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Published online by Cambridge University Press: 01 January 2025
Disputes between States of Australia over the sharing of the waters of rivers that flow through or form the boundary between two or more States (‘transboundary rivers’) have frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe the resolution of these disputes in terms of limits on State legislative and executive power. After reframing the problem in this way, the article first examines the scope of State legislative and executive power and its extraterritorial effect with respect to the regulation of transboundary rivers. Secondly, the article considers inconsistencies between the laws and regulations of two States with respect to transboundary rivers. Finally, constitutional implications and limits on State power are examined, with particular focus on whether there may be scope for the extension of the Melbourne Corporation principle to assist in the resolution of some transboundary river disputes.
1 At the 1897 Adelaide Convention, South Australian delegate John Gordon stated that any ‘rights’ to water should be based upon ‘principles of natural justice’: Official Report of the National Australasian Convention Debates, Adelaide, 17 April 1897, 801 (John Gordon).
2 South Australian Josiah Symon declared ‘[w]e only want as much water as will maintain the navigability of the river’: ibid 801 (Josiah Symon). Fellow South Australian John Gordon was quick to qualify the statement and added ‘[w]e want a little more. We make a claim for a fair proportion of the water of the Murray for irrigation’: at 801 (John Gordon).
3 While this issue was not fully resolved during the drafting of the Australian Constitution in the 1890s, agreement was reached on 9 September 1914 when the Prime Minister and the Premiers of New South Wales, Victoria and South Australia signed the River Murray Waters Agreement. The agreement was implemented by the Commonwealth and the relevant States passing separate but substantially similar legislation: see River Murray Waters Act 1915 (Cth), River Murray Waters Act 1915 (NSW), River Murray Waters Act 1915 (Vic), River Murray Waters Act 1915 (SA). The legal issues were given some consideration during the hearings of the Interstate Royal Commission on the River Murray in 1902. However, very little analysis of the legal issues can be found in the Royal Commission's final report: see New South Wales, South Australia and Victoria, Interstate Royal Commission on the River Murray, Report of the Commissioners (1902).
4 Australian Broadcasting Corporation, Member for Farrer to raise concerns about Basin Plan with MDBA's new Chief Executive (5 January 2016) <http://www.abc.net.au/news/2016-01-04/irrigators-ley/7065550>.
5 During the millennium drought there were threats by South Australia to take this legal question to the High Court: see, eg, Lucille Keen, ‘Canberra Expects River Writs’, The Australian Financial Review (Sydney), 4 April 2012, 10; Lucille Keen, ‘SA Mulls Legal Redress’, The Australian Financial Review (Sydney), 29 May 2012, 11; Michael Owen, ‘Murray Brawl “Easier in Court”’, The Australian (Sydney), 27 May 2011, 6; Michael Owen, ‘Rann's Murray Warning to States’, The Australian (Sydney), 15 June 2011, 10.
6 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 24 January 1898, 76 (Josiah Symon); Official Record of the Debates of the Australasian Federal Convention, Melbourne, 25 January 1898, 131 (Frederick Holder). See also Isaac Isaacs, Re Waters of the Murray River and its Tributaries and Interstate Rights to Divert Them (Opinion, 22 March 1906) 1. A copy of the legal opinion can be found in the South Australian Parliamentary Library. In the period immediately after Federation reference was also made to the United States jurisprudence dealing with transboundary river disputes: John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 887; W Harrison Moore, The Constitution of the Commonwealth of Australia (Maxwell, 2nd ed, 1910) 494, 564; A Inglis Clark, Studies in Australian Constitutional Law (Maxwell, 1901) 107-17.
7 One obvious difference was the geographical operation of the ‘right’. Riparian rights were associated with the use of the water on the riparian tenement. See Attwood v Llay Main Collieries Ltd [1926] 1 Ch 444, 459; Swindon Waterworks Co Ltd v Wiltshire & Berkshire Canal Navigation Co (1875) LR 7 HL 697, 704. In the formation of these arguments, no consideration was given to how or why the ‘State's right to water’ extended beyond the riparian tenement. The issue has since been given some consideration: Renard, Ian A, ‘The River Murray Question: Part III – New Doctrines for Old Problems’ (1972) 8 Melbourne University Law Review 625, 649Google Scholar. This is an important issue in the context of the River Murray dispute given that, in South Australia, there are pipelines that transport water a great distance from the River. For example, the Mannum-Adelaide pipeline (60 km), Tailem Bend-Keith pipeline (143km) and the Morgan-Whyalla pipeline (379km): SA Water, Pipelines <http://www.sawater.com.au/sawater/education/ourwatersystems/pipelines.htm>.
8 Australian Constitution s 100 (emphasis added).
9 Commonwealth v Tasmania (1983) 158 CLR 1, 153 (Mason J), 182 (Murphy J), 248-9 (Brennan J), 251 (Deane J) (‘Tasmanian Dam Case’). For a discussion of the history of the drafting of s 100 of the Australian Constitution, see Williams, John M and Webster, Adam, ‘Section 100 and State Water Rights’ (2010) 21 Public Law Review 267.Google Scholar
10 The words must be understood in their context. Cf the use of the word ‘invalid’ in s 109 of the Constitution. The legislation offending s 109 in that context is ‘inoperative’: Wenn v Attorney-General (Vic) (1948) 77 CLR 84; Butler v Attorney-General (Vic) (1961) 106 CLR 268.
11 See Renard, above n 7; Renard, Ian, Australian Interstate Rivers – Legal Rights and Administration (LLM Thesis, University of Melbourne, 1971)Google Scholar. By ‘transboundary rivers’, I mean rivers that flow through, or form the border between, two or more States.
12 It is beyond the scope of this article to examine the arguments in relation to the creation of an ‘interstate common law’ to solve transboundary river disputes. These arguments are analysed elsewhere: Webster, Adam, ‘Sharing Water from Transboundary Rivers in Australia – An Interstate Common Law?’ (2015) 39 Melbourne University Law Review 263.Google Scholar
13 Reference in this article to the ‘Melbourne Corporation principle’ is a reference to the now well-established principle enunciated by Dixon J (at 82-83) in Melbourne Corporation v Commonwealth (1947) 74 CLR 31 and developed in subsequent cases: see, eg, Austin v Commonwealth (2003) 215 CLR 185; Clarke v Commissioner of Taxation (2009) 240 CLR 272. See below nn 66-67 and accompanying text. The focus of this article is on the sharing of water from the River Murray; however, the same principles could equally be applied to other rivers and groundwater reserves that straddle State borders.
14 I define a ‘transboundary river dispute’ as a dispute between the government of two or more States over the sharing of water from ‘transboundary rivers’. For a definition of ‘transboundary river’ see above n 11.
15 Mill, John Stuart, On Liberty and Other Essays (Oxford University Press, first published 1859, 1991 ed) 184–5.Google Scholar
16 Hohfeld, Wesley Newcomb, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16, 30CrossRefGoogle Scholar. See also Hohfeld, Wesley Newcomb, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710.CrossRefGoogle Scholar
17 Bix, Brian, Jurisprudence – Theory and Context (Carolina Academic Press, 5th ed, 2009) 135Google Scholar; Harris, J W, Legal Philosophies (Oxford University Press, 2nd ed, 2004) 84.Google Scholar
18 Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’, above n 17, 30.
19 The same could equally apply to a dispute between South Australia and Victoria.
20 Or alternatively, the relevant department may have authority to carry out the construction under existing legislation.
21 Or the Executive, in the execution of an existing scheme, takes a different approach in exercising a discretion, the effect of which is to reduce the water in the River.
22 See above n 1.
23 Williams, George, Human Rights Under the Australian Constitution (Oxford University Press, 1999) 62.Google Scholar
24 See generally Joseph, Sarah and Castan, Melissa, Federal Constitutional Law (Lawbook, 3rd ed, 2010) ch 12Google Scholar; Stellios, James, Zines's The High Court and the Constitution (Federation Press, 6th ed, 2015) ch 16.Google Scholar
25 See, eg, James v Commonwealth (1939) 62 CLR 339, 361-2. This has largely been dealt with by the common law: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 563.
26 This could be as a consequence of, for example, issuing too many water licences or constructing a dam that holds back too much water upstream. In short, in this first situation, it is the legislative or executive actions of New South Wales that are affecting South Australia. Whether these ‘limits’ have been crossed will be a question of degree and will be determined by a careful examination of the facts. The potential sources of limits on legislative and executive power are discussed below.
27 Australian Constitution s 107 (emphasis added). Prior to Federation the colonial legislatures were granted power to make ‘Laws for the Peace, Welfare, and good Government of [their respective] Colonies’: Australian Constitutions Act 1850 (Imp) 13 & 14 Vict, c 59, s 14. The Imperial Parliament could still make laws with respect to the colonies, however, in doing so, the intention of the Imperial Parliament had to be expressly stated: Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict, c 63, s 1. Since at least 1986, the ability of the Imperial Parliament to legislate with respect to the States has no longer existed: Australia Act 1986 (Cth) s 1. Similar legislation was passed by the Parliament at Westminster: Australia Act 1986 (UK) s 1. Even if the Parliament of the United Kingdom were to repeal s 1 of the Australia Act 1986 (UK), Australian courts ‘would be obliged to give obedience to s 1 [of the Australia Act 1986 (Cth)]’: Sue v Hill (1999) 199 CLR 462, 492 [64] (Gleeson CJ, Gummow and Hayne JJ).
28 See, eg, Australian Constitution ss 90, 92, 117.
29 Which is sometimes expressed in terms of the ‘peace, welfare and good government’: see Constitution Act 1902 (NSW) s 5; Constitution Act 1867 (Qld) s 2.
30 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10 (The Court).
31 Although the question has been left open: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10 (The Court); Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 410 [14] (Gaudron, McHugh, Gummow and Hayne JJ), 424-5 [55] (Kirby J); see also Momcilovic v Queen (2011) 245 CLR 1, 215-6 [562]-[563] (Crennan and Kiefel JJ). In the South Australian Supreme Court case of Grace Bible Church v Reedman (1984) 36 SASR 376, White J (at 385) rejected the argument that those words provided a limitation on the legislative power of the South Australian Parliament. See generally Twomey, Anne, ‘Fundamental Common Law Principles as Limitations Upon Legislative Power’ (2009) 9 Oxford University Commonwealth Law Journal 47CrossRefGoogle Scholar; Twomey, Anne, ‘Future Directions in Federalism – Where will the High Court Go?’ (2011) 6 Public Policy 133, 148.Google Scholar
32 There is a statutory presumption that legislation will apply within its territorial limits: Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363 (O’Connor J).
33 Section 2(1) of the Australia Act 1986 (Cth) provides: ‘It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State that have extra-territorial operation’.
34 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 14. Cited with approval by the majority in State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 271 (Brennan CJ, Dawson, Toohey, Gaudron JJ). See also Pickin v British Railways Board [1974] AC 765, 782 (Lord Reid).
35 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 14.
36 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78.
37 Ibid 84 (Gleeson CJ). Carruthers J and Lee AJ agreed with Gleenson CJ: ibid 90.
38 Ibid 87.
39 Ibid 88.
40 One way might be for the downstream state to attempt to restrict the regulator from issuing additional water licences.
41 Australian Constitution s 75(iv).
42 Sweedman v Transport Accident Commission (2006) 226 CLR 362, 398 [19] (Gleeson CJ, Gummow, Kirby and Hayne JJ) (‘Sweedman’).
43 Sweedman (2006) 226 CLR 362, 422 [106]. A distinction here needs to be drawn between choice of laws and a conflict of laws. Choice of law rules will not resolve all ‘clashes’ between State legislation: see Leeming, Mark, Resolving Conflicts of Laws (Federation Press, 2011) 209–11.Google Scholar
44 See, eg, BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 458 [142]-[143] (Kirby J); Sweedman (2006) 226 CLR 362, 404 [37]-[39] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
45 See, eg, Detmold, Michael, The Australian Commonwealth: A Fundamental Analysis of its Constitution (Law Book Co, 1985) 133–57Google Scholar; Gageler, Stephen, ‘Private Intra-national Law: Choice or Conflict, Common Law or Constitution?’ (2003) 23 Australian Bar Review 184Google Scholar; Hill, Graeme, ‘Resolving a True Conflict Between State Laws: A Minimalist Approach’ (2005) 29 Melbourne University Law Review 39Google Scholar; Kourakis, Christopher, & lsquo;Sweedman v Transport Accident Commission: A Simple Crash and Bang?’ (2007) 28 Adelaide Law Review 23Google Scholar; Lindell, Geoffrey and SirMason, Anthony, ‘The Resolution of Inconsistent State and Territory Legislation’ (2010) 38 Federal Law Review 391CrossRefGoogle Scholar; Leeming, above n 43, 195-226.
46 In the case of inconsistencies between Commonwealth legislation and that of a State, the Commonwealth law will prevail: see Australian Constitution s 109.
47 See Lindell and Mason, above n 45, 394.
48 Ibid 408. Section 51(xxv) provides the Commonwealth with power to make laws with respect to ‘the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States’. However, this point is yet to be decided by the High Court: see Breavington v Godleman (1988) 169 CLR 41, 79, 83 (Mason CJ), 96 (Wilson and Gaudron JJ).
49 BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 458 [143].
50 Lindell and Mason, above n 45, 399.
51 Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, 87. In offshore areas the High Court has suggested (in obiter) that the test might be one of determining which State has the stronger nexus: Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340, 374. However, the Court made no reference to dealing with conflicts between State laws on the mainland.
52 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 535 [67]. The same result may even be achieved if a ‘closer connection test’ were adopted. Arguably New South Wales has a closer connection to the regulation of water within its own territory.
53 Port MacDonnell Professional Fishermen's Association Inc v South Australia (1989) 168 CLR 340, 374.
54 Leeming, above n 43, 217.
55 Gageler, above n 45, 188.
56 Ibid.
57 Kourakis, above n 45, 52.
58 Ibid 52-3.
59 The Court has recognised an implied right to vote: See Rowe v Electoral Commissioner (2010) 243 CLR 1; Roach v Electoral Commissioner (2007) 233 CLR 162; the implied right to freedom of political communication: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; and the implied intergovernmental immunities doctrine: Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 83 (Dixon J); Austin v Commonwealth (2003) 215 CLR 185; Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410.
60 (1992) 177 CLR 106, 135. Cited with approval in McGinty v Western Australia (1996) 186 CLR 140, 168-9 (Brennan CJ) and Austin v Commonwealth (2003) 215 CLR 185, 245 (Gaudron, Gummow and Hayne JJ).
61 As Mason CJ also explained in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 135: [It] is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution. The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument. Mason CJ cited Dixon J in support of the first sentence. See Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29, 81. That will not preclude the Court from referring to the Convention Debates and drafting history for the purpose of understanding the background to a particular constitutional provision. Reference to the drafting history is not a new phenomenon: Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208; R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 262; Cole v Whitfield (1988) 165 CLR 360, 385. See also Burmester, Henry, ‘The Convention Debates and the Interpretation of the Constitution’ in Craven, Greg (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (Legal Books, 1986) 25Google Scholar; Pearce, D C and Geddes, R S, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) 79Google Scholar; Goldsworthy, Jeffrey, ‘Australia: Devotion to Legalism’ in Goldsworthy, Jeffrey (ed), Interpreting Constitutions: A Comparative Study (Oxford University Press, 2006) 106, 123–4.Google Scholar
62 Webster, Adam, ‘Sharing Water from Transboundary Rivers in Australia – An Interstate Common Law?’ (2015) 39 Melbourne University Law Review 263.Google Scholar
63 Quick, John and Garran, Robert Randolph, The Annotated Constitution of the Australian Commonwealth (Angus & Robertson, 1901) 332.Google Scholar
64 Section 106 of the Constitution provides: The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. Section 107 of the Constitution provides: Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
65 (1920) 28 CLR 129 (‘Engineers Case’).
66 (1947) 74 CLR 31. See generally Lindell, Geoffrey, ‘Advancing the Federal Principle through the Intergovernmental Immunity Doctrine’ in Lee, H P and Gerangelos, Peter (eds), Constitutional Advancement in a Frozen Continent – Essays in Honour of George Winterton (Federation Press, 2009) 23, 29–40Google Scholar; Stellios, above n 24, 476-501
67 (2003) 215 CLR 185, 249 [124] (Guadron, Gummow and Hayne JJ). This statement of the principle was endorsed by the Court in Clarke v Commissioner of Taxation (2009) 240 CLR 272, 289-90 [16] (French CJ), 307 [66] (Gummow, Heydon, Kiefel and Bell JJ), 312 [90] (Hayne J).
68 (2003) 215 CLR 185, 211 [17].
69 (1947) 74 CLR 31, 82 (emphasis added).
70 Ibid 83. Dixon J stated: Accordingly the considerations upon which the States’ title to protection from Commonwealth control depends arise not from the character of the powers retained by the States but from their position as separate governments in the system exercising independent functions. But, to my mind, the efficacy of the system logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority. In whatever way it may be expressed an intention of this sort is, in my opinion, to be plainly seen in the very frame of the Constitution.
71 (2009) 240 CLR 272, 289 [15]. French CJ's use of the word ‘assumption’ is not a reference to an assumption made by the framers, but an implication to be drawn from the Constitution. For a more recent discussion of the intergovernmental immunities doctrine see: Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548, 609-11 [130]-[137] (Hayne, Bell and Keane JJ).
72 (1983) 158 CLR 1 (‘Tasmanian Dam Case’).
73 Ibid 280 (Deane J) (during argument).
74 Ibid 281.
75 Ibid 139–43 (Mason J), 169 (Murphy J), 212-5 (Brennan J), 280-1 (Deane J).
76 Ibid 169 (Murphy J).
77 Ibid 139.
78 Ibid 214–15 (Brennan J), 281 (Deane J).
79 That is, for example, the Parliament building or a courthouse: ibid 214.
80 (1995) 183 CLR 373 (‘Native Title Act Case’).
81 Ibid 476, 478.
82 Ibid 478.
83 Ibid 478–9.
84 Ibid 478.
85 Ibid.
86 Ibid (Mason CJ, Brennan J, Deane J, Toohey J, Gaudron J and McHugh J).
87 Ibid 480-1 (Mason CJ, Brennan J, Deane J, Toohey J, Gaudron J and McHugh J). This principle was again emphasised in the more recent decision of Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548, 610-11 [133]-[137] (Hayne, Bell and Keane JJ). The Native Title Act Case and the Tasmanian Dam Case also highlight that a broad interpretation of the immunities doctrine as advocated by the respective States in those cases would create a tension with the wide interpretation that the Court has given to Commonwealth legislative power.
88 See, eg, Austin v Commonwealth (2003) 215 CLR 185; Clarke v Commissioner of Taxation (2009) 240 CLR 272.
89 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 14.
90 For example, a law of one State that sought to regulate the pension of a judge in another State would have an insufficient (if any) connection to the legislating State. From a practical perspective it is difficult to envisage a State wanting to enact such legislation and the lack of connection to the legislating State is so obvious that a State Government would be unlikely to attempt to pass the legislation through Parliament. If such legislation were enacted, it would likely be invalid due to a lack of connection and it would therefore be unnecessary to consider whether a modified or extended intergovernmental immunities doctrine applied as between States. Cf Austin v Commonwealth (2003) 215 CLR 185; Clarke v Commissioner of Taxation (2009) 240 CLR 272. As Sarah Murray noted, extending the intergovernmental immunities doctrine as between the States ‘would inevitably intersect with considerations of the scope of State legislative power and extra-territorial competence’: Murray, Sarah, ‘Constitutional Musing on Clark and Austin’ (2011) 6 Public Policy 121, 132.Google Scholar
91 Selway, Bradley, The Constitution of South Australia (Federation Press, 1997) 73.Google Scholar
92 Castles, Alex C, ‘Limitations on the Autonomy of the Australian States’ (1962) Public Law 175, 199Google Scholar. Geoffrey Lindell has also taken this view: Lindell, above n 66, 39-40.
93 Ibid.
94 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1, 25-6 [15] (Gleeson CJ). See also State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 288-9 (McHugh and Gummow JJ); BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 473-4 [198]-[200] (Callinan J); Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 440 (Dawson, Toohey and Gaudron JJ), 452 (McHugh J). See also Murray, above n 90, 131-2.
95 See Australian Constitution s 114.
96 This was Inglis Clark's reasoning for why the High Court must have jurisdiction over transboundary river disputes: see Clark, A Inglis, Studies in Australian Constitutional Law (Charles F Maxwell, 1901) 110.Google Scholar
97 Importantly, even if it were possible for the Commonwealth Parliament to legislate it is not mandatory for it to do so, and if it does, it must do so in a manner consistent with the Australian Constitution.
98 Although that might itself be prohibited: Australian Constitution s 99.
99 In times of drought up to 90 per cent of Adelaide's water supply can come from the Murray (compared to only about 40 per cent in an ordinary rainfall year): Government of South Australia, South Australian Government Response to the Draft Murray-Darling Basin Plan (April 2012), 13 <http://www.waterforgood.sa.gov.au/wp-content/uploads/2012/04/v2-basin-plan-submission-16-april-2012-1240-pm-final-clean.pdf>. Adelaide's average water use accounts for 1 per cent of the total water extracted from the Murray-Darling Basin: Murray-Darling Basin Commission, Murray-Darling Basin Water Resources Fact Sheet (November 2003), 3 <http://www2.mdbc.gov.au/data/page/20/water_resourcesver2.pdf>.
100 This would be a question of fact for the Court to determine.
101 Cf Tasmanian Dam Case (1983) 158 CLR 1, 214 (Brennan J). See also above n 79.
102 Ibid 141 (emphasis added). The restatement of the principle in Austin v Commonwealth (2003) 215 CLR 185 does not affect the dicta of Mason CJ and Brennan J in this case.
103 Ibid.
104 Anderson, Ross, ‘The States and Relations with the Commonwealth’ in Else-Mitchell, Rae (ed) Essays on the Australian Constitution (LawBook, 1952) 93, 102Google Scholar. See also BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 459 [144] (Kirby J).
105 Section 92 of the Australian Constitution provides that ‘intercourse among the States … shall be absolutely free.’
106 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 135 (Mason CJ).
107 Australian Constitution ss 121-4.
108 This is the point that Mason J made in the Tasmanian Dam Case: Tasmanian Dam Case (1983) 158 CLR 1, 141.
109 (1951) 83 CLR 1, 141.
110 See, eg, Australian Constitution ss 111, 123.
111 See Australian Constitution s 7.
112 As Geoffrey Lindell has noted, determining what constitutes an ‘undue interference’ in the context of the Melbourne Corporation principle is always a difficult question of degree: Lindell, above n 66, 50-1.
113 Water Act 2007 (Cth) s 86A(2).
114 For example, Mason J left open the possibility in Tasmanian Dam Case that had the area of land affected been ‘a very large proportion of the State’, the legislation or regulation in question may have attracted the Melbourne Corporation principle: Tasmanian Dam Case (1983) 158 CLR 1, 141.
115 The Water Act 2007 (Cth) was amended by the Water Amendment Act 2008 (Cth) to give effect to the intergovernmental agreement entered into between the Commonwealth, New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory: see Agreement on Murray-Darling Basin Reform (3 July 2008) Council of Australian Governments <http://www.coag.gov.au/sites/default/files/Murray_Darling_IGA.pdf>. The Commonwealth relied in part on the referral of legislative power from the States to make these amendments: see Water (Commonwealth Powers) Act 2008 (NSW), Water (Commonwealth Powers) Act 2008 (Vic), Water (Commonwealth Powers) Act 2008 (SA), Water (Commonwealth Powers) Act 2008 (Qld). These acts are in substantially the same terms. Section 4 of the Acts is the operative provision that makes the referral to the Commonwealth. The scope of the referral is defined in s 3 of the Acts.
116 It would, of course, also depend on precisely what is referred and the extent of the referral.
117 There is no s 100A of the Constitution that provides a ready and clear solution.
118 See Renard, above n 7.
119 While negotiation between the States can be challenging and time consuming, the experience in the United States has been that negotiation is still preferable to litigation, which is also a lengthy process.
120 Although such an area would probably need to be significant: cf Tasmanian Dam Case (1983) 158 CLR 1, 141 (Mason J).
121 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 135 (Mason CJ).
122 Cf Gageler's approach for resolving conflicts between State laws, which Kourakis notes, might lead to States resolving the matter by political agreement: above n 55-58.