MURRAY RIVER WATERS AGREEMENT AMENDING AGREEMENT BETWEEN COMMONWEALTH AND PARTICIPATING STATES: PURPORTED RATIFICATION BY NEW SOUTH WALES WITH ALTERATIONS: EFFECT OF ALTERATIONS: ACTION NECESSARY TO REMEDY DEFECT
RIVER MURRAY WATERS ACT 1915, Schedule: RIVER MURRAY WATERS ACT 1915-1920, First Schedule. Second Schedule: RIVER MURRAY WATERS ACT 1915 (N.S.W.), ss. 13A, 13B, 13C, 13D; Schedule: RIVER MURRAY WATERS (AMENDMENT) ACT 1920 (N.S.W.), ss. 1, 2, 3, 4, 6, 8, 9, 10, 11, 12, 13: RIVER MURRAY WATERS ACT 1915-1920 (N.S.W.), First Schedule, Second Schedule
The Secratary, Department of Works and Railways:
In an opinion dated 24 January 1921(2) I expressed the opinion that in conse-quence of the amendments made by the Parliament of New South Wales in the River Murray Waters Agreement-
- the Agreement has not been ratified in accordance with clause 1 of the Agreement; and
- the effect of the action of the Parliament of New South Wales is that the Agreement cannot come into effect until that Parliament ratifies the Agreement without amendment.
The Minister for Works and Railways now requests advice as to what effect the New South Wales Act has as a statute, and what legislative act on the part of the New South Wales Parliament is necessary to remedy the present position as outlined in my opinion of 24 January last.
Sections 1 to 3 of the Act are preliminary and are not affected by the amendments made in the Schedule.
The effect of section 4 in relation to the alterations made in the new Agreement has been stated in my previous opinion. By section 6 the definition of 'the agree-ment' has been amended by including the Agreement (which is not an agreement) set out in the Schedule to the new Act. Wherever in the Act 'the agreement' is referred to, the expression means the original Agreement as altered by something which has no effect.
Section 8 does not appear to be affected by the altered meaning of 'the agreement' but I think the new definition vitiates section 9 containing the new sections 13A, 13B, 13C and 13D. Sections 10 to 12 appear to be effective. Section 13 adds a new Schedule to the Principal Act. That Schedule contains an instrument which purports to amend the existing Agreement. Those amendments do not operate by reason of the fact that the instrument in which they are contained does not exist. An Act of the Parliament of the Government of one State cannot amend an agreement made between three States and the Commonwealth.
The effect of section 13, therefore, is that the words contained in the Second Schedule are inserted as a Schedule in the Principal Act but the amendments contained in the Second cannot affect the existing Agreement.
The defect in the Act which prevents its operation can, I think, be cured by an amending Act of New South Wales restoring the Agreement to the form in which it was laid before the Parliament of that State and in which it was actually executed.