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Environment and Communications Legislation Committee
08/11/2012

BELL, Professor Diane, Representative, Conservation Council of South Australia

FOWLER, Mr Rob, President, Conservation Council of South Australia

KELLY, Mr Tim, Chief Executive Officer, Conservation Council of South Australia

OWEN, Mr Peter, South Australia Campaign Manager, the Wilderness Society

[10:17]

CHAIR: I welcome representatives from the Conservation Council of South Australia and the Wilderness Society. Thank you for talking to us today. The Conservation Council of South Australia and the Wilderness Society have not made written submissions. I invite you to make a brief opening statement.

Mr Kelly : We intend to provide a written submission. That should get to the committee by the end of the day. We will talk about our written submission. I will introduce our position. We do not support the amendments as proposed to the diversion limit adjustment nor the special account. We suggest.

Senator XENOPHON: You do not support them?

Mr Kelly : No, we do not support them. We suggest that the fine print in both bills needs to be properly assessed and understood in relation to the key question of whether they will return the required amount of water to the Murray-Darling Basin. We base this on our key principles, which are: the plan must comply with the Water Act; the amendments to the Water Act need to be consistent with the objects of the act, which include dealing with the waters that are over-allocated and overused; and comply with the fact that the act requires the best available science. The key shortcoming that I will highlight, and which others will speak to in more detail, is that the basin plan in its current form has not been designed to achieve the hydrological and environmental targets that would return the Murray-Darling Basin to health based on the best available science. The Wentworth Group, the Goyder Institute and the Australian Wetlands and Rivers Centre have all stated that while 3,200 gigalitres is an improvement on an SDL of 2,750 gigalitres it still does not provide enough water to ensure the environmental outcomes.

In this context, the plus or minus five per cent of the sustainable diversion limit adjustment mechanism does not guarantee that additional water will be provided when necessary to meet the needs of the river. The additional $450 gigalitres of water from a special account may never be achieved, even if up to $1.77 billion is spent on additional infrastructure. There is no absolute requirement in the special account bill for these funds to be spent to achieve the additional water. I will pass on to Professor Bell now.

Prof. Bell : Thank you to the committee for inviting us here and allowing us to join together, because indeed we do have a joint position. We would start by drawing your attention to the key purpose of the act, which is to return extraction in the basin to long-term sustainable levels to support both ecosystems that depend on the basin and continued productive use of the basin. We would draw your attention to the section of the act that says that the basin plan must be based on best available scientific knowledge and socioeconomic analysis. We draw your attention in our submission to the science reviews and, in particular, the words of the Wentworth group of concerned scientists, who opened their critique, which was filed in October this year:'

There has never been any scientific analysis, released by the Murray-Darling Basin Authority or any other scientific institution, to suggest that returning 3,200Gl of water to the rivers of the Murray-Darling Basin will deliver a healthy working river system.

Of course, every increment is to be appreciated, but the science reviews of the 3,200 with relaxed constraints does not get us there.

I draw the committee's attention to recent scientific reviews, and I would emphasise that there is actually nothing new in these reviews. They emphasise the same questions posed by independent scientists since the first draft plan, which concerned incomplete datasets, unexamined assumptions, monitoring compliance and what constitutes scientific knowledge. In particular, I would draw your attention to the work of Professor Richard Kingsford regarding the benefits from flood plains, which gives us dramatic responses with both grazing livestock and ecological outcomes. I think this is one of the stories that puts together the health of the river and the socioeconomic factors. It is a story that has not really been told. We have heard doom and gloom on the socioeconomic factors, but not on where they harmonise—and this is a very good example of a win-win.

I draw your attention to the Goyder review of the science, with the relaxed constraints—the issues they highlight and those that require further attention, particularly water quality issues, modelling and unexamined assumptions. I draw your attention to the Wentworth group's critique of the relaxed assumptions and their comment that there is not yet a plan that will return the basin to health or meet the objectives of the act to ensure the return to environmentally sustainable levels of extraction for water resources that are overallocated or overused.

In conclusion, we would say that we are not in a position to be working on a plan. We do not have a plan yet. We do not have one that meets the objectives, we do not have one informed by best science, we know the river is overallocated and we are yet to address that. We draw your attention in our submission to the number of targets and goals set by the South Australian government itself which are not met by the 3,200 target. Thank you.

Mr Fowler : I would like to very briefly speak to each of the two bills that are the subject of the committee's inquiry, knowing that you have to report, I believe, by 19 November. By way of explanation, I should perhaps indicate that I am an environmental lawyer with something like 35 years of experience in that field and have therefore brought that background to my reading of both pieces of draft legislation. If we work in reverse order, I would first submit that the water for the environment special account bill is seriously flawed in its failure to give an adequate assurance to back up the promise by the Prime Minster to deliver 450 gigalitres of additional water to the environment of the Murray-Darling Basin.

I say that in brief—and I am happy to elaborate on this in questioning—because the 450 gigalitre object is not framed in a way in the bill which provides any assurance or guarantee that it will in fact be delivered. It is not even framed as an object of the bill; it is simply framed as one means of achieving the broader objects of the bill.

Senator XENOPHON: It is aspirational.

Mr Fowler : Absolutely; that is precisely how I would describe it. There is also a related concern that the expenditure clause in the bill places no firm obligation on the minister to spend any of the money in the special account in the future. A government of a different persuasion could be inclined to let the money sit there or it could, alternatively, allocate the vast proportion of the money not to environmental purposes but to social and economic purposes. There is nothing to indicate that that could not be done. The way that clause is framed would allow either for no expenditure of the money, no obligation to spend, or for the money to be directed primarily to meeting socioeconomic needs, which we do not dispute the importance of, and not necessarily to the environmental ones that are the purported object of the bill.

Secondly, I want to turn to the earlier bill, which I understand has passed the lower house and is now before the Senate, and the mechanism for adjustment of the sustainable diversion limit. Again, whilst that bill has through the process of review in the lower house had some significant improvements made to it, our fundamental concern is that it is conceivable that in the future that the five per cent adjustment allowance could be used to reduce the currently proposed 2,750 gigalitre return to the environment to something as low as just over 2,000 gigalitres. The five per cent is based on the basin reference limit, as defined in clause 23A(5) and that refers in turn to the basin's water resources. If that includes both surface water and groundwater then, depending on the figures you adopt, which would be somewhere between 10,000 and 14,000 gigalitres, five per cent of that could thereby reduce the 2,750 quite significantly. We recognise of course the feasibility of the alternative—that you could increase it as well by that amount—but we see that as somewhat unlikely in the foreseeable political future. We are, therefore, very concerned that this mechanism, whilst in principle is desirable to allow some flexibility into the future, at the moment is opening the door to the significant undermining of some of the so hard-fought understandings that have been reached in recent times.

Mr Owen : Thank you for the opportunity to appear. I agree with what all of my colleagues have said. I think it is really sad that we are all here today having a discussion at the level we are. This reform has been in the making for many years. It is a reform that recognised the failure of management of the Murray-Darling Basin of 100 years or more. I fear we have not really moved forward at all. We are now talking about two bills to amend the Water Act to try to retrofit a completely failed plan. I want to express my sadness because I think we have fundamentally failed here on one of the most important reforms that this country has had to deal with for a long time. We are the driest country in the world. This is fundamental water reform and it could not be more important.

The plan that is currently on the table essentially rejects the best science that we have in this country. It has rejected it and come up with a completely politicised figure that we know cannot deliver river health. It is time we were honest about that. It entertains further massive groundwater expansion, which is going to further undermine the health of the system. It fails to factor in climate variability or climate change—call it whatever you want—that is going to be a very serious issue over the period of this plan and there is no way that this plan can currently even deal with that. That is fundamental.

It also essentially handballs the problem to the next generation, in my view, because, if you look at the time frames we are talking about here, we are decades off into the future. So you have to ask the question: what are we actually talking about?

In terms of being slightly more specific about the bills we are here to discuss today, I would like to focus people's attention on the environment special account bill and, in particular, section 86AA(2). It is no fluke to me that the area that is highlighted there is the estuary of the river. The health of the river's estuary is pretty much a sign of the health of an entire river system. If we focus on the estuary and the health of this area we can generally say that, if we have a healthy estuary, we have a relatively healthy river. It is good to see that some of these elements are being factored into section (2), but there is no point making generic motherhood statements unless very specific targets are written into the legislation.

In terms of salinity levels for the estuary, I heard Senator Cameron mention earlier some of the second reading speech from the minister. He is starting to flag some of these targets, but these targets need to be written into the bill—that is critical. We have salinity levels of 1,000 EC in Lake Alexandrina and 2,000 EC in Lake Albert. The Murray mouth must be maintained open. You cannot have a situation where the river is closed at its mouth; that is ecological collapse; that cannot be entertained. We need to maintain the depth of the river mouth at at least one metre, and we have to flush through the barrages whatever is required to do that. At the moment, I do not think the science is clear on that. Unless you can guarantee some of these basic fundamentals in this plan we are nowhere, we are back to square one, and we have essentially handballed a phenomenal problem onto my kids and the kids and grandkids of everyone in this room. The longer we fail to deal with this issue, the longer the problem gets.

Senator BIRMINGHAM: Thank you all for your evidence this morning. After all the huffing and puffing about 4,000 gigalitres or other amounts are you disappointed that the South Australian government and Jay Weatherill seem to have accepted 3,200 gigalitres?

Mr Fowler : The tabling of the special account of nearly $1.8 billion has obviously had a significant influence on the state government's thinking and to some extent has probably dazzled their minds and left them failing to look sufficiently at the fine print in terms of how that package is going to be delivered. We would certainly be urging the state government to continue to take a close look at the bills that are currently before us because we do believe that the fine print is critical to understanding that the assurances that have been given about how that money will be spent have not been reflected in that draft legislation.

Prof. Bell : We would also be asking that they look at the science review by the Goyder Institute. It paints a far less happy picture of what happens with 3.2 gigalitres than does the five-point summary which is generally put forward and which appeared, I think, in the second reading speech of the minister.

Senator BIRMINGHAM: Given your concerns about the fine print, are you disappointed that the state government turned down an opportunity to give evidence this morning?

CHAIR: You should not answer that question because it is not a statement of—

Senator BIRMINGHAM: The witnesses are welcome to answer any questions they want.

CHAIR: But you cannot simply put a falsehood and ask them to answer a falsehood.

Senator BIRMINGHAM: It is not a falsehood. The state government declined an invitation to be here this morning.

CHAIR: The state government did not decline an invitation.

Senator BIRMINGHAM: They certainly did; they were very definitely invited.

CHAIR: Order! I am not going to argue. You should not answer that question because it is not based on a fact.

Senator BIRMINGHAM: What is the truth, then?

CHAIR: Do not question me!

Senator BIRMINGHAM: Was the state government invited? They were invited, weren't they?

CHAIR: If you have got other questions to ask, ask them; if not, I will go to another senator.

Senator BIRMINGHAM: They were invited and they said no.

CHAIR: Do you have other questions to ask?

Senator BIRMINGHAM: Sure, but I would like the truth, Chair.

CHAIR: You had better ask them now or I am moving on.

Senator BIRMINGHAM: I would like the truth.

CHAIR: Ask the question.

Senator BIRMINGHAM: I would like the truth on whether the state government was invited or not.

CHAIR: Senator Xenophon, I will go to you if he keeps behaving like this. Senator Birmingham, if you are going to ask the question, ask the question.

Senator BIRMINGHAM: Everyone knows they were invited.

Prof. Bell : Senator, we are here to give evidence.

CHAIR: Yes, that is right, so order!

Mr Fowler : Our response to this is that, regardless of what other parties say, we are basing our responses on how we see the success or otherwise of the proposed plan and the proposed bills before us, based on our interpretation of what the science says it will—

CHAIR: And it is all being hijacked into a political agenda by Senator Birmingham. That is all I am saying to you. I am not going to allow it.

Senator BIRMINGHAM: There has been an agenda run on this issue in this state for some time.

CHAIR: If you have got a question, put the question—

Senator BIRMINGHAM: I am going to ask a different question, Chair.

CHAIR: or I will move on.

Senator BIRMINGHAM: Two weeks ago tomorrow, the Prime Minister jetted into town and announced 3,200 gigalitres. It was presented as: 3,200 gigalitres, a solemn promise, would be delivered. Does the legislation reflect that solemn promise?

Mr Fowler : I think our submission is that the legislation at this stage does not provide adequate guarantees that the full amount will be delivered as promised. As we have said before, we are not satisfied that the 450 gigalitres of additional water has been adequately guaranteed through the bill currently before the parliament, and we are also equally concerned that the actual underpinning 2,750-gigalitre target is at risk as a result of some elements of the adjustment mechanism that is proposed in the second bill.

Prof. Bell : And we are additionally concerned that, even at 3,200, only 15 per cent of the South Australian environmental water environment targets are met.

Senator BIRMINGHAM: I will go firstly to the 2,750 issue and the adjustment mechanism as it relates there. Do you accept that there is any place for environmental works and measures to provide credits against that 2,750 target?

Prof. Bell : All efficiencies are to be encouraged, but we need to have a bottom line that we know meets the requirements that have been spelt out by our independent scientists—and that is when we take the politics out of it, Senator.

Senator BIRMINGHAM: Okay, Professor Bell, but it was a fairly specific question there. The proposal for the adjustment mechanism is that, if environmental works and measures are undertaken that provide for a more efficient delivery of environmental water, credits are provided against the 2,750 target. Do you accept that that is a valid way to try to achieve the target?

Prof. Bell : Do you want to answer that, Tim?

Mr Kelly : The concern we had was about how that could ever possibly be implemented to be done in an effective way. How do you measure what an environmental gain is? How do you take the inevitable discussion about what the improvements have delivered and what they have not delivered—whether an environmental gain in one part of the river actually translates through the rest of the basin? I think it is very difficult. There is so much complexity in that which has not been worked through, which has not been properly studied or looked at, that we felt that the greater risk—the way it is worded at the moment—is that it will be very much a case of arguing for the adjustment to the lower levels, which can be significant, with little opportunity or little likelihood, in our view, that we would actually be delivering more water to the river through that adjustment mechanism. We are concerned that it is a complex mechanism that does not actually start from the sound premise that we need sufficient water to deliver the environmental outcomes that are required for the river.

Prof. Bell : We would also say that the science indicates that we are in an area where we have some untested assumptions—things that have not actually been ground truthed in terms of methods—about the connectivity with groundwater and surface water. Once you start doing some of those on-farm efficiencies, you in fact start denying water through inseepage and other ways that water gets back into the system, so we would have some concerns there also.

Senator XENOPHON: Let us just cut to the chase. When the next drought hits us, whether it is next year or in two years or 10 years time, will South Australia still cop it in the neck because we are at the bottom of the river system? Will this make much difference?

Prof. Bell : According to the science, we will, Senator Xenophon, because the resilience that is needed for the bounce-back is not guaranteed in that 3,200, because we are coming off a very poor base. We need more there to give the resilience so that, in the extended dry periods—and it is part of the burden of the science, when you get down to the fine grain of it, that 3,200 is better, of course, than 2,750, but that is not enough of a buffer. It is not enough in the resilience budget for the river to actually allow it to survive another prolonged period. It will go back down again.

Senator XENOPHON: Okay.

Mr Fowler : Can I add that we are facing a 10-year delivery program with some of this expenditure, and in that time, you are quite right to point out, the likelihood—

Senator XENOPHON: To 2024.

Mr Fowler : Indeed. But the $1.8 billion for the additional 450 gigalitres is in itself a 10-year program, and you are quite right to conclude that during that time there may well be another serious drought. The concern that therefore flows from that is that, if this legislation does not tie down very firmly the commitments to the clawback of the water that is needed, then in a period of future drought the weakness of the legislation will manifest itself.

Senator XENOPHON: Okay. I am going to put this on notice: what amendments do you think will make the legislation more resilient? And I want to go to one specific issue that Mr Owen has referred to, which is what practical, pragmatic amendments there can be that at least give greater hope for that resilience in the system. I know that Ms Tregenza, in her evidence, said something about having local management. I know that Professor Mike Young, who I understand is now providing advice to the state government—and that is a good thing, given his experience—has talked previously about having local management of those water resources. It is the locals that know best, as a general rule, rather than a bureaucrat in Canberra, how you can maximise saving those environmental assets. With regard to clause 86AA(2) of the bill, which I think Mr Owen referred to, the explanatory memorandum says:

Subsection 86AA(2) provides without limiting subsection 86AA(1), examples of how environmental assets may be protected and restored … include—

and then, it goes on to say, increasing the flow of water through the Coorong; the average depth of water in the Lower Lakes; the depth of water at the mouth—all those sorts of things that relate to the mouth of the river, or the lungs of the river system. So it talks about 'examples of'. Are you concerned about the wording there? Because, if they are only examples, it is not prescriptive or directed enough in terms of dealing with those assets.

Mr Owen : Yes, that was my point. It makes a general statement there, but I think we need to be very specific. In my personal opinion, we should build in very clear triggers—environmental triggers, if you like—where, if we go above certain thresholds, water must be released. That is really where the rubber hits the road on a plan like this. If we are serious about maintaining the health of the system, we will build in serious triggers. Forget the imaginary figure. The science may be out for generations to come on some of the volume that is required. But you cannot argue with a whole lot of plants being dead. You cannot argue with all these tortoises being covered in barnacles and dying because salinity levels have gone above a certain trigger. That is the sort of precision that we need to be entertaining in this.

Senator XENOPHON: All right. Mr Fowler?

Mr Fowler : If I may just respond to your question about possible amendments, Senator Xenophon, I would suggest to you—and this will be reflected in our written submission, where we will detail the proposed changes that we would advance to try to address the problems in this particular bill—that subclause (3) of clause 86AA also needs attention, in that if it were to be reworded to say that the object of this part of the act is to be achieved by increasing the volume of base and water resources available for environmental use by 450 gigalitres through easing or removing constraints on purchasing water, that would help to clarify the purpose of the bill and confirm the aims of the expenditure that is envisaged. That could also be reinforced by an additional amendment to another clause so we can set that up.

Senator XENOPHON: If, rather than up to 450 gigalitres, which is aspirational and some would say vague—

Mr Fowler : Indeed.

Senator XENOPHON: you tied it to removing constraints, you actually have a more precise object. I have just one more question. I do not want to misrepresent Minister Burke's position, but my understanding is that when he wrote to the authority—and it is also in the second reading speech that Senator Cameron very usefully referred to—the aim here is that 95 per cent of the time it is to be four metres above sea level—

Prof. Bell : The AHD—slightly different.

Senator XENOPHON: By AHDs—thank you, Professor Bell. Yes, they are slightly different. But isn't that what is happening now and has historically? In other words, is the government's target something that is just reflecting the historical average or is it going beyond that? I just want to be fair. Is what the government is planning or aiming for something that is, essentially, already happening?

Prof. Bell : I think one of the problems that are identified in the science reviews, which we will highlight for you, has to do with the rolling average and just when that 95 per cent actually would occur; and, as we were saying, you are coming off a very impoverished base in terms of the ecological resilience of the system.

So 95 per cent of the time on a three-year rolling average with high salinities, you may in fact be put back in a position where you are dredging.

Senator XENOPHON: If you could perhaps on that as well in any supplementary submission.

Prof. Bell : I think we have highlighted it in the review.

Senator RUSTON: Would you contest that the whole debate this morning has just been an argument about the science?

Prof. Bell : I am sorry, I am having trouble hearing you.

Senator RUSTON: Would you contest that we are arguing about the science here? I think Mr Owen said that the science is not clear in relation to a number of matters. We have been talking about lots of numbers all the way through here. We have just had two years of high flow. We have had in excess of 20,000 gigalitres go down the barrages river. What has been achieved in terms of the environmental outcomes that you would have expected to have seen from this high level of water going through? Have we measured anything on the way through? Do we have any evidence to suggest that in actuality we have achieved anything rather than just talking about the Goyder Institute and the Wentworth Group, and the best available science? What have we learnt from the activity over the last two years from the high flows?

Prof. Bell : One of the things we have learnt is that we do not have the modelling that we need to answer that question. We have been asking for modelling at higher levels. Obviously, every increment you put in is going to give you a better outcome. But they jump—it is not a little step by step; it is a megajump when you go over 4,000. I draw your attention to the issue of the Coorong. In the targets that have been set and in Minister Burke's second reading speech the improvements in water quality are mentioned, but it is salinity that is being addressed. When you look at the Coorong, the water level came up because the water found its own level. But because of the way in which it was being monitored and the way the barrages were being operated, and a whole lot of micro, local conditions, we did not get the improvement in the southern Coorong that we should have got. It is still highly saline. There are a complex set of interactions between how the barrages are managed and when the flow comes through because environmental flows do not come through at the same time that irrigators' flows come through.

They are some of the things that we have learnt in the science and they are in the detail, and they are not reflected in the high-level principles and rhetorical statements about wanting better outcomes for the Coorong. We have actually learnt a number of those things very clearly and the Coorong is balanced on the knife's edge in terms of its capacity to bounce back.

Senator BIRMINGHAM: In terms of the southern Coorong, what is a reasonable target?

Prof. Bell : It is a really interesting question. It is something that Professor David Paton also is concerned about. The way I would phrase it—though I would send you to the Coorong expert, whom I would say is David—that it has to be a target that allows the ecology of the southern Coorong to be flourishing not just the briny shrimp. We have certain indicators down there like the rupia that tell us what the health of it is. We have degraded it so badly, we really do not know how much it is going to take. We know how much to bring it up to level, but we do not know how much is going to be needed to restore its health. As my colleague Peter Owen has been saying, we need to always have in mind what the targets are we are looking for and to articulate those and hard-wire those into the legislation. That is my answer to that question.

Mr Kelly : I might also add that what we have learnt is that the ecosystems do not just bounce back overnight. When the red gum forest is damaged and we lose hundreds of thousands of red gum trees, they do not just come back overnight. They are a long-lived organism. With the rupia, we do not just get back the seed bank overnight. When the seed bank is lost, it is extremely difficult to put it back. That is why we need to have the resilience in the system so that we do not lose those essential parts of the ecosystem to start with.

Senator RUSTON: In conclusion, I would contest then that it is not the amount of water that is going through the system but how you use it and when you use it.

Prof. Bell : We do know that there is a bottom line to that.

Senator RUSTON: There is a bottom line from a benchmark. The amount of water that is in the river goes up and down every single year. It is not like we are starting from zero. We are starting from whatever it happens to be in that year. It is how you manage the water that is available within that particular year and every subsequent year that is going to give you the outcome as opposed to a number. I contest the best available science should not be predicated on the number.

Prof. Bell : I would say that you cannot have a binary system on this. It is not either or; it has got to be a very well-calibrated, constantly monitored set of adjustments of one against the other, and we have to have real-time monitoring. It has to be open and transparent, and that is not there at the moment. There has to be a consequence for not meeting those targets.

Mr Owen : I agree with that. There is little doubt we have gone way beyond what is sustainable in terms of the amount we are sucking out of the river system, and that needs to be addressed and that is what I am concerned we are not addressing. Backing that up, we need real-time monitoring and triggers and very clear indicators built right through the system such that, if this species is essentially declining rapidly or if this mouth is closing over or reaching certain levels, water must be released. That is the level of precision that we need in this river system, and if we fail to do that we are kidding ourselves.

CHAIR: I think you have mentioned the second reading speeches I did earlier and the correspondence from the minister to the Murray Basin authority. I suppose what government has to do is get to a situation of delivering what is achievable. I have not heard any discussion about what is politically achievable in terms of moving this forward. When I was a union official, there were plenty of times I wanted a perfect outcome but you had to make some concessions that you may not get it this time round, so you make a decision to stage your claim. Is there no basis that this could be a staging post for an analysis of where we are and then moving forward sometime in the future?

Prof. Bell : Are you asking us to give you political advice?

CHAIR: No, I am asking for some practical advice. You cannot just come here as experts on the environment and not take into consideration the political situation. That is the reality, and I am sure you accept that.

Prof. Bell : I think the environmental story—I am an anthropologist—has to be told as a compelling story for the Australian population and I would say that that is partly your job with this plan, with these amendments, to explain to the Australian population why it is in their interests as a nation to invest in a plan that is based on best science. It is our job to keep on telling you what that best science is, and that if you do not deliver that you are short-changing our society. You are our politicians. You are the people who ultimately make those pragmatic decisions. We are here to advocate for the best science that will put you in the best position to make the best possible plan for the future of our nation.

CHAIR: And if that is not politically achievable?

Prof. Bell : I would say you have not crafted the best story.

CHAIR: I am glad I am not asking you for political advice. That is why you are a scientist.

Mr Kelly : Several weeks ago when the excess of up to 3,200 commitments were announced we said that this was not the time to jump for joy. Ultimately, this does not meet the objectives of the Water Act in dealing with the overallocation problem. What we are saying is: 'Call a spade a spade.' Yes, 3,200 is an improvement. It does not actually get to meet the objectives of the act. It does not deal with the overallocation problem. Part of this is going to stay on for the next generation to deal with and to be dealt with as a result of future droughts, so we just need to be very aware of that. If, in the political space, everybody said, 'Right, we've got a plan. The plan is done. We've locked in certainty for the next 15 or 20 years,' I think that would be very disappointing and quite misleading, because I do not think we have achieved it yet.

CHAIR: You are saying you must have a plan now that meets the science. This is an improvement on where we are—does anyone disagree that this is an improvement on where we are?

Mr Fowler : One of the great difficulties here is that we have a unique and possibly once in lifetime opportunity to try to resolve the problems of the basin after 100 years of failed effort.

CHAIR: I do not think we have. My view would be that this is not a once in a lifetime opportunity. That is a judgement that people have to make.

Mr Fowler : I say that in the sense that as a result of the legislation that was passed by the previous government, the coalition, in a form that uniquely in terms of environmental legislation states in its very early provisions—in section 23—that the whole focus of the plan to save the basin is based on ascertaining what is environmental sustainable and that then the socioeconomic consequences will need to be assessed. That is a unique piece of legislation. We have an opportunity through this plan that has not presented before to deliver that.

CHAIR: Was that the Howard $10 billion plan?

Mr Fowler : Yes, the $10 billion.

Senator BIRMINGHAM: And the Water Act.

Mr Fowler : I am referring to the Water Act and the money that sits with it. That is a unique opportunity. In order to deliver on that legislation there is a need for considerable fortitude on the part of the political community, if I can put it that way. And, yes, there are great difficulties, as there always are in dealing with ecosystems that are on the verge of collapse. And there will be very strong opposition from people with very strongly held views.

CHAIR: My simple point to you was, 'Is this an improvement on where we are at the moment?'

Mr Fowler : It may not be if it does not have the guarantees in there that are necessary in terms of the amount of water to be restored to the system to ensure its ecological long-term wellbeing. The further point that I would make on a comment that you made earlier is that the social and economic wellbeing of that system will ultimately depend on its ecological capacities—that is a given. That is reflected, as I said, in the legislation. These are very difficult challenges and it is very hard for people who are facing cutbacks in their irrigation allocations to see it from that perspective. But the ecosystem will direct the outcome in the end if we do not get it right this time.

CHAIR: So you are saying that it may not be an improvement, because there are no set targets. You are the lawyer. You understand the effect and force that second reading speeches have, don't you?

Mr Fowler : Absolutely.

CHAIR: If there is a disagreement about the interpretation, you can go to the second reading speech.

Mr Fowler : Yes. If you want to talk about principles of statutory interpretation, I would be delighted to engage you. But I can assure you that the second reading speech is only one part of a much richer tablet.

CHAIR: What we will have will be legislation, the second reading speech and a letter to the department that will contain the targets. You are saying that it needs to be beefed up in the legislation.

Mr Fowler : Absolutely. The plain language of the legislation cannot be rewritten by a second reading speech. It is only if there is some doubt.

CHAIR: I do not think that the second reading speech does this. Let me come to my point. If changes were made that specified those targets in the legislation, would you then say that this is an improvement on where we are at the moment?

Mr Fowler : I would have to, in a sense, consult with my colleagues. But if we were assured that the overall return to the system was close to 3,200 gigalitres or was 3,200 gigalitres that would not doubt be an improvement. Whether that would be sufficient, for all the reasons that we have given, to achieve the long-term ecological sustainability of the system we would still question. But it would be an improvement.

Senator BIRMINGHAM: It is already very close to that.

CHAIR: You have had your go, Senator Birmingham.

Senator BIRMINGHAM: What is the point, Chair?

CHAIR: I will live without knowing that. On the points that have been laid out in the correspondence and in the second reading speech, you believe that if they were written into the legislation it would be an improvement. Is that the conclusion that you have come to?

Mr Fowler : We are not satisfied that the 3,200 gigalitre target will meet the needs of the system. In that sense, whether and to what extent it is an improvement remains open in our view.

If you are seeking an endorsement of that, it is a very qualified one. In the sense that—

CHAIR: I am not seeking an endorsement. I am just asking a practical point: would it be better to have the reduced salinity and the greater depths at the Murray mouth? That is all I am asking. Is this a step in the right direction? I think that is a simple question. I am not asking for a scientific analysis or an environmentally pure analysis. I am simply asking; is this better?

Mr Owen : It is clearly an improvement on the current draft bill in front of us. The big picture that we are trying to express here is still one that we need to treat really seriously. If we were to reduce by 2,750 or 3,200 gigalitres, and it was within the next couple of years, that would be a very different question, again. Generations into the future will have a much better understanding of what the climatic system really is that we are dealing with across much of the Murray-Darling Basin. Probably within the next three or four years we will know whether that last drought was a blip or whether it was, unfortunately, a new reality. If it is a new reality then this plan is not worth the paper that it is written on. There are a lot of factors like that which we are trying to express here. I understand that you are trying to get some very clear things. I think that it is fair to say that some more specifics in this particular bill are a positive step. However, the big picture and the context needs to be there.

CHAIR: Thanks for that. It has been a good discussion.

Senator McKENZIE: I am just letting you all know that I have put questions on notice that I would really appreciate your responses to.

CHAIR: Do you want to put it on notice now? Or are you right?

Senator McKENZIE: Yes. I would love each of the organisation's responses to the River Lake and Coorong Action Groups comments around the best ways to spend the $1.77 billion, and their commentary that it would be through buybacks. I would like each of your organisation's perspectives on that comment. I would also like to know from each of your perspectives: if 3,200 gigalitres is not enough, what is? Is there a way to deliver more than 2,750 gigalitres without constraint removal? Obviously, I am a Victorian senator, so that is of particular concern to my state and my constituents. Do you have an opinion about the social and economic impacts being added to the objects of the bill? That is another thing I would like to know. Also I would like to have your commentary around diminishing returns. I know the difference between optimisation of something versus maximisation. Thus far, the modelling we have seen says diminishing returns, and I would like some commentary around that from each of you.

Senator XENOPHON: Subclause 86AA(2) refers to examples of environmental assets being protected. From a scientific basis—I am not asking for political advice; I get my political advice from Senator Cameron—is it your view that if you fix up those assets in the Coorong and Lower Lakes, it will axiomatically mean that the health of the entire river system will be better? In other words, if that section is healthy does it follow scientifically that the rest of the river will be healthy by virtue of fixing up the lower end of the river system? Could you take that on notice please?

CHAIR: It has been a very interesting set of submissions. Thank you very much. I welcome Mr Jonathan La Nauze, from the Australian Conservation Foundation.