Opinion Number. 1339

Subject

Regulation of cylinders containing gas power of commonwealth parliament to legislate in regard to the storage, testing and inspection in australia of cylinders containing acetylene and other gases: customs powers: limitations of trade and commerce power

Key Legislation

CONSTITUTION s 51(i): CUSTOMS ACT 1901 s 52

Date
Client
The Acting Comptroller-General

The Acting Comptroller-General, Department of Trade and Customs, forwards the following memorandum for advice:

  1. The Secretary is informed that the question of the testing, inspection and storage of containers for acetylene and other industrial gases is now receiving the attention of the Commonwealth Board of Trade.
  2. It is understood that acetylene gas containers are made in Australia, but this is not the case as regards containers for other gases, e.g. oxygen, anhydrous ammonia, etc., which are ordinarily supplied in containers at pressures much higher than in the case of acetylene.
  3. It appears therefore that the question of the testing and control of acetylene gas containers is part of the larger question of the control of containers for industrial gases generally. So far as is known, there is no Commonwealth legislative authority for the control and testing of gas containers manufactured in Australia. As regards imported containers, it is possible that if the necessary machinery were created, imports of gas cylinders might be controlled by the Commonwealth, and importation made conditional on compliance with prescribed specifications or tests. Once the cylinders are admitted into this country, it appears that the Commonwealth has, at present, no power to make such periodic inspections of them as are necessary to ensure safety.
  4. In a letter dated 11th September, 1923, addressed to the Secretary of the Board of Trade, Gardner, Waern & Co. Pty. Ltd., of Melbourne, referred to an explosion of acetylene gas containers in Sydney which caused loss of life, and stated that in consequence the municipality objected to the rebuilding of the workshops. The Company expressed the opinion that this incident emphasises the necessity for Commonwealth legislation for the following reasons:
    1. To frame regulations to ensure that the compressing of acetylene be carried out under safe conditions.
    2. In the event of further explosion, with perhaps more serious loss of life, the industry would not be jeopardised by hastily framed regulations affecting others than the responsible party.
    3. As a considerable amount of interstate traffic takes place with acetylene cylinders, uniform regulations are desirable.
    4. Although regulations, based on the British orders, would to a certain extent bind the purchaser of a cylinder to the seller for recharging, ordinary commercial competition for future business would ensure fair treatment, and, on the other hand, the necessary careful maintenance of the cylinders is secured.
  5. The question of controlling the storage of compressed acetylene in Australia is receiving attention by the Board, a report having been received from the Director of the Institute of Science and Industry stating that the British Regulations (copy attached) would be suitable with some slight modifications to adapt them to Australian conditions.
  6. Before taking further action in the matter, I should be glad if the Secretary would advise, for the information of the Board, as to whether the Commonwealth Government has power under the Constitution Act to pass legislation to control the storage, testing and inspection in Australia of cylinders containing acetylene and other industrial gases.
  7. It is requested that the Secretary will kindly return the attached copy of the British regulations with his reply.

Apart from section 51(i), I know of no provision of the Constitution under which legislation of the kind suggested could be passed. Section 51(i) confers power on the Parliament to make laws with respect to ‘trade and commerce with other countries and among the States’. The paragraph contains express limitations on the powers conferred on the Commonwealth, and it has been strictly construed by the High Court. In Huddart Parker v. Moorehead (8 C.L.R. 330) Griffith, C.J., says (at p. 352)–‘The Constitution is therefore to be construed as if it contained an express declaration that power to make laws with respect to trade and commerce within the limits of a State, and not relating to trade and commerce with other countries or among the States, is reserved to the States except so far as the exercise of that power by the Commonwealth is necessary for or incidental to the execution of some other power conferred on the Parliament.’

The power of the Commonwealth to legislate on the subject may, I think, be summed up as follows: As regards cylinders manufactured in a State for sale in that State the matter is reserved to the State. As regards cylinders manufactured outside the Commonwealth, the importation of these could be controlled by proclamation issued under section 52 of the Customs Act, or by legislation under section 51(i) of the Constitution, but the power of the Commonwealth to exercise control over the cylinders would apparently cease after they had become ‘incorporated and mixed up with the mass of property in the State’ (see Harrison Moore’s Commonwealth of Australia, 2nd Ed., p. 553).(1) Even in the case of cylinders manufactured in one State for sale in another State the power of the Commonwealth to legislate would not extend beyond the period during which they were actually the subject of ‘interstate trade’.

In view of the limited nature of the powers conferred, I am of opinion that the Commonwealth Parliament could not pass effective legislation to control the storage, testing and inspection in Australia of cylinders containing acetylene and other industrial gases.

[Vol. 20, p. 298]

(1) Harrison Moore, W 1910, The Constitution of the Commonwealth of Australia, 2nd edn, Maxwell, Melbourne.