The Secretary to the Commissioner of Railways has forwarded for my advice the following memorandum:

I have to advise that, as the result of a recommendation by the late Field Marshal Earl Kitchener on the Defence of Australia, a War Railway Council was established, composed of the Chief Railways Commissioner of each of the Australian Railway Systems under the Presidency of the Quartermaster-General of the Defence forces.

The first meeting of the Council was held in 1911–since when there have been seven (7) additional meetings. At a meeting of the Council, held in May, 1921, it was resolved that a Director of Railways should be appointed on the staff of the Quartermaster-General, to whom he should act as Advisor on railway matters of military character. To this position the late Commonwealth Railways Commissioner was appointed, and on Mr. Bell’s retirement, in 1929, the present Commonwealth Railways Commissioner (Honorary Colonel G. A. Gahan) was appointed to the War Railway Council, and to the position of Director of Railways.

The last meeting of the Council was held in Brisbane during July, 1936. At this meeting one of the subjects on the agenda related to the control of State owned Railways by the Commonwealth in time of War, and in this connection I attach an extract from the proceedings. It will be noted therefrom that some doubt exists in regard to the constitutional powers of the Commonwealth to take over the State Railways in time of War. My Commissioner is desirous of ascertaining the nature of this doubt.

The Constitution (part 5, Powers of Parliament) provides:

51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth.

It is possible some written opinion has already been given on the question, but the matter is submitted for the advice of the Solicitor-General, in order that my Commissioner, in his position of Director of Railways, may be acquainted with the constitutional position as it actually is.

The question raised appears to be whether, in the event of war, the Commonwealth Parliament has the power to legislate for the taking over of the State Railways for the duration of hostilities entailing the payment of railway receipts into the Commonwealth Treasury, the fixing of freight rates and fares and the appointment of a Director-General to administer the railways. Will you please advise if the Commonwealth has all or any of these powers?

This submission is marked confidential, for the reason that the proceedings of the War Railway Council are endorsed ‘Secret’.

It is not, as a rule, my practice to advise on questions of a hypothetical character but in view of the importance of the questions now submitted and the desirability that the position should be understood as far as practicable, I feel justified in making some general observations on the constitutional issues involved. It should, nevertheless, be appreciated that my observations as to the law must necessarily be somewhat inconclusive in the absence of a specific set of facts to which to apply that law. As Barton J. expressed the problem in the case of Farey v. Burvett (21 C.L.R. 433 at p. 449), after commenting upon the wide ambit of the defence power, ‘it is very difficult, even if it is possible, to express its ambit, as it exists in this time of war, by any proposition intended to define it’.

Section 51 of the Constitution provides, inter alia, that:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:

(xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth;

(xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth or in the Federal Judicature, or in any department or officer of the Commonwealth.

The memorandum from the Secretary to the Commissioner refers specifically to pl. (xxxii) as the provision likely to confer the desired powers. Concerning that placitum the High Court (Griffith C.J., Barton and O’Connor J.J.) said in the case of the Federated Amalgamated Government Railway and Tramway Association v. New South Wales Traffic Employees Association (4 C.L.R. 488 at p. 545) ‘The word “control” as used in (xxxii) cannot, we think, be limited to manual or physical control. It is the widest possible term and is at least co-extensive with the asserted general power to “regulate”.’ (It should be noted that the decision in this case was overruled by the Engineers case (28 C.L.R. 129) but the latter decision did not in any way affect the dictum).

Isaacs C.J. also made reference to the intention of pl. (xxxii) in the Australian Railways Union case (44 C.L.R. 319 at p. 349) when he said that ‘sub-section (xxxii) enables the Commonwealth to take over the control of all railways, private or public, for the purposes of transport in connection with the defence of the country, that is to use them for the given purpose as if they were the property of the Commonwealth’.

From these dicta, as well as from the language of the placitum itself, I think it may be said that the power of control exercisable by the Commonwealth is of the very widest, even, as Isaacs C.J. points out, to the extent of treating the railways as if they were the property of the Commonwealth.

Although the power conveyed by pl. (xxxii) to legislate for the control of railways is stated to be ‘in respect to transport for the naval and military purposes of the Commonwealth’ I do not think the power is limited to the control of the actual transport by railway of naval or military forces or material. To enable the transport of the forces in time of war to be properly organised, it would almost certainly be necessary that the control of the railway systems should be handed over temporarily to the Commonwealth so that the requirements of defence should not be subordinated to ordinary commercial transport. In such circumstances it would probably not be practicable for such commercial transport as could be carried on in the intervals when the railways were not immediately required for naval or military transport to be controlled otherwise than by the Commonwealth. Such control would, in my opinion, be necessarily incidental to the exercise of the power conveyed by pl. (xxxii) and accordingly authorised by pl. (xxxix).

I am fortified in this view by consideration arising out of pl. (vi). The extent of the power contained in this placitum was considered by the High Court in the case of Farey v. Burvett (21 C.L.R. 433) in which the High Court (Griffith C.J., Barton, Isaacs, Higgins and Powers, J.J.; Gavan Duffy and Rich, J.J., dissenting) held that the powers conferred by placita (vi) and (xxxix) included, during the state of war, a power to fix the highest price which might, in certain localities, be charged for bread. The test applied by the majority of the Court was not whether the fixing of the price of bread was necessary to the efficient defence of the Commonwealth, but whether the measure might conduce to the efficiency of the forces. At p. 441 Griffith C.J. said:

One test, however, must always be applied, namely:

Can the measure in question conduce to the efficiency of the forces of the Empire, or is the connexion of cause and effect between the measure and the desired efficiency so remote that the one cannot reasonably be regarded as affecting the other?

And per Barton J. at p. 449:

But the necessity is not for us, when facts of which we take judicial notice establish that the thing is capable of aiding directly the execution of the power. If it is thus capable, then the question of the necessity, or the wisdom or expediency, of invoking such aid, is for Parliament or its duly delegated authority.

And per Isaacs J. (with whom Powers J. agreed) at p. 455:

If the measure questioned may conceivably in such circumstances even incidentally aid the effectuation of the power of defence, the Court must hold its hand and leave the rest to the judgment and wisdom and discretion of the Parliament and the Executive it controls.

And per Higgins J. at p. 460:

Here Parliament has declared, on the face of the Act, that it is for the ‘more effectual defence of the Commonwealth’. It is not for this Court to decide that the Act does aid defence, or how it aids defence; it is enough that it is capable of being an Act to aid defence, enough that the statement of Parliament is not necessarily untrue.

In this connexion the following extract from the judgment of the Privy Council in the Zamora case ((1916) 2 A.C. 77 at p. 107) is apt:

Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matter should be made the subject of evidence in a Court of Law or otherwise discussed in public.

The naval and military defence of the Commonwealth and of the several States might on occasion require the complete control of the railway systems of the Commonwealth and in that event legislation for the assumption by the Commonwealth of such control would, in my opinion, be authorised by pl. (vi).

[Vol. 30, p. 467]