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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.
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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.
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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.
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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.
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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
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