MURRAY RIVER WATERS EFFECT ON COMMONWEALTH OF AGREEMENT BETWEEN STATES : WHETHER COMMONWEALTH HAS POWER TO CONTROL OR REGULATE INLAND NAVIGATION : SCOPE OF STATE POWERS WITH RESPECT TO RIVERS
CONSTITUTION, ss. 92, 98
In view of Mr Attorney-General Isaacs' advising of 8 October 1906(1), these papers are now before me for advice as to whether the Bills before the Parliaments of New South Wales, Victoria, and South Australia, for ratifying the Murray River Waters Agreement(2), involve any infringement of the rights of the Commonwealth.
When Mr Isaacs advised he only had before him the resolutions of the conference of the Premiers of the riparian States held in Sydney in April 1906. There is now an agreement between the three States (substituted at a conference of 16 October 1908 for an earlier agreement of 12 July 1907), made subject to ratification by the Parliaments of the three States concerned, and ratifying Bills introduced into the Parliaments of Victoria and South Australia.
The objects of the agreement are stated to be 'the improvement of navigation, the furtherance of water conservation and irrigation, and the promotion of interstate communication and commerce'.
The scope of the agreement is substantially the same as that of the resolutions advised on by Mr Isaacs, namely-
- a limitation of diversions by the upper States;
- proposals for a canalization and locking scheme;
- the appointment of an administrative Commission;
but whilst the resolutions were only a general outline, the agreement and the covering Bills fill in the details with some minuteness.
As regards diversions, there is no more to be said than was said by Mr Isaacs: namely, that the proposals are a renunciation of rights by the two upper States, and that the Commonwealth is not concerned, except so far as the agreement might be construed as founding, against the Commonwealth, a claim of right for diversions up to the maximum limit. But I do not see how any such claim could be supported, seeing that the Commonwealth is not a party to the agreement.
As regards locking and canalization, the Commission is required to prepare a general scheme and estimate for carrying out a system of canalization by the construction of navigation locks and other works of improvement of the channel of the Murray River from Swan Reach to Echuca, and of the channel of the Murrumbidgee River from its junction with the Murray River to Hay, 'so as to provide for the navigability of such river channels throughout the year within the limits aforesaid for vessels drawing not more than five feet of water'.
On submission of the scheme and estimate, the contracting States are to carry out the scheme.
The Bill (clauses 7, 17-19119) empowers the Commission to prescribe tolls for the passage of vessels carrying freight through the locks. It is provided that tolls shall not be prescribed, demanded or received except towards the cost of lock-keeping and the maintenance of works, nor in parts of the river the navigability of which is not substantially improved or made permanent by the works; and that the tolls prescribed shall not exceed 6d per ton of freight per 100 miles up to 200 miles, nor 4d per ton per 100 miles after the first 200 miles.
Reading through the whole of the Bill and agreement, there appears to be nothing to which the Commonwealth can take exception on the grounds of any encroachment of Commonwealth rights or powers. So much as relates to navigation appears to be directed to the improvement of navigation and facilitation of interstate commerce.
Of course locks may be obstructions to navigation, instead of aids; and tolls may be of such a character as to interfere with freedom and equality of interstate trade. The Commonwealth Parliament, in exercise of its paramount navigation power, may at any time step in and control or regulate the interstate navigation of these rivers. But subject to the constitutional provisions as to freedom of interstate trade, and to any laws of the Commonwealth Parliament regulating the use of the rivers for navigation, it is conceived that the States have the same powers with respect to rivers as with respect to other highways of commerce, such as roads and railways.
It would be advisable for the Commonwealth Government to keep itself informed as to the nature of proposed works, and as to the exercise of powers by the Commission when appointed, in order that any questions which may arise as to rights of navigation may be amicably dealt with at an early stage. But the provisions of the Bills and agreement do not appear to call for any representations by the Commonwealth to the State Governments at this stage.
[Vol. 7, p. 46]
(1) Opinion No.266.
(2) Dated 11 November 1908.