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Copyright (c) 2010 Faculty of Law, Sydney University Law School 
The Sydney Law Review

ARTICLE: The Constitution and the management of water in Australia's rivers

December, 2010

The Sydney Law Review

32 Sydney L. Rev. 595


Paul Kildea* and George Williams**


I Introduction
The management of water in Australia's rivers has become, within little more than a decade, one of the most urgent public policy problems facing governments at every tier of the Australian Federation. The legion of challenges surrounding water conservation are now familiar, and include water scarcity, increasing salinity, impairment of river wildlife and habitat, and the degradation of ecological assets. 1 The challenges facing the Murray-Darling Basin are perhaps the best known, but these problems apply to river systems across Australia. 2 They have also been made more urgent due to the effects of drought and climate change. 3 Indeed, the Chair and CEO of the National Water Commission, Ken Matthews, remarked recently that, '[w]e have known for years that water reform in Australia was important, pressing and difficult. Now that climate change is with us, important becomes vital, pressing becomes urgent, and difficult becomes downright tough'. 4

The challenge of managing Australia's water resources has given rise to a number of agreements and institutions, including the recent National Water Initiative and Intergovernmental Agreement on Murray-Darling Basin Reform. Like their predecessors, these initiatives were both shaped and constrained by the Australian Constitution and, in particular, by the federal design of the constitutional system. The constitutional framework has, for good or ill, determined the extent of state and Commonwealth influence over river management. It has had a bearing on whether management initiatives have served local or national interests and on whether they have been cooperative or imposed by ...
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