The Minister for Works and Railways has requested my opinion on the question of the legality of Commonwealth Railways by-law No. 21.

The by-law, omitting formal parts, in question is as follows:

The Commissioner will not be liable in respect of the loss of, or damage to, goods at Darwin occurring while the goods are:

1. being received into trucks from any vessel at the jetty, or unloaded from a truck into any vessel at the jetty;
2. on the jetty, or being conveyed between a sorting shed and the jetty in either direction;
3. stored on the jetty, or in a sorting shed; or
4. in the process of receipt or delivery at a sorting shed.

The by-law was made by the Commonwealth Railways Commissioner. His power to make by-laws is contained in section 88 of the Act. That section gives him power to make by-laws not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act, and in particular for the limitation of the liability of, and the conditions governing the making of claims upon, the Commissioner in respect of any damage to or loss of any goods (section 88 (h)).

This provision affords ample authority for the making of by-law 21, assuming that it is not inconsistent with the Act.

The Act declares (section 34) that for the purposes of the 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.

The exception contained in section 34 covers the provisions of paragraph (h) of section 88, and by-laws made in pursuance of that paragraph are not inconsistent with section 34. There does not appear to be any other provision of the Act with which by-law 21 can be regarded as inconsistent.

The fact that the by-law covers only a portion of the lines operated by the Commissioner does not, in my opinion, affect its validity.

I am therefore of opinion that by-law 21 is within the scope of the Commissioner's statutory powers and valid.⁽¹⁾

[Vol. 18, p.374]

(1)And see Opinion No. 1206.