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Murray-Darling Basin Commission of Inquiry Bill 2019

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2016-2017-2018-2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

MURRAY-DARLING BASIN COMMISSION OF INQUIRY BILL 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Hanson-Young)

 

 



MURRAY-DARLING BASIN COMMISSION OF INQUIRY BILL 2019

 

OUTLINE

 

The Murray-Darling Basin Commission of Inquiry Bill 2019 seeks to establish a commission of inquiry into the Murray-Darling Basin to investigate:

·          misconduct;

·          the legislative and administrative framework for implementing, managing, and enforcing the Basin Plan;

·          the impact of its implementation on the environment, agriculture, and river communities;

·          adverse effects of the legislative and administrative framework on water management;

·          allocation of funds to implement the Basin Plan, and their impact on environmental watering; and

·          the impact of climate change on Basin water resources and adaptation measures.

 

This is in response to the findings of the South Australian Royal Commission, which was limited in its scope by the lack of co-operation from other Basin States and the Commonwealth. There have also been allegations of fraud and misconduct, and repeated warnings from scientists that the Murray-Darling Basin Plan does not meet environmental requirements.

 

NOTES ON CLAUSES

 

Clause 1: Short Title

 

1.                        Clause 1 is a formal provision specifying the short title of the Bill.

 

Clause 2: Commencement

 

2.                        Sections 1 and 2 will commence the day this Bill receives the Royal Assent. Sections 3 to 18 will commence the day the Consolidated Revenue Fund is appropriated to fund the Murray-Darling Basin Commission of Inquiry.

 

Clause 3: Simplified outline of the Act

 

3.                        This clause simply expresses that the aim of the Bill is to establish the Commission of Inquiry with equivalent powers to a Royal Commission.

 

Clause 4: Act binds Crown

 

4.                        This clause provides that the Act binds the Crown.

 

Clause 5: Definitions

 

5.                        This clause lays out definitions for several terms used throughout the Act.



6.                        Basin state , Basin water resources and public agency all carry the meanings provided for in the Water Act 2007 . Commission is shorthand for the Murray-Darling Basin Commission of Inquiry that the Act establishes, and Commissioner is the appointed Commissioner of the Commission of Inquiry. President and Speaker refer to the presiding officer of the respective houses of Parliament, while a legal practitioner can be a barrister, solicitor, barrister and solicitor, or a legal practitioner of the High Court or State Supreme Court. A State can include the Australian Capital Territory or Northern Territory for the purposes of this Act.

 

Clause 6: Establishment of a Commission

 

7.                        This clause establishes the Commission, provides for the appointment of a Commissioner, and requires that the Commissioner must be, or have been, a Judge.

 

Clause 7: Terms of reference

 

8.                        This clause sets out the terms of reference for the Commission of Inquiry. It details the areas which the Commission may consider.

 

9.                        Paragraph (1)(a) in conjunction with subclause (2) establishes that the Commission has the capacity to investigate wrongdoing. Subclause (2) adopts part of the definition of corrupt conduct found in section 9 of the Independent Commission Against Corruption Act 1988 (NSW) . This makes it clear what conduct may be investigated as ‘misconduct’.

 

10.                    The remaining paragraphs of subclause (1) establish further terms of investigation, based on concerns set out by the South Australian Royal Commission, the Productivity Commission, communities, scientists and ecologists, as well as former Murray-Darling Basin Authority staff. These include impacts on the environment, agriculture, river communities, the role of climate change, and the allocation of Commonwealth funds and their impact on environmental watering.

 

11.                    Subclause (3) provides that the Commission can investigate a particular matter until it is comfortable that it has been exhausted or will be dealt with appropriately by another process. This allows the Commission to remain cognizant of other inquiries, proceedings, and criminal and civil proceedings.

 

12.                    Finally, subclause (4) provides the Commission with the discretion to prioritise the investigation of matters according to their potential for harm.

 

Clause 8: Report to the Parliament

 

13.                    This clause sets out the reporting guidelines for the Commission, including a timeline and the discretion available to exclude details which may affect a fair trial, prejudice an investigation, or unnecessarily expose a confidential source of information relating to law enforcement. These details are designed to ensure that the report is not compromised by inappropriate disclosure.

 

14.                    The report, once tabled, must be responded to by the Minister within six months.



Clause 9: Hearings

 

15.                    This clause provides for the discretion of the Commission to determine the number, location and procedure at hearings.

 

Clause 10: Commission not bound by the rules of evidence

 

16.                    This clause establishes that the Commission may inform itself in any manner it sees fit, rather than abiding by the usual rules of evidence.

 

Clause 11: Application of the Royal Commissions Act 1902

 

17.                    This clause establishes that the Commission will have all the powers and protections afforded to a Royal Commission.

 

Clause 12: Application of Commonwealth laws

 

18.                    Following on from clause 11, this clause establishes that Commonwealth law applies to this Commission as it would to a Royal Commission.

 

Clause 13: Remuneration and allowances of Commissioner

 

19.                    This clause authorises the Remuneration Tribunal to determine remuneration for the Commissioner and, failing that, makes provisions for the Commissioner to receive the remuneration set out in the regulations made under this Bill, unless the Commissioner is still being remunerated as a Judge.

 

Clause 14: End of a Commissioner's appointment

20.                    This clause establishes that the appointment of the Commissioner may end in one of two ways, either by the conclusion of his/her responsibilities under clause 8, or if the Senate passes a resolution to terminate his/her appointment. This means that the Commissioner may only be removed without concluding his/her responsibilities with the agreement of the Senate; protecting the work of the Commissioner but also creating an accountability mechanism.

 

Clause 15: Staff of the Commission

21.                    The clause gives power to the Commission to determine its staffing needs and the employment conditions for these requirements.

 

Clause 16: Legal and financial assistance

22.                    This clause sets out the circumstances in which the Commission may grant assistance to persons appearing before the Commission. This means that hardship should not be a limiting factor in the Commission gathering the information it requires.



Clause 17: Commission may communicate information

23.                    This clause establishes that during the course of its inquiry, the Commission may disclose detail to any public agency with responsibility for water management, including the Murray-Darling Basin Authority, about a failure to comply with the law. This means that action to remedy any failure does not need to wait until the Commission reports its findings, and can begin to be acted upon concurrently.

 

Clause 18: Regulations

24.                    This final clause is an enabling clause that gives the Governor-General the capacity to make regulations prescribing matters according to the Act or which are necessary or convenient to carry out this Act.

 



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 

Murray-Darling Basin Commission of Inquiry Bill 2019

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

This Bill seeks to establish a commission of inquiry into the Murray-Darling Basin that reports to Parliament on particular matters.

 

The Bill responds to findings of the South Australian Royal Commission, which was limited in its scope by the lack of co-operation from other Basin States and the Commonwealth. There have also been allegations of fraud and misconduct and repeated warnings from scientists that the Murray-Darling Basin Plan does not meet environmental requirements.

 

Human Rights Implications

 

This Bill engages the legal rights of witnesses who are summonsed to appear as witnesses or surrender documents or information to the Commission. All the relevant protections afforded to witnesses in Royal Commissions are replicated by this Bill.

 

Evidence that threatens the safety or reputation of a witness, exposes the identity of a confidential source, affects a fair trial, or prejudices an investigation, shall not be publicly disclosed in the report of the Commission. Similarly, the Commission has the power to hold private hearings to ensure the rights of witnesses are protected.

 

The establishment of the Commission ensures that those who have undergone hardship due to the fact or implementation of the Plan will have access to justice and a platform from which to pursue their rights.

 

As such the Bill does not infringe any of the applicable rights or freedoms.

 

Conclusion

 

This Bill is compatible with human rights.

 

 

Senator Sarah Hanson-Young