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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.

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