Re: What does ATSB do, Railwise?

[mauried@commslab.gov.au (Maurie Daly)]

In article <JpD54.2816$Dh3.59581@ozemail.com.au> "Allen Hope" <ahope@ozemail.com.au> writes:
>From: "Allen Hope" <ahope@ozemail.com.au>
>Subject: Re: What does ATSB do, Railwise?
>Date: Wed, 15 Dec 1999 09:05:12 +1100


>Maurie Daly <mauried@commslab.gov.au> wrote in message
>mauried.378.3855FADB@commslab.gov.au">news:mauried.378.3855FADB@commslab.gov.au...
>> In article <Fgj54.43$5a3.222192@news0.optus.net.au>
>dbromage@fang.omni.com.au (David Bromage) writes:
>SNIP
>> >That's the idea of ATSB. It would take over the roles of BASI, MIIU, FORS
>> >and have a new national rail safety unit.
>>
>> >Cheers
>> >David
>>
>>
>> Whilst the above goals are admirable, unlike BASI,MIIU and FORS where the
>Feds
>> have constitutional authority,thats not the case for rail, except for
>> federally owned tracks.
>> Whilst theoretically ATSB could be invited by a State Infrastructure owner
>to
>> investigate an accident in a State,it would have no legislative power to
>do
>> anything,other than make recommendations.
>> It seems to me that we have created yet another rail regulator which
>really
>> cant do much regulating.
>>
>> Better than nothing though I guess.
>>
>> MD
>>
>The Feds have exactly the same constitutional powers over rail as they do
>over aviation, that is, none to speak of! The constitution was adopted in
>1900, the Wright brothers didn't fly until 1903 so aviation missed out
>getting a mention.
>All Federal regulation of aviation depends on a "gentleman's agreement" not
>to mention the unconstitutionality of it all.
>The only legal endorsement of any kind is a High Court ruling that the feds
>had control of air safety. But any constitutional law expert will point out
>the legal flaws in this ruling, but hey! it works so why make waves. The
>recent use of the external affairs powers does put it on a somewhat sounder
>footing.
>Something similar COULD be worked out for rail. Is there an international
>treaty on rail safety?

>Allen



Yes you are correct in respect of aviation , in that the Constitution doesnt 
mention it at all, so that one could argue that the States if they so wished 
had just as much right to regulate aviation as does the Commonwealth.
Unfortunately, the Constitution is not silent on the issue of Railways 
spelling out precisely what the Commonwealths powers are .

Sect 51 which defines the law making abilities of the Parliament in respect to 
Railways is pretty clear in what areas the Commonwealt has a role.


  51. The Parliament shall, subject to this Constitution, have power*11* 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:
    (xxxiii)   The acquisition, with the consent of a State, of any railways of
               the State on terms arranged between the Commonwealth and the
               State:
     (xxxiv)   Railway construction and extension in any State with the consent
               of that State:


The only possible way to allow ATSB to have a role in rail regulation is for 
the States to legislate to let it .

Sadly , State cooperation in rail related matters is historically very poor.

MD