Opinion Number. 1381


Weights and measures power of commonwealth to legislate in respect of storage, testing and inspection of gas cylinders: control of gas cylinders on land: extent of weights and measures power

Key Legislation

Constitution s 51(xv)

The Secretary, Department of Markets and Migration

The Secretary, Department of Markets and Migration, has forwarded me the following memorandum for advice:

  1. This Institute has had a Committee at work for the last two months investigating from a safety point of view the control of cylinders of compressed gases.
  2. The Committee was appointed largely as the result of a request from the Director of Navigation for advice as to regulations for the control of the shipment of such cylinders.
  3. Previous to the receipt of this request, however, it was known that the control of gas cylinders both on land and sea was in a somewhat unsatisfactory state in Australia.
  4. In the course of its investigations the Committee has come to the conclusion that it is desirable, if possible, to adopt Commonwealth regulations for cylinders not only during their sea transport, but during their use on land as well. All the members of the trade so far interviewed by the Committee concur in that view also.
  5. The Constitutional aspect of the case thus arises, i.e., as to whether the Commonwealth has the necessary powers to deal with the matter. In this connection it is recommended that the opinion of the Commonwealth law authorities be obtained. There is of course no question as to the power of the Commonwealth to control the transport of cylinders by sea. The opinion more specifically desired is as to the power to control the cylinders during their industrial use on land, i.e., both interstate and intrastate.
  6. In this latter connection the Board of Trade has already obtained an opinion from the Commonwealth Attorney-General’s Department that the Commonwealth has no power of control of cylinders on land.
  7. It is not clear however that the above Department was informed of the fact that the cylinders are in fact used as measures for the sale of compressed gases and that their control by the Commonwealth Government might thus come under the constitutional provisions relating to weights and measures. In support of this view it may be mentioned that the permanent gases, e.g., hydrogen and oxygen, are usually sold either by the 100 cubic feet or by the 200 cubic feet. Other gases are sold in cylinders of smaller sizes, but in all cases either the weight or the volume of the gas being bought is specified.

The Commonwealth Parliament could under placitum (xv) of section 51 legislate upon the subject of measures for gas sold in containers. It could not, however, invoke that power to support legislation directed to the storage, testing and inspection of such containers generally for the purpose of ensuring safety. Inspection and testing might be provided for by Commonwealth legislation, but only insofar as necessary for ascertaining whether containers actually held the standard measurement of gas reputed to be held by them, or for any other purpose directed to securing the observance of a law relating to weights and measures.

[Vol. 22, p. 484]