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High Court of Australia |
AIRLINES OF N.S.W. PTY. LTD. v. NEW SOUTH WALES (No. 2) [1965] HCA 3; (1965) 113 CLR 54
Constitutional Law (Cth)
High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Taylor(4), Menzies(5), Windeyer(6)
and Owen(7) JJ.
CATCHWORDS
Constitutional Law (Cth) - Trade and commerce power - External affairs power - Inconsistency of Commonwealth and State laws - Air navigation - Extent of Commonwealth power to control intra-State air transport operations - Licensing of intra-State services - Permits to use Commonwealth aerodromes - Permits to fly in controlled air space - The Constitution (63 & 64 Vict. c. 12), ss. 51 (i.), (v.), (vi.), (xxix.), (xxxix.), 52 (i.), 109, 122 - Air Navigation Act 1920-1963 (Cth) - Air Navigation Regulations (Cth), regs. 6, 198, 199, 200B, 320A, 320B - Chicago Convention on International Civil Aviation and annexes thereto - Air Transport Act, 1964 (N.S.W.).
HEARING
Sydney, 1964, November 10-13, 16-18;DECISION
1965, February. 3.2. Until 2nd October 1964 the operation of the Air Navigation Regulations (the Regulations) made under the provisions of the Air Navigation Act 1920-1961 (the Commonwealth Air Navigation Act) did not extend to intra-State air navigation: reg. 6; Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 . But the substance of the Regulations was made applicable to intra-State air navigation in New South Wales by the terms of s. 4 of the Air Navigation Act, 1938-1947 (N.S.W.) (the State Air Navigation Act). By s. 6 licences granted under the Regulations in their applications under the Commonwealth Air Navigation Act are made operative in the State as if granted in pursuance of the Regulations in their application by virtue of the State Air Navigation Act. As contemplated by s. 30 of the Commonwealth Air Navigation Act, the Director-General of Civil Aviation (the Director-General) exercised the powers given to the Director-General under the terms of the Regulations as thus made applicable as laws of the State to intra-State air navigation. (at p73)
3. On 2nd October 1964 the Regulations were relevantly amended by adding to reg. 6 (1) a paragraph (f) which, in the context of the other paragraphs of that regulation as amended, purports to make the Regulations as a whole apply to intra-State air navigation; and by adding a regulation, reg. 200B, which purports to authorize a person holding an airline licence under the Regulations to conduct, in accordance with the licence and with the laws of the Commonwealth, the public air transport operations to which the licence refers. Two other amendments were made to the Regulations by the addition of two new regulations 320A and 320B, which relate respectively to landing and to taking off on or from Commonwealth-owned aerodromes without the permission of the Director-General and to flight in controlled air space without the like permission. If the amendments to reg. 6 validly applied all the Regulations to intra-State air navigation, the result would render the State Air Navigation Act, at least in so far as it "adopted" the Regulations for intra-State air navigation, inoperative. (at p73)
4. On 12th October 1964 the Commissioner, following upon earlier notice to the plaintiff of his intention of so doing, cancelled the licence under the Transport Co-ordination Act which up till that time the plaintiff had held in respect of the aircraft used by it for the carriage of passengers and of goods between Sydney and Dubbo, a place within the State of New South Wales. (at p73)
5. On 16th October 1964 assent was given to the Air Transport Act, 1964 (the Air Transport Act), passed by the Parliament of the State of New South Wales. Its relevant provisions were to operate on and from an appointed day which for present purposes is 26th October 1964. This Act amended the Transport Co-ordination Act by making that Act no longer applicable to aircraft and thus no longer applicable to carriage by air of passengers and goods. (at p74)
6. The Air Transport Act, by s. 3, provides that a person shall not, on or after the appointed day, carry by an aircraft between places in New South Wales any passengers or goods unless - (a) the aircraft is licensed under the Act; (b) that person is the holder of the licence; and (c) the route over which the goods or passengers are carried is the route (if any) covered by the licence. By definition "carry" here means carry for reward or for any consideration or in the course of any trade or business. (at p74)
7. By s. 6 of the Act the Commissioner is authorized to grant or to refuse, or to grant upon conditions, any application for a licence under the Act. By s. 6 (3) the Commissioner, in considering an application for such a licence, is confined to five matters: (a) the needs of the public of the State as a whole, and of the particular area or district to be served by the proposed air operation, for such proposed air services; (b) the extent to which such needs are already or are likely to be served by public air transport services; (c) the allocation of air routes within the State between applicants for licences so as to foster as far as possible more than one airline operating in the State and to discourage development of any monopoly of public air transport services; (d) the character, suitability and fitness of the applicant to hold a licence, or in the case of a corporate applicant, the character of the persons managing the corporation and the suitability and fitness of the corporation to hold the licence; (e) the extent to which the particular area or district is or is likely to be served by other forms of public transport. (at p74)
8. By s. 18 it is said that nothing in the Act shall relieve a person of an obligation to hold or effect any licence or registration which he is otherwise by law required to hold or effect. This provision has no operation with respect to the Commonwealth law but perhaps may indicate the intention of the State Parliament if some question of the construction of other provisions of the Act should arise. The need for a licence under Commonwealth law flows from that law and in no sense from State law, though it may have an operation under State law because of s. 6 of the State Air Navigation Act. (at p74)
9. Section 4 of that Act, as amended by the Air Transport Act, provides that a licence under the Regulations as applied to intra-State air navigation by the State Air Navigation Act shall not be issued until a licence has been issued under the Air Transport Act, where such a licence is necessary. (at p75)
10. After 26th October the plaintiff duly applied to the Commissioner for the appropriate licences under the Air Transport Act in respect of its aircraft used in its commercial air transport operations between Sydney and Dubbo: its applications were refused. Apparently the Director-General was unwilling to issue an airlin licence under the Regulations to some person of the State's nomination in relation to a public air transport service between those places. In the event, the former public air transport service between Sydney and Dubbo ceased. (at p75)
11. The plaintiff thereupon commenced this suit seeking - (i) a declaration that a number of sections of the Transport Co-ordination Act, and the provisions of the Air Transport Act were invalid or inoperative by reason of their inconsistency with the Regulations; (ii) a declaration that the plaintiff, so long as it duly complies with the Regulations, is entitled to carry passengers and goods by air between Sydney and Dubbo without being required to hold a licence under either the Transport Co-ordination Act or the Air Transport Act; (iii) an injunction to restrain the defendants from enforcing the powers of the Transport Co-ordination Act in so far as it relates to aircraft, or those of the Air Transport Act, against the plaintiff or its officers and from otherwise preventing or hindering the plaintiff from carrying passengers and goods by aircraft for reward between Sydney and Dubbo. (at p75)
12. Upon the hearing of an application for an injunction to restrain the defendants from enforcing those provisions of those Acts, pending the hearing of this suit, an application which was refused, it was ordered that the following questions be referred to the Full Court - 1. Whether the provisions of reg. 6, reg. 198, reg. 199, reg. 200B, reg. 320A and reg. 320B of the Air Navigation Regulations, in so far as they purport to relate to regular public transport operations as defined by the Regulations solely within the State of New South Wales, are valid laws of the Commonwealth. 2. If so, whether such laws are inconsistent with the provisions of ss. 12, 13, 14, 15, 16, 17, 18 or 28 of the State Transport (Co-ordination) Act, 1931-1964, or with the provisions of the Air Transport Act, 1964. (at p75)
13. The plaintiff's inclusion in its statement of claim and in the questions submitted to the Full Court of the references to the Transport Co-ordination Act were based upon an erroneous view that, if the Air Transport Act were held to be inoperative for inconsistency with the Regulations, the provisions of the Transport Co-ordination Act which had been repealed by the Air Transport Act might revive so as to expose the plaintiff to the need for a licence under the Transport Co-ordination Act. During the hearing of the matter by the Full Court, however, it was ordered by the Justice who referred the questions to the Full Court that all reference in question 2 to the Transport Co-ordination Act be deleted. (at p76)
14. The plaintiff seeks an affirmative answer to each question. It supports such answers by submitting, in the first place, that the regulations enumerated in the first question (the said regulations) were all validly made under the power conferred by s. 51 (xxix.) of the Constitution - the external affairs power, the plaintiff asserting that the Convention on International Civil Aviation concluded at Chicago in December 1944 and ratified by Australia with parliamentary approval in 1947 (the Chicago Convention) was, or brought into existence, an external affair of Australia which attracted that power and that each of the said regulations was properly made in performing the obligations laid upon and accepted by Australia, or in securing the benefits given to Australia, by that Convention. (at p76)
15. The plaintiff secondly submitted that the said regulations are all valid as an exercise of the legislative power conferred on the Commonwealth by s. 51 (i.) of the Constitution - the power with respect to inter-State and foreign trade and commerce. (at p76)
16. The plaintiff next submitted that the said regulations were all validly made under a combination, or perhaps I should say a series of combinations, of the powers given by pars. (i.), (v.), (vi.), (xxix.) and (xxxix.) of s. 51 of the Constitution, and by s. 52 (i.) and s. 122 thereof. (at p76)
17. And finally, as to reg. 320A, the plaintiff submitted that it is a valid exercise of the power given by s. 52 (i.) of the Constitution. (at p76)
18. The defendants were prepared to concede that some of the regulations which had been made by the Commonwealth to carry out the terms of the Convention and of its annexes validly operated upon intra-State air navigation, including in that concept commercial air transport between termini within the State; but they submitted that none of the said regulations if construed in the sense for which the plaintiff contended is valid as applied to intra-State air navigation, and that, in that sense, none of them was supported by any one of the powers to which the plaintiff sought to refer them nor by any combination of any two or more of those powers. The defendants further submitted that in any case there was no inconsistency between any part of the Air Transport Act and the said regulations or any of them when properly construed. (at p76)
19. The Commonwealth and the States of Victoria, Tasmania, South Australia and Western Australia were each given leave to intervene and each both filed written submissions and addressed the Court by counsel. (at p77)
20. The Commonwealth supported generally the submissions of the plaintiff and the intervening States supported those of the defendants. (at p77)
21. It is not my purpose to discuss in any detail all the various submissions put before the Court, whether in writing or orally. But, I feel that some general observations should be made before I turn to discuss specifically what seem to me to be the critical matters in the case. (at p77)
22. On the one hand, the plaintiff and the Commonwealth, by their submissions, in substance, though perhaps not in terms, claimed that by reason of the provisions of the Chicago Convention, its width, the complexity and range of the matters dealt with by its annexes, and by reason of the extent to which air operations in Australia have become intermingled or, as it was put, "integrated", so that the distinction between intra-State air navigation and inter-State air navigation or, expressed in terms of trade and commerce, between intra-State and inter-State trade and commerce so far as carried on by means of air transport, had become in a practical sense impossible to maintain, the Commonwealth now had plenary power with respect to intra-State commercial air transport as being one aspect of intra-State air navigation, and of intra-State trade and commerce. (at p77)
23. This proposition so far as it is placed upon the power given by s. 51 (i.) is demonstrably insupportable. It is a claim that the Commonwealth has in some circumstances power to make laws with respect to some aspects of intra-State trade and commerce as themselves topics of legislative power. But the Commonwealth has not and, without constitutional amendment, cannot obtain such legislative power with respect to any aspect of such trade and commerce, including intra-State commercial air transport as an aspect of intra-State air navigation. No so-called "integration" of inter-State and intra-State air navigation or air transport, commercial or otherwise, no intermingling or commingling of the two to any degree, however "complete", can enlarge the subject matter of Commonwealth legislative power in the relevant field. It remains a power to make laws with respect to inter-State and foreign trade and commerce. This Court has never favoured, in relation to Commonwealth power, the more extensive view of the commerce power under the Constitution of Congress which has at times found expression in decisions of the Supreme Court of the United States. (at p78)
24. To say this, however, is not to deny that there are occasions - and the safety procedures designed to make inter-State and foreign trade and commerce, as carried on by air transport, secure, are a ready instance - when it can be no objection to the validity of the Commonwealth law that it operates to include in its sweep intra-State activities, occasions when, for example, the particular subject matter of the law and the circumstances surrounding its operation require that if the Commonwealth law is to be effective as to inter-State or foreign trade and commerce that law must operate indifferently over the whole area of the relevant activity, whether it be intra-State or inter-State. But this involves no change in the subject matter of Commonwealth power. The power is not enlarged by circumstance though what may be validly done in its exercise may be more extensive because of the factual situation. Some decisions of the Supreme Court of the United States on close examination really place the matter in relation to the commerce power of the Congress, no higher. The total validity of a law which operates on more than inter-State or foreign trade and commerce and which is sought to be justified by reference to s. 51 (i.) of the Constitution, will be determined by resolving the question whether the law as so operating is in substance a law with respect to inter-State or foreign trade. This is indicated in various decisions of this Court and very clearly by Dixon C.J. in Wragg v. State of New South Wales [1953] HCA 34; (1953) 88 CLR 353 where his Honour says: "The distinction which is drawn between inter-State trade and the domestic trade of a State for the purpose of the power conferred upon the Parliament by s. 51 (i.) to make laws with respect to trade and commerce with other countries and among the States may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution and it must be observed however much inter-dependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes. A legislative power, however, with respect to any subject matter contains within itself authority over whatever is incidental to the subject matter of the power and enables the legislature to include within laws made in pursuance of the power provisions which can only be justified as ancillary or incidental. But even in the application of this principle to the grant of legislative power made by s. 51 (i.) the distinction which the Constitution makes between the two branches of trade and commerce must be maintained. Its existence makes impossible any operation of the incidental power which would obliterate the distinction" (1953) 88 CLR, at pp 385, 386 . (at p79)
25. The plaintiff also founded its claim to Commonwealth plenary power over intra-State air navigation upon the external affairs power. But, whilst that power itself is plenary, its relevant subject matter is the external affair, in this case the obligation accepted by Australia under the Convention. Even if, by reason of the nature and extent of that obligation, laws made to carry out the Convention may operate upon intra-State air navigation, there is still no plenary power with respect to such navigation. The content of the Treaty will set the limits of what may be enacted and the extent to which laws so made may affect intra-State air navigation. (at p79)
26. On the other hand, the defendants in developing their submissions appeared to me to have been prone to resurrect the exploded view of the so-called reserve powers of the State and to have approached the questions of Commonwealth power and of inconsistency by first laying emphasis on the interests of the State which its laws were designed to effect and pointing out how different those interests or purposes were from any which the Commonwealth had to advance in the present connexion. But the nature and extent of State power or of the interests or purposes it may legitimately seek to advance or to protect by its laws do not qualify in any respect the nature or extent of Commonwealth power. On the contrary, the extent of that power is to be found by construing the language in which power has been granted to the Commonwealth by the Constitution without attempting to restrain that construction because of the effect it would have upon State power. (at p79)
27. Commonwealth laws validly passed under any power as so construed will render inoperative any inconsistent law of the State no matter upon what subject that law is passed or what policy or purpose, valid for the State, the State law is intended to carry out. If the Commonwealth law is valid and the State law inconsistent, it is nothing to the point that the Commonwealth has no concern with those matters of policy, of purpose or of circumstance which the State properly had in mind when making its law, or that the considerations, whether of policy, of purpose, or of circumstance, which led to the passing of the Commonwealth law did not take account of, or include, or were in fact different from, any of the matters which were of concern to the State in making its law. All inconsistent State law must yield because of the paramountcy of all valid Commonwealth law. This is as much a basic feature of the Constitution as is the distribution of legislative powers between the Commonwealth and the States: it is indeed a concomitant of that distribution. (at p80)
28. In determining that there is inconsistency between the State law and the Commonwealth law the Court is not limited to those occasions on which there is a direct collision between a State law and a valid Commonwealth law: but according to the settled constitutional doctrine of this Court if the Commonwealth law properly construed shows that it was passed to be the law on the matter with which it affects to deal, there will be no room for any State law to operate in respect of that matter. This is figuratively expressed by saying that when it can properly be concluded that the Commonwealth has intended by its law to occupy some particular field, there is then no room for any State law to be, or to remain, operative within the same field. But, however the doctrine is expressed, the result is that if the Commonwealth has power to make the law in question it has the power to make that law the only law with respect to the matter with which it deals and thereby prevent any State law operating with respect to that matter. (at p80)
29. In my opinion, the proper view of this case in relation to the respective powers of the Commonwealth and the State, lies between the two opposed, extreme and untenable submissions of the parties. As will be seen in what follows, in my opinion, the Commonwealth has power to determine exclusively both by what aircraft and by whom all commercial airline services, including intra-State commercial airline services where they can be operated under State law, shall be operated but the Commonwealth cannot authorize the inception or carrying on of an intra-State airline: it cannot give a franchise to carry passengers or goods by air between places within the State. Only State law by express statutory provision or by the common law operating within the State in the absence of some superseding statutory provision can do that. The State can determine that there shall be no airline between places within the State, and can also determine the frequency with which such a service may be maintained, if the State permits its inception or continuance. There are also no doubt many other aspects of the carriage of goods or passengers by an airline within the State which are within the State's competence and beyond that of the Commonwealth. But the State cannot, in my opinion, determine by what aircraft or by which operator such carriage of passengers or goods by air within the State which it permits shall be effected, so long as the Commonwealth exercises its power exclusively to determine those matters. (at p80)
30. As to the carriage of passengers or goods by air between places within the State, no question of inconsistency of laws can arise: for the State has power, and the Commonwealth none in respect of that matter. It is otherwise in connexion with the use of aircraft between places within the State, even when such aircraft is carrying passengers or goods. (at p81)
31. Having made these general observations, I should then say that the first question to be resolved in this case is whether the said regulations are, or any of them is, valid. As part of the determination of that question the said regulations may have to be construed and assigned a meaning. The second question will be whether the State law is in any respect inconsistent with any of the said regulations which according to their proper interpretation is valid. In this case, reg. 200B apart, it seems to me that the second question involves two matters of great difficulty, and each in my view crucial to the result of the case, namely, first, can it properly be said that the Commonwealth has passed such of the said regulations as are valid as the only law to operate relevantly, and second, what is the matter with which the Commonwealth law thus deals, what is the precise field it thus intends to occupy. (at p81)
32. Before turning to deal with the question of the validity of the said regulations, I should mention that the present parties were in litigation at an earlier time before the amendments which I have described were made to the Regulation. Their litigation resulted in the decision by this Court in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 . In that case the plaintiff claimed that, upon their true construction, sought by it to be derived to some extent from the nature of their subject matter and to a large extent from the comprehensiveness of their provisions, the Regulations in their then form applied to intra-State commercial air transport and that the licensing provisions of the Transport Co-ordination Act as applied to aircraft, were inconsistent with the relevant regulations. The defendants in that case did not attack the validity of any of the Regulations in their then form. They contented themselves with the submission that the Regulations did not then apply to intra-State air navigation except in relation to controlled air space and that therefore no inconsistency arose. This Court decided that upon their true construction the Regulations as they then stood did not apply to intra-State air navigation, except in relation to flight in controlled air space: and that therefore there was no inconsistency between the relevant provisions of the Transport Co-ordination Act and the Regulations. The restricted operation of the Regulations was reached because of the terms in which reg. 6 was then expressed though the history of the Regulations was also relied upon to some extent. (at p82)
33. It is noticeable that the Court in that case did not take the course of saying that if the then Regulations did apply to intraState air navigation, there would be an inconsistency between the Transport Co-ordination Act in relation to aircraft and the Regulations. But the Court's concentration upon the restricted construction of the Regulations as the direct means of answering the suggested inconsistency, should not be read as implying that but for that construction, any of their Honours would have found inconsistency to be present. (at p82)
34. Dixon C.J. said that "A study of the Schedule" (the Convention) "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.) of the Constitution 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" (1964) 113 CLR, at p 27 . I do not read his Honour as there saying more than that laws which are properly passed to carry out the Convention may operate throughout Australia and that the nature of the matters dealt with by the Convention would entitle the Commonwealth in performing its obligations with respect to them to make laws which ignore the distinction between intra-State and inter-State trade in so far as it is carried on by commercial air transport. I do not take his Honour as departing in any respect from the view which he had expressed in earlier cases where he pointed out that the nature of what may be done in carrying out a convention or treaty is limited by the nature or extent of the obligation accepted by Australia through the Convention or treaty: The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, at pp 669, 674 . In my opinion, unless the plaintiff can establish that the Commonwealth came under some liability by reason of the Convention, to the discharge of which the new regulations are approprite, it obtains no assistance in this case from the words of Dixon C.J. which I have quoted. (at p82)
35. The Court's decision in the earlier case upon the Regulations in their then form does not in my opinion resolve, or provide a basis for resolving, the present case. (at p82)
36. The said regulations which the plaintiff claimed to be valid and with which it says that the Air Transport Act is inconsistent fall conveniently into four categories for the purpose of discussion and judgment. There is, first of all, reg. 6 which purports to determine the ambit of operation of the Regulations as a whole. Secondly, there is a group of regulations in Pt XIII of the Regulations which contains what has been compendiously and conveniently referred to in argument as the licensing system in relation to commercial air transport operations. They are regs. 191, 192, 193, 194, 197, 198, 199, 200 and 200A. Then there is reg. 200B which, although it could conceivably be included in the second group of regulations as part of the licensing system, needs separate treatment. The plaintiff construes this regulation as giving paramount legal sanction to the airline licence granted under the said regulations so as to authorize the operator to carry passengers and goods by the public air transport service to which the licence relates, subject only to compliance with its terms and with the laws of the Commonwealth: in other words, as granting a right or franchise to operate a commercial airline. And lastly, there are regs. 320A and 320B which respectively deal with the use of Commonwealth-owned aerodromes and with flight in controlled air space. (at p83)
37. The Commonwealth Air Navigation Act authorizes the making of regulations for the purpose of carrying out and giving effect to the Chicago Convention and in relation to air navigation within or to and from a Territory of the Commonwealth, or between States or to or from foreign countries or in relation to air navigation where its regulation would fall within any power of the Commonwealth. Thus, the validity of the said regulations can be tested directly against the constitutional power, there being no additional statutory limitation to be satisfied, though formally the question is whether the said regulations are authorized by the Commonwealth Air Navigation Act. By sub-s. (2) of s. 26 of the Act, express power to make regulations for the licensing of air transport operations is given but only where such a course would fall within the ambit of the regulation-making power given by the earlier part of the section. (at p83)
38. I should like to deal with these groups of regulations in the inverse order to that in which I have listed them. (at p83)
39. Regulation 320A is a provision with respect to places acquired by the Commonwealth for public purposes. The acquisition of areas for aerodromes and their maintenance as such is clearly such a purpose, if for no other reason than that the Convention imposes upon the Commonwealth an obligation to create and maintain aerodromes: art. 28 of the Convention. Section 51 (i.) therefore gives legislative power with respect to these areas so acquired. I am prepared to accept the view that both the prohibition of landing and of taking off on and from Commonwealth-owned aerodromes and the authority of a permit to do so are effective notwithstanding any law of a State: but I am unable to agree that the Air Transport Act in forbidding the carriage of passengers and goods by aircraft between places within the State at which there are Commonwealth-owned aerodromes, even though they may be the sole means of the taking off and the landing of commercial flights at those places, is in any respect inconsistent with reg. 320A. In this connexion, the State Act does not purport to prevent permitted take-off or landing of aircraft but only the commercial carriage of passengers or goods by aircraft between places within New South Wales. (at p84)
40. In my opinion reg. 320B is valid in relation to the use of controlled air space by aircraft in intra-State flight. The need for total and undifferentiated control of this air space was not, and indeed in my opinion could not be, challenged. But I am unable to see that there is any inconsistency between the Air Transport Act and reg. 320B. $P As to these two regulations therefore, in my opinion, the Commonwealth is both able to determine as a legislator and not merely as an owner of the land on which the aerodrome is located who shall and who shall not land or take-off on or from the aerodrome and to authorize such landing or take-off so that no State law may prevent such landing or taking off. It is also able to determine who should use controlled air space in Australia. But, as I have said, I do not think that the operation of either of the regulations has any relevance to the matters in difference in this suit. (at p84)
41. I have now to consider the validity of reg. 200B in so far as it is applicable to intra-State air navigation by virtue of reg. 6 (1) (f). In my opinion this regulation is not a mere redundancy in the licensing system set up by the earlier regulations but does purport to give a quality or effect to an airline licence under the Regulations which but for its presence in the Regulations that licence would not have. Both the terms of other regulations in Pt XIII and of the licence itself, refer to the use of aircraft in public air transport operations. Regulation 200B, so far from purporting merely to authorize the use of specified aircraft in public air transport operations, affects to authorize those operations themselves. I accept the purported operation of reg. 200B in relation to intra-State air navigation (reg. 6 (1) (f)) to be that by virtue of it, the holder of an airline licence in respect of an intra-State public air transport operation would be lawfully entitled to carry on those operations, carrying passengers and goods, on the route and by the use of the aircraft specified in the Commonwealth licence notwithstanding any State law which would otherwise prevent him doing so. The regulation with this construction and operation is supported by the plaintiff both upon the external affairs power and upon the power of the Commonwealth with respect to inter-State and foreign trade and commerce. If the plaintiff were right in these contentions and reg. 200B valid as so construed, there could be no question in my opinion of the consistency of the Air Transport Act with the said regulations. The Act would plainly be inconsistent. But in my opinion, neither the external affairs power, nor s. 51 (i.) will support reg. 200B with such an operation in relation to intra-State commercial air transport. (at p85)
42. I find no need in this case for any general discussion of the external affairs power. Some exposition of it is to be found in Burgess' Case [1936] HCA 52; (1936) 55 CLR 608 and in The King v. Poole; Ex parte Henry [1939] HCA 19; (1939) 61 CLR 634 . Suffice it now to say that in my opinion the Chicago Convention, having regard to its subject matter, the manner of its formation, the extent of international participation in it and the nature of the obligations it imposes upon the parties to it unquestionably is, or, at any rate, brings into existence, an external affair of Australia. (at p85)
43. In thus enumerating matters which in this case point to the Convention being or creating an external affair of Australia, I would not wish to be thought to say that all these features must in every case be present if a treaty or a convention is to attract the external affairs power, but I would wish to be understood as indicating that in my opinion, as at present advised, the mere fact that the Commonwealth has subscribed to some international document does not necessarily attract any power to the Commonwealth Parliament. What treaties, conventions, or other international documents can attract the power given by s. 51 (xxix.) can best be worked out as occasion arises. (at p85)
44. Once it is decided, however, that some treaty or convention is, or brings into being, an external affair of Australia, there can be no question that the power under s. 51 (xxix.) of the Constitution thus attracted is a plenary power and that laws properly made under it may operate throughout Australia subject only to constitutional prohibitions express or implied. In particular, laws properly made under this power may operate throughout Australia without regard to the distinction between inter-State and intra-State trade and commerce to which observance must be paid in other connexions: see Burgess' Case [1936] HCA 52; (1936) 55 CLR 608 and Poole's Case [1939] HCA 19; (1939) 61 CLR 634 . (at p86)
45. But where a law is to be justified under the external affairs power by reference to the existence of a treaty or a convention, the limits of the exercise of the power will be set by the terms of that treaty or convention, that is to say, the Commonwealth will be limited to making laws to perform the obligations, or to secure the benefits which the treaty imposes or confers on Australia. Whilst the choice of the legislative means by which the treaty or convention shall be implemented is for the legislative authority, it is for this Court to determine whether particular provisions, when challenged, are appropriate and adapted to that end. The Court will closely scrutinize the challenged provisions to ensure that what is proposed to be done substantially falls within the power. As Dixon J. (as he then was) said in Burgess' Case [1936] HCA 52; (1936) 55 CLR 608 what the legislature does in such a case must be no more than "a faithful pursuit of the purpose, namely, a carrying out of the external obligation" (1936) 55 CLR, at p 674 or, as I would respectfully add, the securing of the benefit which the treaty or convention gives. See also per Starke J. in the same case (1936) 55 CLR, at p 658 and per Evatt and McTiernan JJ. (1936) 55 CLR, at p 688 . (at p86)
46. What is said by the plaintiff in the present case in its support of reg. 200B is that there has been cast upon the Commonwealth by the Convention an obligation to promote the efficiency and regularity of air navigation as well as to secure its safety, and that a law conferring a right upon an operator to conduct an air transport service is an appropriate means of promoting the efficiency and regularity of air navigation. For the principal support for its submissions the plaintiff relies upon the terms of art. 37 of the Convention, seeking at the same time to derive some assistance from the wide ranging scope of the Convention and of the annexes which the International Civil Aviation Organization has adopted. (at p86)
47. An examination of the Convention clearly shows in my opinion that the relevant obligation cast upon Australia is to endeavour to achieve "uniformity of regulations, standards, practices, procedures and organization in relation to aircraft personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation". While the object of achieving this uniformity is the safety and orderly growth of civil aviation throughout the world, there is no general obligation expressly imposed by the Treaty upon its adherents to achieve the safety or, for that matter, the convenience of air navigation to any particular degree or in any particular aspect outside and beyond the observance of the annexes to be adopted by the International Civil Aviation Organization set up under the Convention and of such further arrangements as emerge from international co-operation under the Treaty. But I do not think the Convention should be read narrowly, and I think that there is to be found within its terms an obligation upon the Commonwealth to secure uniformity of regulations, standards, practices, procedures and organization in air navigation throughout Australia as a step towards uniformity as between Australia and the other contracting States in relation to regulations, standards, practices, procedures and organization in civil air navigation. In my opinion the Commonwealth can carry out this obligation in advance of uniformity being achieved by other contracting States either within their own territories or with one another's territories. (at p87)
48. But an obligation to secure uniformity in the matters which I have described in the language of art. 37 and to do so in conformity with the annexes which have been adopted by the International Civil Aviation Organization in performance of the terms of that article and in conformity with the aims and objects set out in art. 44 will not carry the plaintiff to the conclusion which its counsel and the counsel for the Commonwealth have pressed upon the Court. There is no obligation imposed upon the contracting parties to promote efficiency and regularity of air navigation (particularly in the sense which the plaintiff attributes to these words) as objectives in themselves. In my opinion, the highest obligation flowing from the Convention is to secure in Australia uniformity of standards, practices, procedures and organization to the extent mentioned in art. 37, and where annexes have been relevantly adopted to achieve uniformity according to the standards, practices and procedures which they do adopt. All regulations which are appropriate to securing such uniformity in those respects can, in my opinion, operate throughout Australia, and where they affect commercial air transport can do so in disregard of the constitutional dichotomy of trade and commerce into intra-State and inter-State trade and commerce but not, of course, in disregard of constitutional prohibitions such as s. 92 to which s. 51 (xxi), like all other legislative powers of the Commonwealth, is subject. (at p87)
49. No doubt one of the aims or objectives of, as distinct from the obligations imposed by, the Convention is the promotion of international air navigation, see preamble and art. 44 in its opening words and in pars. (c), (d) and (i.) of that article. In a sense, in a real sense, the growth of air navigation by the commercial transport of people and goods within Australia, must tend to increase the volume of international air navigation. Intra-State commercial air transport feeds inter-State and to some degree international commercial air transport. But these commercial realities do not warrant the legal conclusion that even if there were an obligation cast upon Australia by the Convention to stimulate international air navigation, a law encouraging or stimulating air navigation within Australia or within any State of Australia would be a law validly made in pursuance of a power to implement the Convention. (at p88)
50. I have also examined the annexes to the Convention to see whether there is any particular obligation cast upon Australia by reason of their terms which would support the plaintiff's contention. The annexes cover a wide band of standards, procedures and practices which, if observed, must contribute greatly to the safety of air navigation in the areas where they are observed. That visiting aircraft should understand and observe them will increase the safety of air navigation in that area. But I do not find any part of any annex, or any combination of annexes or parts of annexes, which places an obligation on the Commonwealth to encourage air transport operations or to authorize or enfranchise persons to carry them on. In my opinion therefore, nothing in the Convention or in the annexes would attract to the Commonwealth the power under s. 51 (xxix.) to make reg. 200B operate in the sense I have mentioned in relation to intra-State air navigation. (at p88)
51. It seems to me that these considerations also dispose of the argument that s. 51 (i.) would support reg. 200B. It is one thing to say that the safety of inter-State and international commercial air transport cannot be secured without including intra-State commercial air activities within the operation of the safety measures: it is quite another to say that the stimulation or authorization of intra-State commercial air services is in any sense a safety measure. The non-existence of a commercial air transport service does not endanger the air operations of those who do operate commercial air transport services. Nor does the fact that inter-State air navigation profits by or to a significant extent depends upon the existence of intra-State air navigation warrant the conclusion that in fostering inter-State and foreign trade, the Commonwealth may stimulate and encourage intra-State trade. Consequently, reg. 200B in its operation upon intra-State air navigation derives no support from ss. 51 (i.) or 51 (xxix.). In my opinion in its purported operation in respect of intra-State commercial air transport it is invalid. (at p88)
52. I will now turn to the group of regulations in Pt XIII of the Regulations, which set up the system of issuing airline licences. There is no need for me to set out these regulations in detail. Those in particular dispute are regs. 198 and 199 and each needs to be read with reg. 6 (1), particularly reg. 6 (1) (f). (at p89)
53. It was submitted to the Court by the plaintiff that, quite apart from reg. 200B, a licence granted under this system of licensing amounted to the grant of a right or authority to carry passengers and goods in the public air transport operations to which the licence related despite any law of the State which would otherwise prevent those operations being carried on. The reasons which I have given for thinking that reg 200B is invalid in relation to intra-State air navigation would lead to the conclusion that so read this licensing system in relation to intra-State commercial air transport would be invalid. But in my opinion, the said regulations do not purport to grant any such right or authority. Indeed, it would be difficult to conclude that they did in their present form, having regard to the presence of reg. 200B. (at p89)
54. The licence issued under the Regulations does not purport to be and is not the source of authority to carry the goods and passengers by air. This is so, whether the named places are within a State, or in different States, or in different countries. In the case of inter-State and foreign public air transport operations, the right to carry passengers and goods, but for reg. 200B, would be derived from the common law operating in the Commonwealth, there being no prohibition by Commonwealth law of the carriage of passengers and goods by air. The right to carry inter-State and to foreign countries is not derived in those cases from the airline licence alone but now from reg. 200B operating upon the licence (at p89)
55. Some examination of the particular regulations in the licensing scheme is necessary for a full appreciation of what that licensing system seeks to achieve. (at p89)
56. Aircraft are classified according to the type of operation in which they are being employed at any given time and may only be used in the class of operation if the particular type of aircraft is authorized and approved by the Director-General for such use: s. 8, regs. 192 and 193. (at p89)
57. One of the classifications of use of aircraft is "regular transport operations" which are defined by reg. 191. Regulation 198 forbids the use of an aircraft in regular public transport operations except under the authority of and in accordance with a licence called an "airline licence" issued by the Director-General. Regulation 199 provides for the application for and the grant of an airline licence, dealing with a licence for an inter-State service on a special basis because of constitutional considerations. In the case of an application for an airline licence for a service which is not an inter-State service the Director-General is authorized to grant or to refuse the licence or to grant it upon such conditions as he considers necessary. But the amendment of 19th October 1964 provides, in substance, that in such a case the Director-General, in considering whether or not to grant an airline licence and in determining the conditions upon which a licence should be granted, should have regard only to matters concerned with the safety, regularity and efficiency of air navigation. (at p90)
58. In my opinion, this regulation, on its proper construction here refers to the safety, efficiency and regularity of air navigation generally and is not limited in its meaning to international or inter-State air navigation. Also, in my opinion, the regulation is referring in the expression "safety, regularity and efficiency" to air navigation, not to the efficiency and regularity with which an airline operator conducts the commercial aspects of his business generally, as I think the plaintiff was inclined to read it. But the manner in which the applicant carries out these business operations will in some respects closely affect the efficiency and regularity of air navigation, a word which is not defined but clearly includes commercial air transport. The word "regularity" has, it seems to me, in this context the sense of "propriety" - conforming to standards, regular because conforming: such standards including punctuality of operation and the meeting of schedules, an aspect of its meaning which is clearly significant in relation to the safety of air navigation. See reg. 106C, reg. 94 (1) (b) and (d). (at p90)
59. The form of licence is that by it the Director-General licenses the use by the named operator of aircraft of a specified type in regular public transport operations conducted in accordance with approved fixed schedules between specified fixed terminals subject to compliance by the licensee and the aircraft used in the operations with the provisions of the Commonwealth Air Navigation Act and the Regulations. As the decision to grant the licence is grounded solely on considerations of safe, efficient and regular air navigation, the use of the aircraft considered safe to be used by the particular operator when it is carrying goods or passengers upon the particular routes is covered by the licence. (at p90)
60. A material distinction, in my opinion, must be made between the carriage by aircraft of passengers and goods between places and the use of an aircraft when it is carrying passengers or goods between places. The distinction to my mind is critical to the resolution of the problem which this case presents. As I have already indicated, the Commonwealth can neither prohibit nor authorize the carriage of passengers or goods between places within a State under any power presently relevant: but, in my view, it can prohibit or license the use of an aircraft which is so carrying passengers or goods. (at p91)
61. The distinction and the limited nature of the licence under the Regulations can be illustrated by taking the case of an aerial work licence covering agricultural operations. The licence under the Regulations authorizes the use of an aircraft when engaged in such operations but it does not authorize those operations. It presupposes that those operations are lawful where or when carried on: and if they are not, the licence to use aircraft in them is ineffective to make them so. (at p91)
62. I turn now to express my view as to the basis upon which the validity of the licensing system under Pt XIII of the Regulations, particularly in relation to intra-State air navigation, should be put, for in my opinion regs. 198 and 199 are valid as applied by reg. 6 (1) (f) to intra-State air navigation. (at p91)
63. I do not find any obligation laid upon the Commonwealth by the Convention or by the provisions of any of the annexes to set up and maintain such a system of licensing as is set up by the said regulations; nor can I see that any such system could be said to be necessary for the performance of any obligation which is laid upon Australia, or to secure any benefit obtained by Australia, by or under the Convention. But there is nothing in the Convention or its annexes inconsistent with the inception and maintenance of such a system. However, though it cannot be justified by reference to any express or implied obligation so to do, the setting up and maintenance of such a system is in my opinion an appropriate means of securing the observance of those regulations which are properly made in carrying out the Convention, i.e., regulations to produce uniformity of air navigational procedures and practices in Australia as contemplated by the Convention or laid down in its annexes. Therefore, in my opinion, to the extent that it is merely a means of securing that observance, the licensing system could be justified by reference to the external affairs power. (at p91)
64. However, I prefer to refer the validity of this group of regulations, including their operation upon intra-State commercial air transport operations to the trade and commerce power: s. 51 (i.). This power, in my opinion, will fully support them on a wider basis than will the external affairs power. (at p91)
65. The power given by s. 51 (i.) includes power not merely to protect but to foster and encourage inter-State and foreign trade and commerce. Thus, in relation to inter-State and foreign commercial air transport, both as itself commerce and as a vehicle for commerce, the power extends to the making of laws both to secure its safety and to encourage its growth. (at p92)
66. The plaintiff placed before the Court a great deal of evidence descriptive of the use and control of aerodromes, flight paths, controlled air space, navigational aids, systems of communication, and a number of other matters from which the clear conclusion must be drawn that the safety of air operations in Australia does not admit of any distinction being drawn between aircraft engaged in intra-State and those in inter-State or international air operations in connexion with all those matters which go to make up what I can compendiously call safety precautions and procedures. These extend over the detailed, inter-related and complex, often technical matters to which the Regulations address themselves, the determination of the airworthiness of aircraft, the suitability of particular aircraft for particular work, including their suitability for use on a particular route by a particular operator, the maintenance and overhaul of aircraft, the inspection and preparation for flight, the manning and equipment of aircraft, including its communication and emergency equipment, the movement of aircraft on the ground, the course, flight path and conduct of aircraft in the air, their times of departure and arrival, their loading limits and the like. (at p92)
67. I think the conclusion from the evidence is little, if anything, more than what I would think is within the common knowledge and understanding of all who for one moment contemplate the situation. The speeds at which aircraft move in the air, the narrow - and narrowing - margins of time in which consequences of error or malfunction may be avoided or reduced, the increasing density of air traffic, the interdependence of the safety of one aircraft upon the performance of other aircraft, the hazards of weather and the variable performance of aircraft leading to diversion and re-routing of aircraft in flight, the need for the use of common facilities for communication or navigation and the centralizing of air navigation in Australia tending to increasing congestion around the metropolitan airports all combine to demonstrate that all air operations irrespective of destination or of their particular nature must be subject to the same control if the air is to be safe for inter-State and foreign commercial air transport: and, if inter-State and international commercial air traffic is to be encouraged more than minimal standards of safety are required. Consideration of these factors coupled with the extreme consequences of air accidents leads also to the conclusion that the range of precautions to prevent such accidents must be extremely extensive. (at p93)
68. In addition, the timely and reliable arrival of passengers and goods carried by air is a potent factor in the development of inter-State and foreign commercial air transport. Thus, the efficiency and regularity with which air operations are conducted in Australia have two aspects in relation to inter-State and foreign trade and commerce carried on by air. Efficiency in maintenance of aircraft on the ground and in their operation in the air bears directly upon the safety of the air operation itself and also upon the likelihood of the maintenance of schedules. The regularity of air operations, in the sense of conformity to the requisite procedures, clearly conduces to air safety. So also does the maintenance of schedules; for example, the holding of aircraft around a congested aerodrome because of delayed arrival or departure of other aircraft exposes the held aircraft to hazard. But as well, such efficiency and regularity is an encouragement to the development of inter-State and foreign commercial air transport. (at p93)
69. The expression, "safety, regularity and efficiency of air navigation" is to be found in art. 37 of the Convention and is repeated in reg. 199 (4). But, in my opinion, it derives no significance in that regulation from the Convention. Yet, whatever the draftsman may have had in mind in its use in that regulation, in my opinion, the expression does cover matters to which Commonwealth laws in relation to air navigation may properly extend; as used in that regulation it does not include any considerations which the Commonwealth could not validly authorize the Director-General to have in mind when considering the grant of an airline licence under the said regulations. (at p93)
70. It is thus in my opinion within the competence of the Commonwealth under s. 51 (i.) to make laws to secure and promote the safety of the air, including the efficiency and regularity of inter-State and foreign air operations, as a means of protecting and fostering inter-State and foreign trade and commerce. Because of the intrinsic factors connected with flight and of the factual situation in which air navigation takes place in Australia, such laws may validly in my opinion include within their operation intra-State air navigation. (at p93)
71. I now turn to an aspect of the system of licensing which is to my mind of great importance in this case. It may well be that in some situations, authorities having power to secure the safety of the air will be satisfied to endeavour to achieve their purpose by a series of prohibitions, either absolute or qualified. But the view may reasonably be held that because of the high penalties to be paid for unsafe or inefficient flight and of the discouragement to commerce of air accidents and delays, it is not enough to rely upon a series of substantive rules or prohibitions even though severe penalties are provided. Although the safety rules and procedure made and laid down with respect to air navigation may be most detailed and cover as many situations as can be conceived as likely to arise, there must remain a substantial area within which the well-intentioned judgment of the individual airline operator and his capacity as such will be at least important if not at times critical to the safety, efficiency and regularity of the air operations. In Div. 2 of Pt XIII will be found a number of instances in which matters of safety, mostly matters of degree, are left to the judgment of the airline operator. The standard of selection of personnel which carry on, and of the organization which supports, the air operations, the will, as well as the ability to observe the Regulations, are all factors which directly and intimately bear on the safety of the air operations of the operator, and therefore upon all the air operations upon which those operations inevitably have an impact. The marshalling of all those various elements in the interest of the safety of the air is effected by the system of licensing, in which the suitability of the operator as well as that of the aircraft for use by him on the specified routes is considered from the point of view of the safety, efficiency and regularity of air navigation generally. The system of licensing under Pt XIII of the Regulations is thus, in my opinion, itself a substantial safety procedure, and not merely a means of ensuring the observance of the other substantial safety rules and procedures which the Regulations lay down. Because of the inevitable impact of unsafe, inefficient or irregular air operations of an intra-State airline operator upon the safety of the air for inter-State and foreign trade and commerce by air, and upon the development of that trade and commerce, the Commonwealth system of licensing, as itself a safety procedure as well as being a means of ensuring observance of other safety measures, in my opinion, can validly include in its operation intra-State commercial air transport operations and operators. A prohibition coupled with a licensing system in which, except as to inter-State commercial air operations, the Director-General has a discretion to grant or refuse a licence, having in mind only the considerations of the safety, efficiency and regularity of air navigation, is in my opinion clearly within Commonwealth power. (at p95)
72. Some discussion took place in the course of the argument of the case as to whether or not the licence issued under the Regulations was but the relaxation of a prohibition or was an authority. Because a distinction between the carriage of goods and passengers by air and the use of an aircraft when carrying goods and passengers was not made, it was apparently thought that the choice was between regarding the licence as merely removing the restrictions imposed by reg. 198 and regarding it as an authority or franchise to carry goods and persons on the specified routes. But as I have already pointed out, whilst reg. 200B sought to give this latter effect to the licence, the licence itself does no more than authorize a named operator to use specific aircraft upon the specific route, the actual flight path being dictated by air control to which the licence is subject. But to say that the licence is but the relaxation of the prohibition of the use of an aircraft in regular public air transport regulations is in my opinion an inadequate analysis. Where an authority having power to prohibit an act licenses the doing of that act, the licence may properly be regarded as no more than permission to do that so far as the grantor's control of the matter extends. But where the licence is granted under the paramount law of a legislature which has full control of the particular activity, the licence assumes the aspect of an authority to do the act in question. (at p95)
73. In my opinion, the Commonwealth has not only power to make the regulations setting up this system of airline licences, but it has the power to make those regulations the only law to operate with respect to the licensing or authorizing of aircraft for use in public air transport operations and in my opinion it has done so. Indeed, it would in my view be a strange conclusion that in setting up this licensing system as itself a safety measure, the Commonwealth merely intended to reserve to itself a veto on the choice by the State of the aircraft to be used by a particular operator in air operations, to make itself merely the final as distinct from the sole and exclusive authority to determine what aircraft should be used in public air transport operations. If the charcteristics of aircraft and the identity of the operator and their inter-relationship are themselves safety factors in relation to the use of the air by inter-State and foreign trade and commerce, it would be incongruous in my view that the suitability of the aircraft and the identity of the operator should be established as the result of compromise and accommodation between administrators subject to different ministerial control, one of whom is not necessarily concerned with the safety of the air. It may be thought that the State has matters to be considered in the choice of the airline operator and of the aircraft other than those connected with the safety of the air and that to allow the Commonwealth to be the exclusive authority to determine who shall operate and with what aircraft upon intra-State air routes, upon air safety considerations alone, is to leave a void with no legislative or administrative authority to deal with those other considerations or purposes to which the State may wish to address its legislation. But, as I have pointed out, if the Commonwealth has expressed its intention to be the sole authority in the licensing of the use of aircraft in air operations in Australia, there is no room for any State law on that subject. If the State desires to further its policies it must, in my opinion, find some other legislative field than the licensing of aircraft for use in air operations. (at p96)
74. The next matter is the validity of reg. 6 (1) (f). I do not think any question of the validity of this regulation standing alone really arises. It should not be read, in my opinion, as constituting an attempt by the Commonwealth to legislate in respect of intra-State air navigation as itself a topic of legislation. The proper use to be made of reg. 6 (1) (f) is to read it with each regulation and to decide in each instance the substantial question whether that regulation as so applied to intra-State air navigation is valid. (at p96)
75. The principal purpose of reg. 6 as a whole in its original form was, as this Court found in the former case between these parties, to limit the operation of the Regulations generally and in particular to exclude from that operation intra-State air navigation except in controlled air space Regulation 6 (1) (f), inserted by amendment, seeks to remove this limitation. With reg. 6 now applying the Regulations almost universally, reg. 6 as a whole performs more plainly a function it in fact also performed before, namely the function of facilitating a severance and allowing the validity of each regulation in its application to any of the various classes of air navigation to be determined without impairing its valid application to any other class. I have already dealt with regs. 320A, 320B, 200B, and the group of regulations from Pt XIII in which the system of licensing of airline operators is found, and have expressed my opinion as to their validity in relation to their operation upon intra-State commercial air transport. These opinions cover any question of the validity of any particular operation of reg. 6 (1) (f). (at p96)
76. Those views have been expressed on the footing that only the external affairs power or the inter-State and foreign trade and commerce power could be regarded as supporting such of the said regulations as I think are valid. But the plaintiff seeks to support its submissions by what its counsel called a combination of powers - powers which I earlier enumerated in referring to the plaintiff's submissions. But, in my opinion, the plaintiff's argument obtained no strength or added persuasion by this reliance upon more than one power to support all or any one or more of the said regulations in their operation upon intra-State air navigation. A statute or regulation with but one operation may be supported by several powers because it may at the same time be a law with respect to more than one of the subjects upon which the Commonwealth may legislate. But these powers, the incidental power (xxxix.) apart, may not be combined so as to produce a power to do more than what is authorized by that power which will sustain the most extensive operation of the law. Accordingly, whilst I think there are occasions on which a statute or regulation may be supported alternatively on one or more of the paragraphs of s. 51, I do not think that any such legislative provision, if unsupported by any of those powers, can be supported by some supposed combination or aggregation of those powers. Of course, a statutory provision, be it Act or regulation, may, though in a sense a single law, have an operation in several aspects, e.g. reg. 198 in relation to territorial airlines, inter-State airlines etc. In such a case, it may well be that in relation to the several aspects of its operation each can be supported by a different power: and, regarded as a whole, its validity may be said to be supported by a number of those powers. But that can only be said because the regulation in the various aspects of its operation draws support from the various powers. It does not mean that in any single aspect of the operation or in the total operation of the statute or regulation greater power is derived from a combination of the several powers. In the present case, in my opinion, none of the said regulations obtains any support for its operation in relation to intra-State commercial air navigation in any way relevant to the present questions from a supposed combination of the powers enumerated by the plaintiff or from a combination of any two or more of them, nor from any one of those powers, except the two with which I have dealt. (at p97)
77. I should pause at this point to sum up my principal conclusions before passing to the question of inconsistency. The State has power and the Commonwealth has none to prohibit or to authorize the carriage of passengers and goods by air between places within the State. The Commonwealth has power, as a safety measure securing the safety of the air for inter-State and foreign commerce to prohibit the use of aircraft in the course of regular public transport operations within Australia, including such operations wholly within any State, unless there exists an airline licence authorizing the use of such aircraft by a specified airline operator upon a specified route. The safety, efficiency and regularity of air navigation generally can properly be the exclusive consideration on which the issue of such a licence depends. The identity, including the relevant capacity and organization of an airline operator, is a part of these considerations. Regulations 200B is invalid as an attempt to authorize the carriage of goods and persons by air in intra-State air operations: but regs. 198 and 199 are a valid exercise of the Commonwealth's power under s. 51 (i.) as measures securing the safety of the air for inter-State and foreign trade and commerce and validly extend to intra-State air navigation. Both from their subject matter and from their terms, the proper conclusion is that the Commonwealth intended these regulations to be the only law on the matter of licensing or authorizing the use of aircraft in public air transport operations within Australia, including such operations wholly within any State. (at p98)
78. The final, and perhaps the most difficult matter in the case is whether the Air Transport Act is inconsistent with regs. 198 and 199 as applied to intra-State public air transport operations. The matter with which these regulations affect to deal on an exclusive basis in the licensing or authorizing of the use of aircraft by airline operators in public air transport operations. Does the Air Transport Act affect to enter the field thus occupied by those regulations ? (at p98)
79. The Act by ss. 3 (read with the definition of "carry"), 5, 6, prohibits the carriage of passengers and goods by an aircraft unless that aircraft is licensed by the Commissioner for the particular route, if the carriage is over a route, and the carriage is by the person holding the licence of the aircraft. It can thus be seen that the Act does not confine itself to prohibiting the carriage of goods and passengers by air between places within the State, unless with the permission or authority of the Commissioner. As I have already indicated, I have no doubt that such a provision would not be inconsistent with regs. 198 and 199 as applied to intra-State air navigation. To forbid the carriage of goods or passengers absolutely, or subject to qualifications unconnected with the aircraft or its operator, is in my opinion quite consistent with the requirement of a licence to use aircraft of a specified type when carrying passengers or goods between those places. It may be that the State licenses one person to carry passengers and goods between places within a State and the Commonwealth licenses only one and a different person to use aircraft when carrying passengers or goods between those places. Such a situation may result in there being no carriage of passengers or goods at all between such places - the deadlock or stalemate of which counsel made a great deal during argument. But such a result does not demonstrate inconsistency in a constitutional sense of the laws under which the licences are respectively granted. (at p99)
80. No doubt one of the purposes of the Act is to provide for the co-ordination of the various forms of transport within the State, a matter clearly beyond the competence of the Commonwealth in peace-time: s. 6 (3) (a) (b) and (e). But the Act is not confined to that matter. The Act, both in form and in substance, seeks by a system of licensing to determine the aircraft which is to be used in such carriage and the identity of the airline operator who shall use the aircraft designated by the Commissioner upon the particular route: s. 6 (3) (c) and (d). That the Act by s. 18 affects, as it were, to subject the Commissioner's decision as to the aircraft and the operator to the veto of the Director-General and does not expressly refer to the suitability of the aircraft as one of the matters to be considered under s. 6 (3) does not detract in the least from the view that the State Act does seek to enter the field of the licensing of aircraft for use by an airline operator on the stated route. (at p99)
81. Here, the Commissioner is authorized by the Act to license an aircraft which may not have a certificate of airworthiness or an aircraft of a different structure or capacity to that which the Director-General is prepared to allow to operate on the particular route in the hands of the particular operator. A priori, it might be thought that there is room for the State without impairing air safety standards and precautions to have added requirements for an aircraft beyond its airworthiness and the qualities which the Director-General would otherwise accept in the circumstances. But this, it seems to me, with every respect to those who think otherwise, is not a proper conclusion. The size and nature of the terminal aerodromes and of their navigational facilities, the speed, fuel-carrying capacity, the availability of alternative landing grounds for such a craft, the way its operation fits into the overall traffic pattern of the area or of the terminal aerodromes, or of the air space through which the aircraft must operate on such a route all interact and need close consideration in the determination of what is the appropriate aircraft which can with most safety be used on a route. There is no room, in my opinion, for any added or other requirements by the State for the aircraft which is to be used in intra-State air navigation beyond those which the Director-General has taken or will take into consideration in the grant of his licence. (at p99)
82. It seems to me, therefore, that in choosing to effect its control over the carriage of passengers and goods by air within the State by means of a system of licensing of aircraft for particular routes in the hands of particular airline operators, the State has made a law which is inconsistent with regs. 191 (a), 191 (d), 193 (1), 198 and 199 as applied to intra-State commercial air transport by reg. 6 (1) (f). The licensing provisions of the Act being inconsistent and inoperative, the prohibition in the form it takes in s. 3 must also in my opinion be inoperative. There is no room, in my opinion, to hold that s. 3 can remain operative as an unqualified prohibition of the carriage by air of passengers or goods intra-State - a prohibition incapable of being relaxed because of the inoperation of s. 6. (at p100)
83. Accordingly, I would answer the questions as follows: 1. Regulations 191, 198 and 199, as applied to intra-State air navigation by reg. 6 (1) (f) and regs. 320A and 320B are valid laws of the Commonwealth. Regulation 200B as so applied is invalid. 2. The State Air Transport Act, ss. 3, 6, 7 and 8, is inconsistent with regs. 191, 198 and 199, as applied to intra-State air navigation by reg. 6 (1) (f). (at p100)
McTIERNAN J. The Air Navigation Regulations to which the first question refers are in force under the Air Navigation Act 1920-1963, an Act passed by the Commonwealth Parliament. The provisions of the Act are in the main legislation to enforce and carry out international obligations in respect of air navigation, and fall within the power conferred on the Parliament by s. 51 (xxix.) of the Commonwealth Constitution to make laws with respect to external affairs. The other constitutional bases of the Act are the powers conferred by s. 122 to make laws in relation to air navigation within a Territory and to and from a Territory, and by s. 51 (i.) to make laws in relation to air transport, being laws with respect to trade and commerce with other countries and among the States. (at p100)
2. By s. 26 (1) regulations may be made 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 and 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." By s. 26 (2) regulations may be made under these powers in relation to a number of matters set out in this sub-section, which include "(c) the licensing of air transport operations", and "(e) the establishment, maintenance, operation and use of aerodromes and air route and airway facilities and the licensing of aerodromes other than aerodromes maintained by the Commonwealth". (at p101)
3. I refer to three articles of the Convention which are as follows. Article 12 is in these terms: "Each contracting State undertakes to adopt measures to insure that every aircraft flying over or manoeuvring within its territory and that every aircraft carrying its nationality mark, wherever such aircraft may be, shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force. Each contracting State undertakes to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention. Over the high seas, the rules in force shall be those established under this Convention. Each contracting State undertakes to insure the prosecution of all persons violating the regulations applicable." Article 28: "Each contracting State undertakes, so far as it may find practicable to: (a) Provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention; (b) Adopt and put into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time, pursuant to this Convention; (c) Collaborate in international measures to secure the publication of aeronautical maps and charts in accordance with standards which may be recommended or established from time to time, pursuant to this Convention." Article 37 relates to the adoption of international standards and procedures. It says: "Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with: (a) Communications systems and air navigation aids, including ground marking; (b) Characteristics of airports and landing areas; (c) Rules of the air and air traffic control practices; (d) Licensing of operating and mechanical personnel; (e) Airworthiness of aircraft; (f) Registration and indentification of aircraft; (g) Collection and exchange of meteorological information; (h) Log books; (i) Aeronautical maps and charts; (j) Customs and immigration procedures; (k) Aircraft in distress and investigation of accident; and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate." (at p102)
4. Fifteen annexes, each within the scope of s. 26 (1) (b), are included in the materials before the Court. These materials also include affidavits showing the working of the system based on the provisions of the Act and Regulations for the control of aviation in Australia, and proving the development of air traffic. Mr. Menhennitt prepared a case which was the basis of his argument containing a table of topics dealt within by the annexes and related sections of the Act and regulations made under it. (at p102)
5. In the case of The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 , a question was whether certain Air Navigation Regulations of the Commonwealth were justified, having regard to the "Paris Convention". The principles upon which this question should be decided were stated at length by Latham C.J. (1936) 55 CLR, at pp 645, 646 and Starke J. (1936) 55 CLR, at pp 659, 660 . Dixon J. said: " . . . they (the Regulations) must be reasonably incidental to carrying out and giving effect to the convention" (1936) 55 CLR, at p 673 . There are references to the same matter in the reasons of Evatt J. and myself. Regulation 6 of the present Air Navigation Regulations delimits the legislative field indicated by the expression "air navigation" for the purpose of the operation of the regulations. Dixon J. said in The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 : "'Air navigation' is an indefinite expression and might be used to describe transport by air. But its association in the Act with the (Paris) convention for the regulation of aerial navigation shows that it is intended to cover a much wider field. The legislature has not addressed itself to the use of aircraft as instruments of inter-State commerce and then, in order to ensure the effectiveness of the regulations adopted for that purpose, gone on to take or authorize consequential measures in relation to aircraft not so used." (1936) 55 CLR, at p 672 . By s. 26 (1) (d) of the present Act the Parliament did address itself to the use of aircraft as instruments of commerce with other countries and among the States. (at p102)
6. Regulation 6 (1) provides that, subject to the Regulations, they are to apply to the kind of air navigation specified in par. (e). This covers intra-State air navigation and its insertion in reg. 6 (1) is consequential upon the preceding paragraphs, each of which specifies a kind of air navigation which is of itself a subject of legislative power. For example par. (b) specifies "air navigation in relation to trade and commerce with other countries and among the States". The constitutional basis of par. (e) is to ensure the effectiveness of the regulations made in relation to air navigation specified in the preceding paragraphs. This basis consists of the criteria stated in par. (e) of its application to each of the kinds of air navigation specified in (i) and (ii) of this paragraph. Paragraph (e) does not cover all air transport within the limits of a single State; it covers only air transport on routes in controlled airspace (see the definitions in reg. 5 (1) of "control area", "control zone", and "controlled airspace", reg. 95, Pt IX, div. 1). (at p103)
7. Dixon C.J. in a reference to the Chicago Convention said in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 : "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.) of the Constitution 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" (1964) 113 CLR, at p 27 . After the decision in this case the Regulations were amended. By Statutory Rules, 1964, No. 128, reg. 3, par. (f) was inserted into reg. 6 (1). This amendment results in the extension of this sub-regulation to intra-State air navigation making no distinction between flying in and beyond controlled airspace. Further the amendment results in the extension of reg. 6 (1) to all air transportation operations within the limits of a single State. In my opinion reg. 3 (abovementioned) is a good exercise of the powers conferred upon the Governor-General in Council by s. 26 (1) (a) and (b) of the Act. (at p103)
8. Regulations 198, 199 and 200B are to be found in Pt XIII, Div. 1, headed respectively "Air Service Operations", "Classification and Licensing of Operations". Regulation 191, the first in Div. 1, divides air transport into classes designated as private, aerial work, charter and regular public transport operations. The operations included in each class are set out in the regulation. (at p103)
9. Regulations 198, 199 and 200B are three of a group of regulations of which reg. 195 is the first. Two regulations concerned with the safety of aircraft used in any of these operations precede reg. 195. This regulation is as follows: "Aircraft engaged in private operations shall comply with the provisions of these Regulations and such additional conditions as the Director-General from time to time directs in the interests of safety." Regulation 196 prohibits the use of an aircraft in aerial work operations without an "aerial work licence". Regulation 197 does the same thing in the case of charter operations. In that case the operator is required to have a "charter licence". Regulation 198 is the same sort of provision as reg. 196 or 197 (1). The words of reg. 198 are: "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." Regulation 199 (1) provides the procedure for making an application to the Director-General for a licence of one of these three kinds. Sub-regulation (2) applies where the proposed service is inter-State. By reg. 202 this means "a service by way of, or in the course of, trade and commerce among the States" (see Statutory Rules 1964, No. 128, reg. 11). The rest of reg. 199 is of immediate concern: "(3) Subject to the next succeeding sub-regulation, where the proposed service is other than an interstate service, the Director-General may issue an aerial work, charter or airline licence, as the case requires, upon such conditions, in addition to compliance with these Regulations, as the Director-General considers necessary or may refuse to issue a licence. (4) Where the proposed service does not involve air navigation of a kind specified in paragraph (a), (b), (c), (d) or (da) of sub-regulation (1) of regulation 6 of these Regulations, the Director-General shall, on and after the date fixed for the purposes of paragraph (f) of that sub-regulation, in deciding whether or not to grant an aerial work, charter or airline licence, and in determining the conditions upon which the licence is to be granted, have regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters." The exclusion of the paragraphs which are mentioned confines the direction given in sub-reg. (4) to applications for licences to use aircraft in services which par. (e) or (f) of reg. 6 (1) cover, and therefore air transport operations within the limits of a single State. Sub-regulation (4) was introduced into reg. 199 by Statutory Rules 1964, No. 128, reg. 6. (at p104)
10. By reg. 5 (1), "airline" means "the operator of a regular public transport service", and "operator" means "a person, organization, or enterprise engaged in, or offering to engage in, an aircraft operation". In my opinion an airline licence is not in itself a legal right to carry on the proposed service: it is a permission without which it would be a breach of the Regulations to operate it by aircraft. The licensing of the use of aircraft required by reg. 196, 197 and 198 is an alternative to the method of control under reg. 195 which is a direct command to the private operator to comply with the regulation and such additional conditions as the Director-General from time to time directs in the interests of safety. (at p105)
11. Regulation 203A, inserted by Statutory Rules 1964, No. 128, reg. 13, should be noticed. The words of reg. 103A are: "In exercising any power or performing any function under this Division, the Director-General shall have regard to the need for co-ordinating, in the interests of safety in air navigation, all operations of the kinds referred to in regulation 191 of these Regulations." (at p105)
12. Regulation 200B, inserted by reg. 9 of the same Statutory Rules, provides: "An aerial work licence, a charter licence or an airline licence authorizes the conduct of operations in accordance with the provisions of the licence but subject to the Act and these Regulations and to the other laws of the Commonwealth." This regulation was described by Mr. Menhennitt as a grant of a positive authority to carry on the air service operations in respect of which the licence is issued. (at p105)
13. It is necessary to consider whether regs. 198, 199 (3) and (4) validly apply to air transport operations within the limits of a single State. No provisions for licensing air transport operations appear in any annex or in the Convention itself. Nevertheless it may be legitimate and proper for giving effect to the Convention for the Commonwealth Parliament to provide for the licensing of such operations on routes and between terminals in every part of Australia: The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, at p 646 . (at p105)
14. The provisions of the Act and the Regulations made under it are in the main legislation for carrying the Convention into effect. The central provisions of the Convention are the articles to which I have referred. The Regulations for the most part deal with matters concerned with the safety, regularity, and efficiency of air navigation. The object to which the licensing provisions in Div. 1 of Pt XIII are directed is the enforcement of the Regulations. Regulations 196, 197, 198, 199, and for that matter 195, and the two preceding regulations are in my opinion provisions adapted to carry out and give effect to the Convention. They fall within the provisions of s. 26 (1) (b) of the Act. It follows that they apply validly to air transport operations within the limits of a single State. (at p106)
15. As already stated s. 26 (2) (b) provides that one of the matters on which regulations may be made under the provisions of s. 26 (1) is the licensing of air transport operations. I am of opinion that so far as reg. 198 and 199 extend to such operations anywhere within a single State (they purport to do so by virtue of reg. 6 (1) (c) and (f)) they validly affect the operation according to their tenor. (at p106)
16. Regulation 200B so far as it applies to an airline licence is not merely a repetition in effect of reg. 198, or for that matter of reg. 196 or 197 (1) so far as it applies to an aerial work or charter licence. In terms reg. 200B purports to give to each of these three kinds of licences the force of an authority to conduct the air service operations to which they respectively apply. It is contended for the plaintiff that reg. 200B validly applies to intra-State air transport because in order to make the licensing of aircraft effective for the purposes of safety, regularity and efficiency, it is necessary to exclude State licensing law. If reg. 200B applies to intra-State air transport it would be the paramount law. This contention is made in view of the amendment of reg. 6 (1) by adding par. (f) which, as said above, brings all intra-State air navigation within the range of the Regulations. The insertion of this paragraph does not, of course, determine the question of the validity of the application of any regulation to intra-State air navigation. But it removes a difficulty in the way of contending that State and Commonwealth laws providing for the licensing of aircraft used in commercial transactions are inconsistent. In my opinion reg. 200B so far as it purports to apply to air transport between terminals in a single State exceeds the legislative power of the Commonwealth. The result which this regulation would accomplish and which it is the intention of the regulation to accomplish is to give the holder of a licence the power and the right to carry on the service within a single State, even though it is not part of or connected with an inter-State service. Regulation 200B is not a law with respect to inter-State trade and commerce. It is a law with respect to intra-State trade and commerce. The regulation cannot be supported in its application to intra-State air transport by s. 51 (i.) of the Constitution. Therefore it is beyond the power conferred by s. 26 (1) (d) of the Air Navigation Act on the Executive to make regulations. Further, reg. 200B is not, in my opinion, within the power conferred by s. 26 (1) (b), the only other provision under which regulations may be made to which this regulation could possibly be referred. No provision appears in the Convention which would support reg. 200B. The pith and substance of this regulation is the setting up or establishment of air transport services. The Commonwealth has no obligation under the Convention to make laws for that purpose. It is within the residuary powers of a State to make laws for that purpose operating within its own territory. I would answer "No" to the question asked about reg. 200B. (at p107)
17. As regards reg. 320A and 320B, these regulations relate to matters within the ambit of arts. 12 and 37 of the Convention, annex 1, "Rules of the Air", and annex 14, "Aerodromes". In my opinion both fall within the power conferred by s. 26 (1) (b) of the Air Navigation Act. Accordingly intra-State flying is validly subject to both regulations. (at p107)
18. The next question arises under s. 109 of the Constitution. The point of immediate concern is whether by reason of this section the Air Transport Act, 1964 of New South Wales is invalid. The other State legislation mentioned in the second question was not the subject of any argument. I do not consider that reg. 200B is involved in this question of inconsistency, because, in my opinion, it does not validly apply to a licence of any kind it mentions, if granted for intra-State transport services. (at p107)
19. The Court decided in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 that the provisions of the State Transport (Co-ordination) Act, 1931-1956 of New South Wales relating to the licensing of aircraft were not inconsistent with reg. 198 and 199 of the Air Navigation Regulations. The Air Transport Act, 1964 eliminates the licensing of aircraft from that Act and amends the Air Navigation Act, 1938-1947 of New South Wales to make its references to State legislation harmonious with this change. Regulation 198 is in the same terms as it was when the case was decided. Since then amendments were made to the Commonwealth Regulations including the insertion of par. (f) in reg. 6 (1), the insertion of sub-reg. (4) in reg. 199 and the addition of reg. 200B. The Air Transport Act, 1964 was passed after the promulgation of Statutory Rule 1964, No. 128, which effected these and other amendments. The Act supersedes the licensing provisions of the State Transport (Co-ordination) Act. It is sufficient to refer to s. 2 (1) - definition of "carry" - and ss. 6 and 7 to ascertain the operation of the Air Transport Act, 1964. It deals only with the commercial carriage by aircraft of goods and services between terminals in New South Wales. Any such operation is prohibited unless the aircraft engaging in it is licensed under the Act and the carrier operating the service is the holder of the licence. The grant or refusal of a licence is at the discretion of the licensing authority. The exercise of the discretion is controlled by the requirement in s. 6 (3) which requires that in deciding whether to grant or refuse the application for the licence he must confine his attention to the following matters: "(a) the needs, in relation to air transport services, of the public of New South Wales as a whole and of the public of any area or district to be served by the route or routes, or by any of the routes, specified in the application for the license; (b) the extent, if any, to which the needs of the public of New South Wales as a whole or of the public of any area or district to be served by the route or routes, or by any of the routes, specified in the application for the license are already, or are likely to be, served by public air transport services; (c) the allocation of routes for public air transport services between persons holding or applying for licenses under this Act so as to foster as far as possible the existence of more than one airline operating in New South Wales capable of providing adequate and reasonable public air transport services within New South Wales and so as to discourage the development of any monopoly of public air transport services within New South Wales; (d) where the applicant is an individual, his character and suitability and fitness to hold the license applied for and, where the applicant is a corporation, the character of the persons responsible for the management or conduct of the corporation and the suitability and fitness of the corporation to hold the license applied for; (e) the extent to which the area or district to be served by the route or routes, or any of the routes, specified in the application for the license are already, or are likely to be, served by forms of public transport other than public air transport and the effect that the public air transport services proposed to be conducted by the applicant for the license over that route or those routes may have upon those other forms of transport." Section 4 of this State Act eliminates from the State Transport (Co-ordination) Act as amended all references to aircraft and the Air Navigation Regulations. The Act departs completely from the field of safety regulation. Attention should be paid to the discussion of certain provisions of the State Transport (Co-ordination) Act by Menzies J. in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 . Nothing in the Air Transport Act, 1964 even verges towards the subject of that discussion or anything of the kind. I think that reg. 198 and the provisions of reg. 199 applying in relation to intra-State air transport services are more effectively confined within the field of safety than they were before sub-reg. (4) was added to reg. 199. Section 18 of the Air Transport Act, 1964 should be noticed. It says: "Nothing in this Act relieves a person of any obligation to hold or effect any license or registration which he is otherwise by law required to hold or effect." Taking the words of the Air Transport Act, 1964 and of reg. 198, it appears that where the former requires an aircraft to be licensed, the latter does also, and vice versa. With reg. 200B omitted, the question of inconsistency to be decided in the present case is much the same as that decided in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 . The introduction of par. (f) into reg. 6 (1) and of sub-reg. (4) into reg. 199 does not make such a difference that the decision cannot be important in the present case. In my opinion it is a strong authority against the plaintiff on the question whether there is inconsistency between, on the one hand, the Air Transport Act, 1964 and, on the other, regs. 198 and 199, so far as these regulations relate to intra-State air transport services. There is no conflict between s. 3 of the Act and reg. 198 so far as it relates to intra-State services: nor between s. 6 of the Act and reg. 199 (4). The carriage of passengers or goods is the subject of the Act and of reg. 198 and 199. In my view there is this distinction between the Act and the regulations. The former is an economic control of public transport services enforced by licensing of the aircraft used in it on the principles laid down by s.6: whereas the regulations are concerned only with the safety, regularity and efficiency of the flight of aircraft engaged in those and other transport operations. The licensing of an aircraft as a condition of its being lawfully used in transport operations is a devised method of enforcing regulations and orders pertaining to safety, regularity and efficiency. Having regard to the test of inconsistency laid down in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472, at p 483 , I think that the question of inconsistency should be decided against the plaintiff. (at p109)
20. As to regs. 320A and 320B, in my opinion, both regulations can be supported in relation to intra-State flying by s. 26 (1) (b) of the Air Navigation Act. These regulations could be referred to arts. 12 and 37 (b) and (c) of the Convention, and annex 14 (Aerodromes) and annex 2 (Rules of the Air). I refer also to s. 26 (2) (e) of the Air Navigation Act: "the establishment, maintenance, operation and use of aerodromes and air route and airway facilities and the licensing of aerodromes other than aerodromes maintained by the Commonwealth." The Air Transport Act, 1964 is not inconsistent with either of these regulations because it is confined to carriage of persons or goods between terminals; on the other hand, regs. 320A and 320B relate to the flight of aircraft. (at p109)
21. The conclusions which I reach are that regs. 6, 198, 199, 320A and 320B so far as they relate to regular public transport operations within the limits of New South Wales are valid; that reg. 200B so far as it relates to such operations within the limits of a State is not valid; that the Air Transport Act, 1964 of New South Wales is not inconsistent with the regulations or any of them as aforesaid which I have held valid. (at p110)
KITTO J. The two questions that have been referred to the Full Court arise by reason of amendments made since the decision of this Court in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 to the Air Navigation Regulations, being the regulations purporting to be in force under the authority of s. 26 of the Air Navigation Act 1920-1963 (Cth). (at p110)
2. The questions are directed to regs. 6, 198, 199, 200B, 320A and 320B of the Regulations as amended, in so far as they relate to regular public transport operations solely within the State of New South Wales. The Court is asked to decide whether the six regulations are, to that limited extent, valid laws of the Commonwealth, and if so whether they are inconsistent (in the sense of s. 109 of the Constitution) with the provisions of the Air Transport Act, 1964 (N.S.W.). (at p110)
3. Regular public transport operations form one of the four classes of operations into which, for the purposes of the Regulations, air transport is divided by reg. 191. They comprise 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 specific routes with or without intermediate stopping places between terminals: reg. 191 (d). In relation to such air service operations regs. 198 and 199 establish a licensing system. Regulation 198 forbids the use of an aircraft in regular public transport operations except under the authority of and in accordance with a licence (referred to as an "airline licence") issued by the Director-General of Civil Aviation. Regulation 199 makes provision for the issuing of such licences amongst others. (at p110)
4. As the Regulations stood at the time of the Court's earlier decision, regs. 198 and 199 did not apply to regular public transport operations generally within the territorial limits of a State. Their application was restricted by reg. 6 (1) to air navigation of certain specified descriptions, namely (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 air space which directly affected, or which might endanger, the safety of persons or aircraft engaged in a class of air navigation specified in pars. (a), (b) or (d) of this sub-regulation. As thus restricted in their application, regs. 198 and 199 were laws validly made under various heads of Commonwealth legislative power; but reg. 6 (1) has now been amended. Some of the amendments do not concern us in this case. A new par. (da) has been added, comprising air navigation in which a Commonwealth aircraft is engaged, and par. (e) has been extended to cover air navigation in controlled air space which directly affects or may endanger the safety of persons or aircraft engaged in air navigation in which a military aircraft is engaged. It is not in dispute that regs. 198 and 199 are valid in the extended application given to them by these amendments. But there is a further amendment. By the addition of a new par. (f) the Regulations have been made to apply as from 10th October 1964 to and in relation to all air navigation within Australian territory of a kind not specified in pars. (a), (b), (c), (d) or (da). (There are qualifications in respect of State aircraft and military aerodromes, but they need not be further adverted to). By force of reg. 6 (1) (f) the prohibition in reg. 198 must now be read as extending to the use of an aircraft in regular public transport operations which are wholly intra-State in character and, considered apart from any possible relevance its conduct may have to other air navigation, is not within any head of federal legislative power. In relation to such operations there are new provisions in regs. 199 (4), 200 (3), 200A (b), 201 (ab) and 203 (2) by which the Director-General, in deciding whether or not to grant, renew or cancel an airline licence, in determining the conditions upon which it is to be granted or renewed, in approving of a contract or arrangement for a person other than the licensee to operate the service, and in deciding whether to exempt a person from the necessity of obtaining an airline licence, shall have regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters. The extension of the airline licensing system by these amendments is the first subject of challenge. (at p111)
5. The precise nature of the activity which reg. 198 forbids to a person not licensed under reg. 199 must be borne in mind. It is the use of aircraft in "operations" of a certain kind. The use of aircraft in such operations constitutes the "air navigation" to which reg. 6 (1) confines the application of reg. 198; but the operations themselves, the "regular public transport operations", include by force of the definition in reg. 191 (d) 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, in accordance with fixed schedules and from fixed terminals over specific routes. (at p112)
6. Because neither intra-State air navigation nor air navigation generally is per se a subject of federal legislative power, a federal law cannot validly operate to affect any activity of intra-State air navigation unless, in so operating, it possesses the character of a law not only with respect to intra-State air navigation but also with respect to some topic or collection of topics in respect of which the Constitution gives the Parliament power to make laws. This is not because of any doctrine of reserved powers, but simply because of the limited nature of the positive grants of power made by the Constitution to the federal Parliament. (at p112)
7. The Air Navigation Act 1920-1963 (Cth), in empowering the Governor-General to make regulations, duly observes the limits of constitutional power by appropriately limiting the descriptions of regulations that may be made: s. 26 (1). If any of the regulations travels beyond the limits thus prescribed it must be held invalid, not as ultra vires the Parliament but as ultra vires the Governor-General. Nevertheless it is convenient to consider the questions before us by referring directly to the Constitution. (at p112)
8. It is obviously due to a concern for constitutional considerations that the licensing system provided for by regs. 198 and 199 is subject to different limitations with respect to different classes of airline licences. By sub-reg. (2) of reg. 199, the Director-General is required, where the proposed service is an inter-State service, to issue a licence unless the applicant has not complied with, or has not established that he is capable of complying with, the provisions of the Regulations or of any direction or order given or made thereunder, relating to the safety of the operations. The object of this, clearly enough, is to accommodate the licensing system to s. 92 of the Constitution. By sub-reg. (2A) the shackles thus accepted are to an extent thrown off where an inter-State service has a terminal or an intermediate stopping place in a Territory. In respect of a service which is not inter-State, sub-reg. (3) enables the Director-General to issue a licence upon any conditions he considers necessary, or to refuse to issue a licence; but this is subject to sub-reg. (4), which applies (in effect) where the air navigation involved in a proposed intra-State service is brought within the Regulations by s. 6 (1) (f). In such a case the Director-General is required, in deciding whether or not to grant a licence and in determining the conditions upon which a licence is to be granted, to have regard to matters concerned with the safety, regularity and efficiency of air navigation, and to no other matters. (at p113)
9. Thus the licensing system in its application to wholly intra-State air services is limited so as to serve only the purpose of aiding and protecting the safety, regularity and efficiency of air navigation generally. It is at this point that the crucial question arises. In so far as regs. 198 and 199 aid and protect the safety, regularity and efficiency of intra-State air navigation, have they the character of a law with respect to any subject or subjects of federal legislative power? (at p113)
10. I pause to make the point that that and nothing else is the question. In The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 both Latham C.J. and Dixon J. took their stand against the introduction into Australian constitutional law of some of the vague standards which at times have been accepted in relation to the reach of the commerce power under the Constitution of the United States and have resulted in a greatly diminished importance in that country of the distinction between inter-State and intra-State commerce. The course of American decision since 1936 has been away from some of the indefinite tests of validity (under the commerce power) to which Dixon J. referred in his quotations from American cases: (1936) 55 CLR, at p 672 . The distinction is no longer held to be that which Hughes C.J. expressed in Schechter Poultry Corporation v. United States [1935] USSC 122; (1935) 295 US 495, at p 546 [1935] USSC 122; (79 Law Ed 1570, at p 1589) , namely between direct and indirect effects of intra-State transactions upon inter-State commerce. But the principle remains that of the Shreveport Rate Cases [1914] USSC 201; (1914) 234 US 342 (58 Law Ed 1341) namely that federal intervention is constitutionally authorized because of "matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance" (1914) 234 US, at p 351 (58 Law Ed, at p 1348) . Thus it is held, upon consideration of economic effects, that the reach of the commerce power extends to "those intra-State activities which in a substantial way interfere with or obstruct the exercise of the granted power": United States v. Wrightwood Dairy Co. [1942] USSC 35; (1942) 315 US 110, at p 119 [1942] USSC 35; (86 Law Ed 726, at p 732) ; Wickard v. Filburn [1942] USSC 145; (1942) 317 US 111, at pp 120-125 [1942] USSC 145; (87 Law Ed 122, at pp 132-135) . The doctrine rests on the premise that "in certain fact situations the federal government may find that regulation of purely local or intra-State commerce is 'necessary or proper' to prevent injury to inter-State commerce": Polish National Alliance v. National Labour Relations Board [1944] USSC 102; (1944) 322 US 643, at p 652 [1944] USSC 102; (88 Law Ed 1509, at p 1517) . In applying this doctrine the Supreme Court has "required clear findings" and has insisted upon "suitable regard to the principle that whenever the federal power is exerted within what would otherwise be the domain of state power, the justification of the exercise of the federal power must clearly appear": (1944) 322 US, at pp 652, 653 (88 Law Ed, at pp 1517, 1518) . See also North American Co. v. Securities & Exchange Commission (1946) 327 US 686, at p 700 (90 Law Ed 945, at p 956) . But this is doubtless because the Court has been alive to the width of the doctrine and the danger of its getting out of hand. As the Court itself said in Mandeville Island Farms v. American Crystal Sugar Co. [1948] USSC 74; (1948) 334 US 219 (92 Law Ed 1328) the Shreveport decision "substituted judgment as to practical impeding effects upon inter-State commerce for rubrics concerning its boundaries as the basic criterion of effective congressional action" (1948) 334 US, at p 233 (92 Law Ed, at p 1338) . (at p114)
11. The establishment of these criteria in the United States has evoked in that country itself criticisms of which we would do well to take notice. It was Frankfurter J. who described them as "less than unwavering bright lines": Baker v. Carr [1962] USSC 42; (1962) 369 US 186, at p 283 (7 Law Ed 2d 663, at p 724) . One other quotation will be enough. I take it from the writings of Dr. Bernard Schwartz, Professor of Law at New York University: "Decisions like those just discussed illustrate the extent to which the Supreme Court has departed from the concept of dual federalism which had previously governed its approach to cases involving the relationship of federal and State authority. For the older view that the federal power over commerce could not be exercised over local transactions, which were within the exclusive area of State authority, has been substituted the notion of a plenary power of the national Government over commerce. If wheat production intended by the farmer solely for his domestic consumption can be regulated by Congress because of its possible effect upon interstate commerce, however indirect it may be, there are, in practice, no restrictions upon federal regulation of even so-called purely local commerce. And, if this is true, the American system is clearly no longer one of dual federalism". American Constitutional Law (1955) p. 170. (at p115)
12. The Australian union is one of dual federalism, and until the Parliament and the people see fit to change it, a true federation it must remain. This Court is entrusted with the preservation of constitutional distinctions, and it both fails in its task and exceeds its authority if it discards them, however out of touch with practical conceptions or with modern conditions they may appear to be in some or all of their applications. To import the doctrine of the American cases into the law of the Australian Constitution would in my opinion be an error. The Constitution supplies its own criteria of legislative power. To ask, as we are bound to do, whether a given federal law having an operation upon intra-State commerce is, in that operation, a law "with respect to" commerce with other countries or among the States (or is within some other head of federal power) is of course to ask a question which is not so precise that different answers may not appeal to different minds. But at least it is a legal question, a question of ascertaining the true character of the law by a consideration of what it does "in the way of changing or creating or destroying duties or rights or powers": South Australia v. The Commonwealth [1942] HCA 14; (1942) 65 CLR 373, at p 424 . It is the question the Constitution in terms presents. (at p115)
13. It must, of course, be considered in the light of the nature of the particular form of commerce to which the law relates. It is, I think, a question as to whether, when the factual situation in which the law operates is understood, the law by its operation upon the intra-State section of the relevant form of commerce is seen to operate also upon the actual conduct of an activity or collection of activities in respect of which federal power exists, e.g., the actual carrying on of activities forming part of the overseas and inter-State sections of that form of commerce. Where the intra-State activities, if the law were not to extend to them, would or might have a prejudicial effect upon matters merely consequential upon the conduct of an activity within federal power, e.g. where the profit or loss likely to result from inter-State commercial air navigation would or might be affected, that mere fact would not suffice, in my judgment, to make the law a law "with respect to" that activity itself. But, by contrast, where the law, by what it does in relation to intra-State activities, protects against danger of physical interference the very activity itself which is within federal power, the conclusion does seem to me to be correct that in that application the law is a law within the grant of federal power. (at p115)
14. We must therefore answer the question before us in the light of the nature of air navigation as it exists as a phenomenon of life in Australia and its Territories at the present time. In respects which hardly need to be emphasized it is sui generis among methods of transport, and indeed among all forms of trade and commerce. The speed at which modern aircraft move through the skies; their constant liability to sudden and wide deviation in flight by reason of mechanical or human deficiencies, the vagaries of the weather, the behaviour of other aircraft and other causes; the multiplicity of flights required to satisfy the demands of modern life; the multiplicity and inter-relation of the routes to be served; all these matters and more combine to make air navigation in this country a complex of activities of such a kind that what happens at any given time and place in the course of an air operation may substantially, even dramatically, affect other air operations close or distant in time or space. The significance of distances, of geographical relationships, is necessarily different for a problem concerning air navigation than for a problem concerning any other form of transport. Moreover it must be kept in mind that while many examples of air navigation are within federal legislative power because they are themselves a form of commerce with other countries or among the States or because they are carried on within or into or out of Territories of the Commonwealth, or because they use as aerodromes places acquired by the Commonwealth for public purposes, many other examples of air navigation may be within federal legislative power because the purposes with which they are carried on are purposes incidental to matters over which such power extends. Purposes incidental to defence, or to postal services, or to the conduct of the public business of the Commonwealth (e.g., the conveyance of the Governor-General or of Ministers in the discharge of their official functions) provide obvious illustrations. It is probably true that there is no head of federal power to which the flying of aircraft may not be incidental, e.g., the use of aircraft by the Commonwealth Banking Corporation may no doubt be made a subject of federal legislation under s. 51 (xiii.) of the Constitution. With all this in mind, it is impossible to assume in advance that any impairment of the safety, regularity or efficiency of intra-State air navigation will leave unimpaired the safety, regularity and efficiency of the other departments into which air navigation may be divided for constitutional purposes. It follows from these considerations, in my opinion, that a federal law which provides a method of controlling regular public transport services by air with regard only to the safety, regularity and efficiency of air navigation is a law which operates to protect against real possibilities of physical interference the actual carrying on of air navigation, and therefore is, in every application that it has, a law "with respect to" such air navigation as is within federal power, and none the less so because it is also legislation with respect to that intra-State air navigation which is not within the power. (at p117)
15. In my opinion regs. 198 and 199 are for these reasons valid laws of the Commonwealth, even in their application to regular public transport operations conducted wholly within the borders of a single State. Their validity was supported in argument by reference to the external affairs power under s. 51 (xxix.) of the Constitution, on the ground that they give effect to, or in some other way are justified by, art. 37 of the Chicago Convention. The draftsman no doubt borrowed from that source the collocation of words "safety, regularity and efficiency of air navigation", and possibly he did so in the hope that if all else failed the external affairs power might sustain the legislation. If so, the hope was misconceived, in my opinion, for the only obligation of the Commonwealth under art. 37 is "to collaborate (with the other contracting States) in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation". To this end the Civil Aviation Organization is required to adopt international standards and recommended practices and procedures dealing with a number of matters not material for present consideration, together with such other "matters concerned with the safety, regularity and efficiency of air navigation" as may from time to time appear appropriate. In relation to the general topics of "aircraft, personnel, airways" (which plainly means air routes) "and auxiliary services", a number of annexes have been adopted by the Organization; and, while the suggestion made on behalf of the plaintiff that the Convention creates "rights and powers" as well as international obligations cannot be countenanced for a moment, I do not doubt that federal legislation giving effect to any of the annexes in Australia should be upheld under the external affairs power as forming part of the Commonwealth's promised collaboration. But none of the annexes deals with the subject of regular public transport operations as a separate topic. They contain much concerning the airworthiness of aircraft, the manner of their operation, the licensing of personnel and other matters connected with the flying of aircraft; and the Air Navigation Regulations make their own elaborate provisions upon such matters elsewhere than in regs. 198 and 199. These two regulations pass from the topics dealt with in the annexes to a matter as to which no annex sets up a standard of uniformity, and upon which, so far as we have any reason to believe, no international standard exists and no question of attaining uniformity has ever arisen. It is true that in relation to the earlier Convention of Paris the Privy Council said in In re the Regulation and Control of Aeronautics in Canada (1932) AC 54, at p 77 that the Convention covered almost every conceivable matter relating to aerial navigation; and I should offer no objection to a similar statement of fact, as carefully qualified, concerning the Chicago Convention and the Annexes thereto. But I cannot see that the statement would shed light upon any question of law. Again, it is true that in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 , Dixon C.J. said that a study of the Convention 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.) of the Constitution, would suffice "to support laws made with a complete disregard of the distinction between inter-State and intra-State trade" (1964) 113 CLR, at p 27 . I agreed in that statement at the time, and I agree in it still. But it is misinterpreted when it is taken to mean that the laws which may be so supported include laws not directed to compliance with the Convention. It means no more than that laws implementing the Convention and applying throughout the Commonwealth may in almost all respects - perhaps one might say in all respects, subject to the restriction arising from s. 92 - be upheld under s. 51 (xxix.) notwithstanding that they apply indifferently to the inter-State and intra-State use of aircraft. But regs. 198 and 199 do not seem to me to carry the Commonwealth any distance at all towards discharging obligations incumbent upon it under the Convention. (at p118)
16. I turn next to reg. 200B. It provides that an airline licence (as well as licences of certain other kinds) "authorizes the conduct of operations in accordance with the provisions of the licences but subject to the Act and these Regulations and to the other laws of the Commonwealth". The plain meaning is that such conduct of operations is not unlawful by reason of anything in the laws of a State. By the new paragraph (f) of reg. 6 (1) this provision is applied even to wholly intra-State air navigation. (at p118)
17. The argument in support of the provision in its application to wholly intra-State operations is that regs. 198 and 199 set up a licensing system enabling the Director-General to select the persons who shall be entitled to use aircraft in regular public transport operations, even intra-State, and that reg. 200B. gives effect to the choice by excluding the application of any State law which in any instance would render the choice nugatory. It is only a loose use of terms, however, which makes the proposition appear plausible. What reg. 199 provides for is not a selection of persons to be "entitled" to use aircraft in regular public transport operations, but a determination as to which of the persons who apply for licences ought, and which ought not, to remain forbidden, absolutely or conditionally, to use aircraft in such operations, having regard to matters concerned with the safety, regularity and efficiency of air navigation. I can see no escape from recognizing that the operation which reg. 200B purports to have is, not to protect from State interference a "right" acquired under federal law, but to supplement the grant of an exemption from a particular prohibition under federal law by conferring in addition an immunity from any prohibition which State law may impose. The character of the regulation in its application to intra-State operations is therefore not that of a law with respect to a matter within federal power, but is that of a law with respect to the application of State laws - a matter not within federal legislative competence. By no line of reasoning that I have found it possible to accept can reg. 200B be supported as valid federal legislation. (at p119)
18. I turn to regs. 320A and 320B. The former provides in sub-reg. (1) that an aircraft shall not land at or take off from any place, being a place acquired by the Commonwealth for public purposes, except under the authority of or in accordance with a licence issued by the Director-General. By sub-reg. (2) the application of the regulation is freed from any limitation by the operation of reg. 6 (1). Thus only s. 52 (i) of the Constitution is relied upon to sustain the regulation. That it does sustain it was hardly denied in the argument, and I say no more than that in my opinion the regulation is clearly valid. Then reg. 320B provides that except under the authority of and in accordance with a permit from the Director-General an aircraft shall not be flown in controlled air space in the course of air navigation of a particular kind - in brief, intra-State air navigation which directly affects, or may endanger, the safety of persons or aircraft engaged in air navigation either international, in relation to trade and commerce with other countries or among the States, within or to or from the Territories, or in which a Commonwealth aircraft or military aircraft is engaged. The validity of this provision seems clear, and indeed it was not seriously contested. (at p120)
19. The question remains whether the State legislation contained in the Air Transport Act, 1964 (N.S.W.) is inconsistent with regs. 198, 199, 320A and 320B, so as to be by force of s. 109 of the Constitution invalid to the extent of the inconsistency. There is no actual contrariety, reg. 200B being put on one side as ultra vires; for the prohibitions of both the federal and the State provisions can of course operate side by side. The submission is that the apparent intention of the federal provision is to provide "completely, exhaustively or exclusively" what shall be the law governing the particular conduct or matters to which its attention is directed, and that the provisions of the State Acts nevertheless affect to govern the same conduct or matters. If this be true, there is inconsistency in the constitutional sense: Ex parte McLean (1930) 43 CLR 472, at p 483 ; O'Sullivan v. Noarlunga Meat Ltd. (1957) AC 1, at p 28; (1956) 95 CLR 177, at p 186 . (at p120)
20. As regards regs. 320A and 320B it seems to me beyond question that the suggested inconsistency does not exist. These regulations are directed, the one to landing at and taking off from aerodromes, airstrips or the like which have been acquired by the Commonwealth for public purposes, and the other to the control of flying in controlled air space, in the interests of the safety of persons and aircraft engaged in air navigation of certain kinds to which federal legislative power extends. The Air Transport Act of the State is not directed to either topic. It provides for a licensing system for the intra-State carrying of passengers or goods by aircraft, the purpose of the system being broadly, as appears from s. 6, to regulate such carrying by reference to public needs, particularly as regards routes, the allocations of routes between licensees so as to foster the existence of competition between airlines and discourage monopoly of public air transport services within the State, the character, suitability and fitness of an applicant to hold the licence applied for, the extent to which areas, districts or routes are or are likely to be served by other forms of public transport, and the effect the air services may have upon other forms of transport. These matters are altogether different from those to which regs. 320A and 320B relate. It is true that as a practical result of the co-existence of these regulations and the State Act a person who desires to operate a regular public air transport service which is wholly intra-State must possess and conform to Commonwealth licences under regs. 320 and 320B in order that he may use Commonwealth aerodromes or airstrips and fly aircraft in controlled air space, and must also possess and conform to a State licence for his aircraft extending to the route he wishes to adopt. If either the federal licences or the State licence be refused him the result may be that a particular intra-State route is without an air service. In the plaintiff's argument this situation was described as one of deadlock, and it is said that thereby the inconsistency of the two sets of provisions is demonstrated. In truth all that is demonstrated is that unless and until the federal and State authorities grant their respective licences to the one operator a degree of public inconvenience will exist. While this may be regretted, it leads to no legal conclusion. (at p121)
21. The position as to regs. 198 and 199 is perhaps not so clear, and it is for that reason that I have left it to the last. But I cannot say that I feel real doubt about it. The deadlock argument is used once more, but with no greater claim to acceptance. The topic and the only topic to which regs. 198 and 199 direct their attention, so far as they apply to intra-State operations, is the safety, regularity and efficiency of air navigation. Regulation 199 (4) makes that clear. The State Act, on the other hand, does not concern itself with that topic in any way. The fact that each piece of legislation sets up a licensing system operating independently of the licensing system established by the other may from time to time lead to a situation in which A, though holding a licence under the State Act for a proposed service, may be unable to obtain a licence for that service under reg. 199, while B, though holding a licence for the service under reg. 199, may be unable to obtain a licence for it under the State Act. But any ground for suggesting inconsistency disappears if the situation is more fully described, as by saying that consideration of matters concerning the safety, regularity and efficiency of air navigation has led the federal Director-General of Civil Aviation to conclude that A, though not B, should be debarred from conducting the service, while consideration of matters concerning public needs in relation to air transport services or concerning other topics mentioned in s. 6 (3) of the State Act has led the State Commissioner for Motor Transport to conclude that B, though not A, should be debarred from conducting the service. The federal Regulations and the State Act each employ a licensing system to serve a particular end; but the ends are different, and that means that the two sets of provisions are directed to different subjects of legislative attention. In my opinion there is no mutual inconsistency in any relevant sense. (at p122)
22. For the foregoing reasons I would give the following answers to the questions submitted: Question (1) As to regs. 198, 199, 320A and 320B: Yes. As to reg. 200B: No. As to reg. 6, no separate answer is necessary. Question (2): No. (at p122)
TAYLOR J. In recent litigation between the appellant and the respondent (Airlines of New South Wales Pty. Ltd v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 ) it was held by this Court that the provisions of the State Transport (Co-ordination) Act, 1931-1956, which, at that time, operated, in effect, to prohibit the use of any aircraft for the carriage of passengers or goods for hire between places within New South Wales except in accordance with the terms of a licence issued under the Act, were not in conflict with the provisions of the Air Navigation Act 1920-1961 of the Commonwealth or with the Regulations made thereunder. The relevant provisions of both sets of legislation as they stood at that time are fully referred to in the report of the case and I do not propose to repeat them. But it is of importance to observe that at that time regs. 198 and 199 of the Air Navigation Regulations applied only to and in relation to air navigation falling within the categories specified in reg. 6. These categories did not include intra-State air navigation. Nevertheless, the category specified in par. (e) was "air navigation in controlled air space 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". Accordingly the Regulations applied to intra-State air navigation in so far as it constituted air navigation in controlled air space. As a consequence the State and federal legislation under consideration were, for the reasons stated by the members of the Court, seen as provisions complementary to and not in conflict with 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". On this view there was, in particular, no conflict between the relevant State legislation and regs. 198 and 199 which had nothing to say with respect to intra-State air navigation outside controlled air space. I should add that on that occasion no suggestion was made that these regulations were not wholly valid. (at p122)
2. But since that decision important changes have been made in the Commonwealth Regulations which, if wholly valid, would undoubtedly produce a conflict with the existing State legislation. It is, I think, at the moment necessary to mention only two of these changes. The first of these is the addition of a new paragraph to reg. 6 - (f) "all air navigation within Australian territory of a kind not specified in paragraphs (a), (b), (c),(d) or (da) of this sub-regulation". The second is the insertion of a regulation - 200B - in the following terms: "An aerial work licence, a charter licence or an airline licence authorizes the conduct of operations in accordance with the provisions of the licence but subject to the Act and to these Regulations and to the other laws of the Commonwealth". It is in these circumstances that the following questions were directed to be argued before a Full Court: (1) Whether the provisions of reg. 6, reg. 198, reg. 199, reg. 200B, reg. 320A and reg. 320B of the Air Navigation Regulations, in so far as they purport to relate to regular public transport operations as defined by the Regulations solely within the State of New South Wales, are valid laws of the Commonwealth; and (2) If so, whether such laws are inconsistent with the provisions of the Air Transport Act, 1964. (at p123)
3. In its original form the various categories of air navigation specified in reg. 6 included, it would seem, every relevant category of air navigation within the Commonwealth other than intra-State air navigation outside controlled air space and there can be no doubt that the new paragraph - (f) - was deliberately designed, in spite of its residual form to achieve one end only, that is, the extension of the application of the Regulations to all intra-State air navigation. In other words, the Regulations were thereafter to extend to all air navigation within the Commonwealth other than an irrelevant exception in the case of military aircraft. No primary complaint is made by the defendant to the provisions of par. (f); what seems to me to be the critical subject of objection is reg. 200B for if that regulation applies to all categories of air navigation within the Commonwealth the effect, having regard to the provisions of regs. 198 and 199, is to vest in the Director-General of Civil Aviation an authority to sanction intra-State airline operations even if they are forbidden by State law. Quite clearly, therefore, if reg. 200B is valid there is inconsistency between that regulation and the relevant provisions of the Air Transport Act, 1964 which has now replaced so much of the State Transport (Co-ordination) Act as related to aerial transport operations within the State. (at p123)
4. By the later Act it is provided (s.3) that a person shall not . . . carry by aircraft from a place in New South Wales to another place in New South Wales any passengers or goods unless the aircraft is licensed under the Act, unless that person is the holder of the licence and, where the licence was granted in respect of a route or routes, unless the route over which the passengers or goods are so carried is such a route. Section 5 provides for the manner in which applications for licences may be made and the Commissioner for Motor Transport is authorized to grant or refuse any application for a licence. In deciding whether to grant or refuse a licence and the conditions, if any, subject to which it should be granted, the Commissioner is directed to have regard exclusively to a number of specified matters. These are: (a) the needs, in relation to air transport services, of the public of New South Wales as a whole and of the public of any area or district to be served by the route or routes, or by any of the routes, specified in the application for the licence; (b) the extent, if any, to which the needs of the public of New South Wales as a whole or of the public of any area or district to be served by the route or routes, or by any of the routes, specified in the application for the licence are already, or are likely to be, served by public air transport services; (c) the allocation of routes for public air transport services between persons holding or applying for licences under the Act so as to foster as far as possible the existence of more than one airline operating in New South Wales capable of providing adequate and reasonable public air transport services within New South Wales and so as to discourage the development of any monopoly of public air transport services within New South Wales; (d) where the applicant is an individual, his character and suitability and fitness to hold the licence applied for and, where the applicant is a corporation, the character of the person responsible for the management or conduct of the corporation and the suitability and fitness of the corporation to hold the licence applied for; and (e) the extent to which the area or district to be served by the route or routes, or any of the routes, specified in the application for the licence are already, or are likely to be, served by forms of public transport other than public air transport and the effect that the public air transport services proposed to be conducted by the applicant for the licence over that route or those routes may have upon those other forms of transport (s. 6). It will be seen that the function of the Commissioner in deciding whether to grant or refuse an application is to be exercised having regard to considerations concerned with the rationalization of transport services within the State. Naturally enough, since the form of control adopted is concerned only with these matters and not with the multitudinous matters with which the Air Navigation Regulations deal, the grant of a licence under the Act does not relieve a licensee of any obligation to hold or effect any licence or registration which he is otherwise by law required to hold or effect (s. 18). But if reg. 200B is wholly valid then there is a clear inconsistency between its provisions and those of the State Act. The primary question for our consideration, as I see it, is therefore whether the Commonwealth has legislative power to enact a law having the effect of granting to the Director-General exclusive authority to sanction the initiation of regular transport operations entirely within the limits of any one State. (at p125)
5. Air navigation, as such, is not a subject-matter with respect to which the Parliament of the Commonwealth has power to make laws. But there is no doubt that it may, under other heads of legislative power, make laws affecting air navigation and it was the contention of the plaintiff that, assuming the regulations to be wholly within the ambit of the regulation-making power conferred by the Air Navigation Act 1920-1963 - which, at least as to reg. 200B, I doubt - they are justifiable as laws with respect to external affairs or with respect to trade and commerce with other countries and among the States and, so far as reg. 320A is concerned, as a law made under the provisions of s. 52 (i.) of the Constitution. With one qualification, which I shall refer to presently, I do not understand this proposition to be seriously contested as far as the general body of the Regulations are concerned. What is contested is that under either head of power the Parliament of the Commonwealth may enact a law conferring upon its officers the exclusive prerogative of authorizing the initiation of purely intra-State airline operations. Regulation 200B is, of course, a law which extends this far and, accordingly, it is contended that in so far as it purports to have this effect it is beyond Commonwealth legislative competence. I add that if this regulation should be held to be valid no serious question can arise with respect to regs. 198 and 199. On the other hand if it is invalid then it will become necessary to consider whether those regulations fall with it. (at p125)
6. The extent of the legislative power conferred upon the Commonwealth Parliament by s. 51 (xxix.) was the subject of considerable discussion in The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 , in relation to the Paris Convention of 1919 and that case is clear authority for the proposition that pursuant to that head of power Parliament may make laws to give effect to the international obligations assumed by the Commonwealth by or pursuant to the Convention on International Civil Aviation concluded at Chicago on 7th December 1944. As Starke J. said: "A law providing for the carrying out and giving effect to an international convention of this character concerns Australia's relations and intercourse with other Powers or States and the rights and obligations which result, and is thus a law for the peace, order and good government of the Commonwealth with respect to external affairs" (1936) 55 CLR, at p 659 , whilst Dixon J. (as he then was) said: "In my opinion legislation to enforce and carry out the convention falls within the power to make laws with respect to external affairs" (1936) 55 CLR, at p 670 . Other members of the Court expressed like views. But the same case is equally clear authority for the proposition that, in relation to legislation for giving effect to an international convention of this character, the legislative power extends no further than to authorize legislation necessary to enable the Commonwealth to fulfil its obligations thereunder or reasonably incidental thereto. In my view reg. 200B, so far as it purports to apply to intra-State airline operations, is not legislation of this character The provisions of the Convention are referred to in detail by my brother Owen and it is unnecessary that I should undertake this task; it is, I think, sufficient to say that consideration of its many articles and of the various annexes relating to international standards and recommended practices discloses no grounds upon which it can be validly asserted that it is in any way necessary for giving effect to the Convention that the Commonwealth should assume, to the exclusion of the States, authority to sanction the initiation of intra-State airline operations. It may, no doubt, assume control of intra-State air navigation to the extent necessary to enable it to fulfil its obligations under the Convention such as, for example, ensuring that every aircraft flying over or manoeuvring within its territory shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force (art. 12), or for adopting and putting into operation the appropriate standard systems of communications procedure, codes, markings, signals, lighting and other operational practices and rules which may be recommended or established from time to time pursuant to the convention (art. 28). But it is impossible to say that in order to fulfil obligations such as these it is necessary that the Commonwealth should assume the exclusive right to authorize the initiation of intra-State air transport operations and, in my view, reg. 200B, in so far as it relates to such operations, cannot be said to be a law with respect to external affairs. (at p127)
7. The argument to the contrary was, to some extent, based upon the proposition that the facts before us showed that there is an "inseparable connexion" between all categories of air navigation in Australia and that the Commonwealth cannot, therefore, fulfil its obligations under the Convention unless it be permitted to assume exclusive control over all activties comprehended by the expression "air navigation" when used in the widest possible sense. No doubt it may be true that fulfillment of its obligations under the Convention require that to no inconsiderable extent the Commonwealth shall assume the control and regulation of all air navigation within its territorial limits and it has, in fact, legislated to this end but the test whether such legislation is or is not valid must always be whether it is necessary for or reasonably incidental to the fulfilment of the Commonwealth's international obligations. To my mind the suggestion that the Commonwealth cannot reasonably fulfil its obligations under the Convention unless, in addition to having the right to promulgate the extremely comprehensive provisions (excepting, of course, reg. 200B) of the Air Navigation Regulations, it be accorded the right exclusively to sanction the initiation of intra-State airline operations is without force and must be rejected. Indeed if the contrary view were entertained it would produce the result that the Commonwealth would be free to establish its own intra-State airline services and for this there is no warrant in the obligations assumed by it under the Convention. (at p127)
8. These considerations are also relevant to and, in my view, dispose of the plaintiff's contention that reg. 200B is wholly justifiable as a law with respect to trade and commerce with other countries and among the States unless, as we were invited to do we adopt to the fullest extent the United States doctrine based upon what has been somewhat loosely called the "commingling" of inter-State and intra-State trade. But the doctrine was emphatically rejected by this Court in The King v. Burgess; Ex parte Henry (1936) 55 CLR, at pp 628, 629, 671, 672, 677 . Nevertheless, it is without doubt that as Latham C.J. said in that case that it may be shown "in respect of a particular subject-matter that the intermingling of foreign and inter-State trade and commerce with intra-State trade and commerce was such that it was impossible for the Commonwealth Parliament to regulate the former without also directly regulating the latter" (1936) 55 CLR, at p 629 . Much the same thing was said by Evatt and McTiernan JJ. - "there may be occasions when parts of intra-State aviation will be seen to occupy so direct and proximate a relationship to inter-State aviation that the agents and instruments of the former will be drawn within the ambit of the federal power, for otherwise the particular Commonwealth regulation of inter-State commerce would be entirely frustrated and nullified" (1936) 55 CLR, at p 677 . These propositions the defendant rightly concedes. But it is asserted, and I think rightly, that they do not provide any justification for reg. 200B in so far as it purports to authorize the Director-General exclusively to sanction the initiation of intra-State airline operations. The assumption of such an authority has no real relationship to the regulation of international and inter-State air operations and it is impossible to say that without the power to do this regulation by the Commonwealth of air navigation within the latter categories would be frustrated or nullified, or, for that matter, in any way adversely affected. That being so reg. 200B, in so far as it extends to intra-State air nagivation, cannot be justified as a law with respect to trade and commerce with other countries and among the States. This, however, in no way denies the right of the Commonwealth under this head of power to establish rules to be observed generally and uniformly where, having regard to the safety and efficiency of overseas and inter-State air navigation, it is necessary to do so. (at p128)
9. At this stage it is necessary to notice a subsidiary argument advanced on behalf of the plaintiff. As I understand the argument it asserted, first of all, that it was permissable for the Commonwealth, as a means for securing observance of the general body of the Regulations, to erect a licensing system for airline operators. Consequently, it was said that reg. 198, which provides that an aircraft shall not be used in regular public transport operations except under the authority of and in accordance with a licence issued by the Director-General, is wholly valid. Further it was asserted that reg. 199 (4) which provides for the issue of licences in the case of intra-State airline operations is also valid. But at this stage the argument takes a curious turn. If, it is said, it be permissible to prohibit such operations without a licence and if it be permissible for the Commonwealth to provide for the issue of licences, then the licence, when issued, must constitute authority for the holder to engage in such operations. This being so, it is said that reg. 200B adds nothing to what is implicit in regs. 198 and 199. But in cases where, as in this case, the question is as to the extent of Commonwealth legislative power, the argument is fallacious in the extreme. It is one thing for the Commonwealth, by an appropriate provision, to forbid intra-State operations without a licence as a legitimate method of securing observance of the general body of Regulations and it is another for the Commonwealth to assume exclusive authority to permit the initiation of such operations. The first may, perhaps, appear as a provision incidental to the main body of the Regulations but the latter cannot be so justified. A simple illustration will suffice to make the point. The Beer Excise Act 1901-1950 is a law of the Commonwealth enacted under the power to make laws with respect to taxation. By s. 8 it is provided that no person shall make beer except pursuant to the Act, nor unless he is licensed to do so under the Act. Applicants for licences are required to give security for compliance with the Act and, in terms, the form of licence prescribed by the Act states that the holder "is hereby licensed to make Beer pursuant to the Beer Excise Act" to a specified quantity in a specified brewery and for a certain period. But it cannot be suggested that the Parliament of the Commonwealth can under its power to make laws with respect to taxation assume an exclusive authority to authorize brewing in the various States. Nor, could it be suggested, that there is any conflict between those provisions and s. 99 of the Liquor Act, 1912 (N.S.W.) which impose penalties upon persons carrying on the trade or business of a brewer "without holding the proper licence under this Act". The truth of the matter is that the conditional prohibition in s. 8 of the Beer Excise Act is justifiable as a means of protecting the revenue and the grant of a licence does no more than take the license out of the operation of s. 8. To my mind, likewise, the grant of a licence under reg. 199 to use an aircraft in regular public transport operations exclusively within the limits of any one State cannot, having regard to the boundaries of Commonwealth legislative power, do more than take the licensee out of the operation of reg. 198 and, as I have already said, if the plaintiff's argument that there is implicit in them that which is expressed in reg. 200B, then they must, for the reasons already expressed, be regarded as invalid in so far as they purport to apply to such operations. (at p129)
10. But there is a further objection to regs. 198 and 199 and to this reference will be made after referring to the attempt made on behalf of the plaintiff to extract some support from the decision of this Court and of the Judicial Committee in O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565; (1957) AC 1; (1956) 95 CLR 177 . In that case it was held that s. 52A of the Metropolitan and Export Abattoirs Act, 1936-1952 (S.A.) was inconsistent with the Commerce (Meat Export) Regulations of the Commonwealth and, therefore, that the holder of a licence issued under the Regulations was not bound to observe the provisions of s. 52A. But this result followed because it was thought that the Regulations evinced an intention exhaustively to cover a field - "special conditions for slaughtering for export" - which the Commonwealth, under the trade and commerce power, had ample legislative authority to occupy to the exclusion of the State. The present case is, however, fundamentally different for the Commonwealth has no legislative authority to assume the right exclusively to sanction the initiation of intra-State air services. (at p130)
11. I have adverted to the proposition that the Commonwealth might by an appropriate provision forbid intra-State air transport operations without a licence as a legitimate method of securing observance of the general body of regulations. But the question arises whether regs. 198 and 199 are appropriate and justifiable provisions having regard to the extent of the legislative power to make laws with respect to external affairs and trade and commerce with other countries and among the States. Now what is it that these regulations purport to do in relation to such operations? I repeat what I said in the earlier case - "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". To my mind it is beyond doubt that neither head of power would justify an absolute and unqualified prohibition on the conduct of such operations solely within the limits of any one State. No doubt a prohibition upon the use of any aircraft unless it has been certified as airworthy or unless operated by licensed personnel would be entirely within power. Probably a prohibition such as that contained in reg. 193 - that an aircraft shall not be used in any class of operations unless the particular type of aircraft is authorized and approved for such use by the Director-General - is wholly valid and the requirements of reg. 194 relating to the minimum number of the operating crew of an aircraft are also validly prescribed. But to superimpose upon such provisions as these a prohibition on the use of an aircraft in regular transport operations solely within the limits of any one State relaxable only in the absolute discretion of the Director-General would be to travel outside the limits of constitutional power. Of course, this is not what regs. 198 and 199 do. The discretion of the Director-General in the case of an application for a licence to use an aircraft in such operations is to be exercised having "regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters". The expression "safety, regularity and efficiency of air navigation" seems to have been taken directly from the concluding words of art. 37 of the Convention where it operates in conjunction with the preceding eleven specified subject-matters to define the scope within which the International Civil Aviation Organization is to adopt international standards and recommended practices and procedures and its use in reg. 199 may represent a studied, though inept, attempt to produce a provision justified by the terms of the convention. But the obligation imposed upon the contracting parties by art. 37 is "to collaborate in securing the highest practical degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation" and the article does not impose, or even contemplate, an obligation upon any contracting State, independently, to take such steps as it thinks fit will tend to ensure the safety, regularity and efficiency of its domestic air navigation. The choice of the expression, designed as it is to regulate the exercise of the discretion reposed in the Director-General by reg. 199, was, therefore, unfortunate and it is to my mind clear that it is sufficiently wide to embrace considerations having no relation whatever to the obligations assumed by the Commonwealth under the Convention. In other words the conditional prohibition erected by reg. 198 does not appear as a provision designed merely to secure observance of the general body of the Regulations and, therefore, as ancillary to the fulfilment of the Commonwealth's obligations under the convention but as a prohibition from which there may be no escape because of matters quite unrelated to those obligations. (at p131)
12. Much the same things may be said of the proposition that the regulations in question are wholly supportable under the power to make laws with respect to trade and commerce with other countries and among the States. No doubt an appropriate conditional prohibition on the use of an aircraft for purely intra-State regular public transport operations may be justified. But in order to be justifiable it must answer the description of a law with respect to overseas and inter-State trade and commerce and I fail to see how it can be said that the matters to which the Director-General is directed exclusively to have regard in determining whether he will issue a licence are matters wholly within the purview of that head of power. Consequently, I am of opinion that the conditional prohibition erected by reg. 198 and sub-s. (4) of reg. 199 are invalid in so far as they purport to apply to purely intra-State operations. (at p132)
13. No argument of any consequence was addressed to us in support of the proposition that regs. 320A and 320B are invalid and I can see no reason to doubt their validity. It was, however, suggested on behalf of the plaintiff that there is a conflict between these regulations and the provisions of the State Act but the contention which is involved in the suggestion may be adequately disposed of by saying that it is demonstrably untenable. (at p132)
14. Before concluding it is desirable to make a brief reference to the fact that reliance was placed by counsel for the plaintiff upon an observation made by Dixon C.J. in the course of his reasons for Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 . The observation was to the effect that a study of the Convention "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.) of the Constitution would suffice to support laws made with a complete disregard of the distinction between inter-State and intra-State trade" (1964) 113 CLR, at p 27 . This, of course, was said at a time when the Commonwealth Regulations, comprehensive as they are, applied of their own force only to air navigation falling within the categories specified in reg. 6 as it then stood and when, in relation to intra-State navigation outside controlled air space, the Regulations applied in New South Wales only by force of State law. What his Honour was pointing out was that it was competent for the Commonwealth in the discharge of its international obligations to make laws which applied to inter-State and intra-State without distinction. This proposition is not open to question but it would be erroneous to think that the quoted observation throws any light on the critical problems in this case. (at p132)
15. In the result I am of opinion that the questions referred to the Court should be answered as follows: (1) Regulations 198, 199 (4) and 200B of the Air Navigation Regulations are not valid laws of the Commonwealth in so far as they relate to air navigation within the limits of any one State. Regulations 320A and 320B are valid laws of the Commonwealth. (2) No provision of the Air Transport Act, 1964 is inconsistent with such valid regulations. (at p133)
MENZIES J. The central question now to be decided is whether the Commonwealth Air Navigation Regulations - as amended since the decision of this Court in the earlier case of Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 - purporting, as they now do, to extend to intra-State air operations, are valid and leave any room for concurrent State control of such operations. The point of conflict is the licensing of operations to use aircraft in regular intra-State services for the carriage of passengers or goods for reward, and the plaintiff's contention in the action is that, because it holds, what I may call, a Commonwealth licence to use aircraft in such a service upon the route between Sydney and Dubbo, the Air Transport Act, 1964 (N.S.W.), which was passed after the amendment of the Commonwealth Regulations, does not make unlawful its licensed operations because there is inconsistency between the Act and the Regulations which renders the prohibition now to be mentioned inoperative. The State Act, under the sanction of heavy penalties, prohibits a person from the carriage by aircraft of passengers or goods for reward or in the course of business from one place in New South Wales to another place in New South Wales unless (a) the aircraft is licensed under the Act, (b) the carrier is the holder of a licence, and (c) the carriage was over a route in respect of which the licence was granted. The questions before the Full Court, however, are not confined to the particular conflict about the Sydney-Dubbo route and it would be unduly restrictive to do as Mr. Menhennitt argued in reply that we should and, in answering the general questions of law which arise in the action, to concentrate our attention upon the particular features of that conflict. The first question is "whether the provisions of reg. 6, 198, 199, 200B, 320A and 320B of the Air Navigation Regulations, in so far as they purport to relate to regular public transport operations (as defined by the Regulations) solely within the State of New South Wales, are valid laws of the Commonwealth". (at p133)
2. I may say straight away that in the course of the seven days' argument
before this Court I heard nothing to raise any doubt whatever
in my mind about
the validity of regs. 6, 320A and 320B and, in considering the stated
question, I propose, therefore, to confine
my attention to regs. 198, 199 and
200B. These I will set out, together with reg. 6 (1), which states,
sufficiently for present purposes,
the intended operation, not only of the
three regulations just mentioned, but of the regulations as a whole. Without
any doubt some
of the regulations validly apply to air navigation described in
reg. 6 (1) (f). The question here is whether all or any of regs.
198, 199 and
200B validly apply to the air navigation described in reg. 6 (1) (f). To
understand reg. 198 it is also necessary to
set out the definition of "regular
public transport operations" from reg. 191 (d). The foregoing regulations are
as follows:-
"6. (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; (da) air navigation in which a
Commonwealth aircraft is engaged;
(e) air navigation in controlled air space
that is of a kind not specified in a preceding paragraph of this
sub-regulation but directly
affects, or may endanger, the safety of persons or
aircraft engaged in - (i) air navigation of a kind specified in paragraph (a),
(b), (d) or (da) of this sub-regulation; or (ii) air navigation in which a
military aircraft is engaged; and (f) on and after such
date as is fixed by
the Minister for the purposes of this paragraph by notice in the Gazette,"
(the date fixed was 10th October 1964)
"all air navigation within Australian
territory of a kind not specified in paragraph (a), (b), (c), (d) or (da) of
this sub-regulation."
"191. For the purposes of these Regulations, air transport shall be divided
into the following classes of operations: - (a) . .
. (b) . . . (c) . . . (d).
Regular public transport operations, being 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 specific routes with or without intermediate
stopping places
between terminals."
"198. 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."
"199. (1) . . . (2) . . . (2A) . . . (3) . . . (4) Where the proposed
service does not involve air navigation of a kind specified
in paragraph (a),
(b), (c), (d) or (da) of sub-regulation (1) of regulation 6 of these
Regulations, the Director-General shall, on
and after the date fixed for the
purposes of paragraph (f) of that sub-regulation," (the date fixed was 10th
October 1964) "in deciding
whether or not to grant an aerial work, charter or
airline licence, and in determining the conditions upon which the licence is
to
be granted, have regard to matters concerned with the safety, regularity
and efficiency of air navigation and to no other matters."
"200B. An aerial
work licence, a charter licence or an airline licence authorizes the conduct
of operations in accordance with the
provisions of the licence but subject to
the Act and these Regulations and to the other laws of the Commonwealth." (at
p135)
3. There was a good deal of argument about the meaning of reg. 198, but it seems to me that its effect, clearly enough, is to forbid the use of an aircraft in regular public transport operations except in accordance with a licence issued by the Director-General to an operator to conduct specified operations upon a specified route by the use of the particular aircraft. The licence is, therefore, to a particular aircraft. The licence is, therefore, to a particular person to use a particular aircraft in a particular service and, without such a licence, the use of the aircraft in regular public transport operations is forbidden. (I have used the convenient word "service", although it does not appear in reg. 198 itself, because the Regulations show that the flying of aircraft to carry passengers or goods for reward upon a particular route is regarded as the provision of a service: see, for instance regs. 197, 199, 199A, 202, 203 and 204). It follows that reg. 198 is not in any true sense an enabling provision; it is a restrictive provision whereby the use of aircraft, except in accordance with a licence, is forbidden. What would have been lawful without the regulation is, to the extent therein described, made unlawful. That this is the sense of reg. 198 is made apparent by contrast with reg. 200B, which is an enabling provision operating to authorize operations subject only to "the Act and these Regulations and to the other laws of the Commonwealth". This latter regulation, upon its face, purports to override any State law which would prohibit the operation which a licence authorizes. Regulation 199 is ancillary to reg. 198 and, if the latter cannot validly apply to intra-State regular public transport operations, the former, to the extent of sub-reg. (4) at least, would also fail. A separate argument, however, was directed against the validity of reg. 199 (4). It provided that, in determining an application for a licence for an intra-State service, the Director-General shall have regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters. As a matter of construction, the air navigation here referred to is all air navigation within the scope of reg. 6. It was argued for the State of New South Wales that reg. 199 (4) is, upon this construction, invalid, because the safety, regularity and efficiency of the air navigation involved in carrying on the intra-State service for which a licence is sought is a matter not excluded from consideration by the Director-General. Regulation 200B is, as I have already said, an enabling regulation and the question of its validity may well depend upon considerations other than those which govern the validity of reg. 198. (at p136)
4. Having thus outlined the problems to which the first question gives rise, I will deal first with the validity of regs. 198, 199 and 200B, and the sources of Commonwealth power relied upon to support them - that is, the Constitution, ss. 51 (i.) and (xxix.), 52 and 122. (at p136)
5. It is convenient to consider first how it is claimed that the Commonwealth power to make laws with respect to external affairs supports the Regulations as a whole and, in particular, the regulations in question. (at p136)
6. The Commonwealth is a party to, and has ratified, the Chicago Convention on International Civil Aviation concluded on 7th December 1944. Under the Constitution, s. 51 (xxix.) "External affairs", the Commonwealth has power to make laws to carry out its international obligations under a convention with other nations concerning external affairs. When, as here, a party to litigation, and the Commonwealth supporting that party, rely upon s. 51 (xxix.) to authorize the making of the Commonwealth law in question, it must appear to this Court that the law is for the carrying out of obligations of that description. It will be so if the law can fairly be regarded as providing a way of doing what the Commonwealth has undertaken to do; the choice of ways and means being a matter essentially for the Parliament. (at p136)
7. The Convention, as its title and preamble as well as its contents show, is an international agreement concerned with the development of international civil aviation, including the establishment of international air transport services. The "air navigation" dealt with in Pt I thereof is, therefore, a broad conception going far beyond what might be called "aeronautics". It covers, inter alia, the operation of international air services and all that is thereby incidentally involved, including such matters as cabotage, immigration and customs procedures and the prevention of spread of disease. The provisions of the Convention, moreover, are not confined to international civil aviation and international air transport services. A number of illustrations may be given. For instance, by art. 12 each contracting State undertakes "to adopt measures to insure that every aircraft flying over or manoeuvring within its territory . . . shall comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force" and "to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under this Convention". By art. 14 each contracting State agrees to take effective measures to prevent the spread of named diseases by means of air navigation. By art. 15 "Every airport in a contracting State which is open to public use by its national aircraft shall likewise . . . be open under uniform conditions to the aircraft of all the other contracting States". By arts. 17 to 21 each contracting State undertakes to maintain a register of its national aircraft. By arts. 25 and 26 provision is made for assistance to aircraft in distress and for the investigation of accidents whether or not the aircraft concerned are engaged in international civil aviation. Among the undertakings in art. 28 is the provision of navigation facilities "to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to this Convention" and to adopt and enforce recommended practices and rules with regard to "the appropriate standard systems of communications proceudre, codes, markings, signals, lighting and other operational practices". Article 37 is an article upon which the plaintiff and the Commonwealth placed a great deal of reliance and it must, I think, be set out in full: - "Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. To this end the International Civil Aviation Organization shall adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with: (a) Communications systems and air navigation aids, including ground marking; (b) Characteristics of airports and landing areas; (c) Rules of the air and air traffic control practices; (d) Licensing of operating and mechanical personnel; (e) Airworthiness of aircraft; (f) Registration and identification of aircraft; (g) Collection and exchange of meteorological information; (h) Log books; (i) Aeronautical maps and charts; (j) Customs and immigration procedures; (k) Aircraft in distress and investigation of accident; and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate." (at p138)
8. Of the articles just mentioned, 12, 17, 19, 28 (b) and 37 are the most important for present purposes. As a good deal of debate centred upon art. 37, it is, I think, advisable to state my understanding of the obligations that Australia has assumed thereunder. The article means, I think, that Australia undertakes to work with the other parties to the Convention to secure that its "regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services" will be uniform with those of other parties in all matters where uniformity will facilitate and improve air navigation. Uniformity is of the requisite character in relation to the matters enumerated and other matters concerned "with the safety, regularity, and efficiency of air navigation". The "air navigation" referred to in this article is not confined either to aeronautics or to international air navigation; the words are used in the broad sense already mentioned. It is also provided that, to assist in achieving the requisite uniformity, the International Civil Aviation Organization will adopt international standards and recommended practices and procedures dealing with the matters with regard to which uniformity will facilitate and improve air navigation. It is pursuant to this article and arts. 54 and 57 that annexes have been adopted, setting out international standards and recommended practices and procedures concerning many of the matters falling within art. 37. (at p138)
9. There are, it seems, fifteen such annexes. Some of their provisions refer only to international civil aviation; others are not so limited. For instance, whereas annex 6 - "Operation of Aircraft - International Commercial Air Transport" - sets out standards and recommended practices directly applicable to international air services and operations only, other annexes are not so limited. Annexes 1, 2, 7 and 8, dealing respectively with Personnel Licensing, Rules of the Air, Aircraft Nationality and Registration Marks, and Airworthiness of Aircraft, are of quite general application. It is true that there is not to be found either in the Convention itself or in any of the annexes any express and precise undertaking by the Commonwealth to maintain control over every aircraft entering the air space over Australia, but the scope of the Commonwealth's obligations is so wide that I am satisfied that it would be a reasonable way for the Parliament to secure the fulfilment of Australia's international obligations to require owners of national aircraft to register them, to maintain them in a condition of airworthiness, not to use them except as authorized and, in using them, to comply with standards, procedures and practices as established under the Convention. Furthermore, I am satisfied that the licensing of persons to own, use and fly particular aircraft for particular purposes upon particular routes is a method Parliament might adopt of achieving the foregoing ends. (at p139)
10. I have come to the conclusion that regs. 198 and 199 (4) are within the external affairs power of the Commonwealth because the licensing system that is thereby imposed is a means of fulfilling the Commonwealth's international obligations. It needs no labouring to make the point that any aircraft in the air may be a danger to neighbouring aircraft. This is more obvious in the approaches to and over a great metropolitan aerodrome than it is in the outback. Nevertheless, in days when aircraft fly great distances at high speeds upon routes which, through weather, interference or mischance they may not be able to keep, no one can fly safely unless all who fly are subjected to a common control. A grazier who flies from station to station; a prospecting company conducting an aerial survey in areas where no other aircraft is likely to be; every charterer who flies an unusual route; every superphosphate spreader in remote and hilly country, can, for instance, put aircraft engaged in international flight at risk. The Commonwealth is not bound to allow international air navigation to accept what, some might think, are but small risks. If, having regard to the Convention, the power under s. 51 (xxix.) would support a law forbidding any flight that may imperil international air navigation, as I think it does; and if any unauthorized intrusion into air space may imperil international air navigation, as I think it could; then all operators may be controlled, and to do something less and merely to forbid unauthorized operations of a particular character must be within power, for the greater includes the less. This is the more apparent when it is remembered that the character of the operations brought under control is such that the operations will normally take place where air traffic is dense - for example, all intra-State regular transport operations in the State of New South Wales use the aerodrome at Mascot, which is also used for overseas flights as well as for other air operations. It is for these reasons, as well as because of the generality of the Commonwealth's obligations with respect to air navigation as a whole, that I consider the Parliament may, under s. 51 (xxix.), make such a law as reg. 198. (at p140)
11. Nor do I think that the objection to reg. 199 (4) has been established. That regulation does, it is to be observed, use the very language of art. 37 and, as I have already observed, some of the most important annexes are concerned with all air navigation. Moreover, the safety, regularity and efficiency of intra-State air navigation does, for the reasons I have already given, affect the safety, regularity and efficiency of other air navigation, including international air navigation. (at p140)
12. The conclusion I have reached that the external affairs power supports regs. 198 and 199 is, I think, supported by the decision of the Privy Council in In re the Regulation and Control of Aeronautics in Canada, (1932) AC 54 . The Dominion of Canada has power under s. 132 of the British North America Act, 1867 to legislate for the performance by Canada of its obligations to other countries arising under treaties. When the Paris Convention of 1919 was in force, the Parliament of Canada made a law, the Aeronautics Act, which by s. 4 gave power for the regulation of aerial navigation over Canada, including the licensing of commercial services. Their Lordships decided that by virtue of s. 132 "it was competent for the Parliament of Canada to pass the Act and authorize the Regulation in question". The power of the Commonwealth Parliament under s. 51 (xxix.) of the Commonwealth Constitution is broader than the power of the Dominion's Parliament under s. 132 of the Canadian Constitution; the obligations of Australia under the Chicago Convention are more comprehensive than were those of Canada under the Paris Convention; accordingly, the decision of the Privy Council that s. 4 of the Aeronautics Act was valid under s. 132 (see In re the Regulation and Control of Radio Communication in Canada (1932) AC, at p 313 ) supports the conclusion that regs. 198 and 199 are valid under s. 51 (xxix.). That this decision of the Privy Council provides guidance upon the question now before us was recognized by this Court in The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 , per Latham C.J. (1936) 55 CLR, at p 637 , per Starke J. (1936) 55 CLR, at p 658 , and per Evatt and McTiernan JJ. (1936) 55 CLR, at p 687 . In that case it was decided that so much of s. 4 of the Air Navigation Act 1920 as empowered the Governor-General to make regulations for carrying out and giving effect to the Paris Convention was a valid exercise of the external affairs power conferred upon the Commonwealth by s. 51 (xxix.) of the Constitution. In the later case of The King v. Poole; Ex parte Henry (No. 2) [1939] HCA 19; (1939) 61 CLR 634 , Evatt J. conveniently summarized the statements of four of the members of the Court in the earlier case relating to constitutional power. He said (1939) 61 CLR, at pp 654, 655 : "There was no substantial difference in the tests suggested by the members of this Court for determining whether any particular regulation or series of regulations under the Commonwealth Air Navigation Act should be regarded as having been made for the purpose of carrying out or giving effect to the International Air Convention. According to Latham C.J., the regulation 'must in substance be regulations for carrying out and giving effect to the Convention' (1936) 55 CLR, at p 646 . There must, according to Dixon J. be 'a faithful pursuit of the purpose, namely, a carrying out of the external obligation' (1936) 55 CLR, at p 674 . The regulations must be 'sufficiently stamped with the purpose of carrying out the terms of the Convention' (Evatt and McTiernan JJ. (1936) 55 CLR, at p 688 )". This statement does not include what Starke J. said (1936) 55 CLR, at pp 659, 660 , which is pertinent, notwithstanding that his Honour did differ from the other members of the Court in the application of the law, as stated, to the particular regulations. His statement of the law is one I would like to repeat for it, like the other statements summarized by Evatt J., indicates the width of the power conferred upon the Parliament of the Commonwealth by s. 51 (xxix.). His Honour said: "The validity of the regulation under which the appellant was charged remains for consideration. It must find its authority in the power to make regulations for the purpose of carrying out and giving effect to the Convention, inasmuch as the more extended power given by the Air Navigation Act cannot be sustained. The power is wide in terms, but its limits cannot be transcended. All means which are appropriate, and are adopted to the enforcement of the Convention and are not prohibited, or are not repugnant to or inconsistent with it, are within the power. The power must be construed liberally, and much must necessarily be left to the discretion of the contracting States in framing legislation, or otherwise giving effect to the Convention" (1936) 55 CLR, at pp 659, 660 . (at p141)
13. Before considering the further claim that reg. 200B is an exercise of the external affairs power, I want to refer to the other sources of legislative power relied upon to support regs. 198 and 199 with the operation accorded to these regulations by reg. 6 (1) (f). They are Parliament's power to make laws with respect to overseas and inter-State air navigation, s. 51 (i), and ss. 52 and 122 conferring power to make laws with respect to air navigation to, from and within the seat of government and other Commonwealth Territories. (As a convenient means of distinguishing overseas and inter-State air navigation and air navigation to, from and within a Territory from intra-State air navigation, I will refer to all that is comprised in the earlier descriptions as "other air navigation"). The considerations to which I have already adverted in discussing how regs. 198 and 199 affect international air navigation also point to the conclusion that, to the extent to which these regulations directly control intra-State commerce, they are supported by s. 51 (i.) for, as has already been shown, to prohibit intra-State regular public transport operations conditionally, as is done by reg. 198, is a way of safeguarding the international air navigation that falls within Commonwealth power under s. 51 (i.). By parity of reasoning, the operation of reg. 198 upon intra-State operations also affects air navigation between States and to, from or within a Territory. Indeed, once operations in inter-State and territorial air navigation are added to operations in international air navigation - the significance of which I have already discussed - the more apparent it becomes that the control of intra-State air operations, because of the effect of such operations upon other air navigation, is to some extent within Commonwealth power. The more air operations within the full legislative power of the Commonwealth are brought into consideration, the more likely it becomes that some of them will be interfered with by unregulated operations in the course of intra-State trade. I do not, however, accept in its full generality the Commonwealth's submission that s. 51 (i.) now extends to all air navigation in Australia, with the consequence that the Commonwealth may now legislate with respect to intra-State air navigation as fully as it can with respect to air navigation falling directly within the powers conferred by ss. 51 (i.), 52 and 122. For instance, as at present advised I do not think s. 19 of the Australian National Airlines Act could validly be extended to apply to services from one place in a State to another place in the same State. It does appear to me, however, that the Commonwealth's legislative power over other air navigation is ample to control intra-State air operations to the extent necessary for the effectual control of the other air navigation. As Dixon J. said in The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 : "In reference to air navigation, as to broadcasting, the suggestion has been made that its control does not admit of the distinction between what is inter-State and what is confined to one State; that to regulate inter-State flying effectively air navigation must be controlled as a whole. The inconvenience and difficulty of maintaining the distinction needs no demonstration. But the legislative power is to make laws with respect to inter-State commerce, and, under the power, the domestic commerce of a State can be affected only to the extent necessary to make effectual its exercise in relation to commerce among the States" (1936) 55 CLR, at pp 670, 671 . The limitation thus stated cannot, however, be used, as the defendants sought to use it, to limit a Commonwealth power to cases where a State does not effectively control its intra-State trade, or to provide any basis for the suggestion that, because in the past there has been Commonwealth and State co-operation to control the whole of air navigation within Australia, it cannot now be said that control by the Commonwealth is necessary. Commonwealth power cannot be limited by what a State may choose to do, or not to do. If control of intra-State trade is necessary to make effectual the exercise of Commonwealth power, that control may be exercised by the Commonwealth itself regardless of the control exercised by a State and regardless, too, of the fact that at some previous time the Commonwealth, because of the control exercised by a State over its intra-State trade, refrained from the full exercise of its own power. Arguments based upon the extent of State legislative power, or, the extent to which that power has been exercised, to measure or confine the legislative power of the Commonwealth, must, since the Engineers' Case [1920] HCA 54; (1920) 28 CLR 129 fall upon deaf ears. I conclude, therefore, that regs. 198 and 199 are supported by ss. 51 (i.), 52 and 122, in addition to s. 51 (xxix.). (at p143)
14. I turn now to reg. 200B. It will already have become apparent that I take no narrow view of the power the Commonwealth has to control intra-State air operations in the interests of other air navigation, but I have not been convinced that, except to the extent necessary to carry out some international obligation, the positive authorization of intra-State air operations is a matter within Commonwealth power. This is the critical problem. The evidence submitted to the Court has not shown that the authorizing of inter-State air operations is necessary to make effectual the exercise of Commonwealth control over air navigation directly within its power, nor has there been any attempt to show by evidence that the authorization of intra-State air services attempted by virtue of reg. 200B has been undertaken for any purpose connected with the operation of any other of the air services falling directly within Commonwealth power. It was supported, as I have already shown, by a bolder claim to Commonwealth power which I have not been able to accept. It seems to me that to put aircraft into the air to carry goods or passengers for reward from one place in a State to another place in a State lacks the connexion with Commonwealth control of other air navigation necessary to establish its validity. A complete absence of intra-State air services might contribute to the safety, regularity and efficiency of other air navigation; so, too, might the restriction of intra-State services to those chosen by the Commonwealth to operate such services under Commonwealth control. To go further, however, and seek to add chosen intra-State air services to other air traffic is, it seems to me, a matter outside Commonwealth constitutional power under ss. 51 (i.), 52 and 122 of the Constitution. Each side relied upon American authority to buttress its case upon this point, but I have not found the cases cited to be of any significant persuasive authority upon the question of the Commonwealth's power under s. 51 (i.) to establish or control intra-State air navigation. (at p144)
15. It was urged that a decision of this Court leaving intra-State air transport services to the veto of both Commonwealth and State would create a situation of stalemate or deadlock. This argument is irrelevant. A constitutional division of legislative power which is not exclusive may sometimes mean that those who are subject to both Commonwealth and State control have two sets of restrictions to surmount before they can do that which they want to do. This possibility was recognized by the Privy Council in O'Sullivan v. Noarlunga Meat Ltd. (1957) AC 1, at pp 29, 30; (1956) 95 CLR 177, at pp 186, 187 . The answer to stalemate or deadlock in such circumstances is co-operation. (at p144)
16. The claim that reg. 200B is a law for the carrying out of the Commonwealth's obligations under the Chicago Convention depends finally upon art. 37 and, for the plaintiff and for the Commonwealth, it was contended that, by that article, the Commonwealth undertook to make such laws as to it appears appropriate with respect to the safety, regularity and efficiency of air navigation. I cannot accept this claim. Any matter concerned with the safety, regularity and efficiency of air navigation - and not merely international air navigation - is a matter upon which the International Civil Aviation Organization may adopt international standards and recommended practices and procedures. Once this has been done, then what has been adopted provides a basis for collaboration among the parties to the Convention to secure uniformity. If, for instance, annex 6 - "Operation of Aircraft - International Commercial Air Transport" - were to have applied to any commercial air transport, there would, so it seems to me, have been sound ground for saying that this activity had become a subject for Commonwealth control, to some extent at least, but, as I have already pointed out, the annex is expressly limited to "the operation of aircraft in scheduled international air services and in non-scheduled international air transport operations for remuneration or hire". In the absence of any annex dealing with the matter, Commonwealth control by reason of s. 51 (xxix.) over air navigation not otherwise within its control depends upon the establishment of two propositions, neither of which was established: the first, that international uniformity in regulations over internal air transport services is a matter which will facilitate and improve air navigation; and the second, that reg. 200B is a regulation to secure uniformity in this matter. (at p145)
17. At this point I think it necessary to refer again to authority. I have found nothing in In re the Regulation and Control of Aeronautics in Canada (1932) AC 54 at variance with the measure of legislative power which, with the application of s. 51 (xxix.) to the Convention, the Commonwealth has under s. 51 (xxix.) by virtue of the obligations undertaken in the Chicago Convention. It is true that the Privy Council, after enumerating the principal obligations undertaken by Canada under the Paris Convention and the Annexes thereto, did say: "It is therefore obvious that the Dominion Parliament, in order duly and fully to 'perform the obligations of Canada or of any Province thereof' under the Convention, must make provision for a great variety of subjects. Indeed, the terms of the Convention include almost every conceivable matter relating to aerial navigation, and we think that the Dominion Parliament not only has the right, but also the obligation, to provide by statute and by regulation that the terms of the Convention shall be duly carried out" (1932) AC, at pp 76, 77 . No doubt a like observation could be made with regard to the Chicago Convention which, as has already been pointed out, is more comprehensive than the Paris Convention. Nevertheless, the final question in a particular case is - what are the terms of the Convention to be carried out? - and it is at this point that I find no assistance from the decision of the Privy Council in relation to reg. 200B. Nor is assistance to be obtained from what was said in the judgments of this Court in The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 and The King v. Poole; Ex parte Henry (No. 2) [1939] HCA 19; (1939) 61 CLR 634 . What was said by the Chief Justice and by Windeyer J. in Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 remains to be considered. The Chief Justice did, I think, indicate clearly enough his view that by the Regulations as they then stood, the Commonwealth had not exercised to the full the power which it had and that the exclusion of intra-State air navigation from the operation of the Regulations was not constitutionally necessary. The amendment of reg. 6 (1) to make the other regulations, including reg. 198, apply to intra-State air navigation is, I think, in conformity with the indication his Honour the Chief Justice gave of what would be within Commonwealth power, but I find nothing in the judgment to indicate whether or not a new regulation such as reg. 200B would be within Commonwealth power. Windeyer J. did say: "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" (1964) 113 CLR, at p 51 . But his Honour went on to point out that "a State law that said simply that within the State aircraft should not be used at all for some specified purposes, 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" (1964) 113 CLR, at p 51 . Accordingly, I have not found in the earlier case any expression of opinion that assists me to determine whether reg. 200B is a regulation within Commonwealth power. (at p146)
18. I come now to the second question, which is, if the provisions of regs. 6, 198, 199, 200B, 320A and 320B of the Air Navigation Regulations, in so far as they purport to relate to regular public transport operations (as defined by the Regulations) solely within the State of New South Wales, are valid laws of the Commonwealth, whether such laws are inconsistent with the provisions of the Air Transport Act, 1964. (at p146)
19. If reg. 200B, which provides that a Commonwealth airline licence authorizes the conduct of the operations to which it relates, were a valid law of the Commonwealth, the State Act which forbids what that regulation purports to authorize would, of course, be inconsistent with it. It is a more difficult question, however, whether the State Act is inconsistent with reg. 198, as I have construed it. This again is a problem upon which Airlines of New South Wales Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1 affords no assistance. When that decision was given, reg. 198 did not apply to intra-State regular public transport operations. Now it does, and the question is whether this Commonwealth law is exhaustive so that any State law prohibiting operations not forbidden by the Regulations is necessarily inconsistent with it. (at p147)
20. The argument that there is inconsistency between the State Act and reg. 198 was based upon the decision in O'Sullivan v. Noarlunga Meat Ltd. (1957) AC 1; (1956) 95 CLR 177 . In that case inconsistency of two kinds was found - that is, the State law forbade what the Commonwealth law authorized, and the State, by its law, sought to add to the control imposed by Commonwealth laws that were exhaustive and left no room for any addition. The construction which I have put upon reg. 198 excludes the possibility of inconsistency of the first kind; it was contended, however, that the Commonwealth law states exhaustively those persons prohibited from conducting intra-State air transport services. The Commonwealth law under consideration in O'Sullivan v. Noarlunga Meat Ltd. (1957) AC 1; (1956) 95 CLR 177 dealt with slaughtering for export, a matter which, it was decided by the High Court, was within Commonwealth power under s. 51 (i.); it followed that the Commonwealth could legislate exhaustively upon it. Here there is a difference. The Commonwealth can control intra-State air navigation only to the extent necessary to render its control over other air navigation effectual; accordingly, it cannot legislate exhaustively upon the subject of intra-State air navigation unless the exercise of complete control of that navigation is necessary for its control of other air navigation. I have already rejected the claim that this is so and have decided that, although the Commonwealth power is ample to forbid the use of aircraft in regular public transport operations intra-State and to control such operations as are permitted, it does not extend to cover the whole scope of intra-State transport operations. It follows, I think, that upon constitutional grounds the Commonwealth law ought not to be regarded as an exhaustive statement of those prohibited from conducting an intra-State air transport service. There is room, therefore, for a State law consistent with the actual provisions of Commonwealth law and the Air Transport Act, 1964 does not contradict reg. 198 upon the construction I have given to that Regulation. (at p148)
21. It was argued that the Air Transport Act, 1964 is inconsistent with regs. 320A and 320B, but I have not found any reason for so deciding. The State Act does not authorize the landing or taking off at Commonwealth aerodromes without the necessary permit, nor does it authorize flying in controlled air space without the necessary permit. There is no inconsistency, therefore, whether or not s. 18 of the State Act applies to such permits. Section 3 of the State Act, like reg. 198, is, as I read it, a restrictive and not an authorizing provision. (at p148)
22. It is for the foregoing reasons that I would answer the questions as follows: - (1) Regulations 6, 198, 199, 320A and 320B of the Air Navigation Regulations are valid laws of the Commonwealth but reg. 200B, in so far as it purports to relate to regular public transport operations (as defined by the Regulations) solely within the State of New South Wales, is not. (2) There is no inconsistency between regs. 6, 198, 199, 200B to the extent of its validity, 320A and 320B and the Air Transport Act, 1964. (at p148)
WINDEYER J. This case arises out of differences between the Commonwealth and the State of New South Wales as to which of two companies, the plaintiff and another, should conduct a regular air service carrying goods and passengers for reward between Sydney and Dubbo. The matter comes to the Court on a question of the limits of the constitutional powers of the Commonwealth and the States. An appreciation of purpose in provisions of the Constitution must, I consider, enter into the process of adjudication upon that question whenever it arises and however it arises. Only thus can the meaning of the Constitution as an instrument of government be seen in the changing circumstances that time brings. But the Court is concerned with the reach of the Parliaments of the Commonwealth and the State, not with the manner in which either deals with matters within its reach. Our task is to define the limits of power, not to choose between policies. (at p148)
2. The central point of the case is reg. 200B of the Air Navigation Regulations recently made under the Air Navigation Act 1920- 1963 (Cth). In the written case submitted for the State of New South Wales this is called a "transparent attempt on the part of the Commonwealth to usurp State legislative power". That indicates a wrong approach to the question. It reveals a misconception of the same sort as lies in the description that one sometimes hears of the State as a "sovereign State". A valid Commonwealth law will override any State law inconsistent with it, for the Constitution so provides. A Commonwealth law is valid if it be a law with respect to some subject matter with respect to which the Commonwealth Parliament has power to make laws for the peace, order and good government of the Commonwealth. This is trite; but listening to the argument for the defendant State I caught some echoes of doctrine long discarded. This is not to say that there are no implications in the Constitution arising from its federal structure; in particular from s. 107. (at p149)
3. In the earlier case, Airlines of New South Wales Pty. Ltd. v. New South
Wales [1964] HCA 2; (1964) 113 CLR 1 , I stated, in
general terms,
my view of the
constitutional position of the Commonwealth in relation to air navigation.
Air
navigation in Australia
- using the
expression "air navigation" to mean the
use of the air by aircraft, flying and matters incidental
thereto - can, I
consider,
be controlled
and regulated by Commonwealth law. But air navigation
is not itself one of the matters with
respect to which the Commonwealth
Parliament
is by the Constitution empowered to make laws. Commonwealth control
of air navigation comes about indirectly as the result of the power to
legislate with
respect to trade and commerce with other countries and among
the States and of the power to legislate with respect to external affairs.
(i) As to the trade and commerce power, s. 51 (i): Air navigation is
commerce, both because aircraft are the vehicles of commerce and because the
carriage of passengers and goods
by air is itself commerce. The power with
respect to trade and commerce with other countries and among the States is a
wide one.
Under it the Commonwealth Parliament may, subject of course to ss.
92 and 99, make laws for fostering and promoting such commerce and for
ensuring that it is conducted with safety and efficiency. Section 51 (i.) is
derived from the commerce clause in the Constitution of the United States; and
just as in the United States so here it can mean much in the making of a
nation. But the course of our
law has not followed that of the United States.
There a great many activities, distant from but regarded as incidental to or
affecting
commerce among the States, have by means of the commerce clause been
brought within the exclusive power of Congress. The Australian
provision has
proved less expansive, because this Court has been carefully insistent that
the power under s. 51 (i.), being expressly in respect of overseas and
inter-State commerce, cannot be extended to cover purely intra-State
activities.
"This provision confers no power to legislate with respect to
intra-State trade. It gives no power to make laws with respect to trade
between different parts of the same State": Morgan v. The Commonwealth and The
Rationing Commission [1947] HCA 6; (1947) 74 CLR
421, at p 452 .
The distinction has been
criticized, and perhaps justly in some cases, as a legalistic concept
inharmonious
to-day
with economic
realities. And in cases under s. 92 this
Court has recognized that commerce cannot be confined in compartments, that
inter-State trade may reach far within the borders
of a State. Nevertheless as
Dixon C.J. said in Wragg v. State of New South Wales [1953] HCA 34; (1953) 88 CLR 353 , "The
economic
interdependence
of trade and commerce among the States with the
domestic trade of a State cannot
lead to a weakening of the legal
distinction
which
the Constitution itself makes" (1953) 88 CLR, at p 386 . In an attempt
to efface this distinction in the instant case much that was said in the
argument
for the plaintiff, supported in part by the Commonwealth, was based
upon phrases such as "commingling" and "integration" derived
from the United
States - but without any very close analysis of the sense they were to bear in
the context of our law. Apparently
no more was meant by commingling than that
at any given time there are a lot of aircraft in the Australian air, some
going to destinations
within the State in which they took off, some to other
States, some overseas. But this of itself does not mean that all of them are
engaged in inter-State or overseas commerce any more than does the mingled
traffic by vehicles on the roads or by vessels in coastal
waters mean that
each vehicle and vessel is engaged in inter-State trade. And as to
integration, no doubt if goods were despatched
by air from some place outside
New South Wales to some place in New South Wales, they would be in inter-State
commerce and the carriage
of them a transaction of commerce among the States,
and not the less so if they were trans-shipped at Sydney airport. As was said
in W. & A. McArthur Ltd. v. State of Queensland (1920) 28 CLR 530 : "A given
transaction which taken by itself
would be domestic,
as, for instance,
transport between two points within a State, may
in a particular instance be
of an inter-State
nature by reason
of its association as part of a larger
integer" (1920) 28 CLR, at
p 549 . But I am unable to perceive from the facts
before us how
the mere carrying of passengers or goods within a State is of
itself
necessarily integrated with inter-State commerce.
If the plaintiff
could establish that the distinction between inter-State and intra-State
commerce had been thus obliterated, it
would establish too
that the
Commonwealth could, by virtue of its power over inter-State commerce,
itself
undertake the conduct of
air services operating
within a State. The plaintiff,
however, would not have it that its argument
led to that conclusion. Whether
on some other ground
than the supposed integration of inter-State and
intra-State commerce the Commonwealth
could directly or by
an agent of its
creation
enter the field of intra-State air navigation is a matter on which I
express no opinion.
(at p151)
4. The real strength of the case for the plaintiff and the Commonwealth based
upon the commerce power lies not in the attempted
importation of exotic
doctrine embodies in words descriptive of an economic interdependence or
inseparability of inter-State and
intra-State commerce. It lies in the much
simpler proposition that inter-State and overseas air navigation can only be
effectively
regulated if all aircraft using the air in Australia are subject
to the same code of rules. In my opinion the facts showed this to
be so. The
great increase in recent times in the volume of air traffic, especially of
inter-State and overseas air traffic, the invention
and development of new and
larger types of aircraft flying at great speed, the increasingly complex
procedures and organization necessary
for the direction and control of air
navigation - all these combine to make it necessary for the safety of
inter-State and overseas
air navigation that all aircraft should obey the same
rules of flight and manoeuvre, the same code of signals, the same procedures
in landing and take-off, and so forth; and that to this end they all be
subject to the control of one authority. I am satisfied that
the facts show
that, to this extent and for these purposes, a law with respect to airborne
trade and commerce with other countries
and among the States may lawfully
extend to air navigation within any one State. It is interesting to note that
a similar conclusion
was reached in the United States in the case Rosenhan v.
United States (1942) 131 F 2d 932 . The appellant there contended that his
operation of a civil aircraft wholly within the State of Utah was not a part
of inter-State or foreign commerce and that therefore
he could not be required
to have a federal certificate of airworthiness. It was held, however, that,
where a federal Act is devoted
to the promotion of safety and efficiency in
inter-State commerce, if the Act bears some reasonable and rational
relationship to
the subject over which it has assumed to act, it will be valid
although it may include intra-State activities within its scope.
(ii) As to the power with respect to external affairs, s. 51 (xxix.): By the
Chicago Convention the Commonwealth has undertaken
obligations to other
nations, parties to that Convention. Those obligations are, speaking broadly,
to ensure that uniform practices
and standards agreed upon for the safe and
orderly conduct of international civil air navigation are observed in
Australia. The undertakings
are basically directed to the advancement of
international civil aviation. To that end very many of the standards,
procedures and
regulations agreed upon are to be made by the contracting
nations to apply generally to all aircraft, and to auxiliary matters such
as
airports and landing areas, within their jurisdictions. Articles 12, 28 (1)
and 37 of the Convention provide examples of this.
For carrying its
obligations under the Convention into effect the Commonwealth Parliament need
not, it seems to me, resort to its
power with respect to external affairs. The
power with respect to inter-State and overseas commerce is ample for the
purpose. But
the external affairs power is by no means unimportant. If the
commerce power did not support a law giving effect to a specific obligation
of
Australia under the Convention, then such a law could, I do not doubt, be
supported as a law with respect to external affairs.
The Commonwealth
Parliament having ratified the Convention it can legislate in performance of
the duties that the Commonwealth has
assumed by it. But this does not mean
that the Commonwealth Parliament has thereby gained power over all aspects of
aviation. A law
necessary to give effect to a particular treaty obligation of
the Commonwealth is a law with respect to external affairs. But a law
that is
not necessary to give effect to an international obligation cannot be brought
within Commonwealth power by linking it with
one that is. It is always worth
while recalling the words of Higgins J. in Huddart, Parker & Co. Pty. Ltd. v.
Moorehead [1909]
HCA 36; [1909] HCA 36; (1909) 8
CLR 330 , that "thirty-nine articles contained in s. 51 are
subjects for legislation, not pegs on which the federal
Parliament
may
hang
legislation on any subject that it likes" (1909) 8 CLR, at p 415 . (at p152)
5. An attempt was made to extract from art. 37 of the Convention an
obligation upon the Commonwealth, and thence a constitutional
authority for
the Commonwealth Parliament, to make laws with respect to any matters that the
Parliament might from time to time think
appropriate concerning all or any
forms of air navigation. It is perhaps not necessary to say more than that
this is not what the
article on its proper construction provides. But I would
add that I am not to be taken as agreeing that, if it did have the large
and
uncontrolled meaning contended for, the result would necessarily be an
enlargement of Commonwealth power in the way suggested.
In my opinion the
power to legislate with respect to external affairs enables the Commonwealth
Parliament to make laws to carry into
effect specific treaty obligations such
as those under the Chicago Convention; but I wish to avoid entering upon the
controversial
question of whether the mere making of a treaty between the
Commonwealth and some foreign country upon any subject can enlarge the
constitutional powers of the Commonwealth Parliament. The question was alluded
to by the Attorney-General in argument. He suggested
some criteria for its
determination. I say nothing as to their correctness. The subject has been a
topic of learned discussion, not
only because of the differing views in the
judgments in The King v. Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 , but
especially as
a result of what the Privy Council said in Attorney-General for
Canada v. Attorney-General
for Ontario (1937) AC 326
. Neither the
importance
of the question nor the desirability of avoiding unnecessary generalization
has
been diminished by the developments
of
modern times in the forms and
methods of international relationships and the nature and extent
of
international commitments.
(iii) As to the validity of the regulations in question: The Air Navigation
Regulations are made under the authority of the Air
Navigation Act 1920-1960
(Cth). They were amended in October last, after the decision in the last
Airlines Case [1964] HCA 2; (1964)
113 CLR 1
. One of the amendments has the effect of
making them apply directly to intra-State air navigation as well as to
the
other
categories
of air navigation to which they formerly applied. This is the
result of regulation 6 (1) (f). I can see no reason
to doubt
its validity
for,
as I have said, there are many matters on which the Commonwealth Parliament -
acting either under the
commerce
power or the
external affairs power or under
some other power - may regulate intra-State activities along with, uniformly
with, and
as incidental
to the regulation of inter-State and overseas air
navigation. But it is only with respect to such intra-State
matters
as are
thus
within Commonwealth power that reg. 6 (1) (f) can have an effective
operation. It does not of itself bring any
subject
matter within
power. It
merely states what the Commonwealth law is on matters that are within
Commonwealth power. It is thus
still
necessary, in
the case of any regulation
that reg. 6 (1) (f) purports to make applicable to intra-State air navigation,
to
ask whether,
thus applied,
it is a law with respect to a subject matter on
which the Commonwealth Parliament has power to make laws.
If it is
not, then
it will
be invalid so far as it relates to intra-State matters. It may be
quite valid for other purposes for the
distributive
form of reg.
6 and the
Acts Interpretation Act, s. 46 enable each regulation to have a severable
operation. (at p154)
6. Regulation 198 provides that an aircraft shall not be used in regular public transport operations - an expression that is defined - except under the authority of an airline licence issued by the Director-General of Civil Aviation, an officer of the Commonwealth. It was argued for the plaintiff and the Commonwealth that the application of this provision to all regular public transport operations was reasonably necessary for ensuring the safety, regularity and efficiency of the activities of inter-State and overseas air services. That, I think, was shown to be so in fact. Therefore reg. 6 (1) (f) validly applies reg. 198 to intra-State air navigation. A Commonwealth airline licence is thus required for the conduct of regular public transport operations within a State just as much as for the conduct of an inter-State or overseas air service. A licence is a permission to do something the doing of which without such permission would be unlawful. That is the legal meaning of a licence. The illegality which a licence overcomes may be the result of an express prohibition, or of some general law, or it may be implicit in a provision that for the doing of some stated act a licence is required. In this case it is the express prohibition in reg. 198. (at p154)
7. Regulation 199 (4) puts the grant or refusal of an airline licence for an intra-State air service within the discretion of the Director-General. In deciding whether or not to grant a licence he is to "have regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters". Wide as these words are, they limit the matters that the Director-General may consider. It was not suggested that, thus limited, the discretion was not lawfully confided to him. (at p154)
8. It was urged for the plaintiff and the Commonwealth that, in addition to defining the grounds on which the Director-General might exercise his discretion, reg. 199 (4) served another purpose - that it brought the provisions for the licensing of intra-State airlines within the power of the Commonwealth with respect to external affairs. The proposition seemed to be based on the presence in art. 37 of the Chicago Convention of the words "safety, regularity and efficiency" and their repetition in reg. 199 (4). The words are apt in either context. But the contexts are entirely different. It is only necessary to read art. 37 to see that it contains nothing requiring the Commonwealth to make a law in the terms of regs. 198 and 199. In short these regulations are not laws with respect to external affairs. But, as I have said, they are in my view supported by the commerce power, and are thus valid. (at p155)
9. But saying that regs. 198 and 199 are valid to the extent that they prohibit the carrying on of regular transport operations without a Commonwealth airline licence and prescribe the conditions on which a licence may be had is one thing. It is another thing to say that Commonwealth law may make the grant of such a licence equivalent to the grant of a franchise or privilege to carry on such operations within a State with an immunity from the requirements of the State law and notwithstanding any prohibitions of the State law. That is what reg. 200B purports to do - to give what counsel called a "positive authority", meaning a right in the licensee to conduct a regular air transport service within a State notwithstanding any State law to the contrary. But, as applied to a purely intra-State activity, this is obviously not a law with respect to inter-State or overseas commerce. The safety of air navigation, commerce by air, with other countries and among the States could not be imperilled by the absence of any regular air transport service between Sydney and Dubbo. Regulation 200B is thus beyond Commonwealth power and invalid so far as it relates to activities wholly within a State. (at p155)
10. As to regs. 320A and 320B, there is no reason to doubt their validity.
The former may perhaps be justified as an additional
measure for securing
safety. In any event it is clearly supported by s. 52 of the Constitution. The
latter is limited to navigation in controlled air space that directly affects
or may endanger the safety of international or
inter-State air navigation or
of air navigation within or from Commonwealth Territories or which in some
other of the ways specified
affects the Commonwealth. It is thus within power,
although a permit under it could not be well refused on a ground foreign to
its
purposes.
(iv) As to whether there is an inconsistency between State and Commonwealth
law: Regulations 198, 199, 320A and 320B being thus,
in my opinion, valid laws
of the Commonwealth, applicable to intra-State air navigation, the question
arises whether the Air Transport Act, 1964 (N.S.W.), is inconsistent with them
so as to be rendered invalid by s. 109 of the Constitution. (at p155)
11. So far as regs. 320A and 320B are concerned there is no inconsistency. They may enable the Commonwealth authorities to deny the use of Commonwealth airports and landing grounds and controlled air space to an airline that the State would wish should have the use of them. But that does not mean that there is an inconsistency between Commonwealth and State law. (at p156)
12. The position in regard to regs. 198 and 199 is a little more complicated. Regulation 200B being out of the way as invalid, regs. 198 and 199 do not mean that the State must permit the holder of a Commonwealth airline licence to operate an intra-State air transport service merely because he has such a licence. No State law says that an air service can be carried on without a Commonwealth licence. All that the State law says is that an air service may not be carried on without a State licence. Looked at in the abstract, there is no inconsistency there. It was argued however that the Commonwealth law manifested an intention that it should occupy the field. The question thus metaphorically stated arises when one asks of a valid Commonwealth law governing a particular matter whether or not it appears that it is intended that it be the whole law on the matter, intended to deal with a topic within Commonwealth power exhaustively and completely to the entire exclusion of State law. But the metaphor of occupation of a field is of no help in the initial question, what is the extent of the field available for Commonwealth occupation. As the Privy Council said in Forbes v. Attorney-General for Manitoba (1937) AC 260 , speaking of the Constitution of Canada, "The doctrine of the 'occupied field' applies only where there is a clash between Dominion legislation and provincial legislation within an area common to both" (1937) AC, at p 274 . Here the area that the Commonwealth Parliament may occupy is the field of inter-State and overseas trade and commerce. It cannot by purporting to extend its law beyond these boundaries make its entry into other fields lawful. The matters on which the grant or refusal of a Commonwealth licence depends, the safety, regularity and efficiency of air navigation, have a direct bearing upon inter-State and overseas trade and commerce. But, however widely they be understood, they are not the same matters as those on which the State law makes the grant or refusal of a State licence to depend. (at p156)
13. Unless the Commonwealth and the State can agree upon a person whom each will permit to carry on an air transport service between Sydney and Dubbo there can be no direct air service between those places. This is an inconvenience for members of the public who wish to travel by air. But the deadlock, as it has been called, does not demonstrate that the law of the State is inconsistent in the constitutional sense with the law of the Commonwealth. It demonstrates only differing policies of the Commonwealth and State governments. (at p157)
14. I would answer the questions submitted as follows: 1. As to regs. 198, 199, 320A and 320B - Yes. As to reg. 200B - No. As to reg. 6 - Yes in relation to any regulation that as applied to intra-State air navigation is a valid exercise of Commonwealth legislative power. 2. The State Act is not inconsistent with any valid Commonwealth law. (at p157)
OWEN J. In 1944 thirty-eight nations, of which Australia was one, signed an international treaty, the Chicago Convention, dealing with the subject of air navigation. In 1947 it came into force and, by Act No. 6 of 1947, its ratification on behalf of Australia was approved by the Parliament of the Commonwealth. By s. 26 (1) of the Air Navigation Act 1920-1961 the Governor-General was empowered to make regulations for the purpose of carrying out and giving effect to the Convention and any annex to it relating to international standards and recommended practices. The section provided also that regulations might be made in relation to air navigation to and from a Territory of the Commonwealth; in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States (that is the States of the Commonwealth); and in relation to air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws. By sub-s. (2) and without limiting the generality of the powers given by sub-s. (1), regulations might be made for or in relation to various matters, including (c) the licensing of air transport operations and (e) the establishment, maintenance, operation and use of aerodromes, air routes and airway facilities and the licensing of aerodromes other than aerodromes maintained by the Commonwealth. (at p157)
2. The Convention (which superseded the Paris Convention of 1919) recognized the right of every contracting State to complete and exclusive sovereignty over the air space above its territory. By art. 12 each contracting State undertook to ensure that all aircraft flying over or manoeuvring within its territory and every aircraft carrying its nationality mark wherever flying should comply with the rules and regulations relating to the flight and manoeuvre of aircraft there in force and to keep its own regulations in these respects uniform, to the greatest possible extent, with those established from time to time under the Convention. One of the purposes of the Convention as expressed in art. 28 was to impose upon each contracting State obligations (a) to provide, in its territory, airports, radio services, meteorological services and other air navigation facilities to facilitate international air navigation, in accordance with the standards and practices recommended or established from time to time, pursuant to the Convention; (b) to adopt and put into operation appropriate standard systems of communications, procedures, codes, markings, signals, lighting and other operational practices and rules recommended or established from time to time pursuant to the Convention; and (c) to collaborate in international measures to secure the publication of maps and charts in accordance with standards recommended or established from time to time pursuant to the Convention. Article 37 imposed upon each of the contracting States the obligation to collaborate in "securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation". To this end the article directed that the International Civil Aviation Organization (which was set up by the Convention) "adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures" dealing with a wide range of matters, such as communication systems, air navigation aids, airworthiness, licensing of operating and mechanical personnel "and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate". From time to time annexes dealing with international standards and recommended practices have been adopted by the Council of the International Organization and issued to the contracting States. To date fifteen such annexes have been adopted and issued containing detailed standards and recommendations, each annex relating to a particular aspect of air navigation and matters incidental thereto. The titles of the annexes give some indication of the nature of the subjects with which they deal in great detail. Annex 1 is headed "Personnel Licensing", annex 2 "Rules of the Air", annex 3 "Meteorology", annex 4 "Aeronautical Charts", annex 5 "Units of Measurement to be used in Air-Ground Communications", annex 6 "Operation of Aircraft", annex 7 "Aircraft Nationality and Registration Marks", annex 8 "Airworthiness of Aircraft", annex 9 "Facilitation", annex 10 "Aeronautical Telecommunication", annex 11 "Air Traffic Services", annex 12 "Search and Rescue", annex 13 "Accident Inquiry", annex 14 "Aerodromes" and annex 15 "Aeronautical Information Services". Article 38 enables a contracting State which finds it impracticable to comply in all respects with any international standard or procedure or to bring its own regulations or practices into full accord with any international standard or procedure or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard to apply its own regulations and practices, but requires it, in such case, to notify promptly the International Organization of the differences between its own practices and those established by the international standards. In such case the International Organization is directed to make immediate notification of the differences to the other contracting States. In In re the Regulation and Control of Aeronautics in Canada (1932) AC 54 the Judicial Committee, speaking of the Paris Convention of 1919 for the regulation of aerial traffic which the Chicago Convention now replaces, said, that its terms "include almost every conceivable matter relating to aerial navigation" (1932) AC 54, at p 77 . Having regard to the vast aeronautical developments since 1919, the speed at which aircraft travel and the development of scientific and other matters relating to air navigation, the Chicago Convention and its Annexes naturally cover a far wider field than did the Paris Convention and what their Lordships said applies with equal force to the Chicago Convention and the Annexes issued pursuant to it. (at p159)
3. It is convenient now to give an outline of the Regulations which have been issued under s. 26 of the Commonwealth Air Navigation Act. They cover a wide field, as a reference to the headings of the Parts and Divisions into which they are divided shows. Part I deals with preliminary matters and contains reg. 6 (1) which makes the Regulations applicable 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 of the Commonwealth; (d) air navigation to or from those Territories; (da) air navigation in which a Commonwealth aircraft is engaged; (e) air navigation in "controlled airspace" of a kind not specified in paragraphs (a) to (da) mentioned above but which directly affects, or may endanger, the safety of persons or aircraft engaged in air navigation of a kind specified in pars. (a), (b), (d) or (da) or air navigation in which a military aircraft is engaged. And by reg. 6 (1) (f) the Regulations are declared to apply also to all air navigation within Australian territory of a kind not specified in the earlier pars. (a) to (da), with the result that in general the Regulations are made applicable to intra-State air navigation. "Controlled airspace" is defined to mean airspace designated as a "control area" or "control zone" by the Director-General pursuant to reg. 95 and by that Regulation the Director-General may designate airspace that is within horizontal and vertical limits as a "control area" or "control zone". "Air navigation" is not defined by the Regulations but I agree with what Dixon J. (as he then was) said of the expression in The King v. Burgess; Ex parte Henry (1936) 55 CLR, at p 670 . It comprehends the carriage of goods and passengers by air "and all the matters preparatory to flying by air, incidental thereto or consequent thereon". And, "'Air navigation' is an indefinite expression and might be used to describe transport by air. But its association in the Act with the convention for the regulation of aerial navigation shows that it is intended to cover a much wider field" (1936) 55 CLR, at p 672 . The Convention to which his Honour was referring was the Paris Convention of 1919, but his words are equally applicable to the Chicago Convention. (at p160)
4. To return to the Regulations, Pt II is headed "Administration and Organization". Part III, "Registration and Marking of Aircraft", deals with the registration and the marking of all Australian aircraft. Part IV is headed "Airworthiness Requirements". It deals with "Certificates of Type Approval" (div. 2), "Certificates of Airworthiness" (div. 3), "International Operators" (div. 4), "Approved Persons and Aircraft Maintenance Engineers" (div. 5), and "Maintenance" (div. 6). Part V deals with the licensing and ratings of operating crews of aircraft, Pt VI with flying schools and training organization, Pt VII with log books and logs, and Pt VIII with the equipment of aircraft with radio apparatus. Part IX is headed "Aerodromes and Facilities and Services". It deals with aerodromes, air routes and airways (div. 1), obstructions to and the clearing and marking of aerodromes (div. 1A), air traffic control (div. 2), meteorological services (div. 3), search and rescue service (div. 4), and fares, freights, time tables and statistical returns (div. 6). Part X is headed "Conditions of Flight". Division 1 deals with many general matters relating to the conditions under which aircraft are permitted to fly. They are prohibited from doing so unless they bear nationality registration marks and are certified as airworthy, to take only two examples. Flight manuals must be kept and various documents carried. Prohibited, restricted and danger areas may be declared over which flight may be prohibited or restricted. The carriage and use of cameras and the carriage of dangerous goods and firearms may be prohibited. Division 2 contains detailed flight rules. Part XI sets out the rules of the air which must be followed and Pt XII deals with signals for the control of air traffic. Part XIII is headed "Air Service Operations" and contains what seem to me to be, when read with reg. 6 (1) (f), the provisions which really bear upon the matters in issue in the present case. Division 1, which contains regs. 191-204, deals with the "Classification and Licensing of Operations". By reg. 191 "air transport" is divided into four classes. The first class consists of "Private operations", which, speaking generally, relates to operations by an individual for his own private purposes - what I may call "private flying". The second class covers "Aerial work operations" of which aerial surveys and flying training are illustrations. The third class comprises "Charter operations", and the fourth "Regular public transport operations, being 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 specific routes". Regulations 196 and 197 forbid the use of aircraft on charter and aerial work operations except under a licence issued by the Director-General. Regulation 198 prohibits the use of an aircraft in regular public transport operations except under the authority of and in accordance with a licence (called an "airline licence") issued by that officer. Regulation 199 requires an applicant for an airline licence to furnish the Director-General with such information as he requires and, where the proposed service is an intra-State service, the Director-General, in deciding whether or not to grant a licence, is to have regard to "matters concerned with the safety, regularity and efficiency of air navigation and to no other matters" (reg. 199 (4). Regulation 199A deals with the form of licences and reg. 200 with their duration. By reg. 200A, the Director-General is empowered to cancel or suspend a licence if its holder has contravened or failed to comply with the Act or Regulations or with the terms of the licence or if he is satisfied that it should be cancelled or suspended in the interests of the safety of the aircraft or persons on board it or in the interests of public safety or, in the case of a licence to conduct intra-State operations he is satisfied that it is necessary or desirable, having regard to matters concerned with the safety, regularity and efficiency of air navigation, to cancel or suspend it. Regulation 200B provides that " . . . an airline licence authorizes the conduct of operations in accordance with the provisions of the licence subject to the Act and these Regulations and to the other laws of the Commonwealth". By reg. 203A the Director-General, in the exercise of any power or performance of any function under the Division, is to have regard to the need for co-ordinating, in the interests of safety in air navigation, all operations of the kind referred to in reg. 191. Division 2 of Pt XIII lays down detailed requirements designed to ensure the safety of "commercial operations" and such an operation is defined by reg. 5 (1) to mean "an air operation specified in Regulation 191 of these Regulations, other than a private operation". An operator engaged in commercial operations is required to provide an adequate organization, including trained staff, together with workshop, equipment and facilities to ensure that aircraft and their accessories are maintained in an airworthy condition (reg. 206). Maintenance manuals must be provided for the use and guidance of maintenance personnel (reg. 207) and must be kept up to date (reg. 208). He must make provision for training maintenance personnel (reg. 210) and see to it that maintenance records are kept (reg. 211). He must provide operations manuals for the use and guidance of operating personnel as to the conduct of flight operations (reg. 212). Flight time records must be kept (reg. 213) and a training and checking organization provided to ensure that operating crews maintain their efficiency (reg. 214). An operator may not allow a pilot to command an aircraft engaged in a regular public transport service unless he has certain qualifications relating to the route over which the service is conducted (reg. 215) and route qualifications are also required of co-pilots (reg. 215B). Division 3 deals in detail with the conduct of flying operations before, during and after flight. Part XV is headed "Suspension and Cancellation of, and Refusal to Issue or Renew, Licences and Certificates". Its details do not seem to be of any relevance in the present case but it should perhaps be said that it provides (inter alia) for the setting up of a board of review to which a person aggrieved by a refusal by the Director-General to grant a licence or certificate or by a variation, cancellation or suspension of a licence or certificate may have the Director-General's decision referred for review and, in the alternative, enables such a person to appeal to a court. Part XVI provides for inquiries into accidents in relation to aircraft. Part XVII deals with penalties and prosecutions and Pt XVIII with evidence. Part XIX deals with miscellaneous matters and contains inter alia provisions forbidding an aircraft to land or take off from a Commonwealth aerodrome except under the authority of a permit issued by the Director-General (reg. 320A) and forbidding an aircraft to be flown in controlled airspace in the course of air navigation of a "kind specified" in reg. 6 (1) (e), to which I have referred earlier, except under the authority of a permit issued by the Director-General (reg. 320B). Its effect, so far as the present case is concerned, is to forbid an aircraft to be flown in controlled airspace in the course of intra-State air navigation operations which directly affect or may endanger the safety of persons or aircraft engaged in international air navigation within Australian territory or air navigation in relation to trade and commerce between the States or with other countries or air navigation within or to or from the Territories or air navigation in which a Commonwealth aircraft is engaged unless with the permission of the Director-General. (at p163)
5. The plaintiff conducts regular public transport operations between various points within the boundaries of the State of New South Wales. One of the services which it has been conducting is between the Kingsford Smith aerodrome at Sydney and the Dubbo aerodrome, both being Commonwealth aerodromes. It holds a licence issued by the Director-General under reg. 198, a permit issued under reg. 320A to land and take off its aircraft from both aerodromes and a permit issued under reg. 320B to fly its aircraft in controlled airspace. Flights between Sydney and Dubbo necessitate the use of controlled airspace and of the aerodromes mentioned and it should, perhaps, be added that all intra-State airline services in New South Wales run to and from the Kingsford Smith aerodrome as do all international and inter-State services and services to and from the Territories whose aircraft land in New South Wales. Until recently the plaintiff was also the holder of a licence issued by the New South Wales Commissioner for Motor Transport under the State Transport (Co-ordination) Act of New South Wales authorizing it to conduct that service. On 1st September 1964 the Commissioner for Motor Transport informed the plaintiff by letter that he had decided to re-allocate intra-State air routes by granting East-West Airlines Ltd. a licence to conduct the service between Dubbo and Sydney and cancelling the plaintiff's licence to conduct that service and at the same time to grant to the plaintiff a licence to conduct an intra-State service between other points which East-West Airlines Ltd. had hitherto been conducting. Following this intimation the Commissioner on 12th October 1964 cancelled the plaintiff's licence relating to the Dubbo-Sydney service and shortly afterwards a State Act, the Air Transport Act, No. 36 of 1964, was enacted. By s. 3 it provides that " [1964] HCA 2; (1964) 113 CLR 1 A person shall not, on or after the appointed day, carry by an aircraft from a place in New South Wales to another place in New South Wales any passengers or goods unless - (a) the aircraft is licensed under this Act; (b) that person is the holder of the license; and (c) where the license was granted in respect of a route or routes, the route over which the passengers or goods are so carried is such a route." And heavy penalties are prescribed for a breach of this provision. Section 6 gives the Commissioner a discretion to grant or refuse to grant a licence and, in exercising that discretion, the section directs him to have regard to such of the matters set out in that section as seem to him to be appropriate and to no other matters. The matters specified relate to the air transport needs of the public; the extent to which they are already being served; the allocation of routes so as to foster more than one airline operating in New South Wales; the character, suitability and fitness of the applicant for the licence; and the effect that the intended service may have on other forms of public transport. By s. 7 the licence, if granted, is to specify the aircraft in respect of which it is issued and the route or routes in respect of which it is granted. Section 8 gives the Commissioner a discretion to revoke, suspend or vary a licence granted by him, having regard to the matters set out in s. 6 and s. 18 provides that nothing in the Act shall relieve a person of any obligation to hold or effect any licence or registration which he is otherwise by law required to hold or effect. (at p164)
6. The Commissioner has indicated that he will not grant the plaintiff a licence to conduct the service between Dubbo and Sydney to which its licence from the Commonwealth relates and that, if it carries on that service, proceedings will be instituted against it to recover penalties for breach of the State Act. In these circumstances the plaintiff has taken these proceedings seeking inter alia declarations that the Air Transport Act of New South Wales is invalid in so far as its provisions would operate to prohibit the plaintiff from carrying on the service between Dubbo and Sydney without a licence from the Commissioner for Motor Transport and the constitutional questions thus raised are of great importance. (at p164)
7. At the time when the case of Airlines of New South Wales Pty. Ltd. v. New South Wales (1) was decided, the Regulations did not include regs. 6 (1) (f) and 200B. In the absence of reg. 6 (1) (f) it was held that the Commonwealth had not intended to cover the whole field of air navigation in Australia, the general body of the Regulations had not been applied to intra-State air navigation and there was therefore no inconsistency between the Commonwealth law and the then State law providing for the licensing by a State authority of intra-State services. Regulation 6 (1) (f) was introduced as a result of that decision and I have no doubt that it is valid. (See, for example, what was said by Dixon C.J. (1964) 113 CLR, at pp 27-29 , and by Windeyer J. (1964) 113 CLR, at pp 50, 51 ). If reg. 200B, as applied by reg. 6 (1) (f) to intra-State air transport, is also a valid exercise of power, there can be no doubt that the licence and the permits which the plaintiff holds from the Director-General entitle it to conduct the service between Sydney and Dubbo without regard to the requirements of the New South Wales Air Transport Act. It is plain that on its true construction the regulation is intended to apply to all public air transport services in Australia and its Territories so that a person holding the licence to which it refers may conduct the service to which it relates notwithstanding any State law to the contrary. If it is within power, there is no room for a State law which prohibits the conduct of an intra-State service without the permission of a State licensing authority. (at p165)
8. "Air navigation" is not one of the subjects with respect to which the Constitution expressly confers upon the Commonwealth power to legislate. But, for the plaintiff, and for the Commonwealth which was given leave to intevene in the proceedings, it was contended that reg. 200B is supportable under the external affairs power or under the trade and commerce power or under a combination of both. No one denies the right of the Commonwealth under the first of these heads to make laws for the purpose of giving effect to obligations undertaken by it under an international treaty to which it is a party, and to make laws incidental to the execution of that purpose subject, of course, to limitations such as s. 92 which may be found in the Constitution. (at p165)
9. I have not found, nor would I expect to find, in the Chicago Convention or in the annexes issued pursuant to it an express obligation imposed upon the contracting States to set up a system whereby those who wish to conduct air services within their territories must obtain licences to do so but they impose a wide range of obligations designed, amongst other things, to facilitate and improve international air navigation and ensure its safety, regularity and efficiency. To that must be added that under the trade and commerce power the Commonwealth may make laws directed to ensuring the safety, regularity and efficiency of air navigation between the States and with other countries. (at p166)
10. The evidence which has been placed before us shows the extent to which air navigation operations, whether intra-State, inter-State, international or to and from the Territories, have become inseparably connected as a result of the development of transport by air in Australia and its Territories since the last war and it is, it seems to me, impossible in this day and age for the Commonwealth to maintain the safety, regularity and efficiency of interstate and international air operations without exercising a very considerable degree of regulation and control over the conduct of intra-State air navigation. Not only must all aircraft use the same air and the same aerodromes, as Latham C.J. pointed out in The King v. Burgess; Ex parte Henry (1936) 55 CLR, at p 628 , but all must use the same communication and other aids which modern science has produced and all must obey the same rules if safety, regularity and efficiency are to be maintained in the conduct of inter-State and overseas air operations in Australia. The present case raises the kind of problem that the learned Chief Justice had in mind when he said "A new problem would be raised if in any given case it were established by evidence in respect of a particular subject matter that the intermingling of foreign and inter-State trade and commerce with intra-State trade and commerce was such that it was impossible for the Commonwealth Parliament to regulate the former without also directly regulating the latter" (1936) 55 CLR, at p 629 . He was there speaking of the trade and commerce power but what he said applies equally to the power of the Commonwealth to make laws for the purpose of carrying into effect obligations imposed upon it under the Chicago Convention and its Annexes. (at p166)
11. As I have said, I think the development of air navigation in Australia has reached a stage at which it can properly be said that in order to ensure the safety, regularity and efficiency of inter-State and overseas air navigation it is necessary that the Commonwealth should exercise a wide measure of control over intra-State air navigation. The question is, however, the extent to which that control may lawfully go. I have no doubt that it is within the power of the Commonwealth to insist that no intra-State air transport operations shall be conducted without its permission. Equally I have no doubt that in considering whether it will give permission for the conduct of an intra-State airline service, it must have regard to the suitability of the applicant for permission to conduct that service. The licensing system set up by regs. 198, 199 and 200A and applied to intra-State air navigation by reg. 6 (1) (f) is, I think, within power whether the matter be looked at from the point of view of the external affairs power or the trade and commerce power. It provides a means of ensuring that permitted air transport operations shall be conducted in accordance with the conditions laid down for their conduct and it enables the licensing authority to consider whether an applicant for permission to conduct such a service is qualified to provide and maintain the necessary aircraft, equipment, ancillary services and skilled personnel. So too the Commonwealth may insist, as it has, that no aircraft shall fly in controlled airspace or use its aerodromes without its permission. All this is, I think, really conceded by the States and it is recognized by s. 18 of the State Air Transport Act. But reg. 200B goes a step further. If it be valid to the full extent to which it purports to go, it would entitle a person holding an airline licence from the Commonwealth to conduct the intra-State service to which that licence relates regardless of the law of the State upon the subject and it is at this point that the States take the stand that the Commonwealth law has gone beyond power. Their submissions are, in effect, that a State may lawfully insist that there shall be no intra-State service within its territory unless by its permission. If it refuses to permit such a service the safety, regularity and efficiency of inter-State and overseas services cannot be prejudically affected. If it grants its permission for the conduct of such a service it may select the person who is to conduct it subject, nevertheless, to the right of the Commonwealth to refuse to allow that service to operate if it bona fide takes the view that its refusal is necessary to ensure the safety, regularity and efficiency of inter-State and overseas services. If it is prepared to allow that service to operate it may for the same reasons select the person whom it will permit to operate it. In so far as reg. 200B purports to enable the Commonwealth to go further than this and provide that notwithstanding anything the State law may have to say there shall be an intra-State service it is beyond power. It is one thing to say that to ensure the safety, regularity and efficiency of inter-State and overseas air services, the Commonwealth may lawfully refuse to allow an intra-State service to operate or may refuse to permit it to do so unless it is conducted by a person or organization of its choice. It is another to say that an intra-State service authorized by it may operate whether the State concerned is agreeable or not. (at p167)
12. The conclusion to which I have come is that the States' submissions must be upheld and if reg. 200B is beyond power to the extent I have mentioned, as I think it is, there is no inconsistency between the Air Transport Act and the Commonwealth laws. The result may be - as has occurred in this case - a state of deadlock. Both Commonwealth and State are willing that there should be a service between Sydney and Dubbo. The State will permit it only if it is operated by East-West Airlines Ltd., the Commonwealth only if it is operated by the plaintiff and it is not the function of this Court to resolve that conflict. (at p168)
13. I would answer the questions asked by saying that regs. 6 (1) (f), 198 and 199 are valid. No attack was made upon the validity of regs. 320A and 320B and they are plainly within power. Regulation 200B in so far as it purports to enable the holder of an airline licence from the Commonwealth to operate an intra-State service without also holding a licence from the State under the Air Navigation Act is invalid and, that being so, the State Act is not inconsistent with Commonwealth law. (at p168)
ORDER
The Court answers the questions referred to it as follows:
Question 1. Whether the provisions of regs. 6, 198, 199,
200B, 320A and 320B of the Air Navigation Regulations,
in so far as they purport to relate to regular public
transport
operations (as defined by the Regulations) solely
within the State of New South Wales, are valid laws of
the Commonwealth.
Answer: Regulation 6. There is no need for any further
answer in relation to this regulation than is given in the
answers in relation to regs. 198, 199, 200B, 320A, 320B.
Regulations 198, 199, 320A, 320B.
These regulations are all valid in so far as they apply by virtue of reg. 6
to intra-State air navigation.
Regulation 200B.
This regulation is invalid in so far as it purports by virtue of reg. 6 to
apply to intra-State air navigation.
Question 2. If so, whether such laws are inconsistent with
the provisions of the Air Transport Act, 1964.
Answer: No provisions of the Air Transport Act is
inconsistent with such valid regulations.
Order that the plaintiff pay the defendants' costs of the reference to the
Full Court.
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