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

DUNNE, Mrs Vicki, Shadow Attorney-General and Shadow Minister for Water, ACT Legislative Assembly

CORKE, Mr Kerry, Adviser to Vicki Dunne MLA

 

[14:47]

CHAIR: Welcome. Is there anything you wish to add on the capacity in which you appear?

Mrs Dunne : I have made a submission which is accompanied by a legal advice provided by my colleague, Mr Kerry Corke, who has long experience in public law.

CHAIR: We have your submission, which is numbered 96. Do you wish to make any amendments alterations to it?

Mrs Dunne : No, I do not.

CHAIR: We would welcome an opening statement and then we will have questions.

Mrs Dunne : I welcome the opportunity to make these comments today. In making this submission, I have drawn on many years experience as a policy adviser and a legislator. I was the adviser on water managers generally and specifically on the Murray-Darling Basin matters to former ACT Chief Minister now Senator Gary Humphries. As a member of the ACT Legislative Assembly of 10 years standing, I have had almost continuous responsibility for policy formulation on water. I also bring to this submission my experience as the shadow Attorney-General and the chair of the assembly Standing Committee on the Scrutiny Of Bills and Subordinate Legislation.

My submission makes a number of recommendations: firstly, that the Water Act 2007 should be amended to ensure that social, economic and environmental considerations are treated with equal importance. Secondly, there are two recommendations about the setting of diversion limits asking the Senate to require the Murray-Darling Basin Authority to consider those economic, social and environmental factors in the context of the local need rather than creating a one size fits all approach across large catchments and across the whole basin. The final recommendation is that the act be amended to make it clear that the critical water needs of the Australian Capital Territory are protected in the same way that they were envisaged in 1909.

On the first of these recommendations, it is clear from the ongoing controversy that what is actually meant by the Water Act needs to be revised. Listening to the evidence previously, it shows that there is such a diversity of opinion about what the law means, but it is quite clear that there needs to be significant reform so that there is a wide-scale broad consensus about what the legislation means. If legislators and our advisers differ so widely on what the law says, we must clarify it.

I also would submit that the failure of the plan for the guide itself demonstrates the need to implement the first two sets of recommendations. Drawing on my own experience as a legislator in the ACT, we need look no further than what was recommended for the ACT in the guide to show how little the balancing of environmental, social and economic impacts was brought to bear. In fact, it is freely admitted by officers of the Murray-Darling Basin Authority, and it was in the public consultation in Canberra, that the ACT was deliberately excluded from the models that they drew up, because they believed that the ACT skewed the results for the rest of the basin. This demonstrates not only contempt for the ACT, as the largest urban community in the basin, but also brings into serious question the integrity of the study in its entirety. I ask: how can a study ignore the role of Canberra as the nation's capital and seat of federal government? How can the study ignore the services Canberra provides to the surrounding region in the areas of health, education, tourism and economic development and the sway that Canberra has to areas as far afield as Wagga. Indeed, how can a study have no regard to the fact that Canberra is the largest urban community in the basin? How could it pay no regard to this city that holds 17 per cent of the basin's population but which is so frugal with its water use that it uses less than one per cent of the total basin inflows? How can a study pay no regard to the fact that the ACT's water use is significantly different from other regions in the basin? These are critically important considerations that impact on the ACT's social, economic and environmental needs and practices.

All of this brings me to the failure of the Water Act to acknowledge the special nature of the Australian Capital Territory as the home of the nation's capital and the federal parliament. There has been considerable legal argument about the interaction of various pieces of relevant legislation. There are many pieces that interact. In summary I put to you that when Canberra was established the Commonwealth acquired for itself paramount rights to the waters of the Queanbeyan and Molonglo Rivers to address the national capital needs of the entity that they were setting up. An agreement between New South Wales and the Commonwealth that was annexed to the Seat of Government Acceptance Act 1909 gives the ACT paramount rights to the waters of the Queanbeyan and Molonglo Rivers. It states that the Commonwealth has paramount rights to those waters 'for all purposes of the territory'. To this extent the Water Act is in conflict with the establishment of the Australian Capital Territory. In defining the ACT as a state for the purpose of this act it requires it to manage water resources in accordance with the Water Act and has no regard to previous legislation. The paramountcy given to the Commonwealth is of course based on the fact that the ACT is located in a naturally dry environment and so that the needs of the Commonwealth became paramount over the needs of neighbouring areas of New South Wales. The Water Act ignores this. The act fails to take into account the national capital role of the Australian Capital Territory as well as its regional and local role.

I contend that the Water Act needs to recognise those roles to ensure that there is sufficient water available to meet the needs of the territory. I draw to members' attention the advice provided by Mr Corke about the interaction of the Water Act and various previous pieces of legislation, including the Seat of Government Acceptance Act. In the summation of Mr Cork's advice, he said: 'For reasons recognised in 1909, the Water Act must be amended to remove any doubt that the critical needs of the ACT are if not paramount certainly assured, not withstanding any other provisions contained in the Water Act, in much the same way as the Commonwealth has used the National Capital Plan to protect the water needs of Canberra.' I can leave my opening comments there. I welcome any questions that you may have.

CHAIR: Thank you, very much, Mrs Dunne. Mr Corke, are you happy with that approach?

Mr Corke : Yes. I have nothing to add.

Senator JOYCE: Mrs Dunne, can you please explain to me what you would see as the social and economic needs of Canberra? We have heard quite clearly today that they are subservient to environmental needs. Can you please explain the social and economic needs of Canberra.

Mrs Dunne : We need to look at one of the assumptions that underpins the whole formulation of the guide for the plan. It goes back to my comment about their being a one-size-fits-all approach. It is almost as if the planning for the Murray-Darling Basin really only looks at the agricultural use. As a sort of second thought, they thought about what to do with the urban areas and decided to treat them very much the same. What that effectively means is that in the ACT, where more than 90 per cent of our water use is for urban use and less than five per cent is agricultural use, we have very little scope for wide scale water efficiency. This is unlike other parts of the catchment, where most of the water use is for agricultural purposes and probably one or two per cent is for urban use. It is quite possible for other areas to make efficiencies without having a deep impact on the operation of the cities and towns in those areas. But because the ACT has had a potentially onerous impact put on it by such large reductions, this will have an adverse impact on every aspect of society. The look and the feel of the city will be substantially changed. It will mean that Canberra will be subjected to stage 3 or worse water restrictions in perpetuity. The look and the feel of the city will change.

Senator JOYCE: Please explain for the record what stage 3 water restrictions are.

Mrs Dunne : Stage 3 water restrictions are what we experienced through most of the drought period of the last 10 years, which resulted in severely curtailed outside water use and things like odds and evens watering of minimal garden. This resulted in the loss of a large amount of urban amenity, loss of large amounts of trees both in the public domain and the private domain. The cost of water restrictions has been quantified in the tens of millions of dollars. I do not have it with me and I did not provide it in the submission, but the advice from the ACT government to the House of Representatives committee includes a report that quantifies the cost of water restrictions. I can provide that to members, as it is a publicly available document.

On top of that, as things are currently envisaged under the plan, there is no scope for economic or population growth in the territory, because the sustainable diversion limits as proposed for the ACT do not allow for population growth.

Senator JOYCE: You would have heard the previous witness. In your understanding, if upstream or downstream from you, Mrs Dunne, was a swamp full of frogs that required the same amount of water as Canberra and that swamp full of frogs was covered by a Ramsar agreement, who would have a greater right to that water, the people of Canberra or the frogs?

Mrs Dunne : My understanding is that the wetland would have the greater right under the current construction of the act. This is a problem, because it creates confusion. You have the minister and the head of the Murray-Darling Basin Authority saying one thing and you have witnesses before you today saying quite the opposite. I am a legislator. I am not an environmental lawyer, nor a lawyer of any sort. I come to the conclusion that if there is so much doubt about what the legislation means then it needs to be fixed. From one legislator speaking to other legislators, you need to fix this to remove doubt. But if the government's policy is to manage all those three things together—the social, environmental and economic impacts—the legislation needs to say it. It needs to say it clearly. It should not say it just in the objects and not say it anywhere else. It is quite clear from the sort of evidence that I heard before coming to the table that there are extreme levels of doubt.

Senator JOYCE: Obviously the legislation is one of double negatives and entendres and very cryptic and strategic omissions so that a belief is given but the actuality in the legislation is something entirely different. And the one witness we cannot get before us today is the Australian Government Solicitor. Were you led to believe that this legislation would give equivalence to environmental, economic and social outcomes? I know that it is not what you got, but is that what you thought you were going to get with it?

Mrs Dunne : If I really thought about it in simple terms, yes. I do not think I ever asked myself that question that directly, but I think the general perception was that there would be a balancing and an equivalence of those issues. I think the many extraordinary outbursts of anger that we saw was because when people got the guide for the plan they suddenly realised that was not the case and that the livelihoods of individuals and whole communities were at stake.

Bringing it back to the ACT, the ACT entered into arrangements, agreements and commitments on the understanding that certain things would hold true. Everything was thrown out the day the guide was brought down. For instance, in 2008 the ACT signed up to a cap. That cap was 40 gigalitres of net use. In conjunction with that cap, the ACT then made a range of commitments to build half a billion dollars worth of water security infrastructure. It is ironic that we may spend half a billion dollars on water security infrastructure in the ACT and we may be able to hold water in those dams but we may never legally be able to use it.

Senator JOYCE: It is like Cotter Dam and—

Mrs Dunne : And the pipeline to Googong Dam.

Senator JOYCE: Do you think there is the capacity for the suggestion of amendments so as to secure the rights of the people of the ACT and Canberra?

Mrs Dunne : I think that generally we need to secure the rights of the people who live in the basin by changing the emphasis in the legislation. But specifically and in addition to that I believe that we need to secure the territorial rights to water as were envisaged in 1909 when the territory was set up and through the various pieces of legislation that have come since then. The National Capital Plan is a plan that this Senate is responsible for. It establishes the regime under which water is used in the ACT. All of these things have been put to one side and have not been considered in the formulation of the Water Act. It seems very short-sighted.

I can understand how we got to this. The ACT is a small jurisdiction in the basin, but it is the only jurisdiction that lives entirely in the basin. It is of fundamental importance to the people of the ACT that we get this right. And it is of fundamental importance to the members of this parliament that we get it right in relation to the ACT because you are responsible for the national capital functions. If we do not take this into consideration, the national capital functions of Canberra will be severely diminished by the operation of the act.

Senator CROSSIN: I want to ask you, Mrs Dunne: have you met with the Murray-Darling Basin Authority?

Mrs Dunne : I have not. I asked for a meeting at the time that the plan came down and they specifically said that they would not meet with me—because I am a member of the opposition, I presume. I know that there have been discussions with the responsible minister. But, at the time, I asked for a briefing and a meeting on the subject and they specifically declined to meet with me.

Senator CROSSIN: Why would the authority do that, though?

Mrs Dunne : You would have to ask the authority that. It left me a little confused.

Senator CROSSIN: Have you at least written to them and somehow provided your views to them?

Mrs Dunne : Yes.

Senator CROSSIN: Did they ever give you a response to that?

Mrs Dunne : No.

Senator CROSSIN: All right. So this is the first time you have been able to, I suppose, publicly put your views forward about the act.

Mrs Dunne : I have used the offices available to me in my own parliament to speak at length and I speak at length in my own community. In fact, I was at a community meeting only this morning discussing these issues.

Senator CROSSIN: Some witnesses have put to us today that the international obligations reflected in the act, such as the Ramsar convention, do clearly optimise economic, environmental and social concerns. Do you believe that that is not reflected in the wording of the act or the application of the act.

Mrs Dunne : It is clearly not reflected in the application of the act as outlined in the guide for the plan but it is clear that especially section 21 does not create a balance between environmental, economic and social factors. The only place where you could possibly say that there is an attempt to balance that is in the objects. You will see in my submission that I have some comments, which are comments made by a parliamentary counsel in the Commonwealth, about the appropriateness of using objects clauses as a fix up for bad drafting elsewhere in the legislation.

Senator CROSSIN: Okay.

CHAIR: I have a supplementary question, Mrs Dunne. The attachment to your submission is a submission from the ACT government to the basin authority. Do you have any observations or comments on that submission on the guide to the proposed Basin Plan?

Mrs Dunne : I attach it because it outlines the problems from an ACT perspective with the guide to the plan. The views I fairly much entirely endorse. It looks at all of the problems. Because it has been put together by an ACT government department they have many more resources than a humble opposition member has. I endorse it and bring it to your attention because I think that it is a fairly detailed description of what is wrong with the guide in relation to the ACT.

CHAIR: Are the views of the ACT government similar to your own on these matters? If not, how are they different?

Mrs Dunne : They are somewhat similar. The water minister has from the outset expressed his concerns about the impact that the plan would have. He seems to be much more sanguine than I am about it saying, 'If the worst comes to the worst, we will go out and buy water rights elsewhere.' I think that is quite problematic and I have encouraged the minister privately and publicly to be more forthright in standing up for the ACT. I do believe however that the submission that he made to the Murray-Darling Basin Authority and also submitted to Mr Windsor's inquiry did make a very good representation of how badly off the ACT would be.

CHAIR: Sure. I just note that I do not believe that we have a submission from the ACT government to this inquiry.

Mrs Dunne : I did notice that and I regret that.

CHAIR: Thank you very much. We have no further questions and we thank you for your evidence today.

Mrs Dunne : Thank you very much.