The constitutional framework for water resources management

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Book Chapter

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Interim status: Citation only.

Carney, G. & Gardner, A. (2009). The constitutional framework for water resources management. In A. Gardner, R. Bartlett & J. Gray (Eds.) Water resources law (pp. 81-105). Chatswood, NSW: LexisNexis Butterworths. ISBN: 9780409321944

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The control of water resources in Australia is traditionally the responsibility of the states. The Commonwealth was not given an express legislative power over this resource at federation but has the capacity to affect, directly and indirectly, water resources management through several of its legislative and financial powers. Until 2007, this had occurred mainly by the adoption of policy guidelines and the provision of financial assistance in relation to environmental protection and the fostering of interstate trade in water entitlements. Due to its limited powers in this area, the Commonwealth had promoted cooperative arrangements with the states.

However, the enactment of the Water Act 2007 (Cth) involves the new assertion of Commonwealth legislative powers as well as, by amendment in 2008, the exercise of powers referred to the Commonwealth by the states. The Water Act establishes a new national framework for gathering and disseminating water resources information. More significantly, the Water Act establishes for the Murray-Darling Basin ('MDB') a new framework for defining environmental limits on water resources exploitation and new rules for enhancing the interstate water market. Nevertheless, state law remains the foundation for the water resources entitlement regimes, and the reason for that is constitutional.

This chapter begins with an outline of the states' constitutional authority under both the powers that accrue to state governments by virtue of their ownership of natural resources and their general legislative powers, which are subject to certain limits under the Commonwealth Constitution and their own constitutions. Secondly, the chapter outlines the legislative powers of the Commonwealth, including its power to override state law. Thirdly, it briefly notes the powers of the territories. Fourthly, it explains the constitutional basis for the use of cooperative federal schemes for water resource management, including the referral of state powers to the Commonwealth that underlies the expansion of its regulation of water resources through the Water Act 2007 (Cth).

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