Opinion Number. 1510

Subject

state regulation of military transport activities state regulation of transport: exemption of members of military forces: exemption from obtaining licence or permission: exemption of private individuals carrying out contracts with Defence Department : exemption from state taxation in respect of work for commonwealth

Key Legislation

AUSTRALIAN MILITARY REGULATIONS reg 201

Date
Client
The Secretary, Department of Defence

The Secretary, Department of Defence, has forwarded the following memorandum for advice:

I am forwarding herewith, by direction of the Minister, copy of Military Board Agenda regarding proposed amendment to Australian Military Regulation 201 to provide for the exemption of the Australian Military Force from the provisions of the State Transport (Co-ordination) Act 1931 (NSW).

It is requested that an Opinion may be given as to whether the proposed amendment is constitutional and, if so, whether the amendment as drafted will be effective.

Attention is invited to your memorandum No. 2304/31 of the 22nd December, 1931,(1) on this subject.

The relative portion of the Military Board Agenda reads as follows:

The object of the State Transport (Co-ordination) Act is to restrict the use of motor vehicles in so far as they compete with transport facilities provided by the State Government.

The provisions of the Act and the Regulation made thereunder have the effect of imposing restriction on or curtailment of certain military activities of which the following are examples:

  1. A member of the Military Forces may not receive any payment under Military Financial Instruction 2494(2) for conveying in his private car other members on duty.
  2. In many units it has been found that considerable time and expense are saved by transporting personnel and stores to rifle ranges by hired motor transport in lieu of trams and trains. This is not now permissible.
  3. The employment of a contractor for the transport of stores is often necessary to meet the deficiency of departmental transport. Such contracts will be no longer practicable.

Regulation 201 in its existing form reads as follows:

A member of the Military Forces shall not be required under or by reason of any law of a State –

  1. to obtain or have any licence or permission for doing any act or thing in performance of his duties as a member of the Military Force; or
  2. to register any animal, vehicle, vessel, or article belonging to the Commonwealth, and appropriated to the use of the Military Forces.

It will be seen that the regulation does not protect members of the Military Forces (or of Rifle Clubs) and civilian contractors from the incidence of the State Transport (Co-ordination) Act when carrying out normal requirements of the service.

In this connection the Judge Advocate-General has given the following opinion:

In my opinion a person, whether a member of the Military Forces or not, who was paid or who received an allowance in respect of the carriage of a member of the Military Forces, other than himself or military materiel the property of the Commonwealth would be within the provisions of section 12 of the State Transport (Co-ordination) Act 1931; a member of the Military Forces or other servant of the Commonwealth who caused to be sent or conveyed Passengers or goods would be within the provision of section 13 and a member of the Military Forces would be within section 27.

The sections of the States Transport (Co-ordination) Act which have been cited in the above opinion are as follows:

12(1) Any person who after a date appointed by the Governor and notified by proclamation published in the Gazette operates a public motor vehicle shall, unless such vehicle is licensed under this Act by the board and unless he is the holder of such license, be guilty of an offence against this Act: provided that this sub-section shall not apply to a motor vehicle that is being operated under and in accordance with an exemption from the requirement of being licensed granted under section nineteen or a permit granted under section twenty-two of this Act.

13. Any person who, after the date appointed under section twelve of this Act sends or causes to be sent or conveyed or agrees or offers to send or convey any passengers or any goods by any public motor vehicle which is not licensed under this Act by the board shall be guilty of an offence against this Act … .

27. Any person driving or using any motor vehicle constructed primarily for the carriage of goods, who shall carry any person therein or thereupon or permit any person to ride therein or thereupon unless —

  1. a licence granted under this Act in respect of the vehicle expressly authorises the carriage of passengers therein; or
  2. the person who carries is —
    1. in the employ of the owner of the vehicle and is proceeding on his Master’s business; or
    2. a member of the family of the owner of the vehicle;
    3. and in either of such cases is seated on the seat by the side of the driver, or

  3. the owner of the vehicle is the holder of the permit granted under section twenty-two of this Act, and the person so carried is carried in conformity with the permit,

shall be liable on summary conviction to a penalty not exceeding ten pounds.

It is proposed to amend Military Regulations 201 by adding the following sub-regulations:

  1. It shall not be necessary, under or by reason of any law of a State, for any person to obtain or have any licence or permission to carry or convey, by any means whatever—
    1. members of the Military Forces or of Rifle Clubs engaged in or for the purpose of engaging in, or returning from the performance of their duties as such members, or for the purpose of attending or returning from any drill, practice, or competition, to be or which has been carried out with arms suitable for military purposes; or
    2. members of the Military Forces, if authorized by a proper military authority, for the purpose, as such members, of attending or returning from any sport, game or display, or the performance of any engagement; or
    3. property belonging to the Commonwealth and appropriated to the use of the Military Forces or of Rifle Clubs, or belonging to members of the Military Forces or of Rifle Clubs, and used by them, respectively, for any purpose mentioned in this sub-regulation.
  2. It shall be lawful, notwithstanding any law of a State, for any person to send or cause to be sent or conveyed, by any means whatever—
    1. any member of the Military Forces or of a Rifle Club engaged in or for the purpose of engaging in, or returning from the performance of his duties as such a member, or for the purpose of attending or returning from any drill, practice, or competition, to be or which has been carried out with arms suitable for military purposes; or
    2. any member of the Military Forces, if authorized by a proper military authority, for the purpose, as such a member, of attending or returning from any sport, game or display, or the performance of any engagement; or
    3. property belonging to the Commonwealth and appropriated to the use of the Military Forces or of Rifle Clubs, or belonging to members of the Military Forces or of Rifle Clubs, and used by them, respectively, for any purpose mentioned in this sub-regulation.

In memorandum No. 2304/31, dated 22 December 1931,1 the Solicitor-General advised that legislation to exempt from the State Act private individuals who enter into contracts with the Commonwealth would not be valid.

While this general statement is correct, legislation of the kind suggested would, in my opinion, be valid if the exemption were limited to acts performed in carrying out contracts with the Defence Department.

In other words, while the Commonwealth cannot grant general exemption from State transport legislation to persons who enter into contracts with the Defence Department, it can grant exemption from such legislation in so far as it affects the performance of such contracts with the Defence Department.

The draft regulation submitted provides that it shall not be necessary, under or by reason of any law of a State, for any person to obtain or have any licence or permission to carry or convey, by any means whatever, members of the military forces or of rifle clubs or property belonging to the Commonwealth for the use of the military forces or of rifle clubs, and that it shall be lawful, notwithstanding any law of a State, for any person to send or cause to be sent or conveyed, by any means whatever, such members of the military forces or rifles clubs or such property.

The exemption granted under the regulation is limited to operations which are clearly within the Defence power of the Commonwealth, and, in my opinion, the amendment, as drafted would be valid.

It remains to consider whether the amendment would be effective. The amendment would, I think, be effective in that it would exempt from the State law any person engaged exclusively in the performance of contracts with the Defence Department, I presume, however, that in most cases the contractors affected are general carriers who undertake transport work for the general public as well as for the Defence Department. Such persons would be required to obtain licences under the State law for the purposes of carrying on their businesses as general carriers, and they could not claim exemption from this requirement under the proposed amendment of the Military Regulations.

It is stated in the file, however, that in respect of the cartage of goods outside the radius of 20 miles of Sydney the taxation is 3d. per ton per mile including weight of the vehicle, and I presume that this is the class of taxation from which exemption is desired.

This taxation would be imposed under sub-section (5) of section 18 of the State Act, which reads as follows:

(5.) The board may, in any licence for a public motor vehicle to be issued under this Act that authorises the holder to carry goods or goods and passengers in the vehicle, impose a condition that the licensee shall pay to them (and in addition to any other sums payable under the preceding subsection and any other provision of this Act) such sums as shall be ascertained as the board may determine.

The board may determine that the sum or sums so to be paid may be differently ascertained in respect of different licenses and may be ascertained on the basis of mileage travelled as hereinafter mentioned or may be ascertained in any other method or according to any other basis or system that may be prescribed by regulation made under this Act:

Provided that if the sum or sums so to be paid are to be ascertained according to mileage travelled they shall not exceed an amount calculated at the rate of threepence per ton or part thereof of the aggregate of the weight of the vehicle unladen and of the weight of loading the vehicle is capable of carrying (whether such weight is carried or not) for each mile or part thereof travelled by the vehicle along a public street (which mileage may be ascertained for such purposes as prescribed by the regulations or as determined by the board), and if the sum or sums so to be paid to the board are not to be ascertained according to mileage travelled then the board shall repay to the persons entitled thereto any moneys received by the board under this subsection in excess of the amount that would have been payable to the board calculated on the mileage basis in the foregoing manner during the period of the license.

For the purposes of this proviso the weight of the vehicle unladen and the weight of loading the vehicle is capable of carrying shall be as mentioned in the license or as determined by the board.

Similar provision is made in regard to the carriage of passengers by sub-section (4) of section 18.

If the work of a contractor is confined entirely to Commonwealth work he would not be required to obtain a licence under section 12 of the State Act. Taxation under that Act is imposed only as a condition of a licence (see section 18(5)), so that a contractor who, by the nature of the work he undertakes, is exempt from licensing, is ipso facto exempt from taxation.

Where a contractor with the Commonwealth takes out a licence to cover his work for private persons he may be made subject to taxation on a mileage basis in respect of such work. He could in my opinion be exempted from taxation in respect of his work for the Commonwealth.

In my opinion, the amendment, as drafted, would not be effective to exempt military contractors who are licensed under the State law from such taxation but, if so desired, an additional sub-regulation could be inserted to provide for such exemptions, if the exemption were limited to operations necessary for the performance of their contract with the Defence Department.

[Vol. 25, p. 644]

(1) Opinion not found.