Can the High Court save the Murray River?

Environmental and Planning Law Journal

Volumn 29, Issue 4, 2012, Pages 281-296

  Webster, Adam ^a   Williams, John M ^a  

^a UNIVERSITY OF ADELAIDE   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

DISPUTE RESOLUTION; ENVIRONMENTAL PLANNING; ENVIRONMENTAL POLITICS; LEGAL SYSTEM;

AUSTRALIA; MURRAY RIVER; MURRAY-DARLING BASIN;

EID: 84867168291     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (112)

1. Editorial, "The Murray Waters", The Advertiser (22 July 1904) p 4.
2. The Advertiser commenced publication on 12 July 1858 as The South Australian Advertiser. The current name was adopted on 23 March 1889.
3. South Australia, Debates, Legislative Assembly, 5 July 1906, 2
4. South Australia, Debates, Legislative Assembly, 16 August 1906, 293.
5. For discussion of these opinions
6. Clark S, Australian Water Law - An Historical and Analytical Background (PhD Thesis, University of Melbourne, 1971) pp 372-373.
7. Isaacs' opinion is dated 22 March 1906. Less than six months later, on 12 October 1906 Isaacs was appointed to the High Court of Australia.
8. As noted in the Murray-Darling Basin Authority's summary of the feedback it received regarding the Guide to the Proposed Basin Plan, "Some people thought that the volume of water proposed in the Guide to be returned to the environment was too low and others felt that it was too high": see Murray-Darling Basin Authority, Overview of Feedback on the Guide to the Proposed Basin Plan (April 2011) p 6, http://www.mdba.gov.au/files/publications/2011-basin-plan-feedback-report-20110511.pdf viewed 1 June 2012.
9. "Basin Plan Draws Criticism from All Sides", ABC News (online) (28 November 2011), http://www.abc.net.au/news/2011-11-28/murray-plan-under-fire-from-all-sides/3698720 viewed 1 June 2012.
10. The article stated that "Environmentalists are unhappy, irrigators are angry, but the people who put the Murray-Darling Basin plan together think they have it basically right".
11. For the South Australian government's response to the Draft Basin Plan, see: South Australian Government, South Australian Government Response to the Draft Murray-Darling Basin Plan (submission to Murray-Darling Basin Authority, Consultation on the Draft Basin Plan, 16 April 2012).
12. There have been two recent cases involving the regulation of water rights before the High Court: see Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; 172 LGERA 82; ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 170 LGERA 373.
13. For earlier High Court cases dealing with water rights
14. Beaudesert Shire Council v Smith (1966) 120 CLR 145; 18 LGRA 65
15. Gartner v Kidman (1962) 108 CLR 12
16. Thorpes Ltd v Grant Pastoral Co Pty Ltd (1955) 92 CLR 317
17. Hill v O'Brien (1938) 61 CLR 96.
18. Puddy R, "Weatherill Vows to End the War over Water", The Weekend Australian (29-30 October 2011) p 7.
19. A taskforce established by the South Australian Government to examine the Draft Basin Plan was also charged with providing legal advice on the likely success of a High Court challenge to the Basin Plan
20. Wills D, "Decision Looms on High Court Bid", The Advertiser (28 November 2011) p 5.
21. Media speculation regarding whether South Australia would challenge the validity of the Basin Plan and the likelihood of success continues
22. Wills D, "We Can Win River Fight - State a Serious Chance in Murray Challenge: Expert", The Advertiser (12 January 2012) p 3.
23. Farey v Burvett (1916) 21 CLR 433 at 455.
24. Andrews v Howell (1941) 65 CLR 255
25. Stenhouse v Cloeman (1944) 69 CLR 457
26. Victorian Chamber of Manufacturers v Commonwealth (1943) 67 CLR 347.
27. Similar comments regarding the impact of the GFC were made by other members of the court: see Pape v Commissioner of Taxation (2009) 238 CLR 1 at [230] per Gummow, Crennan and Bell JJ, [258] per Hayne and Kiefel. In Pape, the High Court had to determine the validity of particular sections of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth).
28. In short, the Act provided a payment of up to $900 to all Australians who had filed a tax return in the previous financial year. The purpose of the payment was to stimulate the Australian economy in response to the GFC.
29. Whether that characterisation would be accepted by stakeholders further upstream is questionable.
30. French CJ (at [10]) did not decide this question. Hayne and Kiefel JJ (at [352]-[353]) and Heydon J (at [552]) noted that one of the difficulties may be determining precisely what may constitute a "national emergency".
31. Since the decision in New South Wales v Commonwealth (2006) 229 CLR 1 (Work Choices Case) it is clear that the Commonwealth's power to legislate with respect to the corporations power (s 51(xx)) is extensive. In the Work Choices Case, Gleeson CJ, Gummw, Hayne, Haydon and Crennan JJ stated at [177]: "[T]he power conferred by s 51(xx) extends 'at the very least' to the business functions and activities of constitutional corporations and their business relationships... [O]nce [that] is accepted, it follows that the power 'also extends to the persons by and through whom they carry out those function and activities and with whom they enter into those relationships'." It is most likely that many irrigators extracting water along the Murray River would be constitutional corporations. For a discussion of the relevant heads of power under which the Commonwealth could legislate with respect to the Murray River
32. Gardner A, Bartlett R and Gray J, Water Resources Law (LexisNexis Butterworths, 2009) Ch 5.
33. R v Kirby; Ex p Boilermakers Society of Australian (1956) 94 CLR 254 at 271-272 per Dixon CJ, McTiernam, Fullagar and Kitto JJ).
34. Stellios S, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) p 201.
35. Section 53 deals with the powers of the Houses of Parliament in respect to legislation. It states: "Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws." Section 81 establishes the Consolidated Revenue Fund. It states: "All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution."
36. Stellios, n 15, p 201.
37. South Australia Act 1834 (Imp) 4 & 5 Wm 4, c 95 and the Letters Patents establishing the Province of South Australia on 19 February 1836.
38. South Australia v Victoria (1911) 12 CLR 667 at 679 per Griffith CJ for a detailed history of the dispute.
39. Tyers marked the 141st meridian with limestone blocks and placed a number of markers north and south of that point to denote the boundary between the colony of South Australia and the district of Port Phillip. Upon his return from the exhibition, Tyers made further calculations as to the position of the boundary: South Australia v Victoria (1911) 12 CLR 667 at 680.
40. South Australia v Victoria (1911) 12 CLR 667 at 697 per Griffith CJ.
41. Australian Constitutions Act (Imp) 13 & 14 Vic, c 95.
42. Prior to 1850 the Superintendant of the district of Port Phillip, Mr Latrobe, had been largely kept informed of the discussions between New South Wales and South Australia regarding the location of the boundary
43. South Australia v Victoria (1911) 12 CLR 667 at 681-685 per Griffith CJ.
44. South Australia v Victoria (1911) 12 CLR 667 at 696 per Griffith CJ.
45. South Australia v Victoria (1911) 12 CLR 667 at 697 per Griffith CJ.
46. South Australia v Victoria (1911) 12 CLR 667 at 698 per Griffith CJ.
47. O'Connor J held (at 710) that the determination of the boundary line between the two colonies was a matter of interpretation of the Imperial Statute, which was clearly a matter capable of determination by "recognised legal principles".
48. As this dispute involved the interpretation of the Imperial Statute and the Letters Patent, Isaacs J held (at 716) that the matter was justiciable.
49. South Australia v Victoria (1911) 12 CLR 667 at 675 per Griffith CJ.
50. South Australia v Victoria (1911) 12 CLR 667 at 701
51. Griffith CJ, 711-712 per O'Connor J, 725 per Isaacs J.
52. Campbell E, "Suits Between the Governments of a Federation" (1971) 6 Sydney Law Review 309 at 309.
53. Renard I, Australian Interstate Rivers - Legal Rights and Administration (LLM Thesis, University of Melbourne, 1971) p 129.
54. As Renard has noted elsewhere, the requirement that the action between States be equivalent to an action between individuals "does not appear to have been borne out in the subsequent history of the Court": Renard I, "The River Murray Question: Part III - New Doctrines for Old Problems" (1971-1972) 8 Melbourne University Law Rev 625 at 637.
55. The approach has also been questioned by Harrison Moore: Moore H, "The Federations and Suit Between Governments" (1935) 17 Journal of Comparative Legislation and International Law 163 at 172.
56. Lindell G, Justiciability of Political Questions under the Australian and United States Constitutions (LLM Thesis, University of Adelaide, 1973) pp 656-657.
57. Quick J and Garran R, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901) p 774.
58. Section 75(iv) was inserted late in the debate during the Melbourne Convention. The amendment was moved by Mr O'Connor of New South Wales, not to take jurisdiction away from the local courts within each State, but merely to allow a litigant to commence an action in the High Court in the first instance: Offi{dotless}cial Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1,894 (Melbourne Debates).
59. Section 76(i) states: "The Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under this Constitution, or involving its interpretation."
60. 30 of the Judiciary Act 1903 (Cth), which confers that jurisdiction on the High Court.
61. Prior to Federation South Australia had also sought legal opinions as to "the riparian rights of South Australian in respect of the waters of the River Murray": South Australia, Royal Commission on the Utilisation of the River Murray Waters, Progress Report (1890) pp ix-x.
62. Cole v Whitfield (1988) 165 CLR 360 at 394.
63. Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 477
64. Mason CJ, Brennan, Deane, Dawson, Toohey JJ. Victorian Water Register, Changes to the Implementation of the 4% Limit - An Explanatory Note (7 January 2010), http://www.waterregister.vic.gov.au/Public/Documents/Explanatory%20note%20-%20changes%20to%20the%204%20%20rule%20v3.pdf viewed 1 June 2012.
65. South Australian and Victoria Governments, Joint Statement from Victorian and South Australian Governments (media release, 14 June 2011), http://www.water.vic.gov.au/__data/assets/pdf_file/0009/116568/110614-Joint-statement-from-Victorian-and-South-Australian-Governments.pdf viewed 1 June 2012.
66. See further Williams JM and Webster A, "Section 100 and State Water Rights" (2010) 21 PLR 267.
67. The reference to "conservation" refers to the storage of water as opposed to environmental conservation.
68. Booker K and Glass A, "The Express Rights Provisions" in Lee HP and Gerangelos P (eds), Constitutional Advancement in a Frozen Continent (Federation Press, 2009) pp 155, 171.
69. Booker and Glass, n 42, pp 155, 171-172.
70. The precise meaning of "reasonable" might be one such "interpretive puzzle".
71. Kelly N, "A Bridge? The Troubled History of Inter-State Water Resources and Constitutional Limitations on State Water Use" (2007) 30 University of New South Wales Law Journal 639 at 644.
72. Williams JM, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) p 511.
73. For detailed description of changes to the clause through Federal Conventions, see Williams and Webster, n 40 at 268-274.
74. Melbourne Debates (n 32), 24 January 1898, 69 (Richard O'Connor).
75. Joseph Carruthers expressed similar concerns
76. Melbourne Debates (n 32), 7 March 1898, 1,956-1,958.
77. Melbourne Debates (n 32), 7 March 1898, 1,959 (George Reid).
78. Melbourne Debates (n 32), 7 March 1898, 1,989 (George Reid).
79. Melbourne Debates (n 32), 7 March 1898, 1,989 (John Downer)
80. Both Isaac Isaacs and George Reid questioned whether the word "reasonable" added anything to the clause
81. Melbourne Debates, 7 March 1898, 1,989-1,990.
82. Melbourne Debates (n 32), 24 January 1898, 74, 76 (Josiah Symon)
83. Offi{dotless}cial Report of the National Australasian Convention Debates, Adelaide, 17 April 1897, 801 (John Gordon).
84. Melbourne Debates (n 32), 7 March 1898, 1,990 (Patrick Glynn).
85. Melbourne Debates (n 32), 7 March 1898, 1,990 (Isaac Isaacs).
86. Williams, n 45, pp 954, 986.
87. The Drafting Committee comprising Edmund Barton, Richard O'Connor and John Downer (assisted by Robert Garran) made many aesthetic changes to the overall architecture of the Constitution without changing the meaning of the agreement that had been struck.
88. Garran R, Prosper the Commonwealth (Angus and Robertson, 1958) p 123.
89. Section 98 states: "The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State."
90. Quick J and Garran R, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901) pp 891-892.
91. Quick and Garran, n 57, pp 891-892.
92. For a brief history of the Interstate Commission
93. Coper M, "The Second Coming of the Fourth Arm: The Role and Functions of the Inter-State Commission" (1989) 63 ALJ 731.
94. The section received indirect consideration in Australasian Temperance & General Life Assurance Society v Howe (1922) 31 CLR 290
95. which discussed the meaning of the word "resident". Section 100 was also considered indirectly in Morgan v Commonwealth (1947) 74 CLR 421
96. in which the expression "The Commonwealth shall not, by law or regulation of trade or commerce" in s 99 was considered. The same words appear in s 100.
97. Commonwealth v Tasmania (1983) 158 CLR 1 at 34-35 per JD Merralls QC (during argument).
98. The judgment occupies more than 300 pages of the Commonwealth Law Reports.
99. The four judges to consider the s 100 issue were Mason, Murphy, Brennan and Deane JJ. It was unnecessary for the other members of the court to consider the s 100 argument.
100. However, as French CJ pointed out in Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242; 172 LGERA 82 at [23]
101. Murphy J proceeded on the basis that Morgan v Commonwealth (1947) 74 CLR 421 had not been challenged.
102. Deane J noted, "[n]one of the impugned provisions in the present case is, either in character or in legal operation, a law or regulation of international, inter-State or intra-State trade or commerce", hence s 100 was not engaged.
103. Melbourne Debates (n 32), 24 January 1898, 74 (Josiah Symon).
104. Melbourne Debates (n 32), 24 January 1898, 74 (Josiah Symon).
105. Melbourne Debates (n 32), 24 January 1898, 76 (Josiah Symon).
106. Melbourne Debates (n 32), 25 January1898, 130 (Frederick Holder).
107. Melbourne Debates (n 32), 25 January 1898, 130 (Frederick Holder).
108. Melbourne Debates (n 32), 25 January 1898, 420 (Partick Glynn).
109. However, Glynn made these comments in the context of suggesting that the concept should be incorporated within the draft of the Constitution.
110. Inglis Clark A, "Notes" in Williams, n 45, p 844.
111. Inglis Clark A, Studies in Australian Constitutional Law (Charles F Maxwell, 1901) p 110.
112. The answers to these questions are beyond the scope of this article.