4-423 (Original)

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Sir JOHN DOWNER (South Australia). -  
As this debate has proceeded, there have been really two separate points made. One is, the rivers of Australia treated as navigable; the other, the rivers of Australia as used for other purposes, irrigation, or whatever the case may be. As far as [113] the first is concerned, the Premier of New South Wales says it was never contemplated that there should be any interference with the navigability of that which is navigable. At the same time, I cannot help remembering that he said that during some portions of the year, or at times, the river was not always navigable; that it was only a series of ponds, and that there might arise doubts. However, those doubts do not occur to me, nor have I the fears expressed by the honorable member (Mr. Wise) with reference to the construction that might be placed on what is meant by a "navigable streams" I have no doubt that if it came to be a question of legal construction, the meaning of the words "navigable stream would be taken in connexion with its surroundings, and that the question would be decided from an American stand-point rather than in accordance with the decisions in England. The next question we have to consider now is not whether under the general Constitution this clause we have inserted is practically unnecessary, and whether or not, under the general provision of trade and commerce, which contains all the words in the American Constitution, we have all the protection we require. The question, first of all, is whether we should leave this entirely to judicial decision, or, when we are making a new Constitution, we should place our meaning in plain and unmistakable words. Seeing that we are all agreed as to the intention of the Constitution to prevent, one state from interfering with navigable streams so as to interfere with their navigability, I do not think there can be very much harm in saying something that will convey that impression without our being forced to litigation and judicial decision. But the matter does not end there, because, as was pointed out exceedingly well by the Premier of South Australia, the matter rests in these colonies on an alternative basis, to which we have to give every consideration. It may well be in the future that the navigability of any river we have would bear no comparison in the interests of each of the states with its uses for other purposes. If we only use in our Constitution words providing that the rivers which are now navigable shall be kept navigable, we may have to go through the complicated process which will be necessary to alter the Constitution before we can do what, perhaps, every man in the state thinks ought to be done. I listened with great interest to th 
Mr. REID. -  
Does not the Murray concern us? 
Sir JOHN DOWNER. -  
Not after it leaves New South Wales. 
Mr. REID. -  
We gave up some hundreds of miles of the Murray. 
Sir JOHN DOWNER. -  
I do not want to go into elaborations. I concede that New South Wales gave up something, but they took a good deal more. They only began to give up something where the Murray bounded themselves and Victoria. They handed over to the Commonwealth the course of the river along that boundary, and, with equal generosity, they handed over to the Commonwealth all the river where it belonged to South Australia, and gave us, or rather intended to give us, nothing in return. I do not know that they did not give us something. I am inclined to think that, as time went on, and as appeals were made to the judicial tribunals, it would be found that they had given more [114] than they intended to give up. But, still, that would be a bad understanding on which to make a friendly arrangement. We believe that they are giving up something they did not intend to give up; but I think that this agreement ought to begin with a perfect understanding, and not with any of us having any well founded opinion in our minds that by the force of judicial decisions a result will be obtained different from what was intended at the time we made the agreement. Now there is no wish, as has been said, to interfere with the rights of New South Wales. I have no doubt that the Commonwealth will do every justice to that colony, and I have no doubt that New South Wales will have the power in the Commonwealth to compel justice to be done to them, even if there were any disposition on the part of some to do them less than justice; but I protest, in the first instance, against the supposition that the Commonwealth will be founded in injustice, and will have no disposition to do justice to the different states, and it is only in a secondary way that I put it that, even if it was intended to do that injustice, with the power that New South Wales would be able to exercise, there would be no possibility of carrying such an intention into effect. The Murray runs through the territory of three colonies. Let it be the subject of the control which we have already agreed to on matters of much more importance, and of more vital interest to us. Having shown all the trust we possess on those more important and more vital questions, do not let us show distrust on this particular question, which is as peculiarly a federal concern as any other matter within the four corners of this Bill, and of as much interest to all Australia as the provisions with regard to free-trade and other things. We give the Federal Parliament power to pass social legislation of the highest importance; we hand over to them our dearest relation-the relations of parent and child; we give them unlimited power of taxation; we commit to them the whole of our commerce by telling them that they, and they alone, shall settle the bounds of taxation and other important powers, and then, forsooth, we are to begin by distrusting them in a matter which may, in the outcome, prove infinitely small in importance, or which may, in the outcome, prove large, although I do not think it will, but which, though it prove unimportant, may well produce infinite irritation. We are asked to hold our hands and refuse to transfer to the Federal Parliament the power to control the navigable rivers of Australia, because New South Wales says-"We have the River Murray, under our Constitution-how can we be interfered with?" Well, we all have everything under our Constitutions, and we are all, handing over something-we are all making sacrifices. The very essence of the agreement is the handing over of jurisdiction that we exclusively possess, and we only ask New South Wales, who is already willing to make concessions infinitely greater, not to let the sweetness of the agreement be interfered with by the possibility of friction on a matter of smaller moment like the one now under consideration. I agree with Mr. Kingston that we ought to go further than anybody has proposed up to the present time-that, in the ordinary course of our natural life, circumstances may occur that may make the navigation of our rivers trifling and contemptible compared with their importance for other uses; and, therefore, I think it would be well to so broadly frame our provision with regard to rivers as to preserve their navigability only so far as is necessary-to except from that liability the necessities of each state, which may be found out and developed from time to time. From that point of view I beg to submit an amendment. If honorable members have any prior amendments-I do not know that they have-I will ask them to withdraw them to enable me to get a test by proposing, as I now do, the omission from sub-section (31) of all [115] the words after "The control and regulation of," with a view to the insertion of the words- all navigable streams, but so as not to prevent the fair and reasonable use by each state of the waters thereof for irrigation or other reasonable purposes. The effect of adopting that amendment will be that it will be in the power of the Commonwealth to preserve the navigability of the rivers, if they are navigable, and the Commonwealth will have no control if the rivers are not navigable. 
Mr. LYNE. -  
Would that embrace all the rivers? 
Sir JOHN DOWNER. -  
I think, it would be better to put no limitation. We do not know exactly where it will begin, and how it will end. First of all, I seek to make the primary object the preservation of the navigability of such streams as an navigable, but, at the same time, should circumstances require it, and the opinion of the Commonwealth sanction it, to allow that navigability to be interfered with by the necessary use by each state of what is fair and reasonable for their own purposes. The effect of my amendment will be simply this-instead of having an appeal to the discretion of the Imperial Parliament to alter the Constitution and restrict the rights of any particular state that is so using its powers as to be injuring other states, to give the Commonwealth that power. That is the cardinal idea that has been actuating us all through. We say-"We are brothers, and we want to be fair and just. We will be fair and just, and we will establish a Constitution on such lines that we cannot but be fair and just." And yet, when this very subsidiary matter crops up, New South Wales says-"We have got absolute power over these rivers," whereas they have not in reality, because the Imperial Parliament can control their power. But the basis on which we all act on these matters of purely Australian concern is that we do not wish to appeal to the Imperial Parliament, but to establish a Federal Constitution on just lines, which will enable us to deal with our own affairs without appealing to anybody outside. It is from that point of view that I move this amendment, not at all desiring to adhere slavishly to its words, but quite slavishly to the idea of the amendment. I think we should not define any particular stream. I entirely object to defining the Murray. I entirely object to the provision as inserted in Adelaide. I objected at the time. I considered that so far from its being an extension of our authority, it was a distinct limitation of it, because under the general scope of the Bill we already had the control of the Murray, and of every other navigable stream within the Commonwealth. so as to preserve the navigation thereof. That would follow from the other portions of the Bill. The only necessity of any provision being inserted was to insure the use of water for purposes other than navigation, and when we inserted that provision we put a strong argument into the mouths of those who chose to argue that, even as to navigability, the River Murray, in the colony of New South Wales, was outside the jurisdiction of the Commonwealth, and possibly we may have settled the question of tributaries, or, at all events, have offered a strong argument that the Commonwealth would have no concern with the tributaries. Now, I have no particular desire to see any words introduced in respect of the tributaries. 
Mr. HIGGINS. -  
But you want to cover them. 
Sir JOHN DOWNER. -  
I think that if a stream is navigable it must be made navigable from water supplied from somewhere else, and when the Commonwealth has the control of the navigability of the stream it will have the control of everything that is necessary to make that stream navigable. About that I think there is no doubt. I do not want to use too many words in my amendment. I would like to use fewer words than I have done, if any [116] honorable member can suggest them-the fewest possible words which will give the greatest possible jurisdiction, covering words-and I only suggest these words because I fancy that they convey an idea which is in the minds of a great many members of the Convention at the present time. The New South Wales representatives say-"Certainly, as far as any portion of the rivers in Australia are navigable, empower the Commonwealth to protect the navigability of those rivers, but, as far as the use of the water of the rivers of New South Wales for irrigation is concerned, you must leave us to ourselves." The result of that might be disastrous, because if the commanding condition is that the navigability is to be preserved, then New South Wales would not have the power to use the water they required for themselves, and the results would be injurious to all. Therefore, make the navigability of the rivers your first consideration, but make this qualification of it, that anything fair and reasonable-and the Commonwealth would be the judge of that-can be done by any state for the purpose of using the waters for irrigation or any other purpose, even though it destroys their navigability. I think if we have an understanding founded on that basis we shall, at all events, begin well, and we will have no necessity to appeal either to arms, which we cannot appeal to, or to the Imperial Parliament, which I am sure we wish to appeal to as little as possible. 
Mr. ISAACS. -  
Does the honorable member's amendment include navigable streams 
purely within a state? 
Sir JOHN DOWNER. -  
I thought at first of inserting the words "running through two or more states." 
Mr. ISAACS. -  
But I mean to say not open to interstate commerce. 
Sir JOHN DOWNER. -  
I think the power of the Commonwealth should not be limited. I do not think there is much fear of its being exercised unjustly. As far as my amendment is concerned, I will be very willing to listen to any suggestions other honorable members have to make, but I thought, on consideration, that to impose a limitation like that might be to raise very difficult questions, and to very much interfere with the power which the Commonwealth can, but need not, exercise in its discretion, and to limit the usefulness of that power at a time when we wish to exercise it. 
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