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.

The normal legal process is that a Bill would be placed before Parliament, from where it may take several routes before it might receive a final reading and be passed into law (enacted - turned into an Act of Parliament)

There is a lot of legislation on the NZLII website in the form of Bills with no indication if they have been enacted or defeated as there is no matching Act, and no statement 'not passed'. In such cases if the impact on railways seems significant, this will be flagged as a 'bill only' reference and further research will be required to confirm if it became law or not. If reference to Railways is minor, there will more than likely be no mention of it.

In Anticipation

More than 20 years before any railways were constructed in New Zealand, there was already provision in the legal system to protect such railways. 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 was that a number of laws enacted by the British Parliament, were adopted for use in New Zealand, and such laws were referred to as Imperial Laws. 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.

The Provincial Government Era 1853 - 1876

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.

It appears that far more of the Canterbury Provincial legislation is available on the web so we have far more Ordinances that refer to railways from Canterbury than any other Province.

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 came the Lyttelton and Christchurch Loan Ordinance 1860 which was passed. While the full text of the Canterbury Ordinances are not always available, even summaries listing the key points are still very informative. The 1860 ordinance sets out the initial ₤300,000 loan at 6% interest, supported through the issue of Debentures. the Lyttelton and Christchurch Loan Appropriation Ordinance 1861 listed the various people who had land taken from them and who could be paid etc. Additional funding was obviously required so we get the Canterbury Loan Ordinance approving an additional ₤500,000 loan at 6%, to be used for Immigration, Railway construction, Wharves, Bridges, Electric Telegraph etc. These Appropriation bills continued yearly authorising the Council's spending, including that on the railway. 1863, 1864, 1866, 1868

The Canterbury Provincial Council passed the Ferrymead Railway and Wharf Toll Ordinance 1863 no doubt as a means of funding the Ferrymead portion of railway that had to serve the city till the Tunnel work was finished.This was replaced by the Railway Tolls and Management Ordinance 1867 Amendment Ordinance 1868 to provide for traffic on the Great Southern Railway etc.

1864 was a big year for Canterbury, as it spelled the beginning of their other two big railway projects with the passing of Canterbury Great Northern Railway Act 1864 and the Canterbury Great Southern Railway Act 1864. These provided for the construction of railways to the north bank of the Ashley River and the north bank of the Rakaia Rivers respectively. Their wording was again similar to the previous railway Acts that were passed, both incorporating the Railway Clauses Consolidation Act 1845. Another piece of local legislation that was passed was the Railway and Harbour Ordinance 1864. This was really a piece of tidy up legislation requiring the setting up of a separate account and specifying what credits are to be made to it and what can be paid from it. These transactions were all associated with Harbour works and railways within the Province. Income to the account was set at 40% of general income, plus rents and profits from railway and harbour works. This Fund (Account?) was abolished with the Railway Harbour Works Fund Ordinance Repeal Ordinance 1868

In 1868, the province of Canterbury was split in two to create Canterbury and Westland. As the original Canterbury had a significant amount of debt, a large part committed to Railways, the Canterbury and Westland Public Debt Apportionment Act 1868 was enacted, which set out the process for determining which parts of which loans would be transferred to Westland's books.

In planning the construction of the Great Southern Railway it became desirable to close certain portions of Road which again required the passing of a Local Ordinance namely the Diversion of Roads on Great Southern Railway Special Ordinance 1868. a second such ordinance was passed being the Diversion of Roads on Great Southern Railway, Special Ordinance No 2 1868

The provincial Council passed the Little River Reserves Sales Ordinance 1869 allowing then to sell parts of Reserves that had been set aside for 'timber for railway and other purposes' as a means for funding a road from Akaroa to Barry's Bay

Presuming it was with a view that all the land set aside for Railway Reserve at Lyttelton would not be required for some time, The Superintendent was authorised through the Railway and Harbour Reserves Leasing Ordinance 1869 to lease certain areas for a term not greater than 21 years.

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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.

Nelson had other grand ambitions, Being the best Port closest to the West Coast, a railway linking Nelson with Cobden would enable the rich coal fields of the Grey valley to be transported to Nelson for shipping to other port. From the start it was known this would be an expensive undertaking and one means of enticing contractors, was to make allocations of land as part payment. It was for this reason that the Nelson Cobden and Westport Railway Land Act 1866 was obtained. Then in 1868 both the previous Acts were repealed and replaced by the Nelson and Cobden Railway Act 1868 which clarified a number of things and applied some greater flexibility to the Land in lieu of payment options. This bill was amended the following year as the Nelson and Cobden Railway Act Amendment Act 1869 which altered the allocation land that could be used as for Payment for the Railway.

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.

Southland

While much has been written about Southland's early railway ventures, there is only a partial legal trail that can be followed. The earliest Act that survives is the Bluff Harbour and Invercargill Railway and Extension Act 1863, passed on 14th December 1863. With so much changed after more than 150 years it is difficult to decipher the exact portions of railway mentioned but it is clear that this Act gives approval to extend the original Bluff to Invercargill Railway right into Invercargill from the then current terminus , and if my interpretation is correct, also construct the Mokomoko Branch at Greenhills, to the temporary port for Invercargill. Work on the Bluff to Invercargill railway had started earlier in 1863, but the line was not opened for traffic till 1867, implying there should have been an earlier Act authorising the main section of this Railway. Around this time too they were busy building their 'Great Northern Railway', the wooden railway that never succeeded. Again, there is no legislation surviving that authorises that. Perhaps both were got underway based on Southland Provincial Ordinances only, ignoring the need for General Government approval.

Otago

Otago was trying to meet two challenges, a railway between its port and the town, and a railway southwards to the Clutha River for hauling coal more economically than shipping options would allow. facing both challenges at the same time caused considerable confusion as it was clear the young province could not afford one let alone both, and again, unable to look beyond their current financial resources, kept delaying a start on either project. There were period of great boldness and the Otago Southern Trunk Railway Act 1866 was requested to enable the Provincial Council to try and entice a contractor to build the railway for a guaranteed return. They knew exactly what they wanted as all the necessary survey work had been carried out. but even with promising leads, still no contractor would commit to the task.

The Otago Provincial Council also attempted to raise loans to fund the railways, (even sending someone to London to find a backer, but here to they needed Parliamentary approval to borrow such a large amount for public spending, and even following several attempts, approval was not forthcoming.

In the end, private money was used to construct the Dunedin & Port Chalmers Railway with a deal signed on Jan 25th 1870. While the gauge for this railway way intended to be 4'-8½" (Standard Gauge or 1435mm), the passing of the Railways Act 1870 in September 1870, forced the engineer to re-design this as a 3'-6" (narrow gauge or 1067mm) gauge railway. The first tenders for formation were called in August 1870 already, but it was not until October 1871 that the Dunedin and Port Chalmers Railway Act 1871 became law, and by then much of the formation was nearing completion. This line opened on Dec 31st 1872 while negotiations for its purchase by the New Zealand Government were already underway. Authority to purchase it was finally enacted with the passing of the Railways Act 1872 (Clause 11) which also ensured this railway was to be treated as if it had been built under the Immigration and Public Works Act.

The Dunedin - Clutha Railway was ultimately funded through Julius Vogel's Immigration and Public Works scheme, the result of a change in Government. Perhaps because he originated from Dunedin, and had been fully involved with all attempts to get the Clutha Railway built, he saw the best way forward was to wait for the Immigration and Public Works Act 1870 to be passed into law. Because this work was 'shovel - ready' to use a modern term, authorisation was given for the Provincial Council to com0mence construction immediately. This might account for the Otago Southern Trunk Amendment Bill which shortened the approved construction from Dunedin to only the Taieri. Tenders were called for the first section (Dunedin - Caversham) just 3 months after receiving the go-ahead.

Auckland

Auckland was in a peculiar situation in that it had two ports and a source of coal at Drury. They succeeded in getting the Auckland and Drury Railway Act 1863 passed on Dec. 14th 1863. This act was similar to the Picton Act in that it defined certain terms, gave permission to construct and maintain, described the general route, and incorporated the Railways Clauses Consolidation Act 1845 from Britain. In order to effect the construction of the Railway, the Provincial Council set up a Board of Commissioners by enacting the Railway Commissioners Act. The Commissioners must have soon come to the conclusion that with the need to take part of the Domain for the railway it was unclear who was to be compensated, so to clarify things, the Public Domains Act Amendment Act 1865 was passed. In 1866, the Provincial Government saw fit to do away with the Railway Commissioners and passed the Railway ACT 1866. THis also increased the available money for the Railway from ₤100,000 to ₤117,000. To accommodate further difficulties, the Auckland and Drury Railway Act 1867 was requested which provided for some deviations to the original alignment and changed some of the powers of the Superintendent.. The physical construction of this railway failed due to lack of funding and what was built was abandoned by ????

Wellington

Wellington Province Also had railway ambitions with significant financial hurdles to go with that. The Provincial Council passed the [http://www.nzlii.org/nz/legis/wgn_ord/whawro1866437/whawro1866437.html Wellington Hutt and Wairarapa Railway

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. A large part of this Act (Clauses 2 - 5) was repealed by the Indictable Offenses Act Repeal Act 1867 leaving only the clauses relating to sentencing.

Early Miscellaneous Acts affecting Railways

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

1. There are several references to the Railways Clauses Consolidation Act 1845 within New Zealand Acts. This is an early Imperial Act from Britain for which I have only been able to find a link in Ireland t a scanned original copy. This Act was often incorporated in other Acts like the Auckland Waterworks Act 1860 clause XXIV (24), because of the clauses relating to the taking of land, compensation payable and damage made good etc.
2. The Customs Act 1858 has a single reference (Clause CLXXXIV (184)) to railways, in that it authorises customs staff to enter a 'railway' while carrying out duties to prevent smuggling. While this was a New Zealand Act, the clause will have been taken from British law and adopted here, perhaps because of the references to railways in the 1851 Imperial Act referred to in the introduction.
3. 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'.
4. Customs Tariff Act 1866: Schedule B provided for Railway and Tramway material to be duty free.
5. 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). This act was repealed the same year when the clauses of several Acts all relating to offenses against people were consolidated into the Offenses Against the Person Act 1867 and at the same time the Indictable Offenses Acts Repeal Act 1867 was enacted to repeal the clauses in the various Acts including the Malicious Injuries to Property Act 1867 and the Railway Offenses Act 1865.
6. There is also reference to The Railways Offenses Act 1865 which was partly repealed by The Indictable Offenses Acts Repeal Act 1867
7. An obscure reference is made to railways in the Provincial Council's Extension Bill 1865 which allows Provincial Councils to utilise crown land that might have been set aside for a Railway but now deemed Waste Land. There is a lot of legislation dealing with Waste Land and it is unclear what significance this has relative to railways. Another example of a railway reference in a Waste Land Act is the single mention in Marlborough Waste Lands Act 1867 allowing the Waste Lands Board to set aside land for Railways.
8. Another instance of a minor railway association is the Canterbury Provincial Council's The Public House Ordinance 1865 which entitled the owner of an accommodation House attached to a Railway Station, a Conditional License to Sell Liquor. This Ordinance was significantly revised a year later but retained the same clause The Public House Ordinance 1866
9. the Municipal Corporations Act 1867 authorised Superintendent to construct authorised railways in or through the Municipal areas, but Councils could not interfere with any railway it did not build itself. However it could negotiate to acquire such Railway (among other things).
10. The Westland Waste Lands Bill
11. With a misleading title, the Railways Act 1869 was passed to clarify the situations with level crossings on those railways already authorised. This was required due to clause 45 of the Railway Clauses Consolidation Act 1845 which was embodied in with the authorising acts and required the railway to pass under or over a road unless a level crossing was stipulated. Inevitably, level crossings were implied and not stipulated , hence the new act authorising level crossings.
12. the Dangerous Goods Act 1869 required vendors of goods known to be dangerous to clearly label them before submitting them for transport by rail or otherwise.

The Immigration and Public Works Act

The boldest Act to be passed by Parliament must surely have been the Immigration and Public Works Act 1870. This Act, set the scene for New Zealand's expansion over the next 50 years, especially in providing the labour for construction of Roads and Railways in particular, but also Water works, especially on the goldfields, all necessary items for a progressive society. The concept of the program was actually quite simple, Assist selected immigrants to settle in New Zealand, provide work for them by building public amenities, with a focus on Railways as a means of accessing the large tracts of arable land that currently have no economic transport routes. Blocks of land can then be sold for farming which will produce crops (wool, meat, or produce), which will be able to be exported for profit to the colony. All this required funding of course, and the Immigration and Public Works Loan Act 1870 provided the means for the Colony to borrow ₤4,000,000 to achieve the start of these goals. Of that sum, half was allocated to a Middle (South) Island Railway Fund Account. Access to this Fund was through the Railways Act 1870 which authorised the construction of several sections of Railway. This is looked at in more detail in the next section.

The Immigration and Public Works Loan Act was simple in structure: the appointing of Agents to administer the raising and expending of the monies authorised, with most of the clauses relating to interest rates, repayments and safeguarding transactions.

The Immigration and Public Works Act its self was much more substantial, divided into 9 sections as follows:-

1. Roads in the North Island
2. The construction of Railways and the Middle Island Railway Fund
3. The provision of water supplies for the Gold Fields and their funding
4. The Provisions for the purchase of Land in the North Island and its funding
5. Immigration and what funds are applicable to that purpose
6. Provisions specially for constructing Roads including those in Section 1
7. Provisions specially for constructing Railways including those in Section 2
8. Provisions specially for constructing Water supplies for Gold fields including those in Section 3
9. Miscellaneous

The two Railway sections need to be explained in a little more detail

2. The construction of Railways and the Middle Island Railway Fund This is the largest section of the whole act, incorporating 20 clauses (6 - 25)

Clause 6. Allows specifically for the wishes of the Provinces to be made known to Parliament with a clear recommendation from the Governor on whether he agrees or disagrees with the Province's wishes. Clause 7. The Governor is to arrange reconnaissance surveys from 'Cook's Straits' to Invercargill, from Napier to Wellington and from New Plymouth to Wellington, to determine routes of the Mainlines, employing and dismissing staff as necessary. Clause 8. Expenses of the a above can be a charge to the Railways Loan account Clause 9. Only railways authorised by Parliament can be constructed Clause 10. A separate "Middle Island Railway Fund Account" is to be kept and each year an amount equal to what is approved for spending on North Island Roads is to be deposited in this fund. Monies in this fund can only be spent on specific railways in the Middle Island as approved by the General Assembly. Clause 11.