Ms Ryan : I am sorry.

Senator JOYCE: There is the Food Aid Convention 1991 and other food conventions. How would the MDBA in any court deal with inconsistencies between our obligations under conventions such as Ramsar and conventions such as the Food Aid Convention? We are really just compliant with Ramsar, aren't we? In this act we are following Ramsar, the Bonn migratory bird act and some other things, and these are predominantly overwhelmingly environmental acts.

Ms Ryan : Yes, they are.

Senator JOYCE: Thank you very much.

Senator BIRMINGHAM: Very briefly, with regard to the interpretation of our obligations under these international treaties, how much flexibility do you think there is for the government in how they interpret and apply those treaties?

Ms Ryan : That is a question I would have to take on notice, if that is okay.

Senator BIRMINGHAM: If you could. When it comes to defining what are 'key environmental assets', do you think it is possible in a legislative sense to put tests around that, or will such decisions by their necessity always end up being subjective.

Ms Ryan : I would have thought that there is always going to be a degree of subjectiveness in any of that. What is a 'key environmental asset' to one person with a passionate interest in migratory birds is going to be completely different to somebody with a passionate interest in frogs, for example. I would have thought that it would be subjective, unless the government itself is going to define them.

Senator BIRMINGHAM: Having looked at the commentary on the Water Act and how it is operating, and other submissions to it, if it is finalised under the existing act with no amendments, what chance do you think there is of there not being some type of legal challenge to its findings?

Ms Ryan : If we end up with a basin plan that does not deliver on the environmental considerations, because the government or the authority ends up deciding the social and economic costs of doing that are too high, I would have thought that it is very likely to end up with a challenge and, quite possibly, a successful challenge. And if we end up with the current plan, which does deal with those things, I would have thought you would end up with a challenge.

Senator BIRMINGHAM: All roads lead to …! Your submission touches on the basis on which the act works. Obviously, much of the act relies upon the external affairs powers of the Commonwealth and therefore the international treaty obligations. Your submission has argued that perhaps the Commonwealth and the states should go back to the table and renegotiate a decent referral of powers from the states. Even if we get through delivering what everyone agrees is by some miracle a fair and balanced basin plan under the act, given its longevity and the continual review mechanisms within the act, do you think that even if we get a good outcome this time around there would still be merit in the Commonwealth trying to seek that clarity, therefore basing the act, for future determinations, on a more solid footing.

Ms Ryan : I would have thought that would be a very sensible idea.

Senator XENOPHON: I will not ask you about constitutional issues or international treaties. I just want to focus on one aspect of the act. I have asked the previous witnesses about this. In terms of section 22, the content of the basin plan of the Water Act, item 6 makes reference to the maximum long-term annual average quantities of water that can be taken on a sustainable basis from a) the basin water resource as a whole and b) particular parts of the water resources of each water resource plan area. How do you see this working in the context of not just the entire basin but for each water resource plan area where one area has done more by way of early adoption of water efficiency measures than another area, for instance? How do you deal with the equity aspects of that compared to another area that has the benefit to a much larger extent of the $5.8 billion Water Efficiency Plan? I am happy for you to take that on notice.

Ms Ryan : If that is okay. I would have thought that at the end of the day from an equity point of view it is going to be a political thing. Aside from the early adopters, the same theories could be applied to those, for example, in New South Wales and some of the basins, where they have already had very, very substantial cuts and they are now asking for more cuts. The same theory applies.

Senator XENOPHON: If you want to consider it further and provide further observations on that and how it would work with the current statutory scheme I would appreciate that.

ACTING CHAIR: We do not have any other questions. Ms Ryan, I thank you for your submission and for coming today.

Proceedings suspended from 13 : 00 to 13 : 47