§ 421. “For Conservation or Irrigation.”

The scope of the section is limited to reasonable use for these two purposes. Any use by a State or its residents which does not come within one of these heads is not protected by these sections, but is subject to the dominant power of the Federal Parliament with respect to navigation. Conservation and irrigation were the two modes of use which engaged the special attention of the Convention, as being the only modes of use which were contemplated on a large scale, and which seemed to threaten the navigability of the rivers. It is clear, however, that they do not exhaust the ways in which, or the purposes to which, water may be appropriated. Water may be diverted as a source of power, or for sluicing purposes, or in many other ways.

CONSERVATION.—Conservation means the retention and storage, in a natural or artificial reservoir, of waters which would naturally flow down the channel of a river. Every dam which backs up the waters of a river conserves water in a reservoir formed partly by the bed and banks of the river, and partly by the dam. But conservation within the meaning of this section need not, it is conceived, be within the bed of the river, but would include the diversion of the waters of a river to a reservoir wholly outside the bed.

“The use of waters for conservation” is a somewhat indefinite phrase. Conservation, unlike irrigation, is rather a means of use than an actual use. It is in fact the storage of water, with a view to subsequent use in any way whatever—for irrigation, or for pastoral purposes, or for driving machinery, or for the water-supply of a town.

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“The use for conservation” would seem to mean rather “the conservation for use.” The right to conserve must imply the right to use the water conserved, otherwise it would be useless; and as no particular use is specified, it follows that conservation for any purpose—provided the use is reasonable—is authorized by the section. Thus the conservation of waters from the Nepean in the Prospect Reservoir, for the supply of the city of Sydney—or the conservation in the Yan Yean Reservoir of waters from the Watt River, a tributary of the Yarra, for the supply of the city of Melbourne—cannot be interfered with by the Federal Parliament so far as it is a reasonable use; though it seems that in the United States, in such a case, if the navigability of the river lower down were interfered with, not only might Congress interpose, but the Attorney-General under laws already made by Congress might obtain an injunction. (See United States v. Rio Grande Dam and Irrigation Co., 174 U S. 690, cited p. 890 supra; and also Wilts and Berks Canal Co. v. Swindon Waterworks Co., L.R. 9 Ch. 451.)

From the above analysis the curious result would seem to follow that a use of waters which does not come directly under the protection of the section may come indirectly under that protection by the storage of the water before use. The great conservation schemes which have been projected in regard to Australian rivers, as well as the actual conservation schemes already carried out, are almost wholly for the purposes of pastoral and agricultural settlement. (See speeches by Mr. J. H. Carruthers, Conv. Deb., Adel., pp. 802–5; Melb., pp. 52–6, 388–399, 468–472, 1955–8; Report of Colonel Frederick J. Home, R.E., on the Prospects of Irrigation and Water Conservation, N.S.W. Parl. Papers, 1897, Vol. 5, p. 249.)

IRRIGATION.—Irrigation is the distribution of water through artificial channels over cultivated land. Unlike conservation, it involves the use of water for a single definite purpose—that of supplying moisture for plant life. Irrigation is extensively practised in many European countries, and also in India and America. In Australia it is largely in the experimental stage, the most important irrigation works at present being in the colony of Victoria. (See Australian Handbook, 1900, p. 236; Mr. A. Deakin's speeches, Conv. Deb., Adel., pp. 805–9; Melb., pp. 38–45, 452–60, 636–40, 1970–4; Colonel Home's Report, N.S.W. Parl. Papers, 1897, Vol. 5, p. 249.)

One of the essential requirements of a profitable system of irrigation is a continual and regular supply of water; and therefore on the intermittent rivers irrigation works can hardly be undertaken except in combination with conservation schemes which will secure that regular supply. Close settlement is another essential condition; and it appears from the report of Colonel Home (cited above), that whilst conservation is an immediately practical question, irrigation is likely to be confined for many years to the more closely-settled districts.

PROBABLE EFFECT ON NAVIGATION.—Irrigation and navigation may, owing to the insufficiency of water for both, involve a conflict between the two uses; but the present prospects of irrigation do not point to any immediate danger to navigability. Conservation, on the other hand, is not necessarily antagonistic to navigation. The conservation of flood waters will render it possible to maintain a more regular flow and to increase the continuity of navigability. (See Mr. A. Deakin's speeches, Conv. Deb., Syd., 1891, p. 691; Melb., 1898, p. 40.) Whether there will ultimately be any serious conflict between the rights of navigation and the rights of conservation and irrigation is therefore problematical.

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Inter-State Commission.

101. There shall be422 an Inter-State Commission423, with such powers of adjudication and administration424 as the Parliament deems necessary425 for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

UNITED STATES.—A Commission is hereby created and established to be known as the Inter-State Commerce Commission, which shall be composed of five Commissioners.—Inter-State Commerce Act, 1887, sec. 11.

HISTORICAL NOTE.—The provision for an Inter-State Commission was first suggested at the Adelaide session, 1897, when the Bill as first drafted contained the following clauses:—

“93. The Parliament may make laws constituting an Inter-State Commission to execute and maintain the provisions of this Constitution relating to trade and commerce upon railways within the Commonwealth, and upon rivers flowing through, in, or between, two or more States.”

“95. The Commission shall have such powers of adjudication and administration as may be necessary for its purposes, and as the Parliament may from time to time determine.” (Then followed a limitation as to railway rates; see Hist. Note to sec. 102.)

As to the expediency of constituting a commission, there was hardly any debate; and the only amendment made was the omission of the limitation alluded to in brackets. (Conv. Deb., Adel., pp. 1113–5, 1117–40.)

At the Melbourne session, 1898, a suggestion by the Legislative Assembly of South Australia, to provide that the Parliament “shall” constitute an Inter-State Commission, was discussed. In view of the decision just arrived at (see Hist. Notes to secs. 102, 104) to make the Inter-State Commission the arbiter of unfairly preferential rates, this proposal gained strong support; though some of the Victorian representatives argued that its creation should be optional with the Parliament. The amendment was eventually withdrawn in favour of a proposal by Mr. Kingston, to substitute “There shall be” a Commission. The Convention desired to secure to the Commission a large measure of independence from Parliamentary control, and this amendment was agreed to. The words limiting the scope of the Commission to railways and rivers were then omitted, in order that the Parliament might be free to give the Commission the widest powers of administering the trade and commerce provisions. (Conv. Deb., Melb., pp. 1512–39.)

Before the first report, the two clauses were redrafted into one, as follows:—“There shall be an Inter-State Commission with such powers of adjudication and administration as the Parliament from time to time deems necessary, but so that the Commission shall be charged with the execution and maintenance,” &c. On the second re-committal, Sir Geo. Turner objected to the independence of the Commission, as regards its constitution and powers, and proposed to substitute “Parliament may constitute” the Commission. This was negatived by 23 to 13, but Mr. Barton met Sir Geo. Turner half way by giving Parliament full control over the powers of the Commission. (Conv. Deb., Melb., pp. 2393–6.) Two verbal amendments were made after the fourth report.