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Airlines of New South Wales Pty Limited v. New South Wales [No. 2]

Published online by Cambridge University Press:  24 January 2025

Pauline R. Armstrong
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Type
Case Notes
Information
Federal Law Review , Volume 1 , Issue 2 , June 1965 , pp. 348 - 358
Copyright
Copyright © 1965 The Australian National University

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References

1 (1964–1965) 38 A.L.J.R. 388. High Court of Australia; Barwick C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

2 S. 3.

3 Made under the Air Navigation Act 1920-1963 (Cth).

4 (1964) 37 A.L.J.R. 399; Especially Dixon C.J. and Windeyer J. at 403 and 411-412. These remarks were only dicta as the case was decided on the ground that there was no inconsistency between the Commonwealth Regulations and the State Transport (Co-ordination) Act as they then stood.

5 With an exception relating to military aircraft not relevant to the present discussion.

6 Each contracting State undertakes to collaborate in securing the highest practicable degree ofuniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with:

(a) Communications systems and air navigation aids, including ground marking;

(b) Characteristics of airports and landing areas;

(c) Rules of the air and air traffic control practices;

(d) Licensing of operating and mechanical personnel;

(e) Air worthiness of aircraft;

(f) Registration and identification of aircraft;

(g) Collection and exchange ofmeteorological information;

(h) Log books;

(i) Aeronautical maps and charts;

(j) Customs and immigration procedures;

(k) Aircraft in distress and investigation of accident; and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate.

7 Taylor J. said ‘ the article does not … even contemplate ’: (1964-1965) 38 A.L.J.R. 388, 414.

8 He held the licensing system valid because it ‘provides a means of ensuring that permitted air transport operations shall be conducted in accordance with the conditions laid down for their conduct and it enables the licensing authority to consider whether an applicant for permission to conduct such a service is qualified to provide and maintain the necessary aircraft, equipment, ancillary services and skilled personnel : ’ Ibid. 429.

9 Ibid. 417; see also at 416 and 418.

10 Ibid. 418.

11 Ibid. 414.

12 In their joint judgment they held the regulations invalid because they are not stamped with the purpose of executing the air convention but are stamped with the unauthorised purpose of controlling civil aviation throughout the Commonwealth : (1936) 55 C.L.R. 608, 696.

13 ‘ All means which are appropriate, and are adopted to the enforcement of the convention and are not prohibited, or are not repugnant to or inconsistent with it, are within the power. The power must be construed liberally, and much must necessarily be left to the discretion of the contracting States in framing legislation, or otherwise giving affect to the convention ’: Ibid. 659-660.

14 ‘ It is apparent that the nature of this power necessitates a faithful pursuit of the purpose, namely a carrying out of the external obligations, before it can support the impositions upon citizens of duties and disabilities which otherwise would be outside the power ofthe Commonwealth. No doubt the power includes the doing ofanything reasonably incidental to the execution of the purpose. But wide departure from the purpose is not permissible, because under the colour ofcarrying out an external obligation the Commonwealth cannot undertake the general regulation ofthe subject matter to which it relates ’: Ibid. 674-675. Barwick C.J. does however in the present case acknowledge that the Commonwealth may pass laws to ‘ secure the benefits ’ oftreaties and conventions: (1964-1965) 38 A.L.J.R. 388, 395 (italics added).

15 Ibid. 424.

16 Ibid. 395.

17 Ibid. Cf. Dixon J.—‘ If a treaty were made which bound the Commonwealth in reference to some matter indisputably international in character, a law might be made to secure observance of its obligations if they were of a nature affecting the conduct ofAustralian citizens. On the other hand, it seems an extreme view that merely because the Executive Government undertakes with some other country that the conduct of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power to enact that regulation although it relates to a matter of internal concern, which apart from the obligation undertaken by the Executive, could not be considered as a matter of external affairs ’: Burgess' Case (1936) 55 C.L.R. 608, 669. In the present case, Windeyer. J. left this point open: (1964-1965) 38 A.L.J.R. 388, 423.

18 (1964) 37 A.L.J.R. 399, 402—‘ A study of the Schedule suggests that obligations are placed upon the Commonwealth which extend over the whole territory ofAustralia and that in almost all respects the legislative power which arises from the need of carrying out the Convention given by s. 51 (xxix) would suffice to support laws made with a complete disregard of the distinction between interstate and intra-State trade; it would follow that no reliance upon s. 51 (i) by the Commonwealth would be necessary.’

19 McTiernan J. expressed no view as to the validity of IT. 198 and 199 unders. 51 (i).

20 Consistently with the view he expressed in the first Airlines case (1964) 37 A.L.J.R. 399, 408—that if rr. 198 and 199 applied to intrastate public transport operations their validity would be very doubtful. His Honour's dissent on this p,oint in the instant case was for reasons similar to those for which he held rr. 198 and 199 invalid under the external affairs power.

21 (1964-1965) 38 A.L.J.R. 388, 422-423 per Windeyer J.

22 Ibid. 408 per Kitto J. Cf. Evatt and McTiernan in Burgess' Case (1936) 55 C.L.R. 608, 677 where afterrejecting the application ofthe commingling doctrine their Honours went on to say—‘ Moreover, the rejection of the “commingling” theory does not deny that there may be occasions when parts of intra-State aviation will be seen to occupy so direct and proximate a relationship to inter-State aviation that the agents and instruments of the former will be drawn within the ambit of the Federal power, for otherwise the particular Commonwealth regulation of inter-State commerce would be entirely frustrated and nullified’.

23 (1964-1965) 38 A.L.J.R. 388, 408 per Kitto J.

24 Barwick C.J. and Taylor J. pointed out that a contrary view would allow the Commonwealth (while purporting to act under the Convention) to establish its own intrastate airline service.

25 (1964) 37 A.L.J.R. 399, 411; italics added.

26 Ibid. 412.