If Victorian Premier Steve Bracks thinks that Section 100 of the Constitution will prevent a Commonwealth takeover of the rivers of the Murray-Darling Basin, tell him he’s dreaming.
Section 100 states: “The Commonwealth shall not, by any law or regulation of trade or commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.”
On its face it seems to say the states can use their rivers and the Commonwealth cannot stop them.
But it is not so simple.
I used the word “dreaming” because it comes from the film “The Castle” in which the Aussie battler — Darryl Kerrigan — takes on the Australian Government which wants to take his property. Kerrigan was forever telling people advertising things in the classifieds for an asking price that they are “dreaming”.
In the real world you have to be dreaming to take on a determined Commonwealth. And the Commonwealth in this case seems determined.
This week the Prime Minister John Howard told Victoria he would push ahead with his proposals for the Murray-Darling without its co-operation. He says he will use whatever constitutional power the Commonwealth can muster. The Commonwealth, on the other hand, cites the corporations, external affairs, and the interstate trade and commerce powers.
Bracks says the Commonwealth does not have the power to limit water extraction from Victorian rivers, mainly because of Section 100.
(Incidentally, the Murray River itself is in NSW because the border is the high watermark on the Victorian side.)
The trouble with Section 100 is that the limit it puts on the Commonwealth is not a general one. It does not say the Commonwealth shall not (in any way shape or form) abridge the right of a state and its residents to use the water. Rather it says the Commonwealth shall not use “any law or regulation of trade or commerce” to abridge those rights. It leaves open the possibility that the Commonwealth can use other non-trade-and-commerce powers to abridge those rights – like the corporations power or the external affairs power.
This is precisely what was held in the 1983 Tasmanian Dams case. Section 100 did not save Tasmania’s attempt to deal with its waterways as it saw fit in the face of a Commonwealth desire to protect world heritage.
In the case of the Murray-Darling, the Commonwealth has already tried its strongest power – bribery – but that only worked with Queensland, NSW and South Australia. Victoria was unmoved, just as Tasmania was unmoved by an offer of $500 million in 1982 not to build the Franklin Dam.
Usually bribery works for the Commonwealth when it wants to get a policy result that is a bit remote from the list of powers granted to it in the Constitution. Certainly, there is nothing in the Constitution giving the Commonwealth power over waterways, even if they flow over state boundaries.
Without a direct power and with bribery failing, the Commonwealth must turn to corporations and external affairs.
The Commonwealth could rely on a couple of treaties to invoke the external affairs power: the Convention on Biodiversity and the Convention of Wetlands. It might be stretching the political bow a bit to legislate about water for monoculture crops like rice and cotton under the umbrella of biodiversity. Similarly with legislation about extracting water from rivers for crops under the umbrella of wetland protection.
But, politics aside, legally, the Commonwealth will be legislating to prevent farmers from taking water from the rivers. The High Court might well hold that that is giving effect to the treaties.
Legislation often takes the form of a blanket prohibition of particular conduct followed by provisions allowing the conduct under certain conditions – usually within the say-so of a Federal Minister.
The corporations power is not much help for the Commonwealth. We know that, since the Work Choices case, the corporations power allows the Commonwealth to prohibit corporations from engaging in particular conduct.
So if any Victorian water rights are held by corporations, the Commonwealth can act. However, many farmers are not corporations. Moreover, the Victorian Government could re-issue the water rights to individuals.
It may well be that the Murray-Darling legislation will not be as good or as comprehensive if it has to be crafted under the guise of implementing a biodiversity or wetlands treaty. Further, it may well be that the Murray-Darling, its farmers and the environment will suffer while Victoria and the Commonwealth slug it out in the High Court.
So the really courageous thing for Howard to do would be to have a constitutional referendum to give the Commonwealth power over the Murray-Darling at the time of the next election.
That might fly in the face of the Liberal Party’s opposition to greater central power, but Howard himself has never been a states-rights proponent.
Yes, virtually all referendum attempts to increase Commonwealth power have failed. But this could be interesting. Three Labor Governments support the Commonwealth’s Murray-Darling scheme so might well support making the Commonwealth’s legislative base for it more certain. Opposition Leader Kevin Rudd has been a Yes-man to Howard on many issues and he would not want to get wedged on this one.
Western Australia and Tasmania are not affected. Most Liberal voters would side with Howard anyway and vote Yes. Many Labor voters would see the power going to a Rudd Labor Government anyway and would hope it would work out a better scheme than the Howard Government’s hastily thrown together vote-catcher.
The Murray-Darling is a big national issue crossing state boundaries and demanding a national response. A 19th century Constitution framed before damming large rivers was practicable should be updated to take care of this.
The trick would be to keep it simple. Just add seven words to the list of powers in Section 51 that the Commonwealth Parliament may make laws about – “the waters of the Murray-Darling Basin”.
Perhaps while we are having this cvonersation we could explode a couple of fallacies and myths along the way?Like:Murray irrigation is efficent there is nothing efficient about spraying water onto land in searing summer temperatures and drying winds to grow water hungry crops in the wrong place, semi desert, so a few people of enormous political clout can make lots of money and cause others to go without water at a cost of billions of dollars whilst simultaneously depriving the river of naturaly invigorating environmental flows?That evaporation is somehow not an natural process and that we will convenienly omit to mention that evaporation by channel and spray irrigation waste hundred of billions of litres of water,or more, annually that never gets to the roots of crops but does add salt and other toxic materials to the river by infiltration of the remaining polluted water back into the river which later has to be removed by the tax payer at costs of millions of dollars per year.Thats a direct subsidy.That those that complain that the irrigators are not getting the water lost’ by the natural process of evaporation from the river surfaces accidentally forget to mention that the river has been controlled and managed partly at least for the benefit of the irrigators at huge costs to the public?And finally, most importantly, that those that promote the idea of continuing to destroy the river are promulgating such for the benefit of a few people whose personal wealth is considered more important than other river users, urban, domestic, recreation, tourist, industrial and the river itself?Until the problem of overallocation of irrigation water that belongs to all Australians and the river itself is confronted this problem of the destruction of a major heritage and icon of all Australians will continue.We need to stop the debate being presented in those terms favoured by the few who are holding the river to ransom.Because sooner or later the overallocation, exacerbated by declining water inflows caused by climate change will render the present trend .. to borrow a word .unsustainable.Just because we have been stupid, narrow minded, greedy and selfish for decades doesn’t mean we have to contiue that way until the crunch arrives again.