Re: Section 61 >> Rail funding.

["Dave Proctor" <daproc@spambait.ozemail.com.au>]

"< Tell >" <telljb@netozemail.com.au> wrote in message
b24aisgmchin52spc1dv7292qn1l75t6q0@4ax.com">news:b24aisgmchin52spc1dv7292qn1l75t6q0@4ax.com...

> Arrrrg, I deserve 15 lashes of a rolled up constitution
> for heading this thread s.61, I can not believe that.!
> Well I can, but reasons not readily explained here.

A bit of a case of brown bottle fever? (Or green bottle fever if uou like
Heineken!)

> Re your response, I had forgotten about the BOOT
> process, but it could get murkier later on.

Possibly, although I cannot see how it would get to the High Court, which is
the only court of competent jurisdiction in constitutional cases.

Firstly, you would need someone who wanted to argue thatit was
unconstitutional. The only party that I could see that would be willing to
fight it would be a competitor to the winner, and if they were prepared to
do it without commonwealth funding, then they probably would have been
picked anyway.

I cannot see the tender winner challenging it in the HC, although they could
challenge the hand-back in X years time, but that would not be a
constitutional question, merely a contractual issue, and thus would not go
to the HC anyway (apart from the necessary appeals after they lost).

All in all, I would see this as being a case where the government could
really do what they like (if they were prepared to ignore the constitution,
in which case they should be impeached).

About the only prospect I see of it getting to the High Court would be if it
was against the opposition's policy (forget political parties here, it would
be valid no matter who was in power) but the legislation was passed. They
could then resort to the High Court to have it declared invalid.

Another possibility would be in a case whereby states were competing for the
project. To pick an (impossible) example, Darwin to Melbourne, a totally new
rail line. If the government chose to fund the line via NT, SA and Vic, but
the Qld and NSW governments wanted it, they could challenge it. But I don't
see any likelihood of a project arising that could fall into either of these
scenarios.

> Anyhow we have yet to see a Federal Government willing
> to use s.96 for rail.

I am not holding my breath.

> Incidentally, does the Tasmanian Government "re-own"
> the track down there now, just as the SA Gov now owns
> all non ARTC track in their state.?

Dunno. Might wander off to AustLII and see if I can find the 1975
legislation that provides for the transfer. I was looking for some 1978
Victorian legislation last week and it was not there, so I am not hopeful,
but since the legislation is still in place, you would think it would be up.

Let me get back to you.

Dave