High court asked to block SA royal com­mis­sion from call­ing wit­nesses

The Guardian Australia - - Front Page - Anne Davies

In a ma­jor test of states’ pow­ers to hold royal com­mis­sions that touch on fed­eral is­sues, the com­mon­wealth govern­ment and the Mur­ray Dar­ling Basin Au­thor­ity have sought an in­junc­tion to pre­vent their staff giv­ing ev­i­dence to the South Aus­tralian royal com­mis­sion into the Mur­ray Dar­ling.

The high court has been asked to rule on whether a state royal com­mis­sion can com­pel tes­ti­mony and doc­u­ments from the com­mon­wealth.

The com­mon­wealth and the au­thor­ity filed doc­u­ments in the high court on Tues­day seek­ing an in­junc­tion to pre­vent the SA com­mis­sioner, Bret Walker SC, from tak­ing ac­tion on the sum­monses is­sued to cur­rent and for­mer fed­eral staff.

Staff and for­mer staff at au­thor­ity and the agri­cul­ture de­part­ment have been di­rected not to re­spond to the sum­monses and not to hand over doc­u­ments.

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The plain­tiffs are also seek­ing dec­la­ra­tions that the SA royal com­mis­sion does not have au­thor­ity to re­quire an­swers, or de­mand the pro­duc­tion of doc­u­ments by fed­eral em­ploy­ees.

The high court sum­mons names the sec­re­tary of the agri­cul­ture de­part­ment, the the chief ex­ec­u­tive of the au­thor­ity, Phillip Glyde, and two se­nior staff who have re­ceived sum­monses, but seeks an or­der re­lat­ing to all for­mer and cur­rent staff.

The move will fur­ther in­flame ten­sions be­tween the states and the fed­eral govern­ment over the Mur­ray Dar­ling Basin plan.

It will also be an im­por­tant prece­dent on the limit of the states’ pow­ers to in­ves­ti­gate is­sues in an era where im­por­tant pol­icy mat­ters are of­ten the sub­ject of co­op­er­a­tive reg­u­la­tion be­tween the states and com­mon­wealth.

In the case of the basin plan, the com­mon­wealth took on the role of over­all pol­icy co­or­di­na­tion and in­for­ma­tion col­lect­ing, while states re­tained the power to en­force lo­cal wa­ter plans and ad­min­is­ter wa­ter li­cences.

But states largely de­pend on the com­mon­wealth to know how the over­all plan is work­ing.

For example, the in­for­ma­tion about en­vi­ron­men­tal wa­ter pur­chases and how it is used to help the river sys­tem is held by the com­mon­wealth.

The SA royal com­mis­sion is try­ing to in­ves­ti­gate as­pects of the Mur­ray Dar­ling Basin plan, in­clud­ing whether en­vi­ron­men­tal out­comes are be­ing re­alised, par­tic­u­larly those that di­rectly af­fect SA at the end of the river sys­tem.

Coun­sel as­sist­ing the SA in­quiry, Richard Beasley SC, said the South Aus­tralian govern­ment in­tended to ap­pear to ar­gue the mat­ter, with Walker tak­ing a sec­ondary role.

“Un­til there is a de­ci­sion the com­mis­sioner is not go­ing to en­force the sum­monses,” he said. “But they are not with­drawn.”

The royal com­mis­sion is due to hold its first hear­ings on Mon­day.

South Australia and the com­mis­sioner have 14 days to file a de­fence. As yet there is no hear­ing date.

A spokesman for the MDBA said: “The com­mon­wealth and MDBA’s view is that the royal com­mis­sion can­not com­pel the com­mon­wealth or the MDBA to pro­vide doc­u­ments or give ev­i­dence.”

“The de­ci­sion to com­mence these pro­ceed­ings is not about wa­ter re­sources, the con­tent of the Wa­ter Act 2007 or the con­tent and im­ple­men­ta­tion of the basin plan. There are broader mat­ters at play here. It is not ap­pro­pri­ate to com­ment fur­ther at this time,” the spokesman said.

The Dar­ling river. The Mur­ray Dar­ling Basin Au­thor­ity and the com­mon­wealth govern­ment want to stop their staff from be­ing com­pelled to give ev­i­dence at the South Aus­tralian royal com­mis­sion into the Mur­ray Dar­ling. Pho­to­graph: Mike Bow­ers for the...

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