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Legislative Council - Fifty-First Parliament, Third Session (51-3)
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Parliamentary Committees

NATURAL RESOURCES COMMITTEE: DEEP CREEK

Adjourned debate on motion of Hon. R.P. Wortley:

That the report of the committee on Deep Creek Revisited: A Search for Straight Answers be noted—

To which the Hon. S.M. Kanck has moved after the words 'be noted' to insert the words 'and this council condemns those officers of the Department of Water, Land and Biodiversity Conservation who either misled the committee and therefore the parliament, or who failed to provide requested information to the committee'.

(Continued from 15 October 2008. Page 327.)

The Hon. SANDRA KANCK (22:36): Tonight I am going to complete the speech that I started about a month ago. A document entitled 'Hydrological and hydrogeological response for parliamentary inquiry' prepared by Theresa Heneker some time in 2005 eventually came into the committee's possession. Unfortunately, this was well after the committee had tabled its first report on Deep Creek. What was interesting about this paper was that much of the information provided to the committee at the interagency presentation in March 2007 appears to have been sourced from this paper, but we got a very censored and distorted version. I will quote from Heneker's report:

Most current studies now readily concede that plantation forests...significantly increase the interception and evapotranspiration losses from a catchment. This in turn leads to a reduction in surface water flow leaving the catchment. Plantation forests also have the capability to...reduce groundwater recharge...

It is highly likely that forestry has changed the timing and quantities of stream flow, in particular, within the Upper The Deep Creek subcatchments, which would explain many of the changes in hydrology that have been observed...

However, forestry is not the only land use... to have altered the hydrological regime within the catchment...The lack of stream flow records makes it difficult to quantify run-off volumes from the catchment under any of the native vegetation, grazing or forestry land uses.

Commenting on non-permanent stream flow, Heneker recognises that 'for flows to continue through the summer months (as base flow), water must be stored elsewhere within the catchment', and she accurately postulates that, in the Deep Creek catchments, it would be the peat swamps that absorb winter rainfall and slowly release it through summer. She says:

Forestry has likely impacted on these swamps and hence base flow in two ways:

1. A reduction in the generation of run-off from the catchment may have effectively 'starved' the peat swamps of their full recharge amounts previous [sic] received under pasture conditions. This could potentially reduce the periods of flow from the catchment and will be most noticeable in years of below average rainfall.

2. Forest plantations are located immediately adjacent to a number of swamps and the additional extraction of soil water by these trees may lead to a more rapid depletion of the water stored within these swamps over the summer period.

With regard to Foggy Farm and the swamp located within this area, it is agreed that forest plantations have significantly affected flows from this small area within Upper The Deep Creek subcatchment.

And I note Theresa Heneker's word 'significantly'. So, she creates a very clear picture of forestry having a huge impact on water uptake. This information was in the possession of DWLBC officers more than 12 months ahead of their presentation to NRC. Why did they fail to disclose it?

I suggest that it is because they knew it did not fit their arguments. When departmental officers appeared before the committee they spent a great deal of time attempting to convince us that the problem of the decline of watercourses was due to more farm dams and decreasing rainfall.

What did Heneker have to say about rainfall? She had a number of figures in her report. At figure 8, which was annual rainfall totals and variability at Parawa from 1948 to 2003, it states, 'Shows only a very slightly decreasing trend in annual totals.' At figure 9, which was winter rainfall totals and variability at Parawa from 1948 to 2003, it states, 'There is no overall trend in the winter totals.' In other words, it was steady. At figure 10, the summer rainfall totals and variability at Parawa from 1948 to 2003 she suggests had a decreasing trend although, as I read the graph, that trends downwards over a 50-year period by a drop of only 10 to 15 millimetres, and that would hardly account for the loss of flow in the Foggy Farm area. Heneker observes that drier decades similar to those since the 1970s have occurred previously and, although she does not make the next connection, it does beg the question then as to why, in the 1990s, Foggy Farm dried up when it had not, in those earlier decades.

In March 2007, Mr Darryl Harvey told the committee, 'A decline in rainfall has been noted,' but he failed to tell us that it was only a 10 to 15 millimetre loss of summer rainfall over a 50-year period and that the other measures were basically steady. When I asked Mr Harvey to tell us how some of the historical rainfall records related to creek flow he said, 'We do not really have an understanding of that. We just do not have the baseline data.' Given that, why did he and others so strongly assert that the committee's conclusions in its first report were wrong?

When I pointed out to Mr Harvey that in 1992, the first year in which stream flow began reducing, there was record rainfall, he then tried to make the connection between rainfall and dams. I say this was pure effrontery to the committee because, having tried to tell us that dams were one of the major impacts, he immediately said, 'We do not know the level of dams at that point.' So, having told us that they did not have the baseline data on creek flow, they then compounded the lack of knowledge in regard to the presence of dams and then had the hide to tell the committee, using the minister as their mouthpiece, that we were wrong.

In response to questioning from the presiding member, Mr Harvey admitted that their estimates about dam numbers and capacity could be out by 50 per cent, and the impact of forestry could be out by 33 per cent. Yet, despite these admissions, Mr Harvey and his partners in crime were resolute in advising the minister that forestry was not the cause of the stream flow cessation and that dams and lower rainfall were.

The committee was perplexed about the department defending pine forests rather than diversity. It seemed to be acting as an agency for Forestry SA and not DWLBC. As we say in the report summary, committee members were concerned that officers from DWLBC appeared to be arguing the case for Forestry SA. This is inexplicable given that DWLBC was established 'with an objective to improve sustainability through the integration and management of all the state's natural resources and to achieve improved health and productivity of our biodiversity, water, land and marine resources'. There is nothing in there that says it is supposed to support and maintain forestry in this state. There is nothing that could even be interpreted to mean that.

By the time these officers appeared again before the committee in May of this year, at the committee's behest, another paper had passed through the system. This is another one that the committee obtained only recently. Dated 16 July 2007, it was sent by someone called Ashley Greenwood, Program Manager, Hydrology, National Water Initiative and addressed to the Principal Policy Adviser, who I take to be Mr Darryl Harvey, who appeared at the hearing in March 2007 and the three hearings in May of this year. That paper was a delighted response to the committee's report on Deep Creek, and it begins:

The report contains 10 recommendations that vindicated the recent technical advice provided by the Department to PIRSA, NRM boards, and community forums...regarding the management of plantation forestry impacts on water resources.

She or he goes on to give this updated assessment:

Specific areas within the UDC sub-catchment heavily developed with plantation forestry substantially exceed the 25 per cent sustainable use limit guideline at a sub-catchment and property scale. Foggy Farm is an example of this. The Foggy Farm property contains 82ha of forestry development. This would not comply with recent DWLBC advice to local councils. which would require forestry to be limited to a gross 29ha and incorporate protective buffers around all EPBC Act 1994 listed wetlands, streams and drainage lines.

In the light of the current work and the very high standard of technical information prepared by KID for the Deep Creek joint submission (Heneker 2005), it is difficult to understand the NRC concerns regarding the apparent lack of knowledge of responsible government agencies (DWLBC) on the impact of forestry within the UDC.

I observe that the reason for the committee 'not understanding' was that that information had been denied to us. Then we come to a most telling comment:

DWLBC's work on forestry-water issues over the last two years and its recommendations to local councils over the last six months regarding the implementation of appropriate management strategies was evidently not brought to the attention of the NRC.

How right Ashley Greenwood was! The Natural Resources Committee was not given this information; it was denied to us. The people representing DWLBC at these hearings pretended that it never existed. One has to ask why and ask who was responsible for withholding it from us.

Subsequent attempts mid-year to obtain some of that information again demonstrated the continuing arrogance with which the committee was treated by DWLBC. Attachment 1 to that briefing note that I have just read was denied to the committee on the spurious argument that it was used in the preparation of a cabinet document.

I know that cabinet documents are not available to us under FOI but this is a new category that says that, if a document was used in preparation for a cabinet document, you cannot have it. That is stretching FOI a long way. However, the department did let us see attachment 2 to that paper—they were very gracious!—and under the heading in attachment 2 'Water use by plantations and run-off reductions due to forestry', it tells us that DWLBC KID has deduced:

...the average maximum reduction in stream flow due to forestry which may be equated to the forest water use is around 85 per cent.

Under the heading 'Plantation design', it states:

Buffers should be established to manage the direct impact of forestry on the downstream water users including the environment. A minimum 50m buffer should be established around all significant wetlands and streams...the buffer is not limited to up or down stream areas but for the total extent of the recognised feature.

These bureaucrats are telling parliamentarians that we cannot see things, but if that is what we get in the attachment that we are permitted to see by these bureaucrats, the one that we have been denied access to must have been an absolute killer in terms of showing up the lies and deceit of some of these officers.

I turn now to the role of the minister and ask the question: was the minister blameless in this? She responded within the statutory time frame to the committee's recommendations. Clearly, she was misled by those bureaucrats. In the foreword, Mr John Rau, the presiding member of the committee, said:

The committee does not accept that in circumstances such as these it is either reasonable or appropriate for departmental officers to try and interpose their minister as a 'human shield' to protect them from the consequences of their behaviour, over which the minister could not reasonably have been expected to have had independent knowledge or effective control.

I recognise the difficulty for ALP members on this committee in supporting a report that was critical of a government department. I doubt that we would have got this report through with majority support had we criticised the minister. So, from my perspective, to get a report that was accepted by all of us, it seemed to me that I had to accept the excuses that were made for the minister to ensure that we managed to get a report like this, which is so highly critical of DWLBC. In the summary of the report, the position in the chairman's foreword is elaborated, as follows:

The Committee is disturbed by the Department's performance on these matters and considers that it has been wilfully misled regarding a number of issues central to the Deep Creek Inquiry and follow-up. It is the Committee's unanimous view that the (previous) Minister cannot be held accountable for this poor state of affairs as she was also unwittingly the victim of poor advice from the Department.

While I do not in any way accuse minister Gago of being complicit in any way of deceiving the committee, I remind her of the Westminster system, which states that the buck stops with the minister, and I do accuse her of not fulfilling her role properly. If, when taking on the role of environment minister, she found that she did not have the required knowledge that would allow her to assess the relative truth and value of the information given to her, she should have somehow obtained that information.

I recall how, when Jennifer Cashmore (I think she was Jennifer Adamson at the time) became a minister in a Liberal government, she was not ashamed to sit in on some University of Adelaide lectures (this was common knowledge) to provide her with adequate knowledge of the issues in the portfolio she was covering. If, in handling all the portfolios I do on behalf of my party, I can find and digest such information, then so can a minister. If she had done a little bit of homework, she might have understood that she was being misled.

Surely, the fact that this report in June 2007 was unanimous, with the support of four of her own ALP colleagues, including the chair of the committee, ought to have made her sit up and take notice. Had I been in that position, I would have had an informal chat with the chair to try to get an understanding of it. Had she bothered to look at the Hansard of the departmental presentation to the committee and observed the ducking and weaving in answering questions and the contradictions that officers made even of each other, she might have questioned the response to the committee that her officers gave her to sign.

Hopefully, this report will have set alarm bells going for the public servants involved, for others with DWLBC (and I say that because we have seen some similar things from DWLBC officers in regard to the Upper South-East Dryland Salinity and Flood Management program) and for some other public servants in other departments. I have been told that the behaviour the Natural Resources Committee was subjected to at the hands of these DWLBC bureaucrats is not uncommon. As best I can determine in trying to explain the behaviour, I understand that some of these bureaucrats came originally from PIRSA and that maybe they thought they were still representing Primary Industries. I would like to think that the persons named in this report have at least been censured.

I come back to the committee findings and remind any officers of DWLBC, or of any other department who might read these speeches, that, under the heading 'False or misleading information', section 214 of the Natural Resources Management Act 2004 provides:

A person who furnishes information to the Minister or another authority under this Act that is false or misleading in a material particular is guilty of an offence.

Maximum penalty: $20,000.

Section 28 of the Parliamentary Committees Act provides:

(1) All privileges, immunities and powers that attach to or in relation to a committee established by either House attach to and in relation to each Committee established by this Act.

(2) Without limiting the effect of subsection (1), the powers of each Committee include power to send for persons, papers and records.

(3) Any breach of privilege or contempt committed or alleged to have been committed in relation to a committee or its proceedings may be dealt with in such manner as is resolved by the committee's appointing house or houses.

These officers of DWLBC who misled and lied to this committee could face charges of misleading the committee and be fined up to $20,000; and it is possible that, some time in the future, this chamber might decide on a motion of its own for some other treatment to be meted out to them. At the end of all this, the environment has been the biggest loser because, with all the excuses these bloody-minded bureaucrats have come up with, the catchment at Foggy Farm stopped flowing last month. It did not even make it to summer time this year, despite having an average winter rainfall.

Those members who saw Stateline on this issue a couple of weeks ago would know that the point made about these peat swamps was that once they dry out it becomes almost impossible to wet them again. These cowboys in DWLBC ought to be held responsible for this environmental destruction. It is now more than three years since I moved the original motion for the Natural Resources Committee to investigate this issue. It is more than 18 months since these bureaucrats appeared before the committee and still nothing has happened to redress the problem. Macroinvertebrates have disappeared from the site, swamp-adapted plants have died or are dying and the triumphant victors in an unhealthy ecosystem are now blackberries.

I thought when I moved that motion in 2005 we would see action. Instead, we got prevarication, lies and attempts to mislead. History will not judge these people kindly. I know it is traditional when we take note of a report to thank other members of the committee. It is a little passé but, in this particular case, I really do want to thank other members of the committee and the secretariat. To Knut Cudarans and Patrick Dupont, our secretary and researcher, I give great tribute for the way in which they pursued these scoundrels, forcing them back again and again to appear before us, tracking down the papers they were hiding from us and making sure that we were aware of what was going on at all times so that we knew what questions to ask them.

I thank the committee members for the unanimity of purpose they showed and for taking on what was at the beginning my cause. It cannot have been easy for Labor members to have come out as strongly as this. I particularly thank John Rau, the presiding member of the committee, for what I can only describe as forensic questioning of the witnesses, assisting to expose their lack of preparedness and their willingness to play with the truth. It was a team effort, and I really do thank everyone involved in this.

The Hon. C.V. SCHAEFER (22:58): My contribution will be considerably shorter given that the issues raised within this report and, indeed, the previous report on the Deep Creek catchment have been well summarised by the Hon. Russell Wortley and even more significantly so by the Hon. Sandra Kanck. There should have been no necessity for this second report. I would say at the outset that this committee is by far the most enjoyable and, I believe, effective committee I have served on in my 15 plus years in this place. It is a committee which is truly non-partisan and which brings down reports without fear or favour, as indeed the committee system should be.

After considerable—or, as the Hon. Sandra Kanck has described it, forensic—investigation into this issue, the committee unanimously brought down a number of recommendations that were pertinent as we believed it, having sought considerable expert advice as to some possible remediation for the Deep Creek area that would return flows and the environment and ecology to at least part of its former functionality.

Among those recommendations was a suggestion for the setting up of a buffer zone between the pine forests and the Foggy Farm area of Deep Creek. Our suggestion was not a large or comprehensive buffer zone: it varied from 20 metres to 100 metres. I for one would have been quite satisfied had the department—and, indeed, the minister—written back saying, 'Thank you for your suggestions. However, it is the policy of the government of the day that we will retain the pine forests as they are until such time as they reach a size for commercial harvesting.' Instead, we received a fatuous letter signed by the minister, which was clearly untrue and dismissed the findings of the committee in what one could only say was an arrogant way.

That then triggered from the committee a second and even more intensive inquiry and, the more we asked of the officers involved, the more we came to understand (and it became very evident) that they had, indeed, withheld information from us and had given us incorrect and untruthful replies. In doing so, they had treated the entire parliamentary system and the committee system with disdain and contempt, and that is what this report is about. I hasten to add that there are some quite good officers within the DWLBC, but we were not fortunate enough to have them deal with us at that particular time.

The minister's response, via her department, was to suggest that she had no powers to effect tree removal. That is completely incorrect, as was proven by our investigations. A further claim was that the state had no direct role in referring actions to the commonwealth under the EPBC Act. Again, that is totally untrue. Another claim was that peak hydrological impact occurs 16 to 20 years after planting, so impacts would be unlikely to be observed in the time frame stated in the report. Again, that is a complete untruth, which we were able to back up with evidence from the department which we had to seek a second, third and sometimes fourth time.

The department also needs to be condemned for its tardiness in producing the documents that we requested. One of the officers claimed that they had sought crown law opinion. On further questioning, he admitted that his crown law opinion was asking someone at a desk alongside him. The department claimed to have been confused as to the area to which the committee was referring, even though our report had been absolutely clear and departmental officers had been present, I think, at almost all of our inquiries. The summary goes on:

In seeking accurate and timely information on which to base its deliberation, members were regularly frustrated by disingenuous responses, significant delays and a range of excuses as to why seemingly simple requests could not be acted upon. Departmental undertakings to supply documents and information were repeatedly reneged upon and deflected to other departments. An apparent need for the department to be regularly reminded of outstanding requests was also noted.

That probably sums up our disappointment, frustration and disgust—disgust not because the department did not happen to agree with us but disgust because there appeared to be a culture (and I do not think it is exclusive to this department) which believed that a parliamentary committee is nothing more than a time waster, to be fobbed off with any sort of bland answer rather than cooperating with it to make recommendations. Having chaired a number of committees, I know full well that standing committees can only make recommendations to the minister of the day. Their recommendations are not binding, and we were never silly enough to think that they were. However, we expected truthfulness and respect from the minister's department.

I must say that the presiding member's foreword is accurate in all aspects, other than his remark that the committee unanimously agreed that the minister could not have been expected to know what was being done to her. I, too, raise the issue that, under the Westminster system, the buck stops with the minister. She can be expected to know and must be expected to know. A minister is paid something in excess of $70,000 more than any other member of parliament in order to take additional responsibility.

The Hon. P. Holloway interjecting:

The Hon. C.V. Schaefer: As the Leader of the Government remarks, it is a lot less than what the departmental people are paid. However, the buck stops with the minister under the Westminster system. She may not have known, but that does not exonerate her from any guilt. She should have known and should have made it her business to ask questions. When a committee hands down recommendations such as we did at the end of the first report, any minister would start to ask questions, call in the relevant officers and ask for further explanations at the very least.

I hope that at the very least this is a warning not only to that minister, who has since been down-graded, but also to all ministers that they have obligations within the parliamentary system to report back to the parliament and to know what their department is doing as best they can. They certainly have obligations to ask questions of those departmental officers and, above all, they have obligations to not sign a letter. One of the very first things anyone teaches you, even if you are chairing the local tennis club or any committee, is never to sign a letter you have not read or do not understand, yet clearly that is what the minister did on several occasions. So, she is not without guilt and, particularly under the Westminster system, she is responsible for letters that go out under her name and also the findings of her committees, and clearly she failed in her duty to do that.

However, the minister has moved on, as has the former chief of that department and, like the Hon. Sandra Kanck, I sincerely hope that those officers who are named within this report have been severely reprimanded. We have been assured by the new minister and his new departmental head that there will be a change of culture within that department. If that is the case, I look forward to working with them on future reports.

Again, I thank my colleagues within the committee, and the staff. I certainly commend both staff members but, in particular, Patrick Dupont for his detective-like prying out of minor documents that, in fact, proved that this particular department had lied to our committee. His work was extremely commendable.

Debate adjourned on motion of Hon. J. Gazzola.


[Sitting suspended from 23:12 to 23:30]


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