Section 100 and State water rights

Abstract

The question of a State’s right to water from rivers that cross interstate boundaries or form the boundary between two States of Australia is one which has remained unresolved since before Federation. This article examines the drafting history behind s 100 of the Constitution – the only section within the Constitution to deal directly with water rights. The article explores the limited judicial consideration given to s 100 and concludes that if there is a right to water from interstate rivers as between States, then s 100 is not its source. In doing so, the recent case of Arnold v Minister Administering the Water Management Act 2000 is considered. Finally, this article identifies some of the unanswered questions regarding interstate water rights.