NZ Railway Legislation

Introduction

Nothing seems to be able to happen without some form of legal backing. This section of the Railway Knowledge Base Looks at the various laws that have been passed over the years that directly or indirectly affects a Railway. In the very early days, promoters of individual Railways had a considerable battle to get legislation passed to allow their Railway, usually this was the local Provincial Council, but promoters of Private railways were directly affected too.

Thanks to the work done by the New Zealand Legal Information Institute, most of the old Acts, Bills and Ordinances are now available on the internet and wherever possible, links have been provided to the documents on the NZLII website

In Anticipation

More than 20 years before any railways were constructed in New Zealand, there was already provision in the legal system to protect that railway. In the fledgling colony of New Zealand, the only way to expediently obtain a set of Laws, was to adopt them from 'Home', and so it way that a number of laws enacted by the British Parliament, were adopted for use in New Zealand. One such law was the Prevention of Offenses Act 1851 which, of its 16 clauses, had 3 applying directly to Railways: VI, It was a felony to obstruct, damage or interfere with any part of a railway; tracks, locomotives or rollingstock. VII It was a felony to throw or cause to fall, anything onto or at an engine, tender, carriage or truck in order to cause harm. VII It was a felony to set fire to any railway building or contents. The penalties for such offenses were harsh, including: 'deportation beyond the seas'; imprisonment, with or without hard labour for a minimum of 7 years, or imprisonment , with or without hard labour for a period not exceeding 3 years.These are of course summarised, and those interested can follow the link to the actual document.

A more obscure law referring to railways, authorises customs staff to enter a 'railway' while carrying out duties to prevent smuggling. This too is from an British law adopted in New Zealand. Clause CLXXXIV (184) of the Customs Act 1858 holds the only reference to Railways

The Early Provincial Government Era

From earliest times, no public railway could be constructed in New Zealand without an authorisation from Parliament in the form of an Act, passed by the General Assembly. This fact was tested several times by various Provinces from 1859 onwards, usually expecting Provincial authority to be sufficient to proceed. In nearly every attempt to begin early construction, the need to jump through additional legal hoops inevitably delayed the work. Auckland, Nelson, Marlborough, Christchurch, Dunedin and Invercargill all faced these challenges and without going in to the details of their respective railways, the following sections briefly look at the legal journeys of each of these ventures. Wherever possible, a link has been provided to relevant legislation that was passed, and it is an interesting journey finding out how the complexity of legislation grew as the railway network expanded.

Canterbury

The Canterbury Provincial Council was the first to attempt to tackle the problem of efficient transport between their Port and the centre of their town. They also had the biggest hurdle to over come with Port Hills separating the two.

Being the English settlement that it was, it is not surprising that Robert Stephenson was engaged as consultant, and that his scheme of tunneling through the Port Hills was agreed to, provided Mr. Stephenson could find a contractor to carry out the work. Canterbury being the first to attempt to break in to the world of railways, meant it was very difficult to see things outside their provincial area, there was no incentive to look at the bigger picture of rail at the time. These were their tracks for their use, so when the contractor was agreed to, the Provincial Council passed the Lyttelton and Christchurch Railway Ordinance, expecting to be able to get the work underway. However it was quickly notified that the passing of that Ordinance was insufficient for authorising the construction of the Railway, and a separate Act of Parliament would need to passed by the General Assembly first. While there are no details yet of all that transpired in between, the Lyttelton and Christchurch Railway Act 1860 was passed on October 2nd that year, authorising work to commence.

This marks the first legislation passed in New Zealand specifically authorising the construction of a railway, and from here on, every railway constructed, had an Act of Parliament as its legal beginning.

Being allowed to build a railway was usually just step one of several, invariably loans would need to be raised to to pay for the actual construction and these too, being Public expenditure, needed a Parliamentary Authorisation. This step too started with a Provincial Ordinance, theLoan Ordinance 1859 which the General Government disallowed, but from that produced the

Nelson

Nelson's situation was somewhat different in that that venture was a commercial mining enterprise, aimed at transporting chrome ore from Dunn Mountain to the port at Nelson. Typical of all early ventures of considerable scale, this one in particular faced a long period of struggles, primarily due to the high expectations of the company, and their consequential lack of attending to details in an appropriate order. Track materials had already arrived in 1885 well before a detail alignment had been agreed to. Here too, Provincial Council consent was was obtained through the passing of an Act in May 1858, but then had to be abandoned once survey work revealed better options. With the arrival of a new Engineer, momentum increased but an application for an Act of Parliament was turned down due to 'incomplete nature of the plans'. This did not seem to deter the Engineer as he commenced construction anyway, letting contracts for both the mountain and Town portions of the route. Construction was therefor all but complete when the Dun Mountain Railway Act 1861 was passed. This piece of legislation is a good example of some of the details that thought of to protect the public, yet give the Company sufficient powers to achieve their goals without undue interference by others.

Marlborough

Marlborough was in a similar predicament as Canterbury, their main centre of population was on the other side of the hill from their port, however, in this case a railway route over the hill was quite achievable and very early on already the Provincial Council requested an Act of Parliament to allow them to build their railway. The Picton Railway Act 1861 This Act was a little different from Canterbury's in that clause X (10), the last one, had an a special condition that if genuine construction had not commenced within 5 years, the Act authorising such construction would expire. In fact things did not even get that far, because the Governor of the day, Sir George Grey, did not allow an accompanying bill regarding financial arrangements, so everything lapsed. A Further Bill was placed before Parliament in 1865 and enacted on 30th October 1865, becoming the {http://www.nzlii.org/nz/legis/hist_act/pabra186529v1865n3408/pabra186529v1865n3408.html Picton and Blenheim Railway Act 1865. This too had the 5 year clause inserted towards the end, This also seems to be the first Act relating to Railways that includes quite a list of Definitions - in two places in this Act even. There is a further unusual aspect in Clause VIII (8) by including much of the British Act "The Railways Clauses Consolidation Act 1845, in with the current Act, and this is followed by a second list of Interpretation of various words or phrases, making them relevant to New Zealand. Altogether, this was a much more comprehensive version of the 1861 Act. But all this was still to no avail as funding could not be arranged and all provincial attempts came to an end.

Otago

Otago was trying to meet two challenges, a railway between its port and the town , a railway southwards to the Clutha River for hauling coal more economically that shipping options would allow. facing both challenges at the same time caused considerable confusion as it was clear the young province could not afford both, and again, unable to look beyond their current financial resources, kept delaying a start on either project. But here they at least had the design work sorted ahead of resolving their financial and legal problems. Though secondary to constructing and operating a railway, the Otago Provincial Council were attempting to pay for construction by raising loans. Here also they needed Parliamentary approval and even with several attempts, was not forthcoming. In the end, private money was used to construct the Dunedin & Port Chalmers Railway and the Dunedin - Clutha Railway was funded through Julius Vogel's Immigration and Public Works scheme which eventually provided railways throughout the country.

Railway Offenses Act 1865]

The first Act aimed at bringing together all offenses relating to Railways was the Railway Offenses Act 1865 and came in to effect on the 9th of October 1865. It dealt with both offenses against a Railway and by Railway employees. It also provided the first legal interpretation of the term "Railway", and "Company" with respect to private railways.

Miscellaneous Acts affecting Railways

There were a number of Acts passed for specific reasons that impacted on Railways in one way or another

1. Militia Act Bill 1862: Clause LXXV (125) made provision for a Justice of the Peace to be able requisition a train for military purposes on behalf of the Commanding Officer. The JP could set the rate charged and refusal could result in the train being 'impressed and taken for such service'.
2. Customs Tariff Act 1866: Schedule B provided for Railway and Tramway material to be duty free.
3. Malicious Injuries to Property Act 1867 Clause 4 relates specifically to setting fire to Railway Buildings, Clause 29 relates to interfering with any ropes, chains or tackle used in any mine or Railway, Clause 33 relates to destroying any bridge (under or over) of a Railway, Clause 35 relates to damaging any railway equipment or placing any obstruction that would cause damage to any railway, and clause 36 relates to causing an obstruction to any railway. Penalties for these offenses were harsh, at least by modern standards and included sentences up to life imprisonment, with or without hard labour (or whipping if under 16 years of age).
4. There is also reference to The Railways Offences Act 1865 which was partly repealed by The Indictable Offenses Acts Repeal Act 1867