Opinion Number. 1793

Subject

RIVER MURRAY COMMISSIONPROPOSAL TO INCREASE CAPACITY OF HUME RESERVOIR: PROPOSAL TO CONFER ADDITIONAL POWERS AND FUNCTIONS ON RIVER MURRAY COMMISSION WITH RESPECT TO PROTECTION OF HUME RESERVOIR CATCHMENT AREA: WHETHER LEGISLATION IS REQUIRED: COMMONWEALTH–STATE AGREEMENTS: COMMONWEALTH–STATE COOPERATIVE SCHEMES: RIVER MURRAY WATERS AGREEMENT: JOINT COMMONWEALTH–STATE AUTHORITY: JOINT COAL BOARD: COMMONWEALTH–STATE COOPERATION IN RELATION TO AIR NAVIGATION

Key Legislation

COAL INDUSTRY ACT 1946 (Cth): RIVER MURRAY WATERS ACT 1915: RIVER MURRAY WATERS AGREEMENT BETWEEN THE COMMONWEALTH OF AUSTRALIA AND THE STATES OF NEW SOUTH WALES, VICTORIA AND SOUTH AUSTRALIA done on 9 September 1914: COAL INDUSTRY ACT 1946 (NSW)

Date
Client
The Secretary, River Murray Commission

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

I am directed by the Minister for Works and Housing, who is also President of the River Murray Commission, to seek your advice as to whether it would be possible, constitutionally to give authority to the River Murray Commission to exercise certain powers in respect of the protection of the Catchment Area of the Hume Reservoir.

The question has arisen in relation to a proposal to increase the capacity of the Hume Reservoir from 1,250,000 acre feet to 2,000,000 acre feet and to widen the inlet Channel to Lake Victoria. This proposal which is estimated to cost $1,150,000 has been considered by Ministerial representatives of the Commonwealth and the State of New South Wales, Victoria and South Australia on the basis that each Government shall contribute 25% of the cost.

The Commonwealth Government has agreed to contribute on the condition that:

‘the States be asked to amend their legislation so that a Commonwealth Authority be clothed with adequate power to protect the Catchment Area by inspection, and by an authorisation to launch prosecutions in cases of abuse of the law; unless this be done no contribution by the Commonwealth to be made’.

The subject was discussed at the Premiers’ Conference held at Canberra in August, 1946. Although a Commonwealth Authority is stipulated in the Cabinet decision quoted above, it appears from the discussions that the River Murray Commission, which is an Authority representative of the Commonwealth and States would be acceptable and an appropriate body to look after the Catchment Area.

The Catchment Area comprises some 6,000 square miles in New South Wales and Victoria. In New South Wales, seven Authorities and in Victoria, four Authorities, are concerned in this area and have powers relating to the use of the area and are concerned in matters of protection from denudation and erosion and these affect the siltation of the Reservoir.

The attached file and submission dated 31.10.46 to the Minister for Works and Housing, together with the accompanying extracts from the Minutes of the Premiers’ Conference will give you the background of the proposal. The object of this letter is to obtain your views as to whether, by an amendment of the River Murray Waters Agreement, the River Murray Commission could be vested with powers to give effect to the Commonwealth Governments condition as set out in paragraph 3.

I would be available to discuss with you or your officers any matters on which you require further information, if an appointment could be arranged.

The River Murray Commission derives its existence and authority from the joint provision of the River Murray Waters Act and the Acts of the several contracting States which ratify and provide for the carrying out of the Agreement.

I am of opinion that no additional powers and functions can legally be conferred upon the Commission by a mere amendment of the Agreement as between the contracting Governments. An amendment of the Agreement only would not suffice to invest the Commission with legal authority to exercise the desired powers and functions; legislation would be necessary for that purpose.

In the view I take, the additional powers and functions stipulated for by the Commonwealth could validly be conferred upon the Commission by an amendment of the Agreement implemented by appropriate State legislation. In this connexion, no legal objection arises, in my view, from the fact that the Commission is a jointly created authority. Other examples of State legislation which confer powers and functions upon authorities which do not derive their existence from State law, or State law only, may be found in the Coal Industry Act, 1946, of New South Wales, which invests the Joint Coal Board constituted under that Act and the Commonwealth Coal Industry Act 1946 with certain powers and functions, and the Air Navigation Acts of the several States which confer upon the Director-General of Civil Aviation powers and functions in relation to the regulation of air navigation within the respective States.

Assuming that the States concerned in your proposal, namely New South Wales and Victoria, agree to take legislative action on the lines suggested, it would, I think, be necessary for the Commonwealth and the State of South Australia each to support the amendment of the Agreement, as proposed, by an Act approving the Agreement, as amended, and approving of the Commission exercising the additional powers and functions conferred upon it by the respective laws of the States of New South Wales and Victoria.

[Vol. 37, p. 354]