Please let me welcome guest columnist Josephine Kelly, a friend of mine who has had an extensive practice at the Sydney Bar in Land and Environment Law. Her article on water use was published in the Australian Financial Review on the 16th November. It is well worth reading as is another recent article she wrote for The Australian called Climate change sceptics lose battle as onus of proof shift.

No political party or Independent member in the Federal parliament is being honest with the people of the Murray-Darling Basin and the Australian public. The Water Act puts the environment first when allocating water in the Murray-Darling Basin. Social and economic considerations are not relevant to deciding how much water the environment needs. Water available for human use is what is left.

That is why the reductions in allocations for human use published by the Murray-Darling Basin Authority (the MDBA) in its Guide, were so large, and will be in the final Plan, unless the Act is amended. But Federal politicians, Government, Opposition, and Independents, are going along with Minister Tony Burke’s “triple bottom line”, that environmental, economic and social considerations are central to the legislation.

Minister Burke has implicitly acknowledged that social and economic considerations are not relevant when determining the water allocation for the environment. When he tabled legal advice in the House of Representatives on 25 October 2010, he said that the Act provides for the establishment of environmentally sustainable limits on the quantities of water that may be taken from the basin water resources, and subject to those limits, the Act maximises the net economic returns to the Australian community.

The legal advice he tabled also indirectly acknowledged that reality. That advice, entitled “The Role of Social and Economic Factors in the Basin Plan”, begins: “This paper examines the ways in which the Murray Darling Basin Authority and the Minister are required to take into account social and economic factors in developing and making the Basin Plan, and the relationship between social-economic factors and the implementation of international environmental agreements.

Critically, the Minister’s legal advice did not consider when social and economic factors are not to be taken into account. Section 23 says that long-term average sustainable diversion limits (water for human use) “must reflect an environmentally sustainable level of take”. The advice says that s 23 requires the MDBA and the Minister to determine the “key environmental assets” that have to be sustained. It then gives an example of how the object of optimising economic, social and environmental outcomes could be relevant to deciding what are key environmental assets: “The MDBA and the Minister could not identify an environmental asset as key if this was not necessary to achieve the specific requirements of the Act and would have significant negative social and economic effects.”

In other words, if an environmental asset is necessary to achieve the Act’s specific requirements, all of which relate to the natural environment, it will be a key asset, and social and economic considerations are not relevant.

The advice does not consider the next step required by section 23, the determination of the water allocation necessary to ensure those assets are not compromised. That is consistent with its limited scope of only considering when social and economic considerations are to be taken into account. They are not to be taken into account when deciding the water allocation for the environment. The advice summary says: “… where a discretionary choice must be made between a number of options the decision-maker should, having considered the economic, social and environmental impacts, choose the option which optimises those outcomes.” Section 23 is not discretionary. There are no options when determining the water the environment needs. The environment is the only consideration.

It would be irresponsible for the MDBA to proceed, and for Tony Burke and the Government to allow it to proceed with the preparation of the Plan, taking into account social and economic considerations when deciding the water allocation for the environment. The validity of a Plan prepared on that basis would be open to legal challenge – successfully in my view.

Tony Abbott’s Opposition apparently cannot admit that legislation enacted by the Howard Government gave priority to water for the environment.

Josephine Kelly is a Sydney barrister.