The Secretary, River Murray Commission has forwarded to me for advice the following memorandum:

With reference to you memorandum No. 30/1096 of the 16th June, 1920, forwarding Crown Solicitor’s Opinion No.101/1930 regarding responsibility for the condition of the waters of the River Murray, I have to advise that the Hume Reservoir is being constructed by the Constructing Authorities for New South Wales and Victoria jointly and that no agreement has been made by the River Murray Commission with a Municipality or person for the supply of water from the Reservoir.

In connection with page 4 of the Crown Solicitor’s Opinion, I shall be glad if you will state whether under clause 37 of the Agreement it is obligatory on the River Murray Commission to reimburse out of the pooled funds under its control the amount paid by any Contracting Government or Constructing Authority as compensation for any damage occasioned by or arising out of anything done by it under the Agreement, although the River Murray Commission has no jurisdiction over the matter or authority to approve the expenditure; or whether action should be taken by the four Governments to specially provide funds to meet payments of this nature.

The question of responsibility for the condition of the waters of the River Murray extends to the various Weirs and Locks as well as to the Hume Reservoir. For instance, at Mildura the Town’s foul drainage used to discharge into the River at no great distance downstream from the intake to the pump which lifts the domestic water supply of the Town, and the Town Clerk stated on 31st October, 1928 that the ‘drain[s]⁽¹⁾ were considered reasonably safe until the placing in position of the Weir created practically a pool. The pollution of the water and possible infection of persons using same are now considered to be dangerous.’

The Constructing Authority for Victoria reported that providing for the drainage from the Town was purely a Council matter. The Public Health Department, Melbourne, took up the matter and referred to a scheme to provide for the discharge of the Town drainage into the River at a point below the Lock Chamber and added:

Meanwhile the neighbouring Mildura Shire Council is apprehensive of the possibility of the Town’s foul drainage being redirected into the River to the prejudice of the purity of the stream as drawn upon for the supply of Merbein.

The Commission of Public Health will be glad to learn whether the River Murray Commission can by any means intervene with the object of preventing the reintroduction of Mildura’s foul drainage into the River.

The River Murray Commission took up the attitude that the pollution of the waters of the River was a matter for action by the State Authorities and in the case referred to the Mildura Town Council constructed a sewer to discharge into the River below the Lock Chamber.

Somewhat similar conditions obtain at other Weirs and Locks and it is requested that advice be furnished as to whether any responsibility attaches to the Commission or the Commissioners for the pollution of the waters of the River Murray from any cause which may be ascribed to the works constructed in accordance with the provisions of the River Murray Agreement.

In the Opinion referred to, the Crown Solicitor stated that any possible liability for the pollution of the river waters below the Hume Reservoir would appear not to be a liability of the Commission or the Commissioners but a liability of the particular State which constructed and maintained the Reservoir, but that any compensation paid to satisfy such liability would ultimately be contributed proportionately by all parties to the Agreement, including the Commonwealth.

I agree with the above opinion, and I think that, where compensation is paid by any Constructing Authority with respect to any damage done by it in carrying out any works in pursuance of the Agreement, the amount of such compensation would be reimbursed to the Constructing Authority by the Commission, and the amount of the compensation would then be contributed by the Contracting Governments in accordance with
clauses 37 and 32 of the Agreement.

With regard to the question whether the Commission is responsible for the pollution of the waters of the River Murray, I think that there is nothing in the Agreement which imposes liability for such on the Commission. If any damage is caused or suffered by the pollution of the water, compensation for such damage is to be made by the Constructing Authority for the State in which the damage occurs. Such compensation however would be contributed to the Commission by all the Contracting Governments in accordance with what I have said above.

[Vol. 24, p. 768]

(1) The end of this word is obscured in the Opinion Book.