The Secretary to the Department of the Interior has forwarded the following memorandum for advice:

It is desired to supplement the information contained in my memorandum, No. 32/9457, of 17th October, 1932, with the following further particulars which I would appreciate your reading in conjunction with the communication.

It is evident from views expressed by Premiers at recent Conferences, and from letters received from the Premiers of Queensland and South Australia, that the question of interstate road transport is regarded as one of primary importance, and as being a Commonwealth Government responsibility under the Constitution.

The State Governments’ views appear to be that the Commonwealth Government can legislate to provide for State authorities to act as Commonwealth Government instrumentalities with respect to the control and regulation of interstate transport.

The Conference of Australian Railways and Transport authorities, of which Mr A E Heath was Chairman, and which met in February, 1932, resolved inter-alia:

To control interstate traffic, Federal legislation is also necessary, complementary to and in co-ordination with the States’ legislation in order to ensure the complete safe-guarding of the State’s interests.

The Conference of Australian Railways and Transport authorities also resolved–

That a Board of Control be appointed consisting of the Chief Executive of each Railway system, sitting with an independent, non-political Chairman with plenary powers to make decisions in regard to prescribed matters, such as–

The standardisation and/or methods of purchase of equipment, material and supplies in regard to which it is practicable to make common purchases or common use on the railway systems of Australia.

‘Border’ rates, standard clearances, and any other matters which a Premiers’ Conference may decide upon relating to policy affecting the mutual interests of more than one system.

Advice is sought as to whether authorities, as set out in paragraph 3 and 5 can, under the Constitution, be empowered to deal with interstate transport or ‘Border’ rates, or can any authority other than an Interstate Commission adjudicate on these matters.

In view of the fact that most of the State Governments have now intimated their intention of being represented at the proposed Conference of Ministers for Transport, it would be much appreciated if you could let me have early advice on this matter, which will form one of the main items on the agenda.

The memorandum of the 17th October, 1932, referred to above, relates only to the question of the control of interstate road transport by State Transport Boards acting under powers vested in them in virtue of Commonwealth legislation.

It is assumed that ‘the control and regulation of interstate transport’ mentioned in paragraph 3 is limited to the control and regulation of interstate road transport.

I have already advised the Department of the Treasury with regard to this matter (See my memorandum No. 1207/32 of the 11th November, 1932).⁽¹⁾

In that memorandum, I stated that it would seem that the control of interstate road traffic might, by Commonwealth legislation, be vested in State Boards clothed with Commonwealth powers.

Any such legislation should provide that, in the exercise of any powers conferred by the Act, there should be no preference given to one State or part of the Commonwealth over another State or part of the Commonwealth.

The control suggested was somewhat on the lines of an arrangement which was given effect to by the Dried Fruits Act 1928.

Under that Act control is exercised over interstate trade in dried fruits. The exercise of the control is vested in authorities prescribed by regulations under the Act. The authorities which are prescribed are certain State bodies but their powers of control are derived from the Commonwealth Act.

The question of empowering an authority such as that indicated in paragraph 5, to deal with rates and freights, was considered in Opinion No. 45 of 1932 supplied to the Commissioner, Commonwealth Railways, in June, 1932.⁽²⁾

In this Opinion, the general question of the power of the Commonwealth to legislate in relation to State Railways was considered.

More particularly, the following question was submitted for advice:

Could the Parliament make laws for the fixing by an authority other than the Interstate Commission of rates and freights and conditions for the carriage of traffic over railways regularly engaged in Interstate trade and commerce?

In my reply, I advised as follows:

The Commonwealth Parliament may make laws for the fixing by an authority other than the Interstate Commission of rates and freights and conditions for the carriage of traffic over railways regularly engaged in Interstate trade and commerce, but cannot empower any body other than the Interstate Commission to determine whether any particular rates are undue, unreasonable or unjust.

As ‘border’ rates are only applicable in respect of interstate trade and commerce, I am of the opinion that the authority indicated in paragraph 5 of the above memorandum could be empowered to deal with ‘border’ rates except in so far as the matter of the determination whether any particular rates are undue, unreasonable or unjust, is concerned.

A copy of Opinion No. 45 of 1932 is forwarded herewith for your information.

[Vol. 26, p. 87]

(1) Opinion [Vol. 25, p. 967] not published.

(2) Opinion No. 1507.