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Published online by Cambridge University Press: 24 January 2025
The primary purpose of this article is to discuss the Australian statutory law applying to civil aviation. There will also be some consideration of one or two unresolved questions involving the application of common law rules, selected not only because of their intrinsic interest, but also because they are partly affected by Federal and State Acts of Parliament.
page 242 note 1 (1946) 328 U.S. 256; [1946] U.S. Av.R. 235.
2 (1946) 328 U.S. 256, 260-261; [1946] U.S. Av.R. 235, 238-239. The Court also added– ‘ The airis a public highway, as Congress has declared. Were that not true,every trans-continental flight would subject the operator to countless trespass suits.Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control anddevelopment in the public interest, and transfer into private ownership that to which only the public has a just claim.’.
3 I (1946) 328 U.S. 256, 264-265; [1946] U.S. Av.R. 235, 241-242.
4 The fifth amendment, so far as relevant reads#x2013; ‘ No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’.
5 (1962) 369 U.S. 84; [1962] U.S. Av.R. 1.
6 Section 1 of the amendment, so far as relevant, reads– ‘ No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law … ’.
7 [1954] Exchequer Ct. R. 69; [1954] U.S. & C. Av.R. 259; [1954J 4 D.L.R. 470.See also Mann v. Saulnier [1959] 19 D.L.R. (2d) 130.
8 (1815) 4 Camp. 219; 171 E.R. 70.
9 Ibid. 220.
10 1 C.B. 828; 135 E.R. 769.
11 [1894] 3 Ch. 1; affirmed on appeal to the House of Lords [1895] A.C. 1.
12 (1884) 13 Q.B.D. 904, 915.
13 [1957] 2 Q.B. 334; [1957] 2 All E.R. 343.
13A [1900] S.A.L.R. 29
13B [1905] V.L.R. 714.
13C In yet another State, the Supreme Court of New South Wales held in Evans and wife v. Finn (1904) 4 S.R. N.S.W. 297, that an action lay for nuisancecaused by bullets which strayed from a rifle range and came on to and over the plaintiffs' land. The Court did not consider the status of the airspace and whether trespass also lay in respect of the passage of bullets over the land as was in issue in Clifton v. Bury (1887)4 T.L.R. 8.
13D (1927) 22 Tas. L.R. 52.
13E Kenyon v. Hart (1865) 6 B. & S. 249, 252; 122 E.R. 1188, 1189.
13F Law of Torts, 8th ed., 347.
14 Similar misgivings are expressed by Messrs Kerr and Evans, the learned authors of McNair, ‘ The Law of the Air’ (3rd ed. 1964) 47-48.
15 H. D. Klein, ‘Cujus Est Solum Ejus Est … Quousque Tandem?’ (1959) 26 Journal of Air Law and Commerce 237.
16 The Air Navigation Regulations referred to in s. 2 (1) are those made by the Governor-General pursuant tothe Air Navigation Act 1920 as amended which are made part of N.S.W. law by the Air Navigation Act, 1938-1964 of that State. All other States have similar Acts adopting the Federal Regulations.
17 In Kelson v. Imperial Tobacco Company, McNair J. regarded s. 40 as evidence that the British Parliament did not adopt Lord Ellenborough's opinion in Pickering v. Rudd but adopted a contrary view that a flight by an aircraft could be a trespass. This is tantamount to saying that Parliament was curing an established mischief as distinct from dispelling any doubts or foreshadowing a possible mischief.
18 Corresponding provisions in the other State Acts are—Victoria—Wrongs Act 1958, s. 30; W.A.—Damage by Aircraft Act, 1964, s. 4; and Tasmania—Damage by Aircraft Act 1963, s. 3.
19 For comments along similar lines on s. 40 of the Civil Aviation Act see McNair, op cit. 99-100.
20 This view may be reached by construction of the legislation having regard to decisions of the High Court in Minister for Works (W.A.) v. Gulson (1944) 69 C.L.R.338 ; Essendon Corporation v. Criterion Theatres Ltd (1947) 74 C.L.R. 1 ; and Com–,monwealth v. Bogle (1953) 89 C.L.R. 229. Moreover, it is to be doubted whether a State has constitutional capacity to bind the Commonwealth Crown-Commonwealth v. Bogle (1953) 89 C.L.R. 229, 259-260 per Fullagar J.
21 S. 40 (2).
22 Victoria-Wrongs Act 1958, s. 31; W.A.–Damage by Aircraft Act, 1963, s. 5; Tasmania-Damage by Aircraft Act 1963, s. 4. The State Acts also provide that where an owner bona fide demises or hires out his aircraft to another person for a period exceeding fourteen days and does not supply crew, thatperson is liable instead of the owner.
23 Similar problems under s. 40 of the English Act are described in McNair, op cit.115-120. See further L. R. Edwards, ‘Some Aspects of the Liabilities of AirlineOperators in Australia’(1960) 34 Australian Law Journal 142.
24 McNair, op. cit. 118.
25 Civil Aviation (Damage by Aircraft) Act 1958, s. 16 (1).
26 Ibid. s. 16 (2).
27 McNair, op. cit. 72-76.
28 D' Anna v. United States [1950] U.S. Av. R. 282.
29 [1937] 1 All E.R. 108.
30 Zerka, Romley and Alex v. Lau-Goma Airways Ltd (1960) 23 D.L.R. (2d) 145.
31 [1933] U.S. Av.R. 511.
1 (1953) 54 W.A.L.R. 15.
32 Each Act is called the Civil Aviation (Carriers' Liability) Act and all are substantially similar. New South Wales has not yet passed a corresponding Act.
33 The Federal Act gives the Warsaw Convention the force of law in Australia. By art. 1 of the Convention theConvention is applicable to ‘ all international carriage’ for reward and most gratuitous international carriage between the territories ofthe high contracting parties.Later aviation conventions use the term ‘Contracting State’ instead of ‘High Contracting Party’. The Warsaw Convention was signed by theUnited Kingdom as the High Contracting Party on behalf of Australia, a practice long since discontinued in aviation arrangements.
34 Constitution s. 51 (i) reads– ‘ The Parliament shall, subject to this Constitution have power to make laws for the peace, order, and good government of the Commonwealth with respect to:-(i.) Trade and commerce with other countries and among the States:’.
35 ‘ (xxix.) External affairs: ’.
36 Section 122 reads—‘ The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, orof any Territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation ofsuch territory in either House of the Parliament to the extent and on the terms which it thinks fit.’.
37 (1936) 55 C.L.R. 608.
38 R. v. Poole; Ex parte Henry [No.2] (1938) 61 C.L.R. 634.
39 Under s. 128 a proposed law to alter the Constitution can become law only if ‘ in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law … .’ In 1937 1,924,946 electors voted in favour of a federal aviation power and 1,669,062 voted against but there were separate majorities only in Victoria and Queensland. In the light of subsequent events, the wording of the proposed amendment ‘ air navigation and aircraft’ was too narrow. In 1959 the Joint Parliamentary Committee on Constitutional Review recommended that the Federal Parliament should seek legislative power over the subject ‘ aviation ’.
40 The State Acts are—N.S.W.–Air Navigation Act, 1938–1964; Victoria–Air Navigation Act 1958; Queensland–Air Navigation Acts, 1937 to 1947; S.A.–Air Navigation Act, 1937; W.A.–Air Navigation Act, 1937–1945; and Tasmania–Air Navigation Act 1937.
41 The Prime Minister (Sir Robert Menzies) gave this figure to the House of Representatives on 25 August 1964. Parliamentary Debates, 25th Parlt, 1st session 1964, House of Representatives, 529.
42 Arts. 3, 5 and 6.
43 Arts. 38, 54, 57 and 90.
44 Australia has been a member of the Council of I.C.A.O. since its inception.
45 Art. 54 (I).
46 Air Navigation Act 1920-1963, s. 26 (1) (b).
47 Section 26 (1) (c) reads ‘in relation to air navigation within a Territory of the Commonwealth or to or from a Territory of the Commonwealth.
48 Section 26 (1) (d) reads– ‘ in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States’.
49 Regulation 5 then defined, as it still does, , controlled airspace ‘ to mean ’ airspace or an aerodrome and the airspace in its vicinity' designated by the Director-General of Civil Aviation in pursuance of r. 95. Controlled airspace designated under f. 95 covers all the major air navigational areas of Australia, e.g., all the capital cities of Australia are linked by controlled airspace. Regulation 6 provided for the application of the regulations as follows– ‘(1) Subject to these Regulations, these Regulations apply to and in relation to-(a) international air navigation within Australian territory;(b) air navigation in relation to trade and commerce with other countries and among the States; (c) air navigation within the Territories; (d) air navigation to or from the Territories; and (e) air navigation in controlled airspace which directly affects, or which may endanger, the safety of persons or aircraft engaged in a class of air navigation specified in paragraph (a), (b) or (d) of this sub-regulation.’ As will be seen r. 6 was amended in 1964.Section 26 (1) (e) also authorized the making of regulations ‘ in relation to air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws’ thus leaving room for extending the operation of the Regulations, for instance, if the Commonwealth should have wider power over aviation than it was apparently thought to have.
50 Air Navigation Regulations, Pt. XIII, especially IT. 198, 199.
51 N.S.W.-State Transport (Co-ordination) Act, 1931-1956. In 1964 the Air Transport Act, 1964 superseded this Act in its application to aviation; Queensland-State Transport Act of 1960; W.A.-State Transport Co-ordination Act, 1933-1961; and Tasmania-Traffic Act 1925, Traffic Act 1961 and the Transport Act 1938 as amended. Aircraft licensing provisions under the Transport Act 1951 of Victoria were repealed by the Transport Regulation Act 1955. S.A. has not had a State administered licensing system.
52 Constitution, s. 109 reads– ‘ When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, tothe extent of the inconsistency, be invalid.’.
53 (1964) 37 A.L.J.R. 399; [1964] Argus L.R. 876.
54 (1964) 37 A.L.J.R. 399, 402-403; (1964) Argus L.R. 876, 881, per Dixon C.J. McTiernan and Kitto JJ. agreed.
55 (1964) 37 A.L.J.R. 399 407-408; [1964] Argus L.R. 876, 890-891. The judgment of Taylor J. contains an interesting historical account of legal developments affecting the regulation of civil aviation in Australia commencing with the Paris Convention 1919.
56 (1964) 37 A.L.J.R. 399 410-411; [1964] Argus L.R. 876, 895-896.
57 (1964) 37 A.L.J.R. 399, 402; [1964] Argus L.R. 876, 880.
58 (1964) 37 A.L.J.R. 399, 411-412; [1964] Argus L.R. 876, 897.
59 R. 200b.
60 R. 320a.
61 R. 320b.
62 S. 3.
63 (1965) 38 A.L.J.R. 388.
64 Barwick C.J., McTiernan, Kitto, Menzies, Windeyer and Owen JJ.; Taylor J.dissenting.
65 McTiernan J. held that the licensing regulations were valid under the external affairs power; Menzies and Owen JJ. considered them to be within the external affairs and the trade and commerce powers; Kitto and Windeyer JJ. thought the regulations were authorized by the trade and commerce power but not the external affairs power. Barwick C.J. preferred to rest their validity on the trade and commerce power.
66 (1936) 55 C.L.R. 608.
67 As mentioned in n. 49, controlled airspace is not confined to airports and areas in their vicinity. Corridors of airspace usually 50-100 or more miles wide extend for thousands of miles over Australia joining all the capital cities.
68 Section 92 reads–‘ 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.
69 Australian National Airways Pty Ltd v. Commonwealth (1945) 71 C.L.R. 29. The case is mentioned in Part III of this article.
70 Commonwealth v. Bank ofNew South Wales (1949) 79 C.L.R. 497, 639-641 (P.C.).
72 Customs (Prohibited Imports) Regulations, r. 4 and the Third Schedule.
72A The High Court gave its decision on 28 May 1965, holding that there was no contravention of s. 92.
71 The Airlines Agreement of 1961 and two previous agreements one in 1952 and the other in 1957 are discussed in Part III of this article.
73 The current legislation is the Air Navigation (Charges) Act 1952-1964.
74 (1955) 93 C.L.R. 127.
75 Ibid. per Dixon C.I., McTiernan and Webb II. at 171 and per Fullagar I. at 209.
76 Ibid. 177-179.
77 [1961] V.R. 343.
78 Other available powers are the defence power (Constitution, s. 51 (vL), territories power (Constitution, s. 122) and the incidental power (Constitution, s. 51 (xxxix).
79 A relevant dictionary meaning of ‘ place’ is a defined part of the earth's surface.On this meaning, once the Commonwealth acquires a place for a ‘ public purpose’ ,such as an airport, a State should no longer be able to make a law applicable to that place. A contrary view which has some judicial support is, however, that the word 4 places‘ does not refer to lands acquired as property, but to territories acquired in a political sense. See for example Commonwealth v. New South Wales (1923) 33 C.L.R.1, 60 per Higgins J. and Kingsford Smith Air Services Ltd v. Garrisson (1938) 55 W.N.(N.S.W.) 122. In this case BettsD.C.J. observed that whether or not the acquisition of land for Mascot aerodrome was a place for purposes of s. 52 that section did not have the effect of abrogating State laws already in force and operating. It is submitted that there is no compelling reason for reading ‘ place ’ as if it were ‘ territory’.
80 The Commonwealth law would be accorded paramountcy under s. 109 of the Constitution over any State law otherwise applicable. Moreover, whether or not airports fall within s. 52 (i) of the Constitution, so far as the Commonwealth itself is concerned a State law may be constitutionally incapable of binding the Commonwealth—Commonwealth v. Bogle (1953) 89 C.L.R. 229, 259-260 per Fullagar J.
81 S. 6.
82 Ss. 7, 8.
83 The Qantas Empire Airways Agreement Act 1946 authorized the agreement between the Commonwealth and the U.K.
84 The Qantas Empire Airways Act 1948 approved the purchase of the Company's shares. In 1954 Qantas also took over the Trans-Pacific air serviceswhich British Commonwealth Pacific Airlines operated from Canada and U.S.A. to New Zealand and Australia. B.C.P.A., a company incorporated in N.S.W., was originally owned jointly by the United Kingdom, New Zealand and Australia under an agreement approved by the British Commonwealth Pacific Airlines Agreement Act 1947. B.C.P.A. was placed in liquidation in 1954.
85 As at 4 February 1965 there were 108 member States..
86 Article 1 of the Air Code of 1935 of the U.S.S.R., which is not a party to the Chicago Convention, states– ‘ The U.S.S.R. shall have complete and exclusive sovereignty over the air space of the U.S.S.R.’: Strauss, Air Laws and Treaties of the World (1961). McNair, op. cit. 7-8 refers to other national legislation in which the claim of sovereignty has been asserted.
87 As at 30 June 1964 there were 66 contracting States, including Australia and all other principal aviationStates parties to the Chicago Convention.
88 The Transport Agreement provides for the grant of the two freedoms of the Air Transit Agreement plus three ‘traffic’ freedoms and is also known as the Five Freedoms Agreement. Article 1, S. 1 of the Agreement provides for the grant of the fivefreedoms as follows– ‘ Each contracting State grants to the other contracting States the following freedoms of the air in respect of scheduled international air services: (1) The privilege to fly across its territory without landing; (2) The privilege to land for non-traffic purposes; (3)The privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses; (4) The privilegetotake on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses; (5) The privilege to take on passengers, mail and cargo destined for the territory of any other contracting State and the privilege to put down passengers, mail and cargo coming from any such territory.’.
89 The original Bermuda Air Transport Agreement is published in [1946] U.S. Av. R. 105-122 and in Shawcross and Beaumont, Air Law (2nd ed. 1951) 1209-1223.
90 The Agreement between Australia and Malaysia dated 19 March 1964, Australian Treaty Series 1964, No.9, is a typical Australian bilateral arrangement.Our Agreement with the United Kingdom is published in the Australian Treaty Series 1958, No.4. The original Australia-United States bilateral Agreement may be found in the United Nations Treaty Series, Vol. 7, 201. This Agreement, entered into in 1946, was varied in 1957 by an exchange of notes under which Australia received important extensions to the traffic rights granted to it in 1946. Under the 1946 Agreement Qantas could carry third and fourth freedom traffic between Australia and San Francisco but under the 1957 amendment Australia was granted traffic rights beyond to London via New York. In return Australia granted the U.S. comprehensive rights on major routes to and from Australia including a route via the Antarctic. The Australian Treaty Series 1957, No. 14, sets out the notes exchanged between the two countries. The 1957 amendment enabled Qantas to inaugurate the first global air service,since traffic rights already existed between London and Australia under various bilateral arrangements including the Agreement with the United Kingdom.
91 E.g. the Commonwealth borrowed 13 million dollars from The Chase Manhattan Bank in 1958 to enable Qantas to buy five Lockheed Electra aircraft. More recently the Commonwealth has done business with Morgan Guaranty Trust Company of New York.
92 The Civil Aviation Report of the Minister for Civil Aviation for 1963/1964 at p. 7, sets out details of federal assistance to developmental and essential rural services.
93 The Ansett subsidiary companies, which will shortly go out of business, are–Airlines of New South Wales Pty Ltd; Airlines of South Australia Pty Ltd; Queensland Airlines Pty Ltd; and Ansett Flying Boat Services Pty Ltd (which operates between Sydney and Lord Howe Island). The fifth subsidiary is MacRobertson Miller Airlines Ltd which is not wholly owned by Ansett. An Ansett subsidiary company also operates in Papua and New Guinea.
94 The current legislation is the Australian National Airlines Act 1945-1961.
95 Section 22 authorizes the Commission to enter into agreements with the Commonwealth for the transport of mails by air.
96 Australian National Airways Pty Ltd v. Commonwealth (1945) 71 C.L.R. 29.
97 Seen. 68.
98 E.g., on the Adelaide-Darwin service it carries traffic between Adelaide and Leigh Creek in South Australia. Wragg v. New South Wales (1953) 88 C.L.R. 353,385-386per Dixon C.J.
99 (1965) 38 A.L.J.R. 388.
page 268 note 1 [1962] N.S.W.R. 747.
2 Australian National Airlines Act 1945-1961, s. 4 defines‘ air service’, ‘ interstate airline service’ and ‘ scheduled stopping places ’.
3 Constitution s. 51 (xxxvii) empowers the Federal Parliament to make laws with respect to– ‘ Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law: ’.
4 (1964) 37 A.L.J.R. 503; [1964] Argus L.R. 918. This case is discussed by Mr. P. Buchanan infra.
5 Unless the Airlines Act should be further amended the Commission would have no power to operate intrastate air services pursuant to a reference by anyof the four other States of the Commonwealth. This is because s. 19A empowers the Commission to maintain services only under State references made before 21 April 1959.
6 The Commonwealth accepted £337,717.6.
7 The First Schedule to the Airlines Agreements Act 1952-1961 sets out fully the 1952 Agreement.
8 Poulton, ‘Legal and Policy Aspects of Air Transport in Australia’ (1959) 26 Journal of Air Law and Commerce 13, provides an excellent account of the crises involving A.N.A.
9 The 1957 Agreement appears in a schedule to the Civil Aviation Agreement Act 1957. The Chairman under the 1952 Agreement was the late Sir John Latham,a former Chief Justice of the High Court of Australia.
10 Loan (Australian National Airlines Commission) Act 1958.
11 Airlines Equipment Act 1958 s. 7.
12 Section 12 requires the Minister to estimate total airline traffic on competitive and non-competitive routes and then to determine the maximum aircraft capacity required by the Commission and the Company to carry one-half each of the totalestimated traffic for competitive routes and to operate their services on non-competitive routes. Under s. 15 the Minister must not exercise his powers under Pt. IV so as to ‘unfairly discriminate in favour of the Commission or the Company as against the other’.
13 Parliamentary Debates, 22nd Parliament, 3rd session, 2nd period, 1958, Senate,757.
14 As the Minister's statement shows rationalization under Pt. IV rests on working out an optimum revenue load factor. In s. 11 of the Act the Draftsmanevolved an algebraic definition of ‘revenue load factor’ as follows–, ‘ “revenue load factor”, in relation to anaircraft, means, in respect of a period,the percentage that the revenue value of the work performed on the flights made by the aircraft during that period is of the revenue value of the work that could have been performed on those flights, ascertained in accordance with the equation—
where—
A is the revenue load factor;
B is the number of passenger ton-miles performed by the aircraft in the period, based on a passenger weight (including free baggage) of two hundred pounds;
C is the non-passenger revenue traffic ton-miles performed by the aircraft in the period;
D is the ratio of the revenue yield per ton-mile of non-passenger traffic to the revenue yield per ton-mile of passenger traffic; and
E is the total revenue traffic ton-miles for which the aircraft could have been used on the flights performed in the period; ’ Section 12 authorizes theMinister to make his determinations of overall aircraft capacity. Determination No. 10 appears in the Civil Aviation Report 1963/1964, Appendix 8, 91-92. The determination operated in relation to the period 1 July 1964 to 31 December 1964. Under this determination the revenue load factor for mixed configuration aircraft, i.e. aircraft used for the carriage of passenger and non-passenger traffic on competitive routes was 65% and for allcargo aircraft it was 55%. The percentages allow the two airlines plenty of scope to seek extra business for their respective rationalized air services.
15 The Act amended the Civil Aviation Agreement Act 1952-1957 and that Act as amended in 1961 is now the Airlines Agreements Act 1952-1961.
16 The 1961 Agreement appears in the Second Schedule to the Airlines Agreements Act.
17 The Airlines Equipment Act attempts to achieve and maintain comparable fleets and to avoid the two operators setting up excess capacity. The Rationalization Committee established under the 1957 Agreement (cl. 3) and reconstituted in the 1961 Agreement (cl.11) is concerned with the deployment of the rival operators' fleets. The 1961 Agreement (cl. 10) obliges the Commission and Ansett to keep under review matters affecting the rationalization of services such as timetables, frequencies and stopping places; aircraft types and capacity used on air services; and variations in the level of fare and freight rates. If the parties are unable to agree on a matter the dispute may be referred by either to the Rationalization Committee. If the members named by the two parties are still unable to agree after the Committee has considered the matter the Co-ordinator may make a final and binding decision. Threemain problems find their way to the Committee—(a) the development of route patterns by extending competition or adding new points; (b) changes in faresand freight rates; and (c) rationalization of capacity on competitive routes by fixing profitable load factors and sometimes the respective shares to beprovided by each operator. As at 30 June 1964 there had been 48 references to the Committee. Most were disposed of by agreement but a good many were determined by the Co-ordinator.
18 The Arbitrator exercises similar functions to those of the Commissioner under the 1952 agreement. The arbitrator is Mr Justice Spicer, Chief Judge ofthe Commonwealth Industrial Court. Until last year there were no appeals from the Co-ordinator to the Arbitrat.
19 The Loan (Australian National Airlines Commission) Act 1963 approved a loan agreement between the Commonwealth and Morgan Guaranty Trust Company of New York under which 11 million dollars were made available to the Commission to buy Boeing 727 jet aircraft.A further Act, the Loan (Airlines Equipment) Act 1964 approved an additional loan for a similar purpose. The Act also approved a further loan to enable Qantas to buy additional Boeing 707 aircraft.
20 Australian National Airlines Act 1945-1961, s. 32. The Commission's profit target for 1964/1965 has been set at 7
% compared with 7% in 1963/1964 and6% in 1962/1963. It is probably impossible to work out a set of rules which will allow equal competitive conditions for two operators, one government and one private, but the T.A.A. profit target is likely to emerge as a crucial factor in striking an acceptable balance between the two operators. If T.A.A. were in business as an ordinary public company shareholders would, in the present state of the Australian economy, expect a dividend of 10% rather than 7
%. The profits of the Commission in excess of the target no doubt enable it to obtain indirectly competitive advantages abouwhich the public hearslittle. As a public company, T.A.A. would be a wonderful take-over proposition.
21 So far as the writer can judge, most Australians seem satisfied with the air services available to them even if rather puzzled how it all came about.One criticism is that the tripartite rationalization and equipment schemes offer little inducement to eitherairline to offer‘ cheap’ massair transport. However, the size of the Australian market may not allow the development of mass air transportas it occurs in parts of U.S.A. Australianair fares compare favourably with air fares for like services elsewhere in the world.
22 Art. 1. Damage resulting ‘ from the mere fact of passage of the aircraft through the airspace in conformity with existing air traffic regulations ’ is not actionable.
23 Art. 11. Maximum liability increases at the rate of 100 francs for every kilogramme over 50,000 kilogrammes. Maximum liability for a Viscount is £253,000 and £550,000 for a Boeing 707. Maximum liability in respect of each person killed or injured is also limited to £15,000-Edwards, ‘ Some Aspects of the Liabilities of Airline Operators in Australia’ (1960) 34 Australian Law Journal 142.
24 Art. 12. Only a ‘ deliberate act or omission’ by the operator or his servants or agents creates unlimited liability.
25 Art. 23.
26 Art. 20.
27 Ibid.
28 Part II came into force on 2 March 1959-Commonwealth Gazette No. 16, 2 March 1959, 825.
29 S. 8. The text of the Convention is set out in The Schedule to the Act.
30 E.g. s. 12 provides that in assessing damages in respect of liability under the Convention for death or personal injury, the proceeds of insurance policies payable in the event of such a happening are not to be taken into account.
31 Part III came into operation on 1 July 1959—Commonwealth Gazette No. 32, 28 May 1959, p. 1831.
32 Redfern v. Dunlop Rubber Australia Ltd (1963-1964) 110 C.L.R. 194, per Dixon C.J. at 209 and per Menzies J. at 219-221 (1964) 37 A.L.J.R. 413, per Dixon C.J. at 414-415 and per Menzies J. at 419-420, [1964] Argus L.R. 618, per Dixon C.J. at 621 and per Menzies J. at 628-630. This case is discussed by Mr. T. J. Higgins infra.
33 A good account of the interpretation of s. 40 appears in McNair, op. cit Ch. 5.
34 N. 52 supra.
35 Probably act of God or inevitable accident is not a defence. Under art. 5 if damage is the direct consequence of armed conflict or civil disturbance or if the operator has been deprived of the use of the aircraft by act of public authority he is not liable. The four State Acts already provide for absolute liability of the owner except in certain cases of hire, charter or letting to another person, in which instances the other person is liable instead of the owner.
36 Arts 15 and 16.
37 The definition of ‘ international carriage’ is in art. 1. Carriage between the territories of two high contracting parties is international. Carriage between two places in the territory of one high contracting party is not international even though one of the places is an overseas territory, e.g. between England and Gibraltar, but if there is an agreed stopping place in another country in thecourse of the journey the carriage is international whether that country is a high contracting party or not. Some of the difficulties of the definition were canvassed in Grein v. Imperial Airways Ltd [1937] 1 K.B. 50.
38 If a carrier took ‘ all necessary measures’ damage would not occur and it appears that ‘necessary’ means ‘reasonable’. Grein v. Imperial Airways Ltd [1937] 1 K.B.50, 69 per Greer L.J. See also Chisholm v. B.E.A. [1963] 1 Lloyd's Rep. 626. In a case in the United States a District Court judge placed a more onerousburden on the carrier observing that it was necessary to prove ‘that it and its servants were free from all fault’. Pierre v. Eastern Air Lines Inc. [1957 U.S. Av. R. 431, 432 per Meaney, D.J..
39 Art. 20.2.
40 ‘Wilful misconduct’ is the translation of the word ‘ dol ’ used in the Frenchtext,the only official text of the Convention.
41 [1952] 2 All E.R. 1016.
42 Ibid. 1022.
43 (1954) 92 C.L.R. 236—not a case under the Warsaw Convention. In 1953 a British Commonwealth Pacific Airlines Ltd aircraft crashed near San Francisco on a journey from Australia killing all on board. The executors of the late William Kapell, a passenger on the aircraft, brought an action against the Company in which the issue was whether the airline or its employees were guilty of misconduct. Eventually in1961 a New York jury returned a verdict for the defendant negativing wilful misconduct but the trial judge entered judgment for the plaintiff and in a subsequent trial limited to the issue of damages the jury awarded 924, 396 dollars damages. In June this year, more than eleven years after the incident,an appeal against the award of the jury wasupheld by the United States Court of Appeals in Berner & Lesser, Executors of the Estate of William Kapell, dec'd. v. B.C.P.A. Thus £3,700is now the limit of B.C.P.A.'s liability to the plaintiff. In Feher v. B.C.P.A. (1957) 74 W.N. (N.S.W.) 447 Manning J. dealt with another case arising out of the same accident. The question was not one of misconduct but the measure of damages to be awarded within the Convention limits in an action by a dependant when another dependant had instituted proceedings in U.S.A.
44 N. 37, p. 279 supra.
45 Article 29 requires an action to be brought within two years from the due date of arrival of the aircraft.
46 The current Act is the Civil Aviation (Carriers' Liability) Act 1959-1962. The First Schedule to the Act sets out the text of the Convention.
47 Commonwealth Gazette No. 90, 31 October 1963, 3776.
48 Forty States as at 1 August 1964.
49 Adherence to both Warsaw and Hague/Warsaw displays good practical judgment which has characterised Australian international aviation policy. The Hague Protocol is an improvement on the original Warsaw Convention. At the same time Qantas can obtain the benefits of the Warsaw limits of liability in respect of contracts of carriage to or from U.S.A. England, apparently fearing difficulties in the course of action adopted by Australia, has not yet implemented the Hague Protocol. The Warsaw Convention art. 39 provides for denunciation.
50 S. 16.
51 Part IV was proclaimed to come into operation on 1 July 1959— Commonwealth Gazette No. 32, 28 May 1959, 1831.
52 S. 27.
53 S. 28. The language is almost identical with art. 17 of the Warsaw Convention.
54 Cf. maximum liability of £7,400 under the Hague Protocol.
55 S. 39. The section is similar to s. 16 which applies to Warsaw/Hague carriage.
56 S. 35.
57 S. 29.
58 S. 41.
59 N.S.W. has not yet legislated.
60 Although the Australian National Airlines Commission is an authority of the Commonwealth it is the holder of an airline licence and its position is regulated by Pt. IV—Civil Aviation (Carriers' Liability) Act 1959-1962, SSe 26, 27.
61 S. 4.
62 Continued for the time being by Pt. III of the 1959 Act.
63 Applicable to Australia under Pte II of the 1959 Act.
64 The Guadalajara text is set out in the Third Schedule to the Civil Aviation (Carriers'Liability) Act 1959-1962.
65 Commonwealth Gazette No. 39, 30 April 1964, 1569.
66 MacLeod v. Attorney-General for N.S. W. [1891] A.C. 455; Ex parte Iskra (1962)63 S.R. (N.S.W.) 538 (1962) 5 F.L.R. 219; (1963) 80 W.N. (N.S.W.), 923.
66A The practical difficulties which arise from the application of State laws only to criminal acts committed within the jurisdiction are well illustrated by R. v. Hildebrandt [1964] Qd. R. 43, a case involving a charge under The Criminal Code (Qd.) of intent to destroy an aircraft by putting an explosive in it. Following the failure of the Crown case proceedings were instituted in New South Wales. See R. v. Hildebrandt [1963]81 W.N. N.S.W. 143.
67 S. 6 (1). There may be practical difficulties in applying the Act to foreign aircraft whilst outside Australia. The Minister for Civil Aviation (Senator Paltridge) said in the course of his second reading speech in the Senate– ‘Australian lawapplies on board foreign aircraft, of course, while they are within Australia, but the bill goes further and applies Australian law to them while they are outside Australia when their flights begin or end in Australia. So far as flights beginning in Australia are concerned, it is felt that if there is any doubt as to which law is to be applied-this situation might well arise, for instance, over the high seas–if no other law is applicable or if the authorities administering another applicable law are not willing, or feel themselves unable, to enforce it, there should be an Australian law ready to be applied. It may well be, of course, that the efficacy of ourlaw will depend on finding the offender within Australian territory. So far as flights ending in Australia are concerned, a person who commits an offence while on board the aircraft might very well need to be dealt with in Australia, in the first instance at any rate, and legal provisions to enable this to be done are needed.’ Parliamentary Debates, 24th Parliament, First Session, 1963, Senate, 929..
68 The Act adopts the view that Australianlaws are in force on board an aircraft registered in Australia whilst they are outside Australia even if the law of some other country also applies because of the aircraft's presence over or in that country.
69 Ss. 3 (1), 6 (2).
70 Defined in s. 3 as aircraft possessed or controlled by the Commonwealth or an authority of the Commonwealth.
71 S. 6 (2).
72 Although in the light of the decision in Airlines ofNew South Wales v. New South Wales [No.2] (1965) 38 A.L.J.R. 388, it is probable that the Commonwealth could deal with, at least, some crimes involving aircraft engaged in intrastate flights.
73 Section 7 provides that the act or omission must be an offence against–‘ (a) a law of theCommonwealth in force in that Territory; (b)the Crimes Act, 1900 of the State of New South Wales, in its application to that Territory, as amended or affected by Ordinances from time to time in force in that Territory; or (c) the Police Offences Ordinance 1930-1961 of that Territory, asamended from time to time.’ Although the Commonwealthhas resolved a majorproblem it could have hardly chosen a jurisdiction where the criminal law is in a more unsatisfactory state than in the AustralianCapital Territory. The Police Offences Ordinance is much in need of revision. The N.S.W. Crimes Act, 1900, made application to the Territory under the Seat of Government(Administration) Act, is still the basic criminal statute of the Territory and it is both defective and archaic. And so one may, whilsttravelling on aninterstate air journey, render himself liable to penal servitude for fourteen years if he forges or utters any East-India bond or any Treasury bill of the Government of New South Wales (Crimes Act, 1900 (N.S.W.), s. 260). Realising the unsatisfactory nature of the criminal law of the Territory the Attorney-General announced last year that he was taking steps to have prepared a model criminal code for the Territory which might serve as thebasis for a new criminal law to be adopted by the States. Long suffering residents of Canberra, including members of the practising legal profession andacademic lawyers,were astonished to learn that the code will be drafted not in the A.C.T. orwith the assistance of A.C.T. lawyers but as a completely independent exercise in far away Queensland, presumably because Queensland already has a criminal code.
74 S. 10.
75 S. 10 (2).
76 S. 10 (1).
77 Ibid.
78 S. It.
79 S. 12.
80 S. 13.
81 S. 14.
82 S. 15.
83 S. 16.
84 S. 18.
85 S. 19. Bomb hoaxes have been a problem in Australia in recent years and the first prosecution and conviction under the Act occurred this year following such a hoax by telephone to the airport at Canberra.
86 S. 13, 15.
87 S. 22.
88 S. 27.
89 S. 28.
90 In the Victorian Act destruction of an aircraft with intent to kill renders the offender liable to maximum imprisonment of twenty years compared withthe sentence of death under the Federal Act. The Criminal Code Amendment Act, 1964 of Queensland and an Actof the same title of W.A. also create various offences which may be committed on board or affecting aircraft such as endangering the safety of an aircraft or lives on board, assaults on members ofthe crew of an aircraft and the stealing or unauthorized use of an aircraft.
91 Article 17 of the Chicago Convention relating to international aviation provides that an aircraft has the nationality of the State in which it is registered. Articles 17-20 provide for registration.
92 The Convention allows a contracting State to refuse to record a right which cannot be constituted according to its national law. It is not certain whether the right must be one which is recognized by the national municipal law itself or whether a right maybe registered if the national municipal law by application of its conflict of laws rule will recognize it as being validly constituted. If Australia were to become a convention country it would wish to set up its own register of rights to obtain con– vention benefits, that is, to gain the protection that the convention offers creditors whose rights are recorded in respect of Australian aircraft which could be, for example, an AnsettjA.N.A. aircraft. Many Australian aircraft are purchased in U.S.A. where the Fleet Equipment Trust is a common financing device and it might be desirable to allow for the registration in Australia ofsuch an interest. However there are doubts whether the Commonwealth has power to do this. Further, there would be advantage in having a single record in Australiafor all charges and other proprietary interests over Australian aircraft and to give recorded charges priority over other charges in legal proceedings in Australia. Again, it is by no means clear that the Commonwealth's constitutional powers are sufficient to enable it to act independently of theStates.
93 Art. 1.
94 The Crimes (Aircraft) Act 1963 has already adopted a similar principle in regard to Australian registered aircraft being operated outside Australia. See n. 68 p. 285 supra.
95 Parliamentary Debates, 24th Parliament, 1st Session 1963, Senate, 930.
96 The United Kingdom and U.S.A. were signatory States but Australia was not.