Commonwealth and Murray Darling Basin Authority want to stop staff from having to give evidence

This article is more than 2 years old

This article is more than 2 years old

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.

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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.