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High Court rules on s 100 of the Constitution

The High Court of Australia delivered it’s decision in Arnold v Minister Administering the Water Management Act 2000 [2010] HCA 3 ("Arnold") on 10 February 2010.  The Court did not overrule Morgan v Commonwealth [1947] HCA 6; (1947) 74 CLR 421 (“Morgan”).

At issue in Arnold was the licensee's groundwater entitlement under an aquirer access licence issued under the NSW Water Management Act 2000, which replaced bore licences issued under the NSW Water Act 1912 (Cth). The new licences had the effect of reducing the amount of water that Arnold and others were able to take.

Special leave was sought to argue that the National Water Commission Act 2004 (Cth) and the Funding Agreement between NSW and the Cth which provided ex gratia payments to allow the transition of licence holders from bore licences to aquifer access licences.

The challenge failed. Special leave was granted but the appeal was dismissed. In so doing, however, the High Court did not have to consider the correctness of Morgan because the case could be decided on a more narrow basis, namely that the Cth laws did not apply to "waters of rivers"; rather, they applied to underground water and thus did not come within the protection of s 100: at [29] per French CJ; at [55] per Gummow and Crennan JJ; at [75] per Hayne, Kiefel and Bell JJ.

Consequently, Arnold was not an appropriate vehicle for the ventilation of the correctness or otherwise of Morgan. In those circumstances, Morgan, of course, represents accepted constitutional doctrine. A summary of the drafting background of s 100 is described by French CJ's judgment at [18]-[22], [26] and [28].

It is also interesting to note that, at [15], French CJ criticised the pleading as being a "less than substantial factual foundation" for the invocation of s 100.

In essence, the High Court did not consider the correctness of Morgan (and furthermore it did not cast any doubt on its correctness).

Albert Dinelli’s guidance on this summary gratefully acknowledged (any errors are ours) - Editor