House of Representatives
30 June 1904

2nd Parliament · 1st Session

Mr. Speaker took the chair at 2.30 p.m., and read prayers.

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Mr. SPEAKER reported the receipt of a message from His Excellency the GovernorGeneral, recommending that an appropriation be made from the Consolidated Revenue for the purposes of this Bill.

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Mr. WATSON laid upon the table the following paper: -

Report of the General Officer Commanding the Military Forces of the Commonwealth.

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OXLEY, QUEENSLAND · PROT; FT from 1913; ANTI-SOC from 1906; LP from 1910

– Can the PostmasterGeneral give any further information to the House with regard to the new mail contracts, as the present contracts expire within a few months?


– I understand the honorable member’s question to refer to the hew English mail contracts.

OXLEY, QUEENSLAND · PROT; FT from 1913; ANTI-SOC from 1906; LP from 1910

– Yes.


– All I can say is that the matter is now engaging the consideration of the Government, and I hope that definite action will be taken within a very short time.

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– Has the PostmasterGeneral further considered the question of subletting mail contracts referred to last week? Has he come to a decision on the subject ; if so, to what decision ?


– The cancellation of the ‘ sub-contracts in connexion with Cobb and Co.’s contract for the carriage ot mails in the vicinity of Ballarat has been under consideration, and, after consulting * the Attorney-General on the subject, it has been determined to give Mr. Vines an intimation that they will be cancelled as from the 30th September next. In the meantime, with a view to prevent any disarrangement of the services, the Department is taking action to ascertain from the sub-contractors if they are willing to continue the work for the amounts which are .now being paid to Mr. Vines. If they agree to do so, it will be unnecessary to call for fresh tenders. I hope that there will be no disarrangement in any particular of the mail services affected.


– As Mr. Vines is a constituent of mine, I wish to ask the PostmasterGeneral whether an opportunity was given to him to carry out the original conditions of the contract, and to perform the services tendered for at the rates at which he originally contracted to perform them, without employing sub-contractors?


– The matter has engaged the attention of the Department for, I suppose, more than twelve months, so that, if Mr. Vines desired to perform the services himself, in compliance with the terms of the original contract, without subletting, he has had ample opportunity to do so.

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asked the Postmaster-General, upon notice -

What would have been the additional amount credited to the revenue of South Australia had the messages transmitted by the Pacific Cable between the months of June, 1903, and April, 1904, inclusive of both months, been sent via South Australia?


– The answer to the honorable member’s question is -

The information cannot be supplied at present. Inquiries are, however, being made in order to enable a reply to be given, but it will take some time to obtain the information, as all telegrams by the Pacific Cable in both directions, and for each State, must be referred to for the number of words ; the amount which would have been credited to the South Australian revenue varies with nearly every State.

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asked the Minister of Home Affairs, upon notice -

  1. Were all lists of voters and documents, used at the last. Commonwealth General Election and enclosed in sealed parcels, destroyed at the same time that the sealed parcels of ballot-papers used were destroyed ?
  2. If so, what was the date on which these several sealed parcels were destroyed ?
Minister for Home Affairs · BOOTHBY, SOUTH AUSTRALIA · ALP

– In answer to the honorable member-

Instructions were issued on -the 9th of May, 1904,. in accordance with the provisions of section 159 of the Commonwealth Electoral Act 1902 to the Commonwealth electoral officers of each State, and inquiries are -now being made as to whether the lists of voters and other documents were destroyed at the same time.

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asked the Minister of Trade and Customs, upon notice -

  1. If an inventor holding State patents surrender them under section 7 of the Patents Act of 1903, and obtain a Commonwealth patent thereunder, is he absolved from payment of renewal fees provided for in the surrendered State patents?
  2. Is such provision within the powers conferred by the Constitution?
Minister for Trade and Customs · WIDE BAY, QUEENSLAND · ALP

– The answers to the honorable member’s questions are as follow: -

  1. Yes.
  2. I am not aware of anything in section 7 of the Patents Act which is outside the powers conferred by the Constitution.

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asked the PostmasterGeneral, upon notice -

  1. Is it a fact that the Victorian State Premier has made a proposal to the Government regarding the sale of duty stamps at non-official post offices in Victoria?
  2. If so, what is the nature of the proposal, and what action does the Government propose to take in connexion therewith?

– In reply to the honorable member’s questions -

  1. Yes.
  2. That the State Department concerned shall supply duty stamps to non-official postmasters on the same terms as to licensed vendors, and that the Commonwealth should guarantee the State against any loss on account of stamps supplied to such postmasters, who will not undertake to sell unless an advance is given. The matter has not yet been decided, but as the Commonwealth is not interested in the sale of duty stamps at non-official post-offices, and does not derive any benefit from such sales, there is a reasonable disinclination to provide any guarantee in such cases.

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Treasurer · Bland · ALP

.- As I do not feel very well, and wish to have an opportunity to introduce a Supply Bill, I have to ask the House to consent to the initial stages being proceeded with at once, and to take up private business afterwards. I move -

That general business be postponed until after the consideration of the Order of the Day Nos. 1 and 2 (Government business).


– May I say on behalf of the Opposition that we cordially agree to the proposition made by the Prime Minister, and most generously consented to by the honorable and learned member for Angas, who is to resume the debate on the motion with regard to water conservation. It has been evident to all of us during the last day or two, that the Prime Minister has been discharging his very heavy duties under great physical disabilities; and if we can study him, we shall be most happy to fall in with any suggestion which he may make.

Question resolved in the affirmative.

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In Committee of Supply:

Treasurer · Bland · ALP

.- I have to express my gratitude to honorable members, and especially to the honorable and learned member for Angas for giving way in the manner in which he did, so as to assist me to get away a little earlier than I otherwise could do. I beg to move -

That a sum not exceeding £120,000 be granted to His Majesty for or towards defraying the services of the year ending 30th June, 1905.

Towards making up the sum mentioned in the motion, there is first of all an item of £45,000, which is being asked for in anticipation of the ordinary military vote, for clothing purposes. It may be remembered that some weeks ago the honorable and learned member for Corinella, who has some expert knowledge on the subject, asked me whether I would facilitate the granting to officers commanding regiments, as early as possible, of the money which ordinarily would be voted to them for clothing purposes. The reasons given in support of that request were that the regulations recently passed necessitate the adoption of a new uniform, which was to be provided as opportunity occurred. In consequence of that, officers commanding regiments would like to pay the moneys available for this purpose at an earlier period of the year than would be the case if they had to wait for the ordinary Estimates to be passed. I am asking for the money in the form of a Treasurer’s advance account. The money, which will be sufficient for the purpose for which it is voted’, will be recouped to the Treasurer when the Estimates ar.e passed, by the transfer of the £45,000 from the ordinary appropriation for defence purposes to. the Treasurer’s advance.

Mr Deakin:

– This ‘sum would appear on the Estimates in any case.


– -Yes ; it will appear in this year’s Estimates. It is really asking only for an advance in anticipation of the vote for the Defence Department. It simply means that the Department will receive now a portion of the money which it would otherwise receive some months later. I think there is no likelihood of objection being taken to the ordinary annual sum for this purpose being paid, and as it does not matter to Parliament whether it is paid earlier or later, and as by its being paid earlier the money can be used to greater advantage, I trust that honorable members will see the propriety of allowing an advance to be voted to the extent of the £45,000 I have mentioned.


– It is in anticipation of the Defence vote for the next financial vear.


– It is in anticipation of the Estimates for the Defence Department for the coming year. There is a further sum of £75,000 which I am also asking Parliament to vote as a Treasurer’s advance, pure and simple. Of course the whole of the amount covered by this Bill is called a Treasurer’s advance, but £45.000 is to be appropriated in the manner I have indicated, whilst the remaining £75,000 will be placed to the credit of the Treasurer. Two or three months . may elapse before the Appropriation Act can be passed. Therefore, even if Supply Bills are obtained, it will be necessary for the Treasurer to have at his disposal some sum from which he can provide for emergencies. Last year my predecessor, the right honorable member for Balaclava, had a similar sum advanced to him. I think it was voted on the 2nd July. On that occasion it was agreed on all sides that the best course that could be pursued under the circumstances was to allow the Treasurer to have some money in hand to meet emergencies. As honorable members know, a Supplementary Appropriation Bill was passed a week or two ago, and the amount voted was quite sufficient for the time being. In fact, I have not nearly exhausted the Treasurer’s advance. But the balance of the money cannot be used after to-day, which is the end of the financial year. In order to provide for to-morrow and the future, it is necessary that some money should be placed in the hands of the Treasurer to meet emergencies. I do not know of anything which would lead me to anticipate that any very large portion of this £75,000 will be spent. The amount asked for is purely an arbitrary sum. In this respect I am following the excellent example of the late

Treasurer. I have every reason to believe that there is a necessity for some money to be voted, and in view of that fact I think it is a proper thing to ask the Committee to grant the amount which I have indicated, and which is the amount which was granted last year.

Question resolved in the affirmative.

Resolution reported and adopted.

Motion (by Mr. Watson) agreed to -

That the Standing Orders be suspended in order to enable all steps to be taken to obtain Supply, and to pass a Supply Bill through all its stages without delay.

Resolution of Ways and Means covering resolution of Supply adopted.

Ordered -

That Mr. Watson do prepare and bring in a Bill to carry out the foregoing resolution.

Bill presented by Mr. Watson and read a first and second time, and committed pro forma.

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Mr. SPEAKER reported the receipt of the following message : -

The Senate requests that the House of Representatives will give leave to the Hon. Austin Chapman, a member of such House, to attend if he thinks fit, and be examined as a witness before the Select Committee of the Senate on “ Privilege rule case of Senator Lt.-Col. Neild.”

Motion (by Mr. Watson) agreed to - That the House authorizes Mr. Chapman to attend accordingly, if he think fit.

Mr. SPEAKER reported the receipt of the following message: -

The Senate requests that the House of Re.presentatives will give leave to the Right Hon. Sir John Forrest, G.C.M:G., a member of such House, to attend if he thinks fit, and be examined as a witness before the Select Committee of the Senate on the case of Major J. W. M. Carroll.

Motion (by Mr. Watson) agreed to -

That the House authorizes Sir John Forrest to attend accordingly, if he think fit.

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Debate resumed from 2nd June (vide page 1913), on motion by Mr. McColl -

  1. That, in the opinion of this House, the prosperity of Australia as a whole, and the development of the interior more especially, depends on the utilization of its waters.
  2. That this great question should receive the early attention of the Government of the Commonwealth.
  3. That it is desirable that a scheme of conserving and locking the waters of the River Murray, in the interests of irrigation and navigation, should be formulated and carried out by joint action on the part of the Commonwealth and the States of New South Wales, South Australia, and Victoria, and that the Government should take such steps as it may deem, necessary to bring about such joint action without delay.
  4. That the petition received by this House from certain residents in the northern district of Victoria and the Riverina district of New South Wales on the 25th June, 1903, be taken into consideration’ in conjunction with this motion.

– My cooperation in this matter was assured by my having previously tabled a motion in the following terms : -

That, in the opinion of this House, the Federal Government should, subject to the Constitution Act, carry out a scheme for locking, impounding, or otherwise conserving, for the purposes of Inter-State commerce and irrigation, the waters of the Rivers Murray and Darling.

My object was to give the somewhat lethargic States a lead in the matter and to show the people of Australia that we would, at all events, endeavour to do something towards that material development which was held out as one of the inducements to the States to federate. Personally, I have held that the matter of the improvement of our waterways as a means of promoting Inter-State commerce was quite” as much within the Federal province as the projection of Inter-State railways. I am glad to have my original impression strengthened by the report of the recent Royal Commission upon the Murray waters, one of whose recommendations was that as a preliminary to the Inter-State locking of the rivers the river, from Blanchtown to Wentworth, should be locked at an expenditure of £760,000. It is also refreshing to find that the Public Works Committee of New South Wales, on two different occasions, recommended that the Darling should be locked, with the object of rendering it a permanently navigable highway. In whatever way this matter may be brought before the House, it is certainly one of the most important that has ever been submitted to an Australian Parliament. Scarcity of water is really one of the prices we pay for the geniality of our climate; for those qualities of the atmosphere which shorten perspective and render any feeling of lassitude impossible are due to the absence of generous and equal rainfall. We have not here., as in India, and to some extent also in California, great river systems fed by distant mountain chains, from which vast districts are capable of being reticulated and supplied with water for the purposes of irrigation. We have, however, one great arterial system, with a catchment area in four States, which is capable, if wise statemanship be exercised, of being converted into a great highway for commercial purposes, and a great aid to internal development, which, through the concert of the riparian States and the enterprise of the Federation, may be made to represent to Australia what the Nile is to Egypt. All that is necessaryis co-operation and judicious outlay - that Ave shall, in fact approach the subject from the Australian point of view. It is in that temper - the temper that led to Federation - that I am endeavouring to address myself to the subject, and I hope that the clear merits of the case may compensate for any weakness in its advocacy. It is really time that something was done to utilize as a great water-way the 3,200 miles of streams which are at least intermittently navigable, and to conserve the water which flows down them, for the purposes of irrigation and watering stock. The subject has been quite long enough before the public. As a matter of fact, in 1857, when the headings of a Bill for the federation of these colonies were submitted to the General Council of Australasia, which then sat in London, one of the subjects that it was proposed to delegate’ to the central Federal body was the navigation, or the improvement of the navigability of our great rivers. Some of the statesmen of those days had greater prescience than we had, because the subject to which I have referred, as well as the assimilation of the gauges of the railways, were regarded as exclusively Federal matters. In 1863, representatives of the three riparian States met in Melbourne, and passed resolutions in favour of the conservation of water for general purposes, and of the locking of the rivers for the purposes of commerce being undertaken as a Federal project. In 1872 the River Murray was actually surveyed, with a view to Inter-State locking, and I think that a newspaper called the Empire was started with the object of furthering the idea. In 1884 a Royal Commission was appointed in New South Wales to inquire into the rivers question, and a little later, perhaps in 1886, it met one of the Water Commissions of Victoria, and drew up a scheme, which we in South Australia thought somewhat larcenous, for. the diversion of the water of the Murray from Howlong to the South Australian border, between those States. With the timidity of a- down stream State, which was powerless, although it had a certain amount of legal competence to assert its claims, South Australia, in 1887, appointed a Commission with a view to join in the concert of the two other States, and devise some equitable method of dividing the waters of the Murray, and improving the navigability of the stream. But, perhaps, through excessive coyness on the part of New South Wales, we never came together. That .Commission, of which I had the honour to be a member for a few years, was dissolved in 1891, owing to the refusal of New South Wales to join in its efforts. I wish to say that in 1889 the desire of South Australia was more than verbally expressed. On my initiative in that year a motion was carried in the House of Assembly, and subsequently, I believe, in the Legislative Council, advocating a concert of the States for the purpose of deciding upon a system of Inter-State locking and conservation. Then came the Commission of 1902, which presented a report with the terms of which honorable members are doubtless familiar. At this stage I may, perhaps, be permitted to say a few words as to the reason why nothing has resulted from the recommendations of that Commission as amended by the Premiers’ Conference. The Commission, for the purpose of apportioning the waters of- the Murray, divided the year’ into two periods, one representing the high water mark and extending from July to January, the other representing the low water mark and extending from February to July. It was proposed that Victoria and New South Wales should be given a primary right to divert a total discharge of 440,000 cubic feet per minute and that 170,000 cubic feet per minute should be allotted to South Australia on the understanding that whenever there was any surplus over the navigable discharge at Morgan the up-stream States should be at liberty to divert a correspondingly increased volume. That arrangement, however, was amended at the Premiers’ Conference. A diversion of 440,000 cubic feet, by the two up-stream States, was made conditional upon the existence of a navigable discharge at Morgan of 360,000 cubic feet per minute. The real navigable discharge there is 460,000 cubic feet per minute. Perhaps I may be held partly responsible for that error, inasmuch as I did not point out what the official diagrams did not clearly show - that that discharge was calculated from the level of the gauge. The position is that under the terms recom-


mended by the Premiers, the two upper States were entitled to divert 440,0.00 cubic feet per minute. Assuming that there was a navigable discharge at Morgan, those States would be at liberty to deduct the surplus, which in some years would be very considerable, from the normal discharge to South Australia. Let me instance how that proposal would have operated over two years. For that purpose, I take the year 1900, which has been regarded by the Commission as a mean year. The average discharge at Morgan, from January to July of that year, was 1,100,000 cubic feet per minute. That would have given to the two up-stream States an addition to the primary discharge of 440,000 cubic feet per minute, to which they were entitled, a surplus of 660,000 cubic feet per minute. Then let me take a low year, namely, 1896. In that year, the average discharge at Morgan from July to January was 649,000 cubic feet per minute. The navigable discharge was 460,000 cubic feet per minute, so that Victoria and New South Wales would have obtained, in addition to the primary diversion to which they would be entitled, a surplus of 189,000 cubic feet per minute. The low’ months were dealt with in this way :- A primary diversion was given to the two up-stream States of 370,000 cubic feet per minute. Then under the recommendations of the Royal Commission, South Australia was to be allowed a diverting power of 70,000 cubic feet per minute, whilst under terms agreed upon by the Premiers’ Conference she was to be allocated absolutely 150,000 cubic feet per minute. Any surplus over 150,000 cubic feet per minute was to be divided between three States in the following proportions : - New South Wales was to receive teneighteenths, Victoria five-eighteenths, and South Australia three-eighteenths. If we regard 1896 as a typical low year, we find that the average discharge then was 430,000 cubic feet per minute, so that after making an allowance to South Australia of 150,000 cubic feet per minute the surplus divisible in the proportions mentioned would have been 280,000 cubic feet per minute. I do not wish’ to unnecessarily introduce any contentious matter into this discussion. I am merely stating facts for the purpose of supplying information. Personally, I think that it was impossible to act upon these recommendations. If I may mention only one reason it is that the absolute minimum of 150,000 cubic feet per minute allowed to South

Australia is not always capable of realization. For example, in March, 1902, the discharge was only 119,000 cubic feet per minute, in April it was 69,000 cubic feet and in May 78,000 cubic feet. Consequently a minimum exists only upon paper. This to some extent explains the disinclination of the South Australian Executive to introduce a Bill for the purpose of validating the agreement proposed. The arrangement suggested fell short of the principles enunciated in the resolutions arrived at by the Commission. Its members commenced their report with splendid homilies, which in practice entirely broke down. For instance, on page 50 of their report we find it stated -

It has been already shown that no apportionment of water can be made between the States for irrigation and water conservation, without regard to the requirements of navigation. Sufficient water must be allowed to pass down the river to maintain navigability as heretofore.

An examination will show that on their suggested apportionment that was impossible for several months of the year. There may be no objection to the, adoption of an agreement of that character, assuming that the ‘ quantities mentioned are provided by conservation and locking. But a minimum discharge of 150,000 cubic feet per minute to South Australia when the navigable discharge is 460,000 cubic feet per minute, would be useless for the purposes of navigation, but where the water conserved represented the subsidence of the stream stopped by locking at the point of navigability, the allowance to that State would be more than sufficient to compensate for the loss occasioned by evaporation and percolation. I make that statement without intimating what would constitute for all purposes the minimum demand of South Australia if a conference were held to consider what would be a fair system of apportioning a somewhat scanty discharge of water to the States, if a scheme of locking and conservation were undertaken either by the Commonwealth or the States. In this matter we can follow the excellent lead of the United States. The Federal Government of the United States have constructed very large reservoirs at the head of the Missouri, for the benefit of navigation, and to counteract certain diversions for other purposes. President Roosevelt, in one of his messages to Congress, strongly encouraged the improvement, for inter-State commerce and general 66n- servation, of the great American rivers. In his first message to Congress he urged the construction of storage reservoirs for, I think, both purposes, pointing out that -

The water from these/ reservoirs should be turned freely into the channels in dry seasons, to take the same course under the same laws as the natural now.

It is about time that something were done in this direction. I am personally hopeful that action will be taken, because I think there is a far greater reserve of that Federal spirit - that spirit of compromise and of mutual toleration - in this House than is, perhaps, generally recognised by the public, and that the matter has only to be fairly and clearly stated to at least receive fair consideration.

Mr Page:

– Why have the States failed in the past to come to an agreement in the matter ?


– I have just endeavoured to deal with that point. The reason is the inadequacy with locking of the divisions for general purposes. The division proposed to be given to South Australia would be inadequate even for navigation.

Mr Page:

– And what about the other two States?


– I decline to account for them. I do not think that they altogether understood the position.

Mr Chanter:

– One would not, and the other could not.


-And perhaps both thought they should not. The honorable member for South Sydney suggested that perhaps some of the legal members of the House would devote a little attention to what appeared to be the position from the point of view of legal rights. I shall trespass on the attention of the House whilst I give my impression of what is the constitutional and legal position, dealing first with the Federal power, and secondly with the riparian relations between State and State and the residents of different States. To put it briefly, if we are to follow, as I think we must, the analogy of America, whose conditions are somewhat similar, and whose breadth of view is perhaps more in accordance with the Australian temper, the Federal sphere is this: The Federal power extends to the maintenance and improvement of rivers, permanently or intermittently navigable, by themselves, or in connexion with other rivers, forming a channel of commerce between the States or with other countries. That is really the gist of several American decisions, which, as a member of the Convention, I endeavoured to get inserted, as a definition, in the Constitution. It is immaterial whether a stream has been made navigable by artificial means - whether it has been made navigable at public expense, and was not in its original natural state a navigable stream.

Mr O’Malley:

– Canals come in.


– That is so. Prentice and Egan, in their work on The Commerce Clause of the Federal Constitution, say: -

If a stream be in fact accessible from other States, it is immaterial that in its natural condition it was not an Inter-State highway, nor that it may be entirely of artificial construction.

It is within the Federal power over these rivers to prevent obstruction, deepen channels, change outlets of lakes and rivers, and, among other things, to construct dams and locks. The Federal power is a new one. It is one of the special creations of the people of Australia - created by them when they passed the Constitution - and it was intended to be exercised. The Commonwealth can, under that new power, prevent unreasonable diversions by the States which interfere with the navigability of connecting streams. I have spoken of “unreasonable diversions.” Section 100 of the Constitution provides that the Parliament of the Commonwealth, in exercising its jurisdiction under the Inter-State commerce provision of section 51, shall not -

Abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

What is the probable meaning of that provision? The word used in the section is “abridge,” which means “cut down.” In other words, the limitations of section 100 on the Federal power are not an extension of States rights, they simply amount to a preservation of them. I am sure honorable, members will agree with me that it would not be a reasonable use of the waters of rivers, for the purposes of conservation or irrigation, to altogether destroy the interests of States which depend on those streams chiefly for navigability. Mr. Irvine, the late Premier of Victoria, in his communications with the Government of South Australia, put the position in these terms -

If the reasonable necessities of conservation and irrigation demand it, the waters of all rivers may be used to any extent for this purpose, notwithstanding that the rivers may be thus rendered non-navigable.

If the ex-Premier of Victoria by that meant that a use of the waters that altogether disregard the Federal right to conserve the rivers for the purposes of water ways - and, perhaps, the claims of the States lower down the streams, although he. did npt expressly say so - was a reasonable one, his contention was as bad as a matter of justice as it is unsound in law. The Constitution gives no supremacy to irrigation. If the Constitution is construed,- as every Constitution must be, one part of it must read so as to be consistent with the rest of it. Viewed in that light it could not have been intended by the subsequent provision’ in the Constitution that the general scope, of the Federation, as defined in sub-section 1. of section 51, should be absolutely cut down. There is a general principle of legal interpretation that if two constructions are open, that which is consistent with common sense and equity, which will conserve the objects of both sections, and make the- Constitution consistent, must prevail.

Mr Kennedy:

– The Constitution . does not abridge the rights of the States.


– I have already said that it does not, and am endeavouring to emphasize that point. It does not abridge or extend those rights.


– It simply re-states the pre-existing law.


– That is all. I hold that the rights in respect of irrigation and conservation, and the Federal rights as to the navigability of rivers, are really co-equal and co-relative. One is not to be supreme. The general public interest must be viewed in a broad way and from a common-sense consideration of the requirements of Australia, and thus the relative extent to which the rivers may be used for each purpose can be settled. If I wished to urge that any particular interest should be paramount, it might be plausibly stated that, as a matter of law, navigability is paramount ; but I do not desire to do so. I shall give an American and an English reference in relation to this matter. In Kinney on Irrigation, page 57, section 41, in summarizing a course of reasoning, it is said -

The right of passage is paramount to all other rights and interests in and to rivers and streams.

In the case of Colchester v. Brook, reported in 7 Q.B.D., p. 338, it is laid down that-

Wherever the public right of navigation exists in regard to a fresh water river, it is paramount to the proprietary rights in the bed of it.

Rights to navigation in a fresh water river exist as. the .result of usage, which, of course, has been going on for the last sixty or seventy years in the case of our arterial river system*


– Has the attention of the honorable and learned member been’ drawn to the recent ancient lights ease ?


– I think that I know most of those cases, and quite understand their bearing upon the subject. I stated at the beginning that I- believed that our conditions are more similar to those of America than to those of England j but, to meet every objection, I am quoting from English as well as from American authorities. If one adhered to strict law, without a fair reading of the Constitution, it might be contended that navigability is paramount to other rights. But I would not assert that, because the limitation in section 100 of the Constitution shows that there is to be no paramountcy. I hold that the right and necessities of the States, as well as of the residents in the States, to the reasonable use of the rivers must be considered. In one State irrigation may be the paramount interest, in another navigation ; but from the Federal point of view, neither must be regarded as supreme, and a fair apportionment, having in view the necessities of effective development, must be made in respect to the two uses. As the honorable member for North Sydney has suggested, the words of the Constitution rather declare than extend existing riparian rights. To cite another English case, that of Ramesbur v. Pollock, 4 Appeal Cases 121 -

Each proprietor is entitled to the unimpeded flow of the water in its natural course, and to its reasonable use as it passes the land.

The very words inserted in the Constitution. Then in The Swindon Water Company versus The Wilts and Berks Canal Company, Law Reports, 7 House of Lords 697, it was held that -

The exhaustion of water which may take place may be so inconsiderable as not to form a subject of complaint by the lower owner. Again, it may well be that there may be a use of water by the upper owner for manufacturing purposes so reasonable that no just complaint can be made upon the subject by the lower owner. Whether such a use in any particular case could be made would, I apprehend, depend on whether the use was a reasonable one.

Then after a statement of the facts, the judgment continues -

This is not a use of the stream which could be called a reasonable use by the upper owner. It is confiscation of the rights of the lower owner.

It is the duty of the States, as such, to protect individual rights, and, as I shall show a little later on, they have the power under our Constitution to do so. The law as laid down in the cases I have cited is, I hold, the law also between the States as such, the apportionment between them depending upon what is reasonable from the point of view of effective use.

Mr Groom:

– Does the honorable and learned member mean the right of public user? He has been dealing with private riparian rights.


– Yes. The States, as entities, have at least the power to protect the rights of their residents, and to act on their behalf as plaintiffs or defendants. But as a matter of policy, they should also be regarded for the purposes of apportionment, leaving it to them to vary the rights of citizens in their own territory. Let me refer now to what is known as the arid region doctrine. Some members of the Convention thought that we should put aside the English views of riparian ownership, because of the fact that they have been disregarded in the arid regions of America in favour of the law of first appropriation. That law, which applies also to ranches, is simply the result of no law at all. .Any one who chose to take the water when there was a superabundance of it could do so. Similarly, any person going into the prairies might put sheep and cattle upon them, and, so long as he was able to resist reprisals such as we have read of during the last fortnight, could run them there without legal intersference. It was, therefore, held in the mining districts, and for the purposes of water diversion in the arid regions, that the first proprietor was entitled, if there happened to be an inadequacy of water, to the use he had made at the point of diversion of the quantity required for the use of the diversion. But that right of appropriation has gradually been developing into something very like riparian ownership. For instance, it is now limited by several conditions. Water is not to be taken, as it could originally have been taken, in excess of the need of the persons diverting. That is, it must not be taken for speculative purposes. There are also limitations as to the actual use, and as regards the duration of the rights and the quantity to be taken, and it is also required that what is taken must be devoted to some continuous or useful purpose. The law of first appropriation has not been approved by some of the best writers Oh the subject in America. Elwood Mead’ has been it- ferred to by the honorable member for North Sydney. Speaking of the law with which I am dealing, he says -

The streams which gave value to the arid lands were left to be divided or fought over by settlers in whatever way they chose.

Further on in his book on irrigation institutions, he says that -

It is now realized that the Federal Government should have asserted the same ownership over public water that it did over the public land, and disposed of both together.

In another place he states that -

The experience of every arid State has shown that trouble always results when it is left to rival users to determine the nature of their rights.

The law of first appropriation really embodied the principle of lawless appropriation, subject to the sanction which miners can effectually apply by their own concert when a man disregards their notions ofcommon sense and equity. It was acquiesced in by some of the States, but it has never been recognised as legal as against the United States, as a Federal power having control over navigation, or as a land-owner. In 1866 by way of compromise, owing to’ the large schemes started by some States, a law was passed validating against subsequent grantees of land appropriations to. date, but not validating subsequent appropriations. And that is the point of my reference. It has no extra territorial significance. It cannot bind the citizens of another State, and it is not the law of England and of Australia. To deal with the second point first, it is not the law in England and Australia. In Mason and Hill, 5 Barnwell and Adolphus, the judgment states: -

It appears to us that there is no authority in our law, nor, as far as we know, in Roman law (which, however, is no authority in ours) that the first occupant, though he may be proprietor of the land above, has any right by diverting the stream, to deprive the owner of the land below of the special benefit and advantage of the natural flow of the river thereon.

I said that it has no extra territorial effect or significance, and that a State may alter the law internally, but not affect the rights of another State. Let me exemplify this doctrine of appropriation, and its effects between States. California has a mixed system. As a matter of fact, in 1850, it introduced, in substitution for the old Mexican principle, the principle of riparian ownership, taking the English idea; but in 1851 it modified that system, by providing for the recognition of certain appropriations of water; and, as laid down in the State case of Lux v. Hoggin, and in some subsequent decisions -

The common law, doctrine is modified by the law of appropriation until the rights of a riparian owner are more like those of a preferred appropriation of water than those of a riparian proprietor under the common law doctrine, as it is generally understood elsewhere.

That is a synopsis of the effect of the decisions. But it has been decided by the Supreme Court of the United States in the case of United States v. Rio Grande Dam and Irrigation Company, 174 U.S. Reports, 690 - that water cannot be taken so as to injure the resident of another State as a unit of the Federation. The judgment states -

It was admitted that every State has the power within the Dominion to alter the common law rule as to the appropriation of flowing waters, and to permit their appropriation for such purposes as the State deems desirable. Also that (bv the Acts cited) Congress had recognised and assented to such appropriation ; but it was not to be inferred that Congress thereby meant to confer on any State the right to appropriate the waters of the tributary streams which unite into a navigable water-course, and to destroy the navigability of that water-course in derogation of the rights of the people of the United States.

The same principle was asserted in some other cases. In Ruts v. the City of St. Louis it was laid down that the power of prevention extends to the undue diversion of streams if that diversion interferes with rights of property in another State. As to navigation, I would refer honorable members for further proof of this legal position, to the evidence of Professor Salmond taken in Adelaide. He and I gave evidence on the same day. I direct attention to his answer to question 5289 in the report of the Royal Commission, and also to the evidence of Pitt-Cobbett - who I think is still a lecturer on International Law in Sydney. His answer to which I direct attention is number 5687. He said -

I, therefore, think that the diversion of the waters of a tributary stream would, if it caused the stream, in fact, to have affected the. navigability of the main stream, constitute an infringement of the Federal law.

It is a matter of doubt as to whether it was necessary first to exercise Federal authority bv the passing of a Federal Act. Probably it is not necessary. What are the InterState rights as laid down in America as between proprietors of water? I am dealing at present with the question of riparian rights. In Howell and Johnson, reported in volume 89 of the Federal reports, page 566, the case reported concerns a dispute between two appropriators of water, one living in the State of Montana, and one in Wyoming, both of which States had abrogated the principle of riparian rights. It was laid down -

It is a recognised rule of law . that a person who has appropriated water at a certain point in a stream is entitled to have so much of the waters of said stream as he appropriated flow down to him to the point of his diversion. The defendants, according to the allegations in the Bill, are violating this rule, and should be enjoined.

In other words, it was held that the use of water, to the detriment of the reasonable use of that water by a State lower down, was illegal. There is one other case to which I would refer honorable members on this point. It is a case which is still, as the lawyers say, sub judice. It is a case affecting diversions of water in Colorado, to the detriment of Kansas. The water concerned is that of the Kansas River. That river flows over about 300 miles through Colorado, and 310 through Kansas, and ultimately empties itself into the Mississippi. In Colorado there are 300,000 acres under irrigation. There were several large diversions projected in Kansas, and some were’ being constructed for the purpose of irrigation schemes. It was contended that the Colorado schemes would be to the detriment of persons in Kansas. For several years - it is somewhat like the position between our States - acrimonious discussions had been going on between the representatives of Kansas and Colorado as to what should be done with regard to these waters. An attempt was made to arrive at some amicable solution. But those attempts failed, and Kansas took action to restrain Colorado. On the demurrer, which is the legal mode of objecting to the competence of the tribunal, and to the validity of the pleas - which was argued in 1902 - these principles were land down.- Chief Justice Fuller said -

Sitting, as it were, as an international, as well as a domestic tribunal, we apply Federal law, State law, and international law as the exigencies of the case may demand.

I took that position in the evidence which I gave before the Royal Commission. I contended that we should apply the principles of international law as between States. We have here the announcement of the Chief Justice of the Supreme Court of the United States - expressing the unanimous finding of the Court - that that Court will apply the principles of international law, which are equitable principles, to the adjustment of these .cases. It was contended for Colorado that as absolute riparian rights had been abolished and property rights had been conferred under the State laws, the lower State could not claim any interference by the Federal Judiciary that would affect the rights conferred by the law of Colorado. In reply to that, it was urged that both States - and this is an important consideration - were originally one territory, and that, under the sovereignty of the United States, both were subject, as one territory, to one riparian law, which could not, on the division into separate States, be abrogated, as between proprietors in different States. Our position is somewhat similar. Originally the whole of the States, excepting South Australia, were one Colony. South Australia was settled direct from the “old country. To push this matter even further, I would urge that even before Federation there were riparian rights as between. State and State. Upon that point I would refer to only one legal witness, Professor

Salmond, whose evidence appears at page 208 of the report of the Royal Commission. He says -

I believe that, even before Federation, there was an Inter-State riparian law in force’ between the Colonies, that is to say, that even by legislation, the different States had no power so to interfere with the rivers as to do material injury to other States. Any such legislation would, I believe, have been ultra vires and unconstitutional.

As a matter of fact, in all the instructions given to Colonial Governors, there was a provision that any law that prejudiced the rights and properties of the King’s subjects not residing within the State which passed it should be reserved for the consideration of the Imperial Government. The position under Federation is that the riparian rights of the States have become effective, because we now have a tribunal capable of applying and enforcing them. In anticipation of this question being raised, I secured the insertion of the provision in the Judiciary clauses of the Constitution which have now become embodied in our Judiciary Act, giving the right to a State to sue another State, or to a citizen of one State to sue another State. The position now is that a State or an individual can sue with the object of enforcing riparian rights. As a matter of fact, if the States were independent, the rights claimed would be the subject of international remonstrance. In 1880 a remonstrance was made by the

United States Government to the representatives of Mexico against the diversion of the water of the river Rio Grande to the detriment of Texan irrigators. The usual results followed such a remonstrance, and the case put by America was recognised as being a just one. It is pointed out in case after case in America that when States that had been previously independent became parties to a federal union, that which had - previously been a matter of international remonstrance required legal sanction. I would refer honorable members to the case in which Mr. Chief Justice Waite, 108, United States Reports, 90, said -

The different States, by assenting to the Constitution, and becoming members of the Federal union, impliedly agreed not to do any acts to the injury of each other, or to the injury of the people of each other, which would violate the Rules of International Law.

The legal and constitutional position was admirably summarized in 1894 in an opinion given by two eminent constitutional lawyers, George B. French and Jeremiah Smith, who acted as counsel to advise the State of New Hampshire on the constitutionality of diversions of water made by the City of Boston, in Massachusetts, which operated to the injury of certain mills in New Hampshire. They stated the” very position which I am endeavouring to emphasize, as follows : -

Did the Kings of Great Britain, in chartering the respective Colonies of Massachusetts and New Hampshire, intend to give each Colony the right to destroy the other? At that time the rivers and water-power were important features of the country. Must not the Kings’ grant of these two Colonies be taken as subject to the implied reservation or condition that neither should materially change the course of streams flowing from one to the other.

The conclusion I deduce from these cases is that the Commonwealth can restrain any unresonable diversions of water which injure the navigability of the connecting streams, that riparian rights exist between the States and the citizens of the different States, and are capable of judicial enforcement. If no amicable settlement be arrived at - I hope even at this late stage of the case that that will prove to be the true solution - we may have to test the matter before the Federal Judiciary. In America States have passed laws appointing certain persons to preserve against interference by other States the rights of their citizens, and to take any necessary action at law. I desire to indicate to honorable members the causes of the timidity which has been exhibited by South Australia. Our Water Departments are beginning to fear that the diversions in Victoria and New South Wales are having a very serious effect upon navigation, and that they are also affecting the lakes which exist near the mouth of the Murray, and the supply of water for purposes of irrigation, when the river is very low. The anxiety of the South Australian authorities to preserve the navigability of the river are shared by many citizens of other States. Two years ago, I presented dozens of petitions from residents of other States on the Murray, embodying principles very similar to those of the motion. We know that the- lower Murray River League opposes the Barren-Jack scheme in New South Wales, as likely to affect the navigability of the Darling and Murrumbidgee. During the last five or six years, the Murray in South Australia, has, on the average, been closed to navigation for two or three months longer than formerly. I know that recently there have been exceptionally low rivers, but taking everything into account, causes apart from the drought are operating detrimentally to South Australian interests. Take the position in 1902. From February to 17th July, navigation was altogether stopped. The river had sunk in April below zero. The usual summer discharge at Morgan at zero on the gauge is 120,000 cubic feet per minute, but the river discharge had fallen to 60,000 cubic feet per minute. We have some lakes upon the river, upon the waters of which a great many settlers are dependent. There are, for example, Lakes Alexandrina and Albert, which embrace a total area of 284 square miles. About 640,000 acres of settlement depend upon the waters of those lakes, and at present there are also- from 7,000 to 10,000 cattle and 150,000 sheep dependent upon them. In July, 1902, the water conservation Department reported that these waters were as salt as the sea. The explanation offered by Mr. Jones, the th’en Conservator of Waters, was -

The chief cause of the low and saline state of the lakes can be found without much seeking. It is undoubtedly due to the very extensive diversionsof the waters of the River Murray, and its tributaries throughout the whole year - at times both winter and summer flow - in the State of Victoria.

Some time ago one of the officers of the Water Conservation Department of South Australia inspected the diversions which had been made by Victoria. He reported that on 9th March, 1903, there was a discharge of the river at Echuca of 40,000 cubic feet per minute, and that the total Victorian diversions, including pumping, at that time represented 51,000 cubic feet per minute. On the date mentioned, Victoria was actually appropriating 75 per cent, of the waters of the Upper Murray and Goulburn, with the result that the South Australian flow was only onehalf what it would have been in the absence of these diversions.

Mr McColl:

– Did the officer give any details as to these diversions?


– Yes. I am in a position to give the honorable member the particulars, because I received an advance copy of the report. To put it poetically -

In such indexes, although small pricks To their subsequent volumes, there is seen The baby figure of the giant mass Of things to come at large.

We know that the channel of the Waranga basin will have a capacity equal to 103,000 cubic feet per minute, and that the eastern channel will have a capacity of 20,000 cubic feet per minute. Then, the Deep Creek cutting, 20 miles below Echuea, is cut to summer level for the purposes of diversion. Between Albury and Echuca there are eleven cuttings, three of which were in New South Wales and the remainder in Victoria.

Mr Kennedy:

– That is not correct. There is not a single diversion there.


– I did not say that there are “ diversions I merely stated that the cuttings exist.

Mr Kennedy:

– They do not.


– The honorable member is at liberty to correct me, but it is upon record that these cuttings exist. As a matter of fact, I interviewed the officer who is responsible for that statement, and examined him upon his report, so that there must be some accuracy in his statements. These cuttings, 1 was informed, are from three to fourteen feet above low-water level. At any rate, if the statement is found to be inaccurate it can easily be corrected, because only last Monday an officer started out for the express purpose of inspecting the diversions which are being effected by Victoria. But in addition to these, a scheme has been contemplated - though it is not likely to be carried out, because the Victorian Railways Standing Committee have rather thrown cold water upon the project - I refer to the Mur- lay -Goulburn scheme, under which an additional 80,000 cubic feet per minute would have been dealt with. Of that quantity only 20,000 cubic feet per minute was regarded as compensation water, and the balance was to be equally divided between New South Wales and Victoria as a supplement to the Goulburn diversion. According to the evidence given before the Commission in New South Wales, there are schemes under consideration which would practically amount to the impounding of several lakes. When I mention that there are seventy lakes on the Darling, witha storage capacity equal to half the mean annual discharge of that river, honorable members will understand what such an undertaking would mean. Colonel Home in 1897 condemned the impounding of water in these lakes for the purposes of irrigation, but yet irrigation is contemplated. Mr. Wade, in giving evidence regarding some of these lakes, states that the water which is diverted to them will not return to the river. As I understand it is the desire of a number of honorable members to proceed with the Supply Bill, I ask leave to continue my remarks upon a future date.

Leave granted.

Debate (on motion by Mr. Glynn) adjourned.

page 2896


In Committee (Consideration resumed, vide page 2887) :

Clause 1 agreed to. Clause 2 (Issue and application of £120,000),


– I do not rise for the purpose of urging any objections to this Bill. I think that the Committee generally will approve of the- action of the Prime Minister in proposing to make the necessary advance to the Defence Department for the purposes which he has outlined. Under any circumstances, that payment would require to be made during the year which commences to-morrow. The fact that the Government will be able, to make, it at an earlier date than would be possible if we waited till the Appropriation Bill were passed will convenience the militia officers throughout Australia. The remainder of the expenditure contemplated in this Bill is necessary to put the Treasurer’s advance vote in funds. That is very necessary, on account of the miscellaneous and unforeseen demands which will require to be met. Indeed, the vote asked for is ‘very similar to that which was granted at a corresponding period last year. Under these circumstances, I think that the Committee will have little or no hesitation in agreeing to this Bill. I understand that some honorable members desire to call attention to particular questions, but, apart from that, I do not anticipate any opposition to the measure.


– It seems to me that we are adopting an extraordinary procedure in treating this Bill merely as authorizing an advance vote to the Treasurer instead of a temporary Supply Bill. It seems to me that we could easily make an appropriation for the purposes of the coming year, and that the items of expenditure might afterwards be specified in the Appropriation Bill. Mr. Deakin. - Portion of it is. Sir JOHN FORREST. - I always understood that an advance to the Treasurer was designed to meet unforeseen expenditure.

Mr Hughes:

– That is so.


– It seems to me, therefore, that this is really an appropriation for the’ services of the year ending 30th June, 1905, the details of the expenditure to be subsequently specified in the Appropriation Act. In such cases an undertaking is always given by the Government that the purposes to which these moneys will he devoted will be similar to those agreed to in connexion with the appropria-.tion for the previous year. I do not think that the Treasurer will’ require to spend this amount on unforeseen items, nor while Parliament is in session has he any right to do so. He knows exactly for what purpose he requires it ; and I presume that he needs it to meet current expenses of the year. I do not now intend to take any exception to the proposal, but consider that the procedure is not a right one, or one that should be encouraged.

Clause agreed to.

Clauses 3 arid 4 and schedule agreed to.

Bill reported without amendments, and passed through its remaining stages.

page 2897


Motion (by Mr. Hughes) agreed to -

That the House? at its rising, adjourn until Tuesday next.

House adjourned at 4.4 p.m

Cite as: Australia, House of Representatives, Debates, 30 June 1904, viewed 22 October 2017, <>.