Opinion Number. 187

Subject

DEFENCE PURPOSES 187 EXTENT OF COMMONWEALTH CONTROL OVER RAILWAYS : RATES FOR CARRIAGE OF MEMBERS OF DEFENCE FORCES

Key Legislation

CONSTITUTION, s. 51 (xxxii), (xxxiii)

Date
Client
The Prime Minister

The Prime Minister asks for my opinion on the point whether the power of legislation conferred on the Parliament by section 51, sub-section (xxxii) of the Constitution is sufficient to authorize the passing of a law to compel the State railway authorities to carry members of the Defence Forces from place to place as required at rates to be fixed by the Government of the Commonwealth.

Section 51, sub-section (xxxii) empowers the Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to 'The control of railways with respect to transport for the naval and military purposes of the Commonwealth'. The legislative power of the Commonwealth so far as regards transport for those specific purposes is not subjected to any limitation whatever. The consent of the State is not required as it is in the case of the acquisition of State railways (sub- section (xxxiii)).

In my opinion, the control of a railway includes the control of the rates to be paid for traffic on the railway; and Parliament can pass a law fixing the rates at which members of the Defence Force are to be carried, in peace as well as in war, and even enabling the Federal servants to work the railway for the specified purposes if the State officials refuse to work it.

I apprehend, however, that this power to legislate for the control of railways is based on the necessity of subordinating all private or State rights to the requirements of national defence, and had better not be exercised except in cases of very pronounced obstruction on the part of a State.

[Vol. 4, p. 291]