§ 415. “To one State or any Part thereof.”

The corresponding words of the United States Constitution are “to the ports of one State over those of another.” At the time when that Constitution was framed, navigation was the only means of carriage on a large scale, and the prohibition against preferences to ports seemed, to the Convention of 1787, to cover the whole field of necessary commercial regulation. Prentice and Egan (Commerce Clause, p. 306) suggest that—

“It is probable that the construction which will be given to the clause will be in accordance with this broad purpose. Freedom of transportation from conflicting,

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discriminating, and burdensome restrictions was the purpose of the Constitution; and while the language employed was almost necessarily such as referred to the means of transportation then in existence and within the knowledge of the Convention, nevertheless the operation of the Constitution is not confined to the instrumentalities of commerce then known, but keeps pace with the progress of the country, and is adapted to new developments of time and circumstance. Within a hundred years the means of transportation has so changed that the commerce among the States conducted by land is more important than that conducted by water. Provisions of the Constitution which at first were applied only to navigation may therefore now be applied to railways, as in the case of the clause which forbids the States from laying any duty of tonnage; and the same view may also be taken of the preference clause.”

In this section the scope thus contended for has been definitely expressed; and the words cover all commerce, whether by land or sea.

The preferences prohibited are preferences to localities. The other two kinds of preferences—preferences to particular persons, or to particular classes of traffic (see Note, § 430, infra) are not mentioned. Of course, however, a preference to a locality consists of a preference to persons or goods in that locality; and accordingly it would seem that a preference to particular persons or classes of traffic — even though no locality were expressly mentioned—might, if it specially favoured any State or part of a State against another State or part of a State, be within the section.

It is to be noticed also that a preference, to come within this section, must not only be a preference to one locality over another, but must be a preference to a locality in one State over a locality in another State. Discriminations between parts of the same State are not provided against by this section. The purpose is to safeguard the interests of the States as against one another, by prohibiting inter-state preferences. The section is “evidence of the intention of the framers of the Constitution to protect the freedom of commerce from the selfish interference of a State, through its influence in the National Government.” (Lewis, Federal Power over Commerce, p. 20.)

Nor abridge right to use water.

100. The Commonwealth shall not416, by any law or regulation of trade or commerce417, abridge the right of a State or of the residents therein418 to the reasonable use419 of the waters of rivers420 for conservation or irrigation421.

HISTORICAL NOTE.—The only mention of rivers in the Bill of 1891 was in the clause enumerating the legislative powers of the Federal Parliament, which contained a sub-clause “River navigation with respect to the common purposes of two or more States or parts of the Commonwealth.” (Conv. Deb., Syd., 1891, pp. 689–92; see p. 138, supra.)

Adelaide Session, 1897.—The sub-clause as proposed by the Constitutional Committee, and embodied in the first draft at Adelaide, empowered the Federal Parliament to legislate as to “The control and regulation of navigable streams and their tributaries within the Commonwealth and the use of the waters thereof.” The debate is summarized at pp. 174–6, supra. The clause was ultimately cut down to “The control and regulation of the navigation of the River Murray, and the use of the waters thereof, from where it first forms the boundary between Victoria and New South Wales to the sea.” (Conv. Deb., Adel., pp. 794–829.)

Melbourne Session, 1898.—Both Houses of the South Australian Parliament had proposed to extend the clause—the Assembly to all the tributaries of the Murray, and the Council to the rivers Darling, Murrumbidgee, and Lachlan. The result of the first debate (see pp. 194–6, supra) was that after a number of amendments had been proposed and rejected, the sub-clause was struck out altogether (Debates, p. 480), and all proposals

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made in substitution for it were defeated; the question of river control being thus left, as in the United States, to the operation of the “trade and commerce” power. (Conv. Deb., Melb., pp. 31–150, 376–642.)

On the second recommittal (see pp. 196–7, supra) Mr. Glynn moved an addition to the “trade and commerce” sub-clause, defining “navigable rivers” on the broad basis of American decisions; but the question was eventually postponed until after the settlement of the navigation power. The New South Wales representatives feared that the paramountcy of the federal navigation power might injure State rights of water conservation and irrigation; and Mr. Carruthers proposed to add to the “Navigation and Shipping” sub-clause a proviso that the use of the river waters for navigation should be subordinate to conservation in the States. This was eventually withdrawn in favour of Mr. Reid's amendment to the effect that the navigation power should not “abridge the rights of a State or its citizens to the use of the waters of rivers for conservation and irrigation.” Sir John Downer's amendment to add “reasonable” before “use” was carried, and the sub-clause as amended was agreed to. (Conv. Deb., Melb., pp. 1947–90.) After the fourth Report, it was amended to stand as a separate clause.