Opinion Number. 525

Subject

DEFENCE PURPOSES WHETHER IN TIME OF WAR COMMONWEALTH HAS POWER TO REQUISITION STATE RAILWAY ROLLING-STOCK FOR SERVICE BEYOND AUSTRALIA

Key Legislation

CONSTITUTION, s. 51 (xxxii) : DEFENCE ACT 1903-1912. ss. 4, 64

Date
Client
The Minister for Defence

The question on which the Minister for Defence asks to be advised is whether there is sufficient power under the Defence Act for the Commonwealth to accept the re-sponsibility of guaranteeing that it can at any time, in time of war (in the Imperial sense) place State railway rolling-stock at the disposal of the Imperial Government for service outside Australia.

The Constitution, section 51 (xxxii), empowers the Commonwealth to make laws in respect to The control of railways with respect to transport for the naval and mili-tary purposes of the Commonwealth'.

Section 64 of the Defence Act is as follows:

The Governor-General may in time of war authorise any officer to assume control of any railway for transport for naval or military purposes.

Time of War' in that Act means (section 4)-

any time during which a state of war actually exists, and includes the time between the issue of a proclamation of the existence of war or of danger thereof and the issue of a proc-lamation declaring that the war or danger thereof, declared in the prior proclamation, no longer exists.

and 'War' means-

any invasion or apprehended invasion of, or attack or apprehended attack on, the Com-monwealth or any Territory under the control of the Commonwealth by an enemy or armed force.

In my opinion the power thus given by the Constitution and taken under the De-fence Act only applies to transport upon railways within the Commonwealth, and does not authorise the Commonwealth Government to requisition rolling-stock for use be-yond the Commonwealth.

[Vol. 12, p. 17]