Re: GST & the Budget

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

In article <Pine.OSF.4.05.9906011546360.22797-100000@ties.itu.ch> arthur marsh <marsh@ties.itu.int> writes:
>From: arthur marsh <marsh@ties.itu.int>
>Subject: Re: GST & the Budget
>Date: Tue, 1 Jun 1999 15:55:47 +0200

>There again seems to be some difference in what can be required by the
>states for rail operators versus what is required for road operators -
>does this get by because of the mention in the constitution of rail being
>a state matter, or does S92 override that?

>On Tue, 1 Jun 1999, Maurie Daly wrote:

>...
>> 
>> This is an excellent point and one that I have wondered about for a while.
>> The fact that no rail operator has been able , or indeed willing to take a 
>> state govt to the high court over track access charges may be in part due to 
>> the fact that organizations like NRC are in part owned by the States, ie you 
>> would be taking legal action against your own shareholders.
>> There are other areas also where train operators could take legal action 
>> against the states.
>> Requirements like a mandated rule that SAW equipment be fitted into trains to 
>> enter Victoria is almost certainly a breach of S92 of the constitution where 
>> interstate freight is concerned.
>> As a precedent the Victorian Road Traffic Authority tried to require that all 
>> trucks entering Victoria had to be fitted with tachographs , but were rolled 
>> by the federal Court citing S92.
>> 


S92 of the Constitution which is the bit relating to free trade between the 
States doesnt specifically mention rail at all , nor does it mention road.
Various High Court rulings have however always come down on the side of road
usually as it is the Road Industry that has used this section to its greatest 
advantage.
It would seem though that the levying of track access charges could be deemed 
to be a duty and therefore free for at least Interstate Trains.

-------------------------------------------------------------------------------
THE CONSTITUTION - CHAPTER IV SECT 92 

Trade within the Commonwealth to be free

92. On the imposition of uniform duties of customs, trade, commerce, and
intercourse among the States, whether by means of internal carriage or ocean
navigation, shall be absolutely free.
But notwithstanding anything in this Constitution, goods imported before the
imposition of uniform duties of customs into any State, or into any Colony
which, whilst the goods remain therein, becomes a State, shall, on thence
passing into another State within two years after the imposition of such
duties, be liable to any duty chargeable on the importation of such goods into
the Commonwealth, less any duty paid in respect of the goods on their
importation.
-------------------------------------------------------------------------------


Another section of the Constitution which to my knowledge has never been used 
in relation to Rail is S 98.

-------------------------------------------------------------------------------
THE CONSTITUTION - CHAPTER IV SECT 98 

Trade and commerce includes navigation and State railways

98. The power of the Parliament to make laws with respect to trade and
commerce extends to navigation and shipping, and to railways the property of
any State.

-------------------------------------------------------------------------------


This section would seem to imply that the Commonwealth has the power to make 
laws in respect of State Railways when trade or commerce is concerned.
It doesnt give the Commomwealth the power to acquire a State Railway but one 
would think that forcing states to agree in the areas of  fundamental rail 
reform would be possible.

Are there any lawyers who are members of Rail2000?


MD