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High Court of Australia |
AIRLINES OF N.S.W. PTY. LTD. v. NEW SOUTH WALES [1964] HCA 2; (1964) 113 CLR 1
Constitutional Law (Cth)
High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Taylor(4), Menzies(5), Windeyer(6) and
Owen(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Air navigation - State law licensing aircraft operating intra-State - Limitation on routes - Validity - Inconsistency with federal legislation - Constitutional powers of Commonwealth in relation to air navigation - Trade and commerce - External affairs - Reference of matter by Parliament of State to Parliament of Commonwealth - Reference for limited period - Validity - Parties to action - High Court - Jurisdiction - The Constitution (63 & 64 Vict. c. 12), ss. 51 (i.), (xxix.), (xxxvii.), (xxxix.), 75 (iii.) (v.), 109 - Air Navigation Act 1920-1961 (Cth) - Air Navigation Regulations (Cth) - Commonwealth Powers Act, 1943 (N.S.W.) - Air Navigation Act, 1938-1947 (N.S.W.), ss. 4, 5 - State Transport (Co-ordination) Act, 1931-1956 (N.S.W.), ss. 12, 28.
HEARING
Sydney, 1963, July 23-26, 29-31;DECISION
1964, February 25.2. The State Transport (Co-ordination) Act, 1931-1956 of New South Wales, although primarily directed to other forms of transport, covers transport by air confined to New South Wales. Section 3 (1) of that Act contains the definition of terms and includes "aircraft" in the definition of "motor vehicle" and then, by availing itself of that definition, covers "aircraft" under the definition of "public motor vehicle". Section 12 (1) of the Act, as amended, provides that any person who, after a date appointed by the Governor in Council of New South Wales and notified by proclamation published in the Gazette, operates a public motor vehicle otherwise than in the course and for the purposes of inter-State trade (and, of course, by definition motor vehicle includes aircraft) shall, unless such a vehicle is licensed under the State Transport (Co-ordination) Act by the State Transport (Co-ordination) Board (a body appointed under the Act) and unless he is the holder of such licence, be guilty of an offence against this Act. There follows a proviso excepting operations under an exemption. (at p24)
3. The plaintiff is the Airlines of New South Wales Pty. Limited, a company incorporated presumably in New South Wales, which carries on business as a carrier by air of goods and persons on air routes confined to New South Wales as well as upon air routes extending beyond New South Wales. All the shares in the company are owned beneficially by a public company incorporated in Victoria named Ansett Transport Industries Limited. That company is engaged in civil aviation in Australia on inter-State routes, and the plaintiff company, whilst operating on certain intra-State routes in New South Wales, also operates on routes extending beyond the borders of New South Wales. The plaintiff company when this action commenced held licences in pursuance of s. 12 (1) and ss. 15 (2) and 16 (3). These provisions of course gave it authority under the State Act to operate in the course of and for the purposes of intra-State trade - that is to say otherwise than in the course and for the purposes of inter-State trade. Aircraft have been used upon inter-State journeys although they are on occasions used on the intra-State journeys in pursuance of the State licences. The Commonwealth licence which is necessary for the inter-State journey contains a condition that the licence is issued subject to compliance with the provisions of the State transport legislation in so far as is applicable. (at p24)
4. On 16th October 1961 a report was presented by Mr. J. Borthwick to the Government of New South Wales and laid before the Parliament of New South Wales on the subject of intra-State airline operations in New South Wales. It was made in pursuance of a reference as to the existence in New South Wales of two airlines, namely Airlines of New South Wales and East-West Airlines, the former of which carried a greater proportion of the intra-State traffic than the latter. The reference spoke of a policy decision of the New South Wales Cabinet that the licensing of commercial aircraft under the State Act should be on lines to ensure that there would be at least two intra-State airlines operating independently of each other in New South Wales. It said also that Cabinet resolved that present arrangements for the operation of air services should be examined with a view to determining what might be done to ensure that each service will have sufficient air mileage and facilities to give reasonable scope to its economic operation. Mr. Borthwick's report contains observations as to the advantages which Airlines of New South Wales obtains from the fact that it operates as a division of Ansett Transport Industries backed by the managerial, financial and technical resources of the group. He reported that East-West Airlines was based on Tamworth, New South Wales, and that its network served only that country traffic centre. To his report he attached what he called an analysis of intra-State traffic volume and proposed route re-arrangement. (at p25)
5. On 25th October 1961, that is to say less than a fortnight after the date of the report, the Commissioner for Motor Transport wrote a letter to the plaintiff company informing the company that the Government had now decided to make a re-allocation of intra-State air routes as shown in a schedule and that pursuant to the powers conferred by the State Transport (Co-ordination) Act licences issued under the Act for aircraft operated by the company were thereby varied as shown in another attached schedule, the aircraft affected being listed in that schedule. The letter went on: "In addition to the above variation, the re-arrangement of routes will embrace, as indicated in Schedule A, the transfer to East-West Airlines Limited of services at present operated by your Company from Sydney to Dubbo and from Sydney to Casino. However, the date of this change has not yet been determined". The letter contained a reference to any necessary authorities under the Commonwealth Air Navigation Act or Regulations being obtained from the Director-General by the parties concerned. The schedules showed that there was to be a transfer from Airlines of New South Wales Pty. Limited to East-West Airlines Limited of a route Sydney-Narrabri-Moree as from 19th November 1961. There was a transfer from Airlines of New South Wales Pty. Limited to East-West Airlines Limited as from 17th December 1961 of routes from Sydney to Scone, Sydney to Forster, Sydney to Kempsey and Sydney to Coffs Harbour and, on the contrary, a transfer from East-West Airlines Limited to Airlines of New South Wales Pty. Ltd. of routes from Sydney to Orange, Sydney to Cowra, Sydney to Condobolin, Sydney to Lake Cargelligo, Sydney to West Wyalong and Sydney to Temora and, as from a date or dates to be fixed, there was to be a transfer from Airlines of New South Wales Pty. Limited to East-West Airlines Limited of routes from Sydney to Dubbo, and Sydney to Casino. The schedule also named five DC. 3 aircraft and three Fokker Friendship aircraft the licences of which were to be varied. To meet this situation the plaintiff Airlines of New South Wales Pty. Limited issued a writ in the present case on 10th November 1961. (at p25)
6. Reverting to the question of jurisdiction, it is obvious that the facts as I have stated them gave no right of action against the State of New South Wales over which prima facie this Court has jurisdiction, nor against the Commissioner for Motor Transport. The facts as so far stated do not show a cause of action against the Commonwealth or the Director-General in his personal capacity or as an officer of the Commonwealth but of course the Court has jurisdiction over any cause of action against the Commonwealth or against any officer sued on behalf of the Commonwealth and there is of course jurisdiction over the claim for an injunction against him if there is any foundation for the injunction. Clearly enough, however, after the receipt of the letter of 25th October 1961 from the Commissioner for Motor Transport of New South Wales, there would be every desire on the part of the Airlines of New South Wales Pty. Limited, the present plaintiff, to find a means of preventing the splitting up of the air routes as notified in the letter of 25th October 1961 and the variation of the licences suggested by the same letter. Hence the issue of the present writ. The foundation for bringing the Commonwealth into the matter at all was sought by the plaintiff in an allegation that the relevant provisions of the State Act were void because they were inconsistent with the federal legislation. Again, the jurisdiction to grant an injunction against the Director-General of Civil Aviation was based upon a contention that he would or might treat the Air Navigation Regulations of the Commonwealth as requiring a licence for the company and as treating existing licences as having ceased on the plaintiff's aircraft being transferred under the State Transport (Co-ordination) Act as amended. It was feared by the plaintiff that he might cancel or suspend or otherwise deal with the licences as if the plaintiff, because of the loss of its licence under the State Transport (Co-ordination) Act, had failed to comply with the Air Navigation Act 1920- 1961 of the Commonwealth or as having infringed upon the requirements of the federal law. It was said that each of the licences held by the plaintiff company issued by the Department of Civil Aviation of the Commonwealth contains or indicates a condition that the licence is subject to compliance with the provisions of State transport legislation in so far as is applicable. The general power of the Director-General to cancel a licence issued under the Division, as distinguished from the grounds upon which he may proceed, undeniably exists and it is expressly ordained that if the holder of such a licence for an aircraft operated under the licence has contravened or failed to comply with the provisions of the Act or the Regulations or the terms of the licence, it may be cancelled or suspended. (at p26)
7. The legislative power of the Commonwealth to affect air navigation arises under s. 51 (i.) of the Constitution to make laws with respect to trade and commerce with other countries and among the States but it also may arise under the power to make laws with respect to external affairs (s.51 (xxix.)). Obviously power in relation to trade and commerce with other countries and among States must for present purposes be related to inter-State trade and that which is incidental to it. It should be added, however, that trade and commerce with other countries as well as trade and commerce among the States naturally introduces questions of the safety of the terminals and that involves some degree of regulation of air traffic which comes to those terminals wherever it comes from. It is perhaps also necessary to add that the power under s. 122 in relation to the Territories covers some incidental powers in relation to the landing of aircraft at aerodromes within the States. There was an international convention on civil aviation which met at Chicago in 1944 which is called the Chicago Convention, and the Air Navigation Act 1920-1961 defines the term "Chicago Convention" as meaning the Convention on International Civil Aviation concluded at Chicago on 7th December 1944. It was ratified on behalf of Australia and the ratification was approved by Parliament: see s. 3A. The text is to be found in the First Schedule of the Air Navigation Act 1920-1961. A study of the Schedule suggests that obligations are placed upon the Commonwealth which extend over the whole territory of Australia 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 inter-State and intra-State trade; it would follow that no reliance upon s. 51 (i.) by the Commonwealth would be necessary. But a consideration of the Regulations made under the Air Navigation Act shows that that view was not adopted; in fact the Commonwealth took power under the Act and exercised the power by regulations which took account of the distinction. Section 26 of the Air Navigation Act 1920-1961 of the Commonwealth provides that the Governor-General may make regulations, not inconsistent with the Act " (1) (b) for the purpose of carrying out and giving effect to the Chicago Convention, as amended by the Protocols . . . (c) in relation to air navigation within a Territory of the Commonwealth or to or from a Territory of the Commonwealth; (d) in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States". Air navigation regulations were made and have been amended frequently. They stand as "the Air Navigation Regulations" which may pursuant to cl. 1 thereof be cited under that title. Clause 6 of the Regulations sub-cl. (1) says that subject to the Regulations the 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 paragraphs (a), (b) or (d) of this sub-regulation". The Regulations of course are expressed not to apply in relation to military aerodromes or state aircraft. Surprising as it, at first, appeared to me, I think that this sub-clause intended to cover the entire field to which, subject to any special regulation, the Air Navigation Regulations are to apply. It means that apart from special regulations the Regulations do not cover intra-State trade and commerce. In saying this I do not mean to exclude their operation under pars. (a) or (c) or (d) or (e). Paragraph (e) has a not unimportant application to this case but pars. (a), (c) and (d) do not apply. (at p28)
8. "Controlled airspace" is defined by cl. 5 (1), which deals with definitions for the Air Navigation Regulations generally, as meaning "an airspace or an aerodrome and the airspace in its vicinity designated by the Director-General in pursuance of regulation 95 of these Regulations". Clause 95 of the Regulations is to be found in Div. 2 of Pt IX, which is headed "Aerodromes and Facilities and Services", and Div. 2 is headed "Air Traffic Control". Clause 95 (1) provides that "the Director-General may designate (a) airspace extending upwards from a specified height above the surface of the earth as a control area; (b) airspace extending upwards from the surface of the earth as a control zone; and (c) an aerodrome and the airspace in its vicinity as a controlled aerodrome, and a control area, control zone or controlled aerodrome so designated is a controlled airspace". By sub-cl. (2) the Director-General is required to notify a controlled airspace when he designates one and by sub-cl. (3) he may designate routes on which operational control is exercised by Air Traffic Control and so on, subject to notification. Other clauses of the Air Navigation Regulations provide what restrictions must be complied with in controlled airspace. (at p28)
9. The Air Navigation Regulations make provision for the registration of aircraft and many other matters which may fall outside sub-cl. (1) of cl. 6 but for present purposes it does not seem necessary to enter into questions of what are dividing lines. (at p29)
10. The point of immediate concern is whether the provision of the State law which might enable the Commissioner for Motor Transport to vary the licence in the manner suggested by the letter of 25th October 1961 is inconsistent with federal law so that under s. 109 of the Constitution it is invalid. It perhaps should be pointed out that owing to the lapse of time the problem as it originally was stated is not exactly the same. It is perhaps only obscuring the real point of the case to go into the questions which may be raised in consequence. Certain undertakings were given and all I propose to do is to deal with the question of inconsistency as at present. I do not see any reason why the State regulations should not operate in relation to the allocation of the routes specified and I do not see any reason for regarding the operation of s. 12 of the State Act as void under s. 109 of the Constitution for inconsistency with the Regulations. It is of course clear that a State law cannot interfere with the operation of reg. 95 either in respect of "controlled airspace" in its primary meaning or in relation to "control area", "control zone" or "controlled aerodrome". (at p29)
11. In the questions directed to be argued before us the first is whether the State Transport (Co-ordination) Act, 1931 as amended by the State of New South Wales in so far as the same relates or purports to relate to aircraft is wholly invalid by force of s. 109 of the Constitution of the Commonwealth by reason of inconsistency with the laws of the Commonwealth contained in the Air Navigation Act 1920-1961 and the Regulations and other instruments duly made and issued pursuant thereto. I think this question should be answered simply No. It will be observed that it asks whether the section is wholly invalid. I do not undertake to say that if the word "wholly" were omitted and if a very detailed search were made in relation to the possible operation of all the subordinate laws of the Commonwealth, something could not be found to invalidate the operation of some petty application of State law. But I am disposed to think as a matter of conjecture that the answer even then would be a negative without exception or qualification. But it is unnecessary to go further than the question as expressed. (at p29)
12. Question 2 asks whether each of the several provisions of about fifteen sections of the State Transport (Co-ordination) Act as amended which relate or purport to relate to aircraft is invalid by force of s. 109. I do not think they are nor that any of them is. (at p29)
13. The third question asks whether so long as the plaintiff duly complies with the requirements of the Air Navigation Act 1920-1961 and the Regulations and other instruments duly made and issued pursuant thereto the plaintiff is entitled to use or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of the trade or business presently carried on by it the several aircraft owned by it without being required to be the holder of any licence or permit under the State Transport (Co-ordination) Act 1931 as amended of the State of New South Wales or the Regulations made thereunder. The answer to this question must be No, understanding it as I do as referring to the conveyance of passengers or goods for hire or for any consideration otherwise than in the course or for the purpose of inter-State trade and as putting on one side any possible infringement of the federal requirements particularly affecting and relating to "control area", "control zone" and "controlled aerodrome". (at p30)
14. The fourth question as amended is whether on the true construction of the State Transport (Co-ordination) Act the Commissioner for Motor Transport is for the purpose stated in par. 28A of the statement of agreed facts entitled to vary licences issued to the plaintiff in respect of its aircraft by re-allocating routes in the manner referred to in par. 28 of the said statement. As framed this question may be treated as one directed only to the interpretation of State law without regard to federal law at all. I do not propose to give an answer which would extend so far. I therefore answer it by saying that neither s. 109 of the Constitution nor any other provision of the Constitution nor any provision of federal law operates to prevent the Commissioner for Motor Transport exercising any power which under State law he possesses entitling him to do so. (at p30)
15. I think the plaintiff should pay the costs of this reference. (at p30)
McTIERNAN J. I agree with the answer of the Chief Justice to each of the questions and with his reasons. (at p30)
KITTO J. I have had an opportunity of considering the judgments prepared by the Chief Justice and my brother Taylor. I agree in their Honours' opinions and in the answers they propose to the questions argued. There is nothing I can usefully add. (at p30)
TAYLOR J. The plaintiff company is the owner of a number of aircraft licensed by the Commissioner for Motor Transport for the carriage of passengers and goods pursuant to the provisions of the State Transport (Co-ordination) Act, 1931-1956 (N.S.W.). These aircraft are operated by the plaintiff in the course of its air transport business upon routes between a large number of towns and cities all of which are in New South Wales. Additionally, the plaintiff is the holder of an "airline licence" issued by the Director-General of Civil Aviation pursuant to reg. 199 of the Air Navigation Regulations which were made under the authority of the Air Navigation Act 1920-1961 of the Commonwealth of Australia. In form each licence issued under the State Transport (Co-ordination) Act licenses the aircraft to which it refers "as an aircraft" under the Act subject to the conditions set out in a document marked "X" delivered by the Commissioner to the plaintiff. In that document there is specified as condition (1) that "the aircraft is authorized to operate for the carriage of passengers and goods between the following places in accordance with the routes and timetables set forth in Schedule "A".". Thereafter many places, all of which are in New South Wales, are specified. However, on 25th October 1961 the Commissioner purported to vary the condition of each of the existing licences by omitting condition (1) and by substituting a new condition, more or less in the same form, but which made a number of variations in the places from and to which the aircraft might be operated. The plaintiff now claims that the State Transport (Co-ordination) Act, or certain of its provisions, in so far as the Act and its provisions "relate to aircraft", are inconsistent with the provisions of the Air Navigation Act and the Regulations and other instruments duly made and issued pursuant thereto and, therefore, invalid by reason of s. 109 of the Constitution. The reference to "other instruments" is intended as a reference to Air Navigation Orders, Aeronautical Information Publications and Notices to Airmen by means of which the Director-General of Civil Aviation is authorized by the Regulations to give such instructions and directions on matters within the functions of Air Traffic Control as he considers necessary. These "other instruments" do not, however, constitute laws of the Commonwealth in spite of the fact that non-compliance with instructions or directions so given may constitute an offence under the Regulations. Further, the plaintiff claims that the purported variation of the licences held by it under the State Transport (Co-ordination) Act was ineffective since the purported variation was not authorized by the terms of the Act. Following upon the filing of defences in the suit the parties agreed that four questions should be argued before the Full Court and, by consent, they were referred by an order of 28th May 1963 pursuant to s. 18 of the Judiciary Act 1903-1960. For the purpose of the argument the parties also prepared a statement of agreed facts with many exhibits thereto and this material was before the Full Court upon the hearing. (at p32)
2. The arguments of the plaintiff were presented at great length but as I understand them two contentions were advanced upon the matters of constitutional significance in the case. First of all it was said, somewhat broadly, that the Commonwealth had by its legislation, the validity of which was not in dispute, assumed such a degree of control over the activities involved in or directly associated with aerial navigation that there was no room for the operation of the State Transport (Co-ordination) Act so far as it forbids the operation of aircraft for the carriage for reward of passengers and goods on intra-State journeys unless the operator is the holder of a licence under that Act. This proposition the plaintiff sought to make good initially by a meticulous examination of the provisions of the Air Navigation Regulations in so far as they relate to the registration of aircraft, airworthiness requirements, the licensing of operating crews, the conditions of flight and rules of the air and other related subjects. The alternative contention has a more particular foundation in reg. 198, which, in terms, forbids the use of an aircraft in regular public transport operations except under and in accordance with an airline licence issued by the Director-General. Though the second contention may call for independent consideration it may be said at once that the first contention fails to take any account of the fact that the provisions of the Regulations upon which it rests are designed exclusively in the interests of safety in relation to aerial navigation and have nothing to say on the topic with which the State Transport (Co-ordination) Act is concerned, that is to say, the co-ordination of transport services within the State. It should also be mentioned at this stage that the Regulations have an expressly limited operation, as in general, they are expressed to apply 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 paragraphs (a), (b) or (d)" (reg. 6). "Controlled airspace" means airspace designated by the Director-General of Civil Aviation pursuant to reg. 95. That regulation provides that the Director-General may designate airspace extending upwards from a specified height above the surface of the earth as a control area, or airspace extending upwards from the surface of the earth as a control zone and an aerodrome and the airspace in its vicinity as a controlled aerodrome, and a control area, control zone or controlled aerodrome so designated is "a controlled airspace". It will be necessary to return to reg. 6 after some account has been given of the history of Commonwealth legislation with respect to aerial navigation. (at p33)
3. The Parliament of the Commonwealth has no constitutional power in terms to make laws with respect to aerial navigation and it is of some importance in the case to make a brief survey of the legislative powers which have, from time to time, been relied upon to justify legislation of this character. The first Air Navigation Act was passed in 1920 in order to carry into effect the obligations of the Commonwealth under the Convention for the Regulation of Aerial Navigation which was signed in Paris on 19th October 1919. The substantive provisions of this Act authorized the Governor-General to make regulations for the purpose of carrying out and giving effect to the Convention and the provisions of any amendment thereof and for the purpose of providing for the control of air navigation in the Commonwealth and the Territories. The question of the validity of this Act arose for consideration in R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 and, in the result, it was held that so much of the Act as empowered the Governor-General to make regulations for carrying out and giving effect to the Convention was a valid exercise of the power of the Commonwealth Parliament to make laws for the peace, order and good government of the Commonwealth with respect to external affairs, but since the Commonwealth Parliament has no general control over the subject-matter of civil aviation in the Commonwealth, so much of s. 4 of the Act as authorized the making of regulations for the purpose of providing for the control of air navigation in the Commonwealth was held to be beyond power. Within a few weeks of this decision the Air Navigation Act 1936 was passed. By this Act s. 4 of the previous Act was amended by omitting the words "in the Commonwealth and the Territories" and inserting in their stead the words - " (a) in relation to trade and commerce with other countries and among the States, and (b) within any Territory of the Commonwealth". (at p33)
4. Two further amendments were made in 1947. This was after the conclusion at Chicago on 7th December 1944 of the Convention on International Civil Aviation. The first of these amendments was designed to do two things; it was intended to authorize the making of regulations for the purpose of carrying out and giving effect to that Convention and any amendment thereof, and, also to place the regulation-making power otherwise upon a broader basis than that specified in the earlier legislation. Act No. 6 of 1947 authorized the Governor-General to make regulations not only for the purpose of implementing the Chicago Convention but also for the purpose of providing for the control of air navigation - " (a) in relation to trade and commerce with other countries and among the States; (b) in relation to the Naval and Military defence of the Commonwealth and of the several States; (c) in relation to postal and other like services; (d) within any Territory of the Commonwealth; (e) within any State the Parliament of which has referred to the Parliament of the Commonwealth the matter of the control of air navigation within that State; and (f) for carrying out and giving effect to any other international convention or agreement relating to air navigation to which Australia is or becomes a party". Later, in 1947, (Act No. 89 of 1947), this provision was repealed and a new section inserted. This section (s. 5) authorized the Governor-General to make regulations (a) for the purpose of carrying out and giving effect to the Chicago Convention and the provisions of any amendment thereof and for the purpose of carrying out and giving effect to any other international convention or agreement relating to air navigation to which Australia is or becomes a party, and for prescribing all matters - " (i) in respect of air navigation which are necessary or convenient to be prescribed in relation to any matter with respect to which the Parliament has power to make laws; or (ii) which are necessary or convenient to be prescribed in respect of air navigation within any Territory of the Commonwealth or to or from any such Territory". Finally, in 1960, the Air Navigation Act of that year was passed. Section 5 of the Principal Act was repealed and a number of provisions relating to international air navigation were enacted. The new regulation-making power was that conferred by s. 26. That section authorized the Governor-General to make regulations not inconsistent with the Act - " (a) prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act; (b) for the purpose of carrying out and giving effect to the Chicago Convention, (as amended . . .), any Annex to the Convention relating to international standards and recommended practices . . . and the Air Transit Agreement; (c) in relation to air navigation within a Territory of the Commonwealth or to or from a Territory of the Commonwealth; (d) in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States; and (e) in relation to air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws". (at p35)
5. The attempt represented by these Acts to achieve some degree of uniformity of control in relation to aerial navigation in the Commonwealth was not, during the period in which they were passed, solely confined to Commonwealth intervention. In 1920 and 1921 four of the States of the Commonwealth - Victoria, Queensland, South Australia and Tasmania - passed Acts referring to the Parliament of the Commonwealth power to legislate with respect to air navigation. But, with the exception of the Tasmanian statute, none of the Acts came into operation and all were repealed in 1937. Following further conferences between State and Federal authorities all six States in 1937 and 1938 passed Acts in a further attempt to achieve uniformity. The New South Wales Act (No. 9 of 1938) recited that at a conference of representatives of the Governments of the Commonwealth and of the States, held in 1937, it was resolved that there should be uniform rules throughout the Commonwealth applying to air navigation and aircraft, the licensing and competence of pilots, air traffic rules, and the regulation of aerodromes and that it was agreed that legislation should be introduced in the Parliament of each State to make provision for the application of the Commonwealth Air Navigation Regulations, as in force from time to time, to air navigation and aircraft within the jurisdiction of the State. Thereupon s. 4 of the Act provided that the Air Navigation Regulations made, and as in force from time to time, under the Commonwealth Act and applicable to and in relation to air navigation within the Territories, should (except so far as those Regulations were by virtue of the Commonwealth Act and the Regulations applicable to and in relation to air navigation within New South Wales) apply, mutatis mutandis, to and in relation to air navigation within New South Wales as if those Regulations as so applied were incorporated in the Act. This provision was subject to a proviso that where an aircraft was to be used for the conveyance of passengers or cargo in circumstances which would require the aircraft to be licensed under the State Transport (Co-ordination) Act and which would also require the aircraft to be used under the authority of and in accordance with a licence issued under the Air Navigation Regulations in their application by virtue of the Act, a licence should not be issued in respect of that aircraft under those regulations as so applied until a licence had been issued in respect of that aircraft under the State Transport (Co-ordination) Act. At the time when this Act was enacted s. 14 of the State Transport (Co-ordination) Act provided that every person desiring to operate a public motor vehicle (which expression by definition included an aircraft used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of trade or business) should, in addition to any licence or registration which by law he was required to hold or effect, apply to the State Transport (Co-ordination) Board for a licence for such vehicle under the Act. By sub-s. (2) the application for a licence was required to be made in the prescribed form and manner and to contain particulars, inter alia, of the registration of such vehicle under the Motor Traffic Act, 1909-1930 and the Transport Act, 1930, or under any Act of the Commonwealth (par. (d)). Further, by s. 17 (3) (g) the Board, in dealing with an application for a licence, was required to consider, among other things, "the construction and equipment of the vehicle and its fitness and suitability for a licence". This provision was subject to a proviso that a registration of aircraft under any Act of the Commonwealth might be accepted as sufficient evidence of suitability and fitness. These two particular provisions were the subject of amendment by the Air Navigation Act, 1938. The first amendment was the deletion in sub-s. (2) (d) of s. 14 of the words " or under any Act of the Commonwealth " and the insertion in lieu thereof the words " or in the case of an aircraft, particulars of certificate of registration and the certificate of airworthiness issued under the Air Navigation Regulations " and the second amendment was the omission from the proviso to par. (g) of sub-s. (3) of s. 17 of the words " a registration of aircraft under any Act of the Commonwealth " and the insertion in lieu thereof of the words " the certificate of registration and the certificate of airworthiness of an aircraft issued under the Air Navigation Regulations ". One further provision of the Air Navigation Act, 1938 is worthy of note. That is sub-s. (2) of s. 8 which stipulated that except as provided by sub-s. (1) thereof - that is, the sub-section by which the amendments mentioned were made - nothing in the Act should affect the provisions of the State Transport (Co-ordination) Act. In 1947 the State Transport (Co-ordination) Amendment Act of that year was passed and by it the Air Navigation Act, 1938 was amended by the insertion at the end of s. 4 of the Principal Act of two provisos. The first was that where an aircraft was to be used for the conveyance of passengers or cargo in circumstances which would require the aircraft to be licensed under the State Transport (Co-ordination) Act and which would also require the aircraft to be used under the authority of and in accordance with a licence issued under the regulations in their application by virtue of the Act, a licence should not be issued in respect of that aircraft under the regulations as so applied unless or until a licence had been issued in respect of that aircraft under the State Transport (Co-ordination) Act. The second proviso was that where an aircraft was licensed under the State Transport (Co-ordination) Act it should not be necessary for any person to obtain, under the regulations as so applied, any approval of the tariff or charges for the carriage of persons or cargo on the aircraft. (at p37)
6. But in the meantime the Commonwealth Powers Act, 1943 (N.S.W.) had been passed. This Act was passed in a form approved at a convention of representatives of the Commonwealth and State Parliaments at Canberra pursuant to a resolution that adequate powers to make laws in relation to post-war reconstruction should be referred by the States to the Parliament of the Commonwealth for a period of five years after the then current war. A draft bill, as approved, covered some fourteen subject-matters of legislation including "(i) - air transport". A Commonwealth Powers Bill was introduced in the Parliament of each of the six States but it was passed in the approved form in only two States - New South Wales and Queensland. In Victoria an Act was passed which contained practically all the agreed provisions but it also incorporated a condition suspending the operation of the Act until all States had passed Acts in the same or substantially the same terms. The Parliaments of South Australia and Western Australia passed Acts which departed from the approved draft in material respects whilst, in Tasmania, the Legislative Council refused to pass the bill presented to it. Following this lack of success the Commonwealth Parliament passed the Constitution Alteration (Post War Reconstruction and Democratic Rights) Bill as a proposed law for the alteration of the Commonwealth Constitution. The proposed law incorporated the substance of the earlier draft Commonwealth Powers Bill but, in addition, it contained declarations relating to freedom of speech and religious freedom. However, upon submission to the electors the proposed law was rejected by an overall majority and by a majority of the States. It was following its rejection in August 1944 and after the Chicago Convention on International Aviation that the Commonwealth sought, by the Air Navigation Act 1947, to place the regulation-making power upon the widest possible basis having regard to the limitations which, of necessity, arose out of the fact that it had no power, in terms, to make laws with respect to air navigation as a general subject-matter of legislation. The relevant terms of the 1947 Act and its successors have already been set out and need not be again mentioned. (at p38)
7. By s. 4 of the Commonwealth Powers Act, 1943 the Act was to continue in force for a period ending at the expiration of five years "after Australia ceases to be engaged in hostilities in the present war". This period of five years expired in September 1950. In the course of argument it was suggested that the continuance in force of the Commonwealth Powers Act until 1950 deprived the Parliament of the State of New South Wales of power to pass the State Transport (Co-ordination) Amendment Act, 1947 but it is unnecessary to inquire how far, if at all, such a conclusion would affect the problems in this case for the suggestion is conclusively answered by the unanimous decision of this Court in Graham v. Paterson [1950] HCA 9; [1950] HCA 9; (1950) 81 CLR 1 . However, the further suggestion was made that "matters" once referred to the Parliament of the Commonwealth by the Parliament of a State are irrevocably committed as subject-matters with respect to which the Commonwealth Parliament may make laws. Such a proposition would, of course, deny to the Parliament of the State power to refer matters for a limited or specified period. That being so no problem on this score arises for our consideration for either the Commonwealth Powers Act, if operative according to its tenor, expired in September 1950 or, on the other view, it was invalid and did not operate effectually to "refer" any legislative subject-matter to the Commonwealth. However, in dealing in this fashion with the suggestion that has been made I do not wish to be understood as throwing any doubt on the proposition that, pursuant to s. 51 (xxxvii.) of the Constitution, a power may be referred for a fixed period. (at p38)
8. Upon what has been said I proceed to examine the substantial and critical questions in the case upon the assumption that the relevant State legislation is within power and will operate according to its tenor unless at the present time there is in force valid Commonwealth legislation with which it is inconsistent. But there is no suggestion that the relevant Commonwealth legislation is either wholly or partly invalid. The contention is, as already appears, twofold. In the first place it is said that the Commonwealth has by its legislation assumed such a degree of control over the activities involved in or so directly associated with aerial navigation that there is no room for the operation of the relevant provisions of the State Transport (Co-ordination) Act. As I have already said this is a broad proposition and, of necessity, it must also be taken to assert that the field in which the Commonwealth may make laws dealing with aerial navigation is so wide that the operation of State laws in any way touching aircraft or their operational use for any purpose solely within the State may be excluded. Such a proposition is, of course, in direct conflict with the decisions of this Court in R. v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 and R. v. Poole: Ex parte Henry (No. 2) [1939] HCA 19; (1939) 61 CLR 634 and must be rejected. But it is necessary to consider the proposition in a more particular form, that is, whether the provisions of the State Transport (Co-ordination) Act, which, in effect, provide that any person who operates an aircraft for the carriage for reward of passengers or cargo solely within the limits of the State, shall, unless the aircraft is licensed under the Act and unless he is the holder of such licence, be guilty of an offence, are inconsistent with the provisions of the Commonwealth legislation. This is a question to be resolved upon consideration of the two sets of legislative provisions and, it seems to me in the present case, ultimately, by an examination of the legislative intention discoverable in the Commonwealth legislation. But upon examination of the two sets of legislation I am unable to find any such conflict as the plaintiff's primary contention asserts. There is no suggestion of conflict between the Air Navigation Act 1920-1961 and the relevant State legislation and I can see none upon consideration of the Air Navigation Regulations. On the contrary, the regulations appear as a studied and careful attempt to devise general and comprehensive rules for securing safety in and in relation to the operation of aircraft within the limits of the regulation-making power conferred by s. 26 of the Commonwealth Act. It is unnecessary to specify the limits prescribed by this section for reg. 6, itself, expressly indicates the extent to which the regulations are to operate. The provisions of this regulation have already been set out and it is unnecessary that this should be done again. It is, however, of considerable importance to make it clear that the various fields of operation enumerated in reg. 6 make no reference to air navigation solely within the limits of any one State and this, it would seem, was done deliberately. Of course, to the extent to which air navigation of that character takes place "in controlled airspace which directly affects, or which may endanger, the safety of persons or aircraft" engaged in international air navigation within Australian territory or in air navigation in relation to trade and commerce with other countries and among the States or in air navigation to or from the Territories, it will be subject to the provisions of the regulations. The reason for the omission in reg. 6 of any reference to intra-State air navigation is readily apparent for it must be remembered that when the regulations were framed the Air Navigation Act, 1938 (N.S.W.) was in full force and effect, and, that the effect of this Act was to give to the Air Navigation Regulations made under the Commonwealth Act the force of State law in so far as it was thought to be necessary for achieving uniformity in the control of aerial navigation. To this end s. 5 of the State Act provided that where, by or under the Regulations, any power or function is vested in or exercisable by any person or authority for the purposes of the regulations or any part thereof, the like power or function under the regulations in their application by virtue of the Act should be vested in or exercisable by that person or authority for the purposes of the regulations in such application. It may safely be assumed that this Act of the Parliament of New South Wales and similar Acts of the Parliaments of the other States was accepted by the Commonwealth as a practical basis for securing uniformity in the control of aerial navigation throughout the Commonwealth generally and that the provisions of reg. 6 were framed in accordance with this notion. Accordingly, so far as New South Wales is concerned, I see the Commonwealth Regulations and the State legislation on the subject-matter as complementary to one another, the Commonwealth Regulations operating in the various fields denoted by reg. 6 and the State legislation adopting the same rules in relation to aerial navigation not falling within the ambit of that regulation. (at p40)
9. The more particular contention raised by the plaintiff on this aspect of the case is concerned with regs. 198 and 199. The first of these regulations provides that an aircraft shall not be used in regular public transport operations except under the authority of and in accordance with a licence (in the regulation referred to as an "airline licence") issued by the Director-General. "Regular public transport operations", by definition, means all air service operations in which aircraft are available for the transport of members of the public, or for use by members of the public for the transport of cargo, for hire or reward and which are conducted in accordance with fixed schedules to and from fixed terminals over specified routes with or without intermediate stopping places between terminals. By reg. 199 an applicant for an airline licence is required to furnish such information in relation to the proposed service as the Director-General requires. Thereafter follow specific provisions relating to the issue of such licences. It is clear enough that of its own force reg. 198 applies to regular public transport operations which constitute, within the meaning of reg. 6, international air navigation within Australian territory (par. (a)), air navigation in relation to trade and commerce with other countries and among the States (par. (b)), or air navigation within the Territories (par. (c)). No doubt, also, it may apply to other regular public transport operations in so far as they are conducted in controlled airspace and directly affect, or endanger, the safety of persons or aircraft engaged in any one of the three classes of air navigation mentioned. But it is, I think, clear that it has no application, of its own force, to regular public transport operations which are exclusively intra-State operations whilst they are being conducted outside controlled air space. There can be little doubt that the Commonwealth may, for obvious reasons, properly assume legislative jurisdiction over all air navigation in what, for want of a better expression, may be described as properly defined controlled airspace. No question has arisen concerning the validity of the assumption by the Commonwealth of legislative jurisdiction in this particular field but to say that the Commonwealth may legitimately require an aircraft to be licensed as a condition of its use in regular public transport operations in such airspace does not mean, either, that it may prohibit the use of aircraft in such operations solely intra-State outside controlled airspace, or, that a licence when granted under reg. 199 operating as a federal law constitutes any authority to the grantee to engage in intra-State operations outside such airspace. However, the plaintiff relies upon the generality of the language of both regulations to support the argument that, in spite of reg. 6, they must be taken to apply to all forms of regular transport operations without qualification. Possibly, as the plaintiff suggests the generality of the language may be thought to be emphasized by the fact that reg. 199 deals expressly, and somewhat differently, with applications for airline licences for inter-State services and applications for licences for services other than inter-State services. In terms the regulation differentiates between the functions of the Director-General in considering applications according to whether they fall within one category or the other. But if no such differentiation had been made and the regulation merely dealt with generally and uniformly with all applications for airline licences it would, I think, be impossible to say that its operation extended beyond the fields denoted by the explicit controlling provisions of reg. 6. And, notwithstanding the differentiation which is made, the same conclusion must follow. For it is made, not for the purpose of indicating any overriding intention contrary to reg. 6, but merely because of the provisions of s. 92 of the Constitution and in order to secure a right to an applicant for a licence for an inter-State service upon satisfying the conditions prescribed by sub-reg. (2) and, in respect of all other licences within the fields denoted by reg. 6, to give to the Director-General an absolute discretion. I should add, that if upon its true construction reg. 198 applied of its own force to regular public transport operations of a purely intra-State character I would gravely doubt its validity. In the first place it would, I think, be beyond the limited regulation-making power conferred by s. 26 of the Air Navigation Act 1920-1961 and, in the second place, I would be disposed to think that it travelled beyond constitutional power. On the latter point it should be observed that the only matter with which reg. 198 is concerned is the use of aircraft, which may otherwise be lawfully operated, for regular public transport operations. In other words all that it purports to do is to prohibit the use of aircraft for the purpose of transporting members of the public or cargo in regular public transport operations and I am unable to see any ground upon which Commonwealth legislation forbidding such operations without qualification within the limits of any one State could be justified. (at p42)
10. With these considerations in mind I am unable to see any inconsistency between the Commonwealth Regulations and the relevant provisions of the State Transport (Co-ordination) Act. On the contrary, I repeat that I see them as complementary sets of legislation each designed to operate in their respective fields and together securing uniformity in the control of aerial navigation throughout the Commonwealth. In the result it seems to be clear that the plaintiff which, according to the evidence, operates airline services solely within the limits of New South Wales and partly within and partly without controlled airspace cannot do so unless it complies with the provisions of the State Transport (Co-ordination) Act. (at p42)
11. A further objection raised by the plaintiff was that the notice of 25th October 1961 was not a notice which effectively operated to vary the conditions of its existing licences. The question whether this was so or was not was raised by the fourth question in the case stated which was, at the hearing, replaced by a more general question which raised much the same point. The notice was given under sub-s. (11) of s. 18 of the State Act which, in terms, authorizes the Commissioner of Road Transport, if at any time he thinks it desirable that any of the terms, conditions, and authorities in respect of any licence for a public motor vehicle should be varied during the currency thereof, or that any new term, condition or authority should be attached to any such licence during its currency, to vary the same or attach thereto such term, condition or authority accordingly, and the terms, conditions and authorities as so varied or added to as the case may be shall thereafter be the terms, conditions and authorities of the licence. In terms, the language of this provision is clearly wide enough to authorize the notice in question but the plaintiff contends that its generality ought to be taken to be restricted by a consideration of several of the matters which the Commissioner is required to take into consideration in dealing with applications for licences in the first instance. It is, I think, unnecessary to refer in detail to the particular matters relied upon by the plaintiff for the argument, in my view, is without substance. The varied conditions specified in the notice are such as might well have been imposed as a condition upon the issue of the licence in the first instance and there is no ground for thinking that they may not be imposed during the currency of a licence or licences. However, as the Chief Justice has pointed out, it is not for us in this suit to resolve this precise problem and I agree that the questions raised should be answered in the manner proposed by him. (at p43)
MENZIES J. For the purposes of the State Transport (Co-ordination) Act, 1931 as amended of New South Wales, an aircraft is a motor vehicle and, when it is used for the conveyance of passengers or of goods in the course of any trade, it is a public motor vehicle and its operation without a licence from the Commissioner for Motor Transport is, except in inter-State trade, prohibited. There are in the Act a number of provisions relating in particular to aircraft. These, inter alia, require that the application for a licence shall state particulars of the certificate of airworthiness issued under the Commonwealth Air Navigation Regulations and authorize that certificate to be accepted as sufficient evidence of the "suitability and fitness" of the aircraft. By s. 15 (2) it is provided that "A licence for an aircraft may authorize the vehicle for which it is granted to operate on or in a route or district therein specified or referred to or on or in any route or district other than the route or district, if any, specified or referred to in the license". Any licence under the Act may be subject to conditions including a specification of the routes upon which it may be used. Section 18 (11) authorizes the Commissioner to vary the terms and conditions of a licence during its currency. (at p43)
2. Prior to 25th October 1961 the plaintiff owned a number of aircraft in respect of which it held licences for transport operations upon specified routes within the State of New South Wales. On 25th October 1961 the Commissioner decided to, and did, vary the conditions of these licences by omitting some of the routes previously specified and adding others. What happened is stated as follows in the statement of agreed facts: - "28. On 25th October 1961 the Commissioner for Motor Transport purporting to act as such Commissioner pursuant to the . . . request and direction of the . . . Minister" (the Minister for Transport) "decided to and did vary the then existing licences issued to the plaintiff under the said State Transport (Co-ordination) Act in the manner set forth in the notice sent to the plaintiff a true copy of which notice including the two schedules thereto marked "A" and "B" is contained in schedule 7 to this statement. 28A. The Commissioner for Motor Transport so decided to and did vary the said licences for the purpose of ensuring that there would be at least two intra-State commercial airlines operating independently of each other in New South Wales and for that purpose to re-allocate routes between the two existing airlines so that a reasonable service would be given to the public and a fair share of air miles would be available to each of the operating companies". (at p44)
3. The company's licences have been renewed as they stood prior to 25th October 1961 but the parties have further agreed as follows: - "28B. The Commissioner for Motor Transport intends to vary the current licences of the plaintiff under the said Act in the manner and for the purpose referred to in pars. 28 and 28A hereof". (at p44)
4. At all relevant times there was in force the Air Navigation Act, 1938-1947 of New South Wales. In this Act it is recited that representatives of the governments of the Commonwealth and of the States had in 1937 resolved "that there should be uniform rules throughout the Commonwealth applying to air navigation and aircraft" and other matters. By this Act it was provided that the regulations from time to time in force applicable to air navigation within the territories of the Commonwealth should (except so far as those regulations by virtue of Commonwealth law apply to air navigation within New South Wales) apply mutatis mutandis to air navigation within New South Wales. (at p44)
5. The Commonwealth law that requires consideration is the Air Navigation Act 1920-1961 and the Regulations made thereunder, viz. the Air Navigation Regulations, to which some detailed attention must be given later. It is sufficient here to say that on 25th October 1961 the plaintiff company held licences issued by the Director-General of Civil Aviation under Commonwealth law permitting its aircraft to be used in regular public transport operations upon the same routes as those for which it held licences under the New South Wales State Transport (Co-ordination) Act. (at p45)
6. It was in these circumstances that the plaintiff company commenced proceedings against the State of New South Wales, the Commissioner for Motor Transport, the Commonwealth of Australia and the Director-General of Civil Aviation seeking inter alia declarations (a) that so much of the State Transport (Co-ordination) Act as relates to the licensing of aircraft is inconsistent with the Commonwealth Air Navigation Act and the Air Navigation Regulations and is invalid, (b) that provided it complies with the requirements of the Air Navigation Act and the Air Navigation Regulations the plaintiff is entitled to use its aircraft for any purpose without any licence under the State Transport (Co-ordination) Act and (c) that the variation of the plaintiff's licences under the State Transport (Co-ordination) Act purported to have been made on 25th October 1961 was made without power. The plaintiff also sought injunctions against the Commonwealth of Australia and the Director-General of Civil Aviation from dealing with the licences issued to the plaintiff under the Air Navigation Regulations on the ground that the plaintiff was not complying with the State Transport (Co-ordination) Act of New South Wales. (at p45)
7. The action came on before Kitto J. who, pursuant to s. 18 of the Judiciary
Act, directed that certain questions should be argued
before the Full Court.
Those questions, as later amended, are as follows:-
"(1) Whether the State Transport (Co-ordination) Act, 1931 as amended of the
State of New South Wales in so far as the same relates
or purports to relate
to aircraft is wholly invalid by force of s. 109 of The Constitution of the
Commonwealth by reason of inconsistency with the laws of the Commonwealth
contained in the Air Navigation Act 1920-1961 and
the Regulations and other
instruments duly made and issued pursuant thereto.
(2) Whether each of the several provisions of ss. 3, 12, 13, 14, 15, 16, 17,
18, 19, 21, 22, 27, 28, 29 and 37 of the State Transport
(Co-ordination) Act,
1931 as amended of the State of New South Wales which relate or purport to
relate to aircraft is invalid by
force of s. 109 of the Constitution of the
Commonwealth by reason of inconsistency with laws of the Commonwealth
contained in the said Act, Regulations and instruments.
(3) Whether so long as the plaintiff duly complies with the requirements of
the Air Navigation Act 1920-1961 and the Regulations
and other instruments
duly made and issued pursuant thereto the plaintiff is entitled to use or let
for the conveyance of passengers
or of goods for hire or for any consideration
or in the course of the trade or business presently carried on by it the
several aircraft
owned by it without being required to be the holder of any
licence or permit under the State Transport (Co-ordination) Act, 1931
as
amended of the State of New South Wales or the Regulations made thereunder.
(4) Whether on the true construction of the State Transport (Co-ordination)
Act the Commissioner for Motor Transport is for the
purpose stated in par. 28A
of the statement of agreed facts entitled to vary licences issued to the
plaintiff in respect of its aircraft
by re-allocating routes in the manner
referred to in par. 28 of the said statement". (at p46)
8. It appears to me that the plaintiff, having some reason for thinking that an action against the State of New South Wales and the Commissioner for Motor Transport alone to prevent the variations proposed would not be within the jurisdiction of this Court, sought to attract the jurisdiction conferred by s. 75 (iii.) and (v.) of the Commonwealth Constitution by joining the Commonwealth and the Director-General of Civil Aviation as defendants and seeking an injunction against the Director-General. The justification offered for this was that the plaintiff company feared that, if its New South Wales licences for any routes were lost, the Commonwealth would treat its licences in respect of those routes as cancelled or as having ceased to have any effect. This all appears to me as a subterfuge and I see no basis for relief against the Commonwealth or the Director-General in this action. It is quite clear that this action is only concerned with what is, or may be, done by the Commissioner by virtue of New South Wales law and the only federal question is whether any relevant provision of the State Transport (Co-ordination) Act is inconsistent with a law of the Commonwealth. However, as all the parties have agreed in the course that has been adopted and because of the conclusions I have reached upon the questions raised, I am prepared to join in answering the questions without doing more than deprecating the introduction of unnecessary parties into an action for the purpose of attracting the jurisdiction of this Court. (at p46)
9. The only attack upon the validity of the State Transport (Co-ordination) Act is on the ground of inconsistency with Commonwealth law, namely the Air Navigation Act and the Air Navigation Regulations, and, so it is claimed, "other instruments duly made and issued pursuant thereto". The question can, however, be determined by reference to the Act and the Regulations and without regard to administrative directions given thereunder which do not in themselves constitute laws of the Commonwealth for the purposes of s. 109 of the Constitution. These directions I therefore disregard. (at p46)
10. The Air Navigation Act approves the ratification of the Chicago Convention on international civil aviation and authorizes the making of regulations as follows: - "26 (1) The Governor-General may make regulations, not inconsistent with this Act - (a) prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act; (b) for the purpose of carrying out or giving effect to the Chicago Convention, as amended by the Protocols referred to in sub-section (2) of section three A of this Act, any Annex to the Convention relating to international standards and recommended practices (being an Annex adopted in accordance with the Convention) and the Air Transit Agreement; (c) in relation to air navigation within a Territory of the Commonwealth or to or from a Territory of the Commonwealth; (d) in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States; and (e) in relation to air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws". (at p47)
11. Then follows sub-s. (2) which provides that the powers conferred by sub-s. (1) include regulations for or in relation to a large number of matters enumerated in eleven paragraphs, of which I quote (c) and (d) as follows: - "26 (2) - . . . (c) the licensing of air transport operations; (d) controlling the provision for reward of air transport within a Territory of the Commonwealth or to or from a Territory of the Commonwealth". (at p47)
12. Taylor J. has pointed out that the regulation-making power has changed from time to time and has traced the history of those changes, and what follows is written in the light of what is to be found in his judgment. However, I do not find it necessary in this case to decide the limits within which s. 26 authorizes the making of regulations in relation to air navigation within a State or any question of Commonwealth power because whatever are those limits it seems clear to me that the Commonwealth has exercised its undoubted powers to make regulations only to the extent defined by the Regulations themselves, for reg. 6 (1) is as follows: - "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 paragraphs (a), (b) or (d) of this sub-regulation." Consequently in relation to air navigation not falling within (a), (b) or (d) air navigation within a State is controlled by the Regulations only to the extent laid down in (e) unless otherwise provided. Accordingly air navigation within a State but outside controlled airspace which is in the course of intra-State trade is not governed by the Regulations except to the extent provided expressly or by necessary implication in particular regulations. (at p48)
13. It might be thought that in consequence of the limited scope of the Regulations some air navigation within Australia has been left outside the area of uniform control but, as it seems to me, it is where the gaps would otherwise appear that State legislation, of which the New South Wales Air Navigation Act is an instance, comes in and, to the extent the Air Navigation Regulations do not operate within a State by reason of Commonwealth authority, they are made to operate by virtue of State authority so that all air navigation within Australia is subjected to the one code by a combination of Commonwealth and State legislative power. There is, therefore, no room for the contention that the Commonwealth Air Navigation Regulations were intended of their own force to be exclusive and exhaustive so as to leave nothing for the operation of State law. Section 30 of the Air Navigation Act points to the same conclusion. The Air Navigation Act and the Air Navigation Regulations are not, therefore, the exhaustive and exclusive law upon the matter of air navigation within Australia. (at p48)
14. There is, however, the possibility that there is inconsistency between Commonwealth law and some provisions of State law and one of the contentions advanced on behalf of the plaintiff company is that there are provisions in the Commonwealth Regulations inconsistent with the State licensing system established by the State Transport (Co-ordination) Act. (at p48)
15. It seems to me that the regulation most particularly in point is reg. 198 and that, if there is no inconsistency between it and the relevant State law, no such inconsistency is elsewhere to be found. Regulation 198 is as follows: - "An aircraft shall not be used in regular public transport operations except under the authority of and in accordance with a licence (in these Regulations referred to as an 'airline licence') issued by the Director-General." For my part I would construe this regulation as governed by reg. 6 and as forbidding the use of aircraft in air navigation of the sort specified in that regulation and as having no application by virtue of Commonwealth law to the use of aircraft in public transport operations within a State in intra-State air navigation outside controlled airspace. I do not think, however, that it is necessary to come to a definite conclusion upon this point for I regard reg. 198 as a restrictive and not an enabling regulation and I do not find in reg. 198 the expression of a legislative intention that it should be the whole law on the subject of the licensing of public transport operations within a State by aircraft. (at p49)
16. For these reasons I have come to the conclusion that, notwithstanding Commonwealth law, it is open to the Parliament of New South Wales to forbid the unlicensed use within the State of an aircraft for public transport operations in the course of intra-State trade. (at p49)
17. It was, however, argued that particular requirements of New South Wales law were in conflict with Commonwealth law. The instance which was perhaps most strongly relied upon was that one of the matters to which the Commissioner is directed by s. 17 (3) of the State Transport (Co-ordination) Act to have regard is "the construction and equipment of the vehicle and its fitness and suitability for a license". While I am not disposed to think that the State could determine for itself the airworthiness of an aircraft in disregard of a certificate under the Air Navigation Regulations, I am satisfied that the question that arises here is quite different. What the Commissioner has to be satisfied with under s. 17 (3) (g) is the suitability of a particular aircraft for the public transport operations for which a licence is sought. This is an altogether different matter from airworthiness per se and I see no reason, for instance, why a State should not require that an aircraft for the carriage of passengers intra-State should have at least two engines, notwithstanding that many aircraft covered by Commonwealth certificates of airworthiness are single-engined aircraft. Here and in similar cases I find no inconsistency between Commonwealth and State law. (at p49)
18. For the foregoing reasons I have reached the conclusion that there is no inconsistency between Commonwealth law and ss. 12 and 28 of the State Transport (Co-ordination) Act and the ancillary sections providing for obtaining licences. In consequence, I would answer questions (1), (2) and (3) No. (at p49)
19. The argument that the fourth question should be answered No depended upon the contention that the Commissioner was not entitled to use the powers conferred upon him by s. 18 (11) in order to carry out government policy of ensuring that there would be at least two intra-State commercial airlines operating independently of each other in New South Wales. It seems to me, however, that the Commissioner is entitled to exercise the authority conferred upon him by s. 18 (11) whenever he himself considers that there should be a variation and it matters not if he has taken government policy into account in making up his own mind that a licence should be varied. Furthermore, I consider that the question whether there should be one or more than one licensed operator providing intra-State air services in New South Wales is a matter to which he could properly have regard under the Act. This question should therefore be answered Yes. (at p50)
WINDEYER J. I do not propose to deal with all the topics that were discussed by counsel in the elaborate arguments addressed to us in this case. My conclusions accord with those which the Chief Justice and my brother Taylor reach in their judgments, which I have had the advantage of reading. I shall merely state briefly my views on some of the matters discussed. (at p50)
2. As to the constitutional power: In my opinion the powers with respect to trade and commerce with other countries and among the States, (s. 51 (i.)), external affairs, (s. 51 (xxix.)), and incidental matters as described in s. 51 (xxxix.), are ample to give the Commonwealth Parliament complete power over all air navigation in Australia. The need for the Australian nation to perform its international obligations under treaties and conventions relating to air navigation, together with the trade and commerce power, suffice, in my view, to bring the subject within the legislative power of the national Parliament. Some ancillary matters involved in the effective control of air traffic fall also within the scope of other powers given by s. 51 of the Constitution. For example, the power with respect to lighthouses and beacons (s. 51 (vii.)) extends, I do not doubt, to air beacons, lights at airports, and so forth; and the power with respect to astronomical and meteorological observations (s. 51 (viii.)) supports laws for the provision of data needed for the effective control of air services; and there are other powers which might be called in aid to support particular aspects of the Commonwealth Air Navigation Act and Regulations. I see no reason for confining the interest and concern of the Commonwealth with air navigation to areas of the superincumbent air that have been declared to be controlled air space. As I see it, Commonwealth power extends to the control of the movement of all aircraft in all air space above Australia and its territories. It extends too, I consider, to all such incidental matters as the control of airports and airfields, the take-off and landing of aircraft, and the prescribing and policing of safety precautions. I do not overlook, indeed I respectfully adopt, the observations of Dixon J., as he then was, in R. v. Burgess; Ex parte Henry [1936] HCA 52; [1936] HCA 52; (1936) 55 CLR 608 that "under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates" (1936) 55 CLR, at p 674 . But in carrying out an obligation, measures that at one time might have been unnecessary may, with changing circumstances, become necessary. It is not that the nature of the power changes. What changes are the conditions and circumstances within which the power is exercisable, and in consequence the particular aspects of the subject-matter that can be regulated. The great development in recent times of air traffic of all kinds in Australia, including overseas and inter-State air traffic, has created a situation to-day that is very different from that of thirty years ago. The proper regulation in the interests of safety of the operations of inter-State and overseas airlines, and the due execution by Australia of the international obligations it has accepted, may well make it desirable that the one authority should exercise sole control of all movement of aircraft in the air and of matters connected with such movement, that is to say of all matters connected with how aircraft may be used. (at p51)
3. That does not mean that the Commonwealth can, as matters now stand, undertake the regulation of everyting and anything relating in any way to aircraft. And it does not mean that a State can say nothing as to the purposes for which aircraft may be used within its borders. A State law inconsistent with valid Commonwealth laws concerning the movement of aircraft in the air, or matters preliminary to and subsequent upon such movement, would to the extent of the inconsistency be invalid. But a State law that said simply that within the State aircraft should not be used at all for some specified purpose, such as the carriage of particular articles or the carriage of persons from one place within the State to another within the State would, in my opinion, be a valid law. It would deal with a subject that it seems to me is in present circumstances beyond Commonwealth power. The regulation of traffic in the air and of all aspects of the flight of aircraft anywhere in Australia on the one hand, and, on the other, a restriction of the purposes for which aircraft may lawfully be used within a State, seem to me to be in different fields. I can see no objection in principle to a State prescribing the purposes for which aircraft may (subject to all Commonwealth requirements) be used within its borders, and the persons who may be permitted to use aircraft there for given purposes. (at p51)
4. But the extent of Commonwealth powers in relation to the movement of aircraft is not, as I see it, a decisive consideration in this case. The scheme for the control of air traffic that has been adopted depends upon legislation of the Commonwealth and the States enacted in concert, the Commonwealth Air Navigation Regulations being it seems expressly framed so as not to deal with air navigation occurring wholly within the borders of any one State. The combined results constitute a generally uniform law governing air navigation throughout Australia, based upon a system of complementary and reciprocal enactments. The Commonwealth might, in my opinion, have entered more fully than it has upon the control of all air navigation; but it has chosen, no doubt with a view to avoiding any challenge to its legislation, to leave an area within State control. (at p52)
5. The State Transport (Co-ordination) Act, so far as it relates to air services, is, I consider, a lawful exercise of State power. It does not, as I see it, conflict with the Commonwealth law. I do not think that the effect of reg. 198 and 199 of the Commonwealth Air Navigation Regulations is to give the holder of an airline licence an immunity or exemption from all State legislation in respect of an airline that operates wholly within a State. I shall assume that the Regulations make it necessary to have a Commonwealth "airline licence" as a condition of the use of an aircraft in regular public transport operations, even if those operations are to take place wholly within a State and without any use of controlled air space in the manner provided by reg. 6 (e). It may be that the troublesome prefatory words "subject to these Regulations", in reg. 6, give reg. 198 and 199 a general application, so that their scope is not confined. But even on that assumption I cannot find any inconsistency between Commonwealth and State law which would have to be resolved by s. 109 of the Constitution. Regulation 198 provides for an airline licence. Without it, a regular transport service cannot be operated. But that does not, as I see the matter, mean that the State must permit the holder of such a licence, merely because he has it, to operate such a service. (at p52)
6. One other matter I shall mention. It concerns the effect of a reference by the Parliament of a State to the Parliament of the Commonwealth pursuant to s. 51 (xxxvii.) of the Constitution. Such a reference adds a further subject of concurrent Commonwealth legislative power to the existing list in s. 51 of the Constitution: Graham v. Paterson [1950] HCA 9; (1950) 81 CLR 1 . It is unnecessary, in the view I take of this case, to decide whether a reference can be for a limited time only. But I incline to the view, which appears to have been accepted, that it can be; and that therefore the Commonwealth Powers Acts passed in 1943 in New South Wales, South Australia, Western Australia and Queensland were valid and effective enactments which have now expired. Any law made by the Commonwealth Parliament with respect to a subject referred for a limited period could, I consider, operate only for the duration of the period of the reference. That period could, I think, be limited in time in any way; for example, it could be a period of years or the duration of a war. But I entertain a serious doubt whether a reference could be for an indefinite period terminable by the State legislature. I am unable to accept some of the propositions on this point that were submitted on behalf of the State of New South Wales. If a matter be referred by a State Parliament, that matter becomes, either permanently or pro tempore, one with respect to which the Commonwealth Parliament may under the Constitution make laws. If the Commonwealth Parliament then avails itself of the power, it does so by virtue of the Constitution, not by delegation from, or on behalf of the State Parliament. It is not exercising a legislative power of the State conferred by a State Parliament and revocable by that Parliament. It is exercising the legislative power of the Commonwealth Parliament conferred by s. 51 of the Constitution. (at p53)
7. I would answer the questions in the way the Chief Justice proposes. (at p53)
OWEN J. I have had the opportunity of reading the judgment of the Chief Justice. I agree with it and do not wish to add anything for myself. (at p53)
ORDER
Questions referred to be answered as follows:
(1) No.
(2) No.
(3) No.
(4) Neither s. 109 of the Constitution nor any other
provision of the Constitution nor any provision
of Federal law operates to prevent the Commissioner
for Motor Transport exercising any power which
under State law he possesses entitling him to vary
the licences in question.
The plaintiff to pay the defendants' costs of and incidental to the
reference to the Full Court.
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