Among the more sensational findings of the Murray-Darling Basin Royal Commission was that the authority responsible for administering the plan acted unlawfully and failed to use the best available science, including climate science.

The inquiry's report, handed down this week, marked an extraordinary chapter in the Murray-Darling Basin's controversial and contested reforms, and revealed much about the messy way in which water and climate law, science and politics interact.

Restoring public trust in the governance of the basin is increasingly urgent.

The inquiry's finding that the Water Act's worthy ambitions were unlawfully compromised by the negligence and maladministration of the Murray-Darling Basin Authority (MDBA) — documented in over 700 pages of forensic legal detail — deserve to be treated seriously.

Commissioner Bret Walker (and his team) has delivered an intensely detailed yet readable study that provides rare clarity on the intricacies of Murray-Darling water policy.

It should be widely read by those interested in the basin, in Australian history and the evolving nature of our Federation.

MDBA staff blocked from inquiry

An aerial view of the Murray River in South Australia. ( ABC News: Carl Saville )

As a former senior executive at the MDBA, I have a deep personal interest in the royal commission findings and recommendations.

During the Basin Plan's development I was responsible for scientific risk assessments, climate science and the systematic assessment of ecosystem health.

I quit in late 2012 and now make most of my income as an irrigation farmer (outside the Basin) and occasional consultant.

I was the only former MDBA senior executive to provide evidence to the royal commission, while the Commonwealth refused participation in the inquiry, and blocked current MDBA staff from attending.

My evidence concentrated on my concerns about failures to adequately address climate change risks in the Basin Plan. The matters I raised are reflected accurately in the commission's report. More importantly I hope the report will catalyse significant government responses to rectify the problems.

A cascade of scandals

The royal commission is one of several inquiries into the integrity of governance in the Murray-Darling triggered by ABC's Four Corners report, Pumped: Who is benefitting from the billions spent on the Murray-Darling?

Since then a cascade of scandals has eroded public confidence and governments have been losing the trust, authority and legitimacy needed to govern the Basin.

These inquiries document numerous failings of governance.

However, the SA royal commission report provides the most comprehensive documentation on what underlies the deep crisis of legitimacy.

Drawing on countless testimonies, it focuses in exquisite detail on the intricate legalities of the Basin Plan, raising substantive policy, legal and scientific concerns.

Legality, science and politics

The royal commission report details complex interactions between law, science and public policy processes, revealing much about how history and power frame contemporary water and climate politics.

The Water Act (2007) marked a significant increase in the use of Commonwealth power over the Murray-Darling Basin. Its source of power over state law is based on the Constitution's external affairs powers that derive from international treaties, like the Ramsar Treaty on conservation of wetlands.

As a result it clearly prioritises the environment and objectives of restoring riverine ecosystems.

A map of the Murray-Darling Basin in Australia. ( ABC News: Ben Spraggon )

The Water Act required that the MDBA draft a Basin Plan that ensured Australia met its environmental obligations, including by setting a Basin-wide sustainable diversion limit (SDL) that restored the environment. Disturbingly, the inquiry found that the MDBA ignored this requirement, instead adopting a "triple bottom line" policy concept (slogans) giving undue weight to economic and social outcomes.

It found that contrary to legal requirements, "the MDBA failed to act on the best available scientific knowledge", and that "politics rather than science ultimately drove the setting of the Basin-wide SDL and the recovery figure of 2,750 gigalitres."

The commission also found the MDBA's failure to incorporate climate science was "negligent", "indefensible" and "unlawful" ignoring the best available scientific knowledge arising from CSIRO's Sustainable Yields Project, and the South Eastern Australian Climate Initiative.

These predicted the Southern Basin "will get warmer, and drier, likely resulting in significantly less run-off … significant warming in the Southern Basin … and a significant if not catastrophic reduction in run-off."

Ignoring this and relying instead on "historical climate data from 1895–2009 was not only unlawful and against the advice of the CSIRO in 2009, it was and remains an indefensible decision from a policy perspective."

Dereliction of duties

In no uncertain terms, the commission states that the failure to incorporate climate change projections into the SDL "demonstrates ongoing negligence by the MDBA".

The 746-page report of the Murray Darling Basin Royal Commission. ( ABC News )

"It is a dereliction of its duties. It is not just indefensible, but incomprehensible. It is in breach of the MDBA's obligation to perform its functions."

The commission identified Australia's deeper policy malaise of diminishing funding for climate research by the Commonwealth, arguing this is significantly detrimental to the Basin Plan.

To overcome this, the commission recommends that the Commonwealth urgently establish an independent Climate Change Research and Adaptation Authority, which will be appropriately funded to conduct research and formulate guidance on adapting to climate change.

Importantly, it calls for a "review of climate change risks to the whole of the basin, based on the best available scientific knowledge" and a comprehensive basin-wide environmental monitoring program, based on the Sustainable Rivers Audit.

Nothing to be gained from secrecy

Government obfuscation and "secrecy" has been a recurring theme of the MDB controversy. Reforms to restore trust need to be based on ending secrecy and adopting fully transparent approaches.

The commission is strident in its advocacy for full disclosure, arguing that this matter is of such public and scientific interest that full disclosure is desirable, necessary and a legal requirement of the Water Act.

Full disclosure is required because nothing proper is "to be gained from secrecy concerning the preparation or implementation of the Basin Plan".

Use of the best available scientific knowledge "requires knowledge available to all, not kept secret by the MDBA" yet "the modelling that informed the Basin Plan" has not even been made available to the basin states.

The commission argues that the MDBA's non-disclosure is indefensible. The "MDBA's aversion to proper disclosure, and its reluctance to foster scientific scrutiny, is one reason why the objects and purposes of the Water Act and Basin Plan are unlikely to be achieved. It is unacceptable for a publicly funded, science-based authority with the functions of the MDBA to shield itself from external scientific scrutiny".

Restoring confidence — where to next?

Restoring trust requires institutional reforms including more openly sharing information — with the public, with stakeholders and with partner governments.

Governments need to commit to radical transparency, actively engage communities, research and educational institutions in oversight, and harness citizens' surveillance to prevent any abuse of power.

This requires social organisation that uses the media and our democratic checks and balances for determining, discovering and verifying the truth.

The SA royal commission should be celebrated as one disciplined and public way of attempting to do this.

Australia's system of representative and responsible government requires full disclosure from all water agencies because the "Basin Plan involves huge expenditure of public funds … implemented by the servants of the public. Their work should be available for scrutiny by the public, including the scientific community, who are then able to critique such work, assist in checking it for both scientific validity and lawfulness".

Where will this detailed report about the legalities in using science to inform water policy take us?

Probably to more inquiries — there is already talk of a Commonwealth royal commission. But such suggestions locate blame and do not necessarily result in needed reforms.

Rectification of the problems identified by the SA inquiry requires either amendments to the Plan, or to the Water Act, or both.

A core question is, do our political parties have the appetite to re-prosecute debates about the basin reforms?

Legal challenge unlikely

The commission rightly identifies that a legal and/or constitutional challenge is most unlikely given that water law in "Australia has largely avoided the litigious bitterness and economic strife … of the United States of America."

We need to rectify the problems that are legal, environmental and part of our federation. We need to pragmatically make Australia's co-operative federalism work rather than perpetuate blame games and the short-term rivalry and self-interests of the states.

South Australia's legitimate interest needs to be recognised, because it would be naive "not to acknowledge the continuing upstream-downstream tensions affecting … future stewardship of the Basin's water resources".

The way we resolve the issues raised by the royal commission go to the heart of the way we live in this continent. They also demand that we confront the challenges of the climate change future.

These involve critical choices for our federated system of government and our modern discursive democracy.

For the sake of our rivers and for future generations, I hope we have the courage to face these challenges in ways that draw together leadership and the best policy and science-based options.

Natural resource consultant Jason Alexandra was an executive at the MDBA during the development of the Basin Plan, with responsibilities for climate and ecosystem science.