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.
The Australian Constitution records the legal structure of the government of Australia. It was drafted in Australia in a series of constitutional conventions held in the 1890’s, then passed in the British Parliament as part of the Commonwealth of Australia Constitution Act 1900, and came into effect with the Commonwealth of Australia on January 1st 1901.
The Constitution can only be changed by passing a referendum of the citizens eligible to vote.
Section 100 of the Australian Constitution 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.’
The meaning and intention of Section 100 are clear and have no need of forensic analysis,
As the Water Act 2007 and its subsidiary Basin Plan are Commonwealth law that regulate the use of river water, their existence contravenes the Australian Constitution.
The authors of the Water Act 2007 and its subsidiary Basin Plan recognized that these Acts appear to contravene the Australian Constitution, and so claimed their Constitutional validity in Section 9 of the Water Act (Constitutional basis for Act).
Section 9 of the Water Act quotes various clauses of Section 51 of the Australian Constitution (Legislative powers of the Parliament) as justification for overpowering Section 100 of that same Constitution. However, the first subsection of Section 51 states ‘The Parliament shall, subject to this Constitution, have power to make laws etc.’ Visibly, Section 51 itself states that its clauses are subject to other Sections of the Constitution, including of course Section 100. This means that Section 51 cannot validly be claimed to overpower Section 100.
Section 9 also quotes ‘any implied legislative powers of the Commonwealth’. Obviously, ‘implied powers’ do not overpower written powers such as Section 100.
The citizens of Australia are confronted with the problem of Federal politicians contravening the Australian Constitution by their forming of the Water Act 2007 and its subsidiary Basin Plan. The citizens of N.S.W, Victoria and South Australia are confronted with the additional problem of their State parliamentarians approving of this contravention by participating in the legislation’s implementation.
A resolution to both these problems is needed.