The Secretary, Department of Works and Railways, has submitted the following letter from The Australian Investment Agency Ltd to me for advice:

1. We noticed this in the Gazette of 11 January. It may not be a very important matter but it is certainly a discrimination against Darwin when users of the line between the sorting shed and jetty are to receive less favourable treatment than users of all the rest of the Commonwealth Railways.
2. We took the matter up with the Commissioner. I enclose copy of our letter of 16 January and his reply dated 27th idem. We have referred to this Act as suggested, and find that section 88 gives the Commissioner power to make by-laws not inconsistent with the Act. But section 34 says 'the Commissioner shall be deemed to be a common carrier'.
3. We have not obtained a legal opinion, but it does seem that by-law 21 is inconsistent with section 34 and therefore, invalid. And it seems contrary to section 57, sub-section (f) and, by inference, to 82 (a).
4. I bring the matter to your notice as your Department is the one chiefly concerned with the welfare of the Territory, and I should esteem your opinion as to whether any formal protest should be made against this by-law, which seems to withdraw rights enjoyed by patrons of the Commonwealth Railways elsewhere.
5. I think it better for us to draw your attention to the matter rather than wait until it is brought forward as a grievance by the local community.

The by-law in question purports to make the Commissioner free from liability in respect of the loss of, or damage to, goods at Darwin occurring while the goods are being loaded into or unloaded from trucks on the jetty or while stored in or being conveyed to the sorting shed.

Section 34 of the Commonwealth Railways Act 1917 is as follows:

For the purposes of this Act the Commissioner shall be deemed to be a common carrier, and (except as by this Act otherwise provided) shall be subject to the obligations and entitled to the privileges of common carriers.

Section 88 (h) gives the Commissioner power to make by-laws, not inconsistent with the Act, for the limitation of the liability of, and conditions governing the making of claims upon, the Commissioner in respect of the damage or loss of any goods.

The only exceptions to the Commissioner's liability as a common carrier are those contained in the Act (e.g. sections 27 and 28) and such exceptions cannot be added to nor his liability further diminished by by-law.

I am, therefore, of opinion that by-law No. 21 is ultra vires and invalid.⁽¹⁾⁽²⁾

[Vol. 18, p. 314]

(1)The Solicitor-General had cause to reconsider this view and in a short opinion dated 21 March 1922 [Vol.18, p. 328] he stated:

In the preparation of that opinion [of 9 March I922] su?icient weight was not given to the exception contained in section 34-"(egept as by this Act otherwise provided)". I think, on reconsideration, that the press power given to the Commissioner by section 88 (h) to make by-laws limiting his liability in respect of the damage or loss of any goods is within the exception, and therefore that by-law No. 21 is within the Commissioner's powers and valid.

This advice should be taken as superseding that given by me on 9 March 1922'.

(2)And see Opinion No. I2lS, by the Attorney-General, which sets out the text of by-law No. 21.