Opinion Number. 1411

Subject

RAILWAYS POWER OF Commonwealth TO legislate to compel adoption throughout Australasia of uniform standards and methods on State Railways

Key Legislation

CONSTITUTION ss 51(i), 98

Date
Client
The Secretary, Department of Works and Railways

The Secretary, Department of Works and Railways has forwarded me for advice the following minute from the Commonwealth Railways Commissioner:

As the Honorable the Minister is aware, annual conferences of Railway Officers are held, followed by a conference of the Commissioners of the various systems to deal with the recommendations of the Officers. These conferences deal, amongst other things, with the uniformity of railway methods and the adoption of standards, but as the conferences have no power to compel the adoption of such uniform methods and standards, there is a considerable lack of unanimity and a tendency to depart from the decisions of the conferences, even by railway systems which have supported the decisions.

The failure to adopt uniformity in certain directions will have a serious effect on the cost of unification of the gauges when such is being carried out.

One example is the necessity for definitely fixing a uniform structure gauge, that is to say, definitely fixing the distance which structures such as platforms, tunnels, bridges, etc. etc. are to be placed from the rail. Although on several occasions uniform structure gauges have been adopted at Australian Railways Conferences, they are not being adhered to. The adoption by any one of the railway systems of a structure gauge of smaller dimensions than that adopted by others, results in the building of important structures to that gauge; and will necessitate additional expense when unifying the track gauge to enable rollingstock of the full dimensions to travel from system to system.

Those obstructions until they are removed will be practically equivalent to a break of gauge, as only rollingstock of lesser dimensions than the standard used elsewhere would be able to run over that section of the line. The Australian Railways Systems have also failed to adopt a uniform design of rollingstock, or to make it a condition that any 5' 3" stock be built so as to be readily converted to the standard 4' 812" gauge.

In view of the great importance of the matter and the serious additional cost which will be entailed in unifying the gauges unless definite standards are adopted and adhered to, I am of the opinion that some steps should be taken by the Commonwealth to compel the adoption of standards and uniform methods.

Clause 98 of the Commonwealth of Australia Constitution Act 1900, reads:

The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

If the necessary power is not given to the Commonwealth under this clause, I submit that action should be taken to amend the Constitution to provide such powers. The powers suggested would be those similar to the British Board of Trade and would extend at least so far as any uniformity is required in connection with the ultimate adoption of a uniform gauge for Australian Railways.

Section 98 does not enlarge, but is merely explanatory of, the Commonwealth’s legislative powers under section 51(i) (per O’Connor J. in Owners of s.s. ‘Kalibia’ v. Wilson 11 C.L.R. 689 at p. 707).

In my opinion section 98 does not provide the Commonwealth with power to legislate in the direction suggested. Section 51 of the Constitution invests the Commonwealth Parliament with certain specific and limited powers of legislation in relation to the acquisition, control and construction of railways.

From the limited nature of the grant of power in the Constitution it is, in my opinion, clear that the Commonwealth cannot legislate to compel the adoption throughout Australasia of uniform standards and methods on State Railways.

[Vol. 23, p. 33]