CONTROL OF RIVER MURRAY WATERS Commonwealth power to legislate upon subject of cables or other obstructions to navigation placed across River Murray: VALIDITY OF STATE LEGISLATION VESTING AUTHORITY OVER ALL NAVIGABLE WATERS IN STATE AUTHORITY: EFFECT OF ABSENCE OF INCONSISTENT COMMONWEALTH LEGISLATION
Navigation Act (NSW) 1901 s 134: Constitution s 98: Navigation Act 1912: River Murray Waters Act 1915
The Secretary of the River Murray Commission has forwarded me the following minute for advice:
At a recent meeting of the River Murray Commission I was directed to forward to you the following copy of a letter received by me from the Under Secretary, Premier’s Department, Sydney.
Referring to previous correspondence on the subject of control of navigable sections of the Murray and Murrumbidgee Rivers, I shall be glad if you will invite the Commission’s special attention to section 134 of the New South Wales Navigation Act as follows–
The Superintendent shall be the proper authority to act as conservator of all navigable waters within the Jurisdiction.
In this connection I have to invite your attention to the opinion furnished by you on the 16th April, 1926 (Subject No. 74 of 1926),(1) on the subject of the Commission’s power in respect of the control of the navigable sections of the Rivers Murray and Murrumbidgee.
The Commission would be glad of your further advice regarding the question raised in the letter above quoted.
The power of the Commonwealth in respect to trade and commerce extends to navigation and shipping (Constitution section 98) and this power includes navigation and shipping upon internal navigable waterways. The Commonwealth has accordingly power to legislate upon the subject of cables or other obstructions to navigation placed across the River Murray.
It does not appear, however, that it has yet done so.
Section 134 of the Navigation Act 1901 of the State of New South Wales remains effective in so far as it is not inconsistent with any provision of Commonwealth legislation (e.g. Navigation Act and River Murray Waters Act).
As no provision is made in Commonwealth legislation relating to obstructions upon navigable waters such as those of the River Murray, it appears that authority remains in the Superintendent under section 134 of the State Act in his capacity as conservator of navigable waters to preserve the navigable character of such waters and to deal with the matter of cables placed or proposed to be placed across those waters.
[Vol. 23, p. 535]
(1) Opinion No. 1386.