WHETHER COMMONWEALTH HAS POWER TO TAKE POSSESSION OF PORTION OF RIVER: WHETHER 'LAND' INCLUDES RIVER: RIVER AS SOURCE OF WATER SUPPLY DISTINGUISHED FROM RIVER AS MEANS OF COMMUNICATION
WAR PRECAUTIONS REGULATIONS 1915, reg.4
The Secretary, Department of Defence, forwards the following memorandum by the Adjutant-General for advice:
Recently an officer was appointed to inquire into conditions at Berrima(1) and after investigation he recommended that the present area on the river set aside for the use of the internees be extended to include that portion of the river which passes the compound.
The effect of this would be to close the river to any traffic and would prevent persons communicating with internees from the river. From the point of view of the administration of the camp I consider that this would be desirable though doubtless it may occasion some public comment. As there were no boats on the river and the river itself was not navigable until the internees went to Berrima, I do not think that there is any substance in protests against this action and I recommend that the present area reserved be extended to the north bank of the Wingecarribee River.
The present area was taken possession of by the District Commandant as a competent military authority under the powers conferred by paragraph 4 of the War Precautions Regulations.
I am doubtful whether under these Regulations the Commandant has power to take possession of portion of a river and I recommend that the matter be submitted to the Attorney-General for advice as to whether power exists at present to extend the area by taking in the adjacent portion of the river and if not then what steps should be taken to reserve this additional area. The Minister has already approved of the extension of this area to take in the river. Regulation 4 of the War Precautions Regulations reads as follows:
It shall be lawful for the competent naval or military authority and any person duly authorized by him, where for the purpose of securing the public safety or the defence of the Commonwealth it is necessary so to do-
(a) to take possession of any land and to construct naval or military works,including roads, thereon, and to remove any trees, hedges, and fences therefrom;
(b) to take possession of any buildings or other property, including works for the supply of gas, electricity, or water, and of any sources of water supply; ********
I do not think that this regulation authorises the taking possession of portion of a river and closing it to traffic, for this would not come within (a) as it is not 'land', nor would it come within (b) as the river would not be taken possession of qua 'water supply' but qua means of communication.
I know of no other regulation that would authorise the closing of the river for the purpose suggested. As the proposal has been suspended since 1916, and in view of Mr Adrian Knox's adverse report of 5 November 1916, and the likelihood of the early termination of the war, it is a matter for the consideration of the Minister whether the occasion warrants the making of a special regulation to meet the case.
[Vol. 16, p. 61]
(1)The site of a wartime internment camp, in New South Wales.