The Commonwealth also infers that the orders for prohibition and injunction sought in pars [3], [5] and [8] of the amended application relate to the matters identified in (b) and (c) above.
9 The Commonwealth notes that it has no obligations or responsibilities under the WM Act or the Plan, which was made under s 50 of that Act. Neither the Commonwealth, nor its officers are capable of exercising "plan making functions", being functions under a New South Wales enactment.
10 The Commonwealth's application is summarised in par [5] above. The Commonwealth submits that there is no cause of action against it and it also raises the question of jurisdiction. The issue of jurisdiction having been raised, the Court is required to satisfy itself that it has jurisdiction before it proceeds further with the matter (R v Federal Court of Australia & Adamson; Ex parte WA National Football League (Inc) (1979) 143 CLR 190 at 215 and National Parks and Wildlife Services & Anor v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585 per Kirby P). The Commonwealth notes that the burden is upon the applicants to establish that the Court has jurisdiction and to the extent that the question depends upon particular facts or state of affairs, it is for the applicants to prove those matters on the balance of probabilities: Shin Kobe Maru, Owners of the Ship v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan & Ors v Commissioner of Police (1999) 47 NSWLR 284 at 285. The Commonwealth submits that the Court cannot simply rely upon a "failure" on the part of the party objecting to jurisdiction to adduce evidence proving absence of jurisdiction.
11 The Commonwealth argues that the Court would not be satisfied that the applicants have established jurisdiction for various reasons. This Court, which a superior court of record, is a statutory court of limited jurisdiction (Stables at 578 per Gleeson CJ, with whom Meagher JA agreed). The Commonwealth notes that the Court may, in resolving a claim which is properly brought within jurisdiction, decide all questions of law and fact which need to be decided in order to deal with that claim (Stables at 582 per Gleeson CJ, with whom Meagher JA agreed). That includes determining (in an indirect or collateral fashion) matters which would otherwise not be within the jurisdiction of the court: Minister for Minerals and Energy v Vaughan-Taylor & Anor (1991) 73 LGRA 115 at 123 per Meagher JA. However, the limitation to such matters as "need" to be decided means that their resolution must be a "necessary step" in the cause of action which is within jurisdiction: NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 412-413 per Pearlman J. The Commonwealth relies on Stables as authority for the submission that the jurisdiction is not enlarged by reasoning analogous to that which supports the pendent or accrued jurisdiction of the Federal Court (Stables at 580 per Gleeson CJ, with whom Meagher JA agreed).
12 The Commonwealth made further submissions in relation to jurisdiction. It submitted that the applicants, in asserting that the Court may proceed to hear the originating application against the Commonwealth, over the objection of the Commonwealth, even if the Court does not satisfy itself that it has jurisdiction to do so, have overlooked the point made by Kirby P in NEC Information Systems Australia Pty Ltd v Lockhart (1991) 22 NSWLR 518 at 521. There his Honour observed, "No court should exercise jurisdiction, at least where it is in contest, without being satisfied that there is jurisdiction to exercise." The Commonwealth further submits that the jurisdiction of this Court may not be established by concession, nor may it be established by conduct said to constitute "waiver" (Stables at 585 per Kirby P). The Commonwealth submits that its application may not be refused as a matter of discretion as no question of discretion arises - the Court simply lacks power to hear the claims against it.
13 In relation to the first order sought by the Commonwealth, noted in par [5] above, it submits that the power to dismiss or stay proceedings which are outside jurisdiction is not dependent upon the characterisation of the Commonwealth's application as being made under a particular rule of Court.
14 The Commonwealth says that the applicants appear to overlook a fundamental point - that the only potential source of jurisdiction for the claims against the Commonwealth is s 39(2) of the Judiciary Act 1903 (Cth). The Commonwealth submits that jurisdiction is only conferred upon state courts within the limits of their several jurisdictions, including limitations as to subject matter. The Court possesses a limited jurisdiction, which is defined by reference to specified statutes relating to specialised subject matter. The Commonwealth therefore submits that s 39(2) of the Judiciary Act does not confer jurisdiction.
15 Section 16(1A) of the Land and Environment Court Act 1979 (NSW) was inserted by the New South Wales legislature to seek to overcome some of the resulting limitations upon the Court's jurisdiction. There is nothing, according to the Commonwealth, in the language of the LEC Act, or other relevant New South Wales legislation, which indicates an intention on the part of the New South Wales Parliament to confer jurisdiction to determine the claims made against the Commonwealth in these proceedings.
16 Further, none of the claims against the New South Wales respondents are in any way contingent upon the claims made or the relief sought against the Commonwealth. It cannot be contended that the resolution of those matters is a necessary step to the determination of the claims against the New South Wales respondents. The claims against the Commonwealth and the State are said to be "separate to and independent of" one another. The Commonwealth goes further, submitting that even if s 16(1A) of the LEC Act did confer jurisdiction, the provision would be invalid in so far as it was said to confer federal jurisdiction on this Court. Any such jurisdiction must, it is submitted by the Commonwealth, be found in s 39(2) of the Judiciary Act 1903 (Cth). Section 39(2) of the Judiciary Act 1903 is said to be of no assistance to the applicants due to the limitations upon the jurisdiction of the Court being adopted for the purposes of the conferral of federal jurisdiction under that section (D&H Investments Pty Ltd v Wagner (2005) 91 SASR 27 at 41).
17 The Commonwealth states that the Court should dismiss the applicants' claims for relief as against the Commonwealth on the basis that the applicants are unable to satisfy the Court that it has jurisdiction.
18 In relation to the fourth order sought by the Commonwealth for summary dismissal, as noted in par [5] above, the Commonwealth acknowledges that it bears the onus of showing that the applicants' claims are so untenable that they cannot possibly succeed: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The Commonwealth also accepts the truth of each of the allegations of fact in the points of claim for the purposes of the Court's consideration of the power conferred by Pt 13 r 5.
19 The applicants allege that the NWC Act and the Financial Assistance Act were invalid in whole or in so far as the provision of those enactments relate to water or water resources. When clarification was sought by the Commonwealth as to which provision were said to relate to water or water resources, the applicants solicitors stated that specific reliance was place upon "sections 4(1)(a) and (5)(c)" of the Financial Assistance Act. The Commonwealth notes that the Financial Assistance Act does not contain sections 4(1)(a) and (5)(c).
20 The Commonwealth submits that the applicants have failed to specify with any precision the basis upon which it is said that the NWC Act and the Financial Assistance Act are beyond the legislative competence of the Commonwealth. None of the matters that the applicants rely on, or appear to rely on, disclose an action with any reasonable prospect of success. In relation to the applicants' claim that the Acts are invalid by reason of the fact that the Commonwealth lacks legislative power, the Commonwealth submits that the applicants' contentions are based on the discredited reserve powers doctrine, overlook a number of heads of Commonwealth legislative power and are bound to fail.
21 In so far as the NWC Act and the Financial Assistance Act provide for the provision of financial assistance by the Commonwealth to the States, the Commonwealth submits that the relevant provisions fall within, inter alia, s 96 of the Constitution. It is noted by the Commonwealth that the only legislatively based conditions imposed upon the provision of financial assistance under the NWC Act and the Financial Assistance Act are those set out in ss 8 and 9 of the Financial Assistance Act and the applicant does not take issue with any of the conditions there specified. The Commonwealth says that the specification of conditions upon any grant to the States or the making of any other formal or informal arrangements between the States and the Commonwealth regarding those grants is otherwise to be determined by the Commonwealth Executive. The Commonwealth further submits that the payment or threatened payment of any money and the entry into agreements cannot give rise to any tenable claim as against the Commonwealth as the State of New South Wales would be obliged to pay money it received pursuant to such a grant into the Consolidated Fund and the manner in which and the purposes for which that money was appropriated and spent would be a matter entirely in the discretion of the State.
22 Alternatively, the Commonwealth submits that the provisions of the NWC Act and the Financial Assistance Act which provide for financial assistance to the States are supported by the appropriations power, s 81 of the Constitution. The weight of authority, according to the Commonwealth, favours the proposition that s 81 and/or the incidental power conferred by s 51(xxxix) confer power upon the Commonwealth Parliament to appropriate and spend money for any purpose it authorises (Victoria v Commonwealth (1975) 134 CLR 338 at 369-70 per McTiernan J and at 419 and 424 per Murphy J and Combet v Commonwealth (2005) 224 CLR 494 at [5] per Gleeson CJ. See also Attorney-General (Vic); Ex Rel Dale v Commonwealth (1945) 71 CLR 237 at 256 per Latham CJ and at 273 per McTiernan J). Alternatively, due to the impossibility of establishing standing to challenge an exercise of that power, the Commonwealth submits that that limitation is not one which is justiciable by this Court or by any other Court (Victoria v Commonwealth at 388-91 per Stephen J and at 410 per Jacobs J).
23 In any event, the Commonwealth submits that it has power with respect to national schemes for natural resource management for a number of reasons. The financial assistance provisions are also supported by the legislative power conferred by s 51(xxxix) in conjunction with s 61 of the Constitution as laws which are incidental to the execution of the executive powers of the Commonwealth. Relevantly, the powers conferred upon the Commonwealth Executive power to engage in enterprises and activities peculiarly adapted to government of a nation and which cannot otherwise be carried out for the benefit of the nation (Davis v Commonwealth (1988) 166 CLR 79 at 111 per Brennan J and Victoria v Commonwealth at 196-97 per Mason J). The funding of national schemes for natural resource management is to be characterised as an activity of that nature and thus falls within the power conferred by s 61. Section 51(xxxix) authorises Parliament to legislate in aid of such an exercise of executive power. Alternatively, the so called "implied nationhood power" supports those provision for similar reasons: Davis v Commonwealth at 93-5 per Mason CJ, Deane and Gaudron JJ and Victoria v Commonwealth at 397 per Mason J and 412-3 per Jacobs J. In so far as the applicants seek to impugn the validity of the provisions of the NWC Act, which create and confer functions upon the NWC, the Commonwealth submits that those provisions are at least supported by one or more of the powers referred to above. Similarly, the provisions of the Financial Assistance Act which provide for entry into financial assistance agreements are similarly at least supported by one or more of those powers.
24 The Commonwealth notes that the applicants rely upon the limitation in s 51(xxxi) of the Constitution ("the acquisition of property on just terms") and the Commonwealth submits that the limitation in that section is not engaged by "purposes" or "agreements". Its relevance depends upon there being a law of the Commonwealth which may be characterised as a law with respect to the acquisition of property. In any event, the Commonwealth submits that it may be doubted that any rights possessed by the applicants constituted property. It is further submitted that even if there were a relevant proprietary right, regulation under the Plan made pursuant to s 50 of the WM Act merely involved the prohibition or control of a particular use of or particular acts upon property. Section 51(xxxi) requires "acquisition" for the purposes of the Commonwealth and some interference with or adverse effect upon a pre-existing right which an owner enjoys in relation to her or his property is not sufficient (Commonwealth v Tasmania (1983) 158 CLR 1 at 145 per Mason J, with whom Murphy and Brennan JJ agree; note also Deane J at 283). The Commonwealth made further submissions that the applicants have not addressed all of the significant obstacles to any reliance upon s 51(xxxi).
25 In relation to the applicants' contention that some or all of the provisions of the NWC Act and the Financial Assistance Act contravene the constitutional guarantee or prohibition which appears in s 100 of the Constitution, the Commonwealth refers to Commonwealth v Tasmania, where an argument similar to that put by the applicants in this case was rejected. The Commonwealth submits that the NWC Act and the Financial Assistance Act as enacted were not made, nor capable of being made, under ss 51(i) and 98. That approach is, it is submitted by the Commonwealth, consistent with the approach to s 99 enunciated in Morgan v Commonwealth (1947) 74 CLR 421.
26 In relation to the allegations that the Commonwealth executive has acted unlawfully, in that it entered into the NWI Agreement and the Overallocation Agreement, but lacked power under the Constitution to do so, and abridged the rights of the State and the residents of the State to the reasonable use of the waters of the State in contravention of the constitutional guarantee in s 100, the Commonwealth submits that those contentions are bound to fail for the reasons given above.
27 In response to the arguments advanced by the applicants based on executive power of the Commonwealth, the Commonwealth refers to the decision of Pye v Renshaw (1951) 84 CLR 58 - a decision which has stood for over 50 years. As regards the claim said to rest upon s 100 of the Constitution, the Commonwealth submits, in its final submissions dated 5 December 2007, that that prohibition applies only to a "law or regulation of trade or commerce" (emphasis added). The words "trade or commerce" are used in the sense employed in s 51(i) meaning trade or commerce with other countries or among the states. The Commonwealth submits that neither the laws impugned by the applicants nor the actions of the Commonwealth executive identified in the applicants' submissions dated 5 November 2007 relate to that subject matter. The Commonwealth further submits that the applicant's submissions apparently invite the Court to reject those propositions regarding s 100 and (with them) two decisions of the High Court (Commonwealth v Tasmania and Morgan v Commonwealth). A case founded upon such a departure from authority cannot, according to the Commonwealth, be said to have reasonable prospects of success.
28 In relation to the allegations that the Commonwealth has made some form of "threat" against the applicants, the Commonwealth submits that the applicants are incorrect in characterising the conduct of the Commonwealth in such a way. The applicants suggestion that this amounts to contempt and a breach of the Magna Carta is similarly incorrect, according to the Commonwealth.
29 The Commonwealth made submissions in relation to standing. Apart from the question of whether the applicants have a cause of action at all, it submits that a member of the public will have standing to bring an action challenging the validity of an Act of Parliament or of the Commonwealth Executive if, and only if, he or she can establish that the statute/Executive action affects his or her private rights or interests (Davisv Commonwealth (1986) 61 ALJR 32 at 35; (1986) 68 ALR at 23 and Croome v State of Tasmania (1997) 191 CLR 119 at 126-7). The Commonwealth submits that the legislation and Executive action, which the applicants seek to impugn in their claims against the Commonwealth, relate solely to funding and administrative arrangements between the Commonwealth and the State of New South Wales. The interests of the applicants are not affected or not affected in a relevant sense by those matters. The Commonwealth further notes that it appears unlikely that a private citizen would ever have standing to challenge a law enacted pursuant to ss 81 or 96, save perhaps in "extraordinary circumstances" (Davis v Commonwealt (1988) 166 CLR 79 at 95).
30 Further or alternatively, the Commonwealth submits that the claims against it involve matters wholly internal to the Commonwealth government and/or considerations of undertakings and obligations dependent entirely upon political sanctions and such matters are not justiciable at the suit of the applicants (Victoria v Commonwealth at 410 and Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347 at 370).
31 Finally the Commonwealth submits that the applicants' application in so far as it concerns the Commonwealth should be dismissed or stayed. There should be an order that the applicants pay the Commonwealth's costs of and incidental to the proceedings, including the notice of motion.