The Constitution and the Management of Water in Australia’s Rivers

The management of water in Australia’s rivers has become one of the most urgent public policy problems facing governments at every tier of the Australian federation. This article examines the ways in which water management has been shaped and constrained by the Constitution and, in particular, by the federal design of the constitutional system. It examines the competing priorities that gave rise to the original constitutional settlement on water, which left river management largely in the hands of the states. It then looks at contemporary constitutional arrangements, noting how judicial interpretation has significantly expanded Commonwealth legislative powers in this area. It argues that, despite recent intergovernmental agreements on water, there is a real possibility that relations between governments in this area will become further strained and that regulation and management will increasingly be supplemented by litigation. It concludes by arguing that the only effective, long-term solution may require a wholesale reassessment of how the constitutional framework can more effectively support the management of Australia’s water resources in the 21st century