CTHHCA

Airlines of New South Wales Pty Ltd v New South Wales

[1964] HCA 2

High Court of Australia|1964-07-01|Before: Owen JJ, Kitto J

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1964-07-01

Before

Owen JJ, Kitto J

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

This matter comes before the Full Court as upon four questions referred under s. 18 of the Judiciary Act 1903-1960 Cth. The pleadings and a statement of agreed facts followed by a further statement of agreed facts form the material on which the questions are to be decided. Upon the hearing of the argument the fourth of the four questions was remoulded. The original form of the question can be ignored. The order, which was a consent order made by Kitto J., directed that the four questions be argued before the Full Court of the High Court of Australia. In other words, the questions were not referred under the earlier part of the section as a stated case. Nor in point of form at all events is there a reservation of questions for the consideration of the Full Court, but as the words of the section say thereupon the Full Court is empowered to hear and determine the questions. The action, which was commenced by a writ issued in the New South Wales Registry, came notionally for hearing before his Honour in Melbourne on 28th May 1963 for the purpose of giving the direction under s. 18 of the Judiciary Act. The plaintiff and all the defendants were represented by counsel. The jurisdiction of the Court to entertain the action was apparently based upon s. 75 (iii.) and (v.) of the Constitution. The Commonwealth was joined as a party and an injunction was sought against the Director-General of Civil Aviation, who is of course an officer of the Commonwealth, but when the facts of the case are examined it does not appear that the relief sought either against the Commonwealth or against the Director-General covers the real point of the plaintiff's complaint.

[2]

[5]

On 25th October 1961, that is to say less than a fortnight after the date of the report, the Commissioner for Motor Transport wrote a letter to the plaintiff company informing the company that the Government had now decided to make a re-allocation of intra-State air routes as shown in a schedule and that pursuant to the powers conferred by the State Transport (Co-ordination) Act licences issued under the Act for aircraft operated by the company were thereby varied as shown in another attached schedule, the aircraft affected being listed in that schedule. The letter went on: "In addition to the above variation, the re-arrangement of routes will embrace, as indicated in Schedule A, the transfer to East-West Airlines Limited of services at present operated by your Company from Sydney to Dubbo and from Sydney to Casino. However, the date of this change has not yet been determined". The letter contained a reference to any necessary authorities under the Commonwealth Air Navigation Act or Regulations being obtained from the Director-General by the parties concerned. The schedules showed that there was to be a transfer from Airlines of New South Wales Pty. Limited to East-West Airlines Limited of a route Sydney-Narrabri-Moree as from 19th November 1961. There was a transfer from Airlines of New South Wales Pty. Limited to East-West Airlines Limited as from 17th December 1961 of routes from Sydney to Scone, Sydney to Forster, Sydney to Kempsey and Sydney to Coffs Harbour and, on the contrary, a transfer from East-West Airlines Limited to Airlines of New South Wales Pty. Ltd. of routes from Sydney to Orange, Sydney to Cowra, Sydney to Condobolin, Sydney to Lake Cargelligo, Sydney to West Wyalong and Sydney to Temora and, as from a date or dates to be fixed, there was to be a transfer from Airlines of New South Wales Pty. Limited to East-West Airlines Limited of routes from Sydney to Dubbo, and Sydney to Casino. The schedule also named five DC. 3 aircraft and three Fokker Friendship aircraft the licences of which were to be varied. To meet this situation the plaintiff Airlines of New South Wales Pty. Limited issued a writ in the present case on 10th November 1961.

[6]

Reverting to the question of jurisdiction, it is obvious that the facts as I have stated them gave no right of action against the State of New South Wales over which prima facie this Court has jurisdiction, nor against the Commissioner for Motor Transport. The facts as so far stated do not show a cause of action against the Commonwealth or the Director-General in his personal capacity or as an officer of the Commonwealth but of course the Court has jurisdiction over any cause of action against the Commonwealth or against any officer sued on behalf of the Commonwealth and there is of course jurisdiction over the claim for an injunction against him if there is any foundation for the injunction. Clearly enough, however, after the receipt of the letter of 25th October 1961 from the Commissioner for Motor Transport of New South Wales, there would be every desire on the part of the Airlines of New South Wales Pty. Limited, the present plaintiff, to find a means of preventing the splitting up of the air routes as notified in the letter of 25th October 1961 and the variation of the licences suggested by the same letter. Hence the issue of the present writ. The foundation for bringing the Commonwealth into the matter at all was sought by the plaintiff in an allegation that the relevant provisions of the State Act were void because they were inconsistent with the federal legislation. Again, the jurisdiction to grant an injunction against the Director-General of Civil Aviation was based upon a contention that he would or might treat the Air Navigation Regulations of the Commonwealth as requiring a licence for the company and as treating existing licences as having ceased on the plaintiff's aircraft being transferred under the State Transport (Co-ordination) Act as amended. It was feared by the plaintiff that he might cancel or suspend or otherwise deal with the licences as if the plaintiff, because of the loss of its licence under the State Transport (Co-ordination) Act, had failed to comply with the Air Navigation Act 1920-1961 of the Commonwealth or as having infringed upon the requirements of the federal law. It was said that each of the licences held by the plaintiff company issued by the Department of Civil Aviation of the Commonwealth contains or indicates a condition that the licence is subject to compliance with the provisions of State transport legislation in so far as is applicable. The general power of the Director-General to cancel a licence issued under the Division, as distinguished from the grounds upon which he may proceed, undeniably exists and it is expressly ordained that if the holder of such a licence for an aircraft operated under the licence has contravened or failed to comply with the provisions of the Act or the Regulations or the terms of the licence, it may be cancelled or suspended.

[8]

There was an international convention on civil aviation which met at Chicago in 1944 which is called the Chicago Convention, and the Air Navigation Act 1920-1961 defines the term "Chicago Convention" as meaning the Convention on International Civil Aviation concluded at Chicago on 7th December 1944. It was ratified on behalf of Australia and the ratification was approved by Parliament: see s. 3A. The text is to be found in the First Schedule of the Air Navigation Act 1920-1961. A study of the Schedule suggests that obligations are placed upon the Commonwealth which extend over the whole territory of Australia and that in almost all respects the legislative power which arises from the need of carrying out the Convention given by s. 51 (xxix.) would suffice to support laws made with a complete disregard of the distinction between inter-State and intra-State trade; it would follow that no reliance upon s. 51 (i.) by the Commonwealth would be necessary. But a consideration of the Regulations made under the Air Navigation Act shows that that view was not adopted; in fact the Commonwealth took power under the Act and exercised the power by regulations which took account of the distinction. Section 26 of the Air Navigation Act 1920-1961 of the Commonwealth provides that the Governor-General may make regulations, not inconsistent with the Act "(1) (b) for the purpose of carrying out and giving effect to the Chicago Convention, as amended by the Protocols (c) in relation to air navigation within a Territory of the Commonwealth or to or from a Territory of the Commonwealth; (d) in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States". Air navigation regulations were made and have been amended frequently. They stand as "the Air Navigation Regulations " which may pursuant to cl. 1 thereof be cited under that title. Clause 6 of the Regulations sub-cl. (1) says that subject to the Regulations the Regulations apply to and in relation to "(a) international air navigation within Australian territory; (b) air navigation in relation to trade and commerce with other countries and among the States; (c) air navigation within the Territories; (d) air navigation to or from the Territories; and (e) air navigation in controlled airspace which directly affects, or which may endanger, the safety of persons or aircraft engaged in a class of air navigation specified in paragraphs (a), (b) or (d) of this sub-regulation". The Regulations of course are expressed not to apply in relation to military aerodromes or state aircraft. Surprising as it, at first, appeared to me, I think that this sub-clause intended to cover the entire field to which, subject to any special regulation, the Air Navigation Regulations are to apply. It means that apart from special regulations the Regulations do not cover intra-State trade and commerce. In saying this I do not mean to exclude their operation under pars. (a) or (c) or (d) or (e). Paragraph (e) has a not unimportant application to this case but pars. (a), (c) and (d) do not apply.

[19]

The plaintiff company is the owner of a number of aircraft licensed by the Commissioner for Motor Transport for the carriage of passengers and goods pursuant to the provisions of the State Transport (Co-ordination) Act, 1931-1956 N.S.W.. These aircraft are operated by the plaintiff in the course of its air transport business upon routes between a large number of towns and cities all of which are in New South Wales. Additionally, the plaintiff is the holder of an "airline licence" issued by the Director-General of Civil Aviation pursuant to reg. 199 of the Air Navigation Regulations which were made under the authority of the Air Navigation Act 1920-1961 of the Commonwealth of Australia. In form each licence issued under the State Transport (Co-ordination) Act licenses the aircraft to which it refers "as an aircraft" under the Act subject to the conditions set out in a document marked "X" delivered by the Commissioner to the plaintiff. In that document there is specified as condition (1) that "the aircraft is authorized to operate for the carriage of passengers and goods between the following places in accordance with the routes and timetables set forth in Schedule "A".". Thereafter many places, all of which are in New South Wales, are specified. However, on 25th October 1961 the Commissioner purported to vary the condition of each of the existing licences by omitting condition (1) and by substituting a new condition, more or less in the same form, but which made a number of variations in the places from and to which the aircraft might be operated. The plaintiff now claims that the State Transport (Co-ordination) Act, or certain of its provisions, in so far as the Act and its provisions "relate to aircraft", are inconsistent with the provisions of the Air Navigation Act and the Regulations and other instruments duly made and issued pursuant thereto and, therefore, invalid by reason of s. 109 of the Constitution. The reference to "other instruments" is intended as a reference to Air Navigation Orders, Aeronautical Information Publications and Notices to Airmen by means of which the Director-General of Civil Aviation is authorized by the Regulations to give such instructions and directions on matters within the functions of Air Traffic Control as he considers necessary. These "other instruments" do not, however, constitute laws of the Commonwealth in spite of the fact that non-compliance with instructions or directions so given may constitute an offence under the Regulations. Further, the plaintiff claims that the purported variation of the licences held by it under the State Transport (Co-ordination) Act was ineffective since the purported variation was not authorized by the terms of the Act. Following upon the filing of defences in the suit the parties agreed that four questions should be argued before the Full Court and, by consent, they were referred by an order of 28th May 1963 pursuant to s. 18 of the Judiciary Act 1903-1960. For the purpose of the argument the parties also prepared a statement of agreed facts with many exhibits thereto and this material was before the Full Court upon the hearing.

[20]

The arguments of the plaintiff were presented at great length but as I understand them two contentions were advanced upon the matters of constitutional significance in the case. First of all it was said, somewhat broadly, that the Commonwealth had by its legislation, the validity of which was not in dispute, assumed such a degree of control over the activities involved in or directly associated with aerial navigation that there was no room for the operation of the State Transport (Co-ordination) Act so far as it forbids the operation of aircraft for the carriage for reward of passengers and goods on intra-State journeys unless the operator is the holder of a licence under that Act. This proposition the plaintiff sought to make good initially by a meticulous examination of the provisions of the Air Navigation Regulations in so far as they relate to the registration of aircraft, airworthiness requirements, the licensing of operating crews, the conditions of flight and rules of the air and other related subjects. The alternative contention has a more particular foundation in reg. 198, which, in terms, forbids the use of an aircraft in regular public transport operations except under and in accordance with an airline licence issued by the Director-General. Though the second contention may call for independent consideration it may be said at once that the first contention fails to take any account of the fact that the provisions of the Regulations upon which it rests are designed exclusively in the interests of safety in relation to aerial navigation and have nothing to say on the topic with which the State Transport (Co-ordination) Act is concerned, that is to say, the co-ordination of transport services within the State. It should also be mentioned at this stage that the Regulations have an expressly limited operation, as in general, they are expressed to apply to - "(a) international air navigation within Australian territory; (b) air navigation in relation to trade and commerce with other countries and among the States; (c) air navigation within the Territories; (d) air navigation to or from the Territories; and (e) air navigation in controlled airspace which directly affects, or which may endanger, the safety of persons or aircraft engaged in a class of air navigation specified in paragraphs (a), (b) or (d)" (reg. 6). "Controlled airspace" means airspace designated by the Director-General of Civil Aviation pursuant to reg. 95. That regulation provides that the Director-General may designate airspace extending upwards from a specified height above the surface of the earth as a control area, or airspace extending upwards from the surface of the earth as a control zone and an aerodrome and the airspace in its vicinity as a controlled aerodrome, and a control area, control zone or controlled aerodrome so designated is "a controlled airspace". It will be necessary to return to reg. 6 after some account has been given of the history of Commonwealth legislation with respect to aerial navigation.

[22]

Two further amendments were made in 1947. This was after the conclusion at Chicago on 7th December 1944 of the Convention on International Civil Aviation. The first of these amendments was designed to do two things; it was intended to authorize the making of regulations for the purpose of carrying out and giving effect to that Convention and any amendment thereof, and, also to place the regulation-making power otherwise upon a broader basis than that specified in the earlier legislation. Act No. 6 of 1947 authorized the Governor-General to make regulations not only for the purpose of implementing the Chicago Convention but also for the purpose of providing for the control of air navigation - "(a) in relation to trade and commerce with other countries and among the States; (b) in relation to the Naval and Military defence of the Commonwealth and of the several States; (c) in relation to postal and other like services; (d) within any Territory of the Commonwealth; (e) within any State the Parliament of which has referred to the Parliament of the Commonwealth the matter of the control of air navigation within that State; and (f) for carrying out and giving effect to any other international convention or agreement relating to air navigation to which Australia is or becomes a party". Later, in 1947, (Act No. 89 of 1947), this provision was repealed and a new section inserted. This section (s. 5) authorized the Governor-General to make regulations (a) for the purpose of carrying out and giving effect to the Chicago Convention and the provisions of any amendment thereof and for the purpose of carrying out and giving effect to any other international convention or agreement relating to air navigation to which Australia is or becomes a party, and for prescribing all matters - "(i) in respect of air navigation which are necessary or convenient to be prescribed in relation to any matter with respect to which the Parliament has power to make laws; or (ii) which are necessary or convenient to be prescribed in respect of air navigation within any Territory of the Commonwealth or to or from any such Territory". Finally, in 1960, the Air Navigation Act of that year was passed. Section 5 of the Principal Act was repealed and a number of provisions relating to international air navigation were enacted. The new regulation-making power was that conferred by s. 26. That section authorized the Governor-General to make regulations not inconsistent with the Act - "(a) prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act; (b) for the purpose of carrying out and giving effect to the Chicago Convention, (as amended ), any Annex to the Convention relating to international standards and recommended practices and the Air Transit Agreement; (c) in relation to air navigation within a Territory of the Commonwealth or to or from a Territory of the Commonwealth; (d) in relation to air navigation, being regulations with respect to trade and commerce with other countries and among the States; and (e) in relation to air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws".

[23]

The attempt represented by these Acts to achieve some degree of uniformity of control in relation to aerial navigation in the Commonwealth was not, during the period in which they were passed, solely confined to Commonwealth intervention. In 1920 and 1921 four of the States of the Commonwealth - Victoria, Queensland, South Australia and Tasmania - passed Acts referring to the Parliament of the Commonwealth power to legislate with respect to air navigation. But, with the exception of the Tasmanian statute, none of the Acts came into operation and all were repealed in 1937. Following further conferences between State and Federal authorities all six States in 1937 and 1938 passed Acts in a further attempt to achieve uniformity. The New South Wales Act (No. 9 of 1938) recited that at a conference of representatives of the Governments of the Commonwealth and of the States, held in 1937, it was resolved that there should be uniform rules throughout the Commonwealth applying to air navigation and aircraft, the licensing and competence of pilots, air traffic rules, and the regulation of aerodromes and that it was agreed that legislation should be introduced in the Parliament of each State to make provision for the application of the Commonwealth Air Navigation Regulations, as in force from time to time, to air navigation and aircraft within the jurisdiction of the State. Thereupon s. 4 of the Act provided that the Air Navigation Regulations made, and as in force from time to time, under the Commonwealth Act and applicable to and in relation to air navigation within the Territories, should (except so far as those Regulations were by virtue of the Commonwealth Act and the Regulations applicable to and in relation to air navigation within New South Wales) apply, mutatis mutandis, to and in relation to air navigation within New South Wales as if those Regulations as so applied were incorporated in the Act. This provision was subject to a proviso that where an aircraft was to be used for the conveyance of passengers or cargo in circumstances which would require the aircraft to be licensed under the State Transport (Co-ordination) Act and which would also require the aircraft to be used under the authority of and in accordance with a licence issued under the Air Navigation Regulations in their application by virtue of the Act, a licence should not be issued in respect of that aircraft under those regulations as so applied until a licence had been issued in respect of that aircraft under the State Transport (Co-ordination) Act. At the time when this Act was enacted s. 14 of the State Transport (Co-ordination) Act provided that every person desiring to operate a public motor vehicle (which expression by definition included an aircraft used or let or intended to be used or let for the conveyance of passengers or of goods for hire or for any consideration or in the course of trade or business) should, in addition to any licence or registration which by law he was required to hold or effect, apply to the State Transport (Co-ordination) Board for a licence for such vehicle under the Act. By sub-s. (2) the application for a licence was required to be made in the prescribed form and manner and to contain particulars, inter alia, of the registration of such vehicle under the Motor Traffic Act, 1909-1930 and the Transport Act, 1930, or under any Act of the Commonwealthr (par. (d))). Further, by s. 17 (3) (g) the Board, in dealing with an application for a licence, was required to consider, among other things, "the construction and equipment of the vehicle and its fitness and suitability for a licence". This provision was subject to a proviso that a registration of aircraft under any Act of the Commonwealth might be accepted as sufficient evidence of suitability and fitness. These two particular provisions were the subject of amendment by the Air Navigation Act, 1938. The first amendment was the deletion in sub-s. (2) (d) of s. 14 of the words "or under any Act of the Commonwealth" and the insertion in lieu thereof the words "or in the case of an aircraft, particulars of certificate of registration and the certificate of airworthiness issued under the Air Navigation Regulations" and the second amendment was the omission from the proviso to par. (g) of sub-s. (3) of s. 17 of the words "a registration of aircraft under any Act of the Commonwealth" and the insertion in lieu thereof of the words "the certificate of registration and the certificate of airworthiness of an aircraft issued under the Air Navigation Regulations ". One further provision of the Air Navigation Act, 1938 is worthy of note. That is sub-s. (2) of s. 8 which stipulated that except as provided by sub-s. (1) thereof - that is, the sub-section by which the amendments mentioned were made - nothing in the Act should affect the provisions of the State Transport (Co-ordination) Act. In 1947 the State Transport (Co-ordination) Amendment Act of that year was passed and by it the Air Navigation Act, 1938 was amended by the insertion at the end of s. 4 of the Principal Act of two provisos. The first was that where an aircraft was to be used for the conveyance of passengers or cargo in circumstances which would require the aircraft to be licensed under the State Transport (Co-ordination) Act and which would also require the aircraft to be used under the authority of and in accordance with a licence issued under the regulations in their application by virtue of the Act, a licence should not be issued in respect of that aircraft under the regulations as so applied unless or until a licence had been issued in respect of that aircraft under the State Transport (Co-ordination) Act. The second proviso was that where an aircraft was licensed under the State Transport (Co-ordination) Act it should not be necessary for any person to obtain, under the regulations as so applied, any approval of the tariff or charges for the carriage of persons or cargo on the aircraft.

[24]

But in the meantime the Commonwealth Powers Act, 1943 N.S.W. had been passed. This Act was passed in a form approved at a convention of representatives of the Commonwealth and State Parliaments at Canberra pursuant to a resolution that adequate powers to make laws in relation to post-war reconstruction should be referred by the States to the Parliament of the Commonwealth for a period of five years after the then current war. A draft bill, as approved, covered some fourteen subject-matters of legislation including "(i) - air transport". A Commonwealth Powers Bill was introduced in the Parliament of each of the six States but it was passed in the approved form in only two States - New South Wales and Queensland. In Victoria an Act was passed which contained practically all the agreed provisions but it also incorporated a condition suspending the operation of the Act until all States had passed Acts in the same or substantially the same terms. The Parliaments of South Australia and Western Australia passed Acts which departed from the approved draft in material respects whilst, in Tasmania, the Legislative Council refused to pass the bill presented to it. Following this lack of success the Commonwealth Parliament passed the Constitution Alteration (Post War Reconstruction and Democratic Rights) Bill as a proposed law for the alteration of the Commonwealth Constitution. The proposed law incorporated the substance of the earlier draft Commonwealth Powers Bill but, in addition, it contained declarations relating to freedom of speech and religious freedom. However, upon submission to the electors the proposed law was rejected by an overall majority and by a majority of the States. It was following its rejection in August 1944 and after the Chicago Convention on International Aviation that the Commonwealth sought, by the Air Navigation Act 1947, to place the regulation-making power upon the widest possible basis having regard to the limitations which, of necessity, arose out of the fact that it had no power, in terms, to make laws with respect to air navigation as a general subject-matter of legislation. The relevant terms of the 1947 Act and its successors have already been set out and need not be again mentioned.

[26]

Upon what has been said I proceed to examine the substantial and critical questions in the case upon the assumption that the relevant State legislation is within power and will operate according to its tenor unless at the present time there is in force valid Commonwealth legislation with which it is inconsistent. But there is no suggestion that the relevant Commonwealth legislation is either wholly or partly invalid. The contention is, as already appears, twofold. In the first place it is said that the Commonwealth has by its legislation assumed such a degree of control over the activities involved in or so directly associated with aerial navigation that there is no room for the operation of the relevant provisions of the State Transport (Co-ordination) Act. As I have already said this is a broad proposition and, of necessity, it must also be taken to assert that the field in which the Commonwealth may make laws dealing with aerial navigation is so wide that the operation of State laws in any way touching aircraft or their operational use for any purpose solely within the State may be excluded. Such a proposition is, of course, in direct conflict with the decisions of this Court in R. v. Burgess; Ex parte Henry [1] and R. v. Poole: Ex parte Henry [No. 2] [2] and must be rejected. But it is necessary to consider the proposition in a more particular form, that is, whether the provisions of the State Transport (Co-ordination) Act, which, in effect, provide that any person who operates an aircraft for the carriage for reward of passengers or cargo solely within the limits of the State, shall, unless the aircraft is licensed under the Act and unless he is the holder of such licence, be guilty of an offence, are inconsistent with the provisions of the Commonwealth legislation. This is a question to be resolved upon consideration of the two sets of legislative provisions and, it seems to me in the present case, ultimately, by an examination of the legislative intention discoverable in the Commonwealth legislation. But upon examination of the two sets of legislation I am unable to find any such conflict as the plaintiff's primary contention asserts. There is no suggestion of conflict between the Air Navigation Act 1920-1961 and the relevant State legislation and I can see none upon consideration of the Air Navigation Regulations. On the contrary, the regulations appear as a studied and careful attempt to devise general and comprehensive rules for securing safety in and in relation to the operation of aircraft within the limits of the regulation-making power conferred by s. 26 of the Commonwealth Act. It is unnecessary to specify the limits prescribed by this section for reg. 6, itself, expressly indicates the extent to which the regulations are to operate. The provisions of this regulation have already been set out and it is unnecessary that this should be done again. It is, however, of considerable importance to make it clear that the various fields of operation enumerated in reg. 6 make no reference to air navigation solely within the limits of any one State and this, it would seem, was done deliberately. Of course, to the extent to which air navigation of that character takes place "in controlled airspace which directly affects, or which may endanger, the safety of persons or aircraft" engaged in international air navigation within Australian territory or in air navigation in relation to trade and commerce with other countries and among the States or in air navigation to or from the Territories, it will be subject to the provisions of the regulations. The reason for the omission in reg. 6 of any reference to intra-State air navigation is readily apparent for it must be remembered that when the regulations were framed the Air Navigation Act, 1938 N.S.W. was in full force and effect, and, that the effect of this Act was to give to the Air Navigation Regulations made under the Commonwealth Act the force of State law in so far as it was thought to be necessary for achieving uniformity in the control of aerial navigation. To this end s. 5 of the State Act provided that where, by or under the Regulations, any power or function is vested in or exercisable by any person or authority for the purposes of the regulations or any part thereof, the like power or function under the regulations in their application by virtue of the Act should be vested in or exercisable by that person or authority for the purposes of the regulations in such application. It may safely be assumed that this Act of the Parliament of New South Wales and similar Acts of the Parliaments of the other States was accepted by the Commonwealth as a practical basis for securing uniformity in the control of aerial navigation throughout the Commonwealth generally and that the provisions of reg. 6 were framed in accordance with this notion. Accordingly, so far as New South Wales is concerned, I see the Commonwealth Regulations and the State legislation on the subject-matter as complementary to one another, the Commonwealth Regulations operating in the various fields denoted by reg. 6 and the State legislation adopting the same rules in relation to aerial navigation not falling within the ambit of that regulation.

[28]

The more particular contention raised by the plaintiff on this aspect of the case is concerned with regs. 198 and 199. The first of these regulations provides that an aircraft shall not be used in regular public transport operations except under the authority of and in accordance with a licence (in the regulation referred to as an "airline licence") issued by the Director-General. "Regular public transport operations", by definition, means all air service operations in which aircraft are available for the transport of members of the public, or for use by members of the public for the transport of cargo, for hire or reward and which are conducted in accordance with fixed schedules to and from fixed terminals over specified routes with or without intermediate stopping places between terminals. By reg. 199 an applicant for an airline licence is required to furnish such information in relation to the proposed service as the Director-General requires. Thereafter follow specific provisions relating to the issue of such licences. It is clear enough that of its own force reg. 198 applies to regular public transport operations which constitute, within the meaning of reg. 6, international air navigation within Australian territory (par. (a)), air navigation in relation to trade and commerce with other countries and among the States (par. (b)), or air navigation within the Territories (par. (c)). No doubt, also, it may apply to other regular public transport operations in so far as they are conducted in controlled airspace and directly affect, or endanger, the safety of persons or aircraft engaged in any one of the three classes of air navigation mentioned. But it is, I think, clear that it has no application, of its own force, to regular public transport operations which are exclusively intra-State operations whilst they are being conducted outside controlled air space. There can be little doubt that the Commonwealth may, for obvious reasons, properly assume legislative jurisdiction over all air navigation in what, for want of a better expression, may be described as properly defined controlled airspace. No question has arisen concerning the validity of the assumption by the Commonwealth of legislative jurisdiction in this particular field but to say that the Commonwealth may legitimately require an aircraft to be licensed as a condition of its use in regular public transport operations in such airspace does not mean, either, that it may prohibit the use of aircraft in such operations solely intra-State outside controlled airspace, or, that a licence when granted under reg. 199 operating as a federal law constitutes any authority to the grantee to engage in intra-State operations outside such airspace. However, the plaintiff relies upon the generality of the language of both regulations to support the argument that, in spite of reg. 6, they must be taken to apply to all forms of regular transport operations without qualification. Possibly, as the plaintiff suggests the generality of the language may be thought to be emphasized by the fact that reg. 199 deals expressly, and somewhat differently, with applications for airline licences for inter-State services and applications for licences for services other than inter-State services. In terms the regulation differentiates between the functions of the Director-General in considering applications according to whether they fall within one category or the other. But if no such differentiation had been made and the regulation merely dealt with generally and uniformly with all applications for airline licences it would, I think, be impossible to say that its operation extended beyond the fields denoted by the explicit controlling provisions of reg. 6. And, notwithstanding the differentiation which is made, the same conclusion must follow. For it is made, not for the purpose of indicating any overriding intention contrary to reg. 6, but merely because of the provisions of s. 92 of the Constitution and in order to secure a right to an applicant for a licence for an inter-State service upon satisfying the conditions prescribed by sub-reg. (2) and, in respect of all other licences within the fields denoted by reg. 6, to give to the Director-General an absolute discretion. I should add, that if upon its true construction reg. 198 applied of its own force to regular public transport operations of a purely intra-State character I would gravely doubt its validity. In the first place it would, I think, be beyond the limited regulation-making power conferred by s. 26 of the Air Navigation Act 1920-1961 and, in the second place, I would be disposed to think that it travelled beyond constitutional power. On the latter point it should be observed that the only matter with which reg. 198 is concerned is the use of aircraft, which may otherwise be lawfully operated, for regular public transport operations. In other words all that it purports to do is to prohibit the use of aircraft for the purpose of transporting members of the public or cargo in regular public transport operations and I am unable to see any ground upon which Commonwealth legislation forbidding such operations without qualification within the limits of any one State could be justified.

[30]

A further objection raised by the plaintiff was that the notice of 25th October 1961 was not a notice which effectively operated to vary the conditions of its existing licences. The question whether this was so or was not was raised by the fourth question in the case stated which was, at the hearing, replaced by a more general question which raised much the same point. The notice was given under sub-s. (11) of s. 18 of the State Act which, in terms, authorizes the Commissioner of Road Transport, if at any time he thinks it desirable that any of the terms, conditions, and authorities in respect of any licence for a public motor vehicle should be varied during the currency thereof, or that any new term, condition or authority should be attached to any such licence during its currency, to vary the same or attach thereto such term, condition or authority accordingly, and the terms, conditions and authorities as so varied or added to as the case may be shall thereafter be the terms, conditions and authorities of the licence. In terms, the language of this provision is clearly wide enough to authorize the notice in question but the plaintiff contends that its generality ought to be taken to be restricted by a consideration of several of the matters which the Commissioner is required to take into consideration in dealing with applications for licences in the first instance. It is, I think, unnecessary to refer in detail to the particular matters relied upon by the plaintiff for the argument, in my view, is without substance. The varied conditions specified in the notice are such as might well have been imposed as a condition upon the issue of the licence in the first instance and there is no ground for thinking that they may not be imposed during the currency of a licence or licences. However, as the Chief Justice has pointed out, it is not for us in this suit to resolve this precise problem and I agree that the questions raised should be answered in the manner proposed by him.

[55]

As to the constitutional power: In my opinion the powers with respect to trade and commerce with other countries and among the States, (s. 51 (i.)), external affairs, (s. 51 (xxix.)), and incidental matters as described in s. 51 (xxxix.), are ample to give the Commonwealth Parliament complete power over all air navigation in Australia. The need for the Australian nation to perform its international obligations under treaties and conventions relating to air navigation, together with the trade and commerce power, suffice, in my view, to bring the subject within the legislative power of the national Parliament. Some ancillary matters involved in the effective control of air traffic fall also within the scope of other powers given by s. 51 of the Constitution. For example, the power with respect to lighthouses and beacons (s. 51 (vii.)) extends, I do not doubt, to air beacons, lights at airports, and so forth; and the power with respect to astronomical and meteorological observations (s. 51 (viii.)) supports laws for the provision of data needed for the effective control of air services; and there are other powers which might be called in aid to support particular aspects of the Commonwealth Air Navigation Act and Regulations. I see no reason for confining the interest and concern of the Commonwealth with air navigation to areas of the superincumbent air that have been declared to be controlled air space. As I see it, Commonwealth power extends to the control of the movement of all aircraft in all air space above Australia and its territories. It extends too, I consider, to all such incidental matters as the control of airports and airfields, the take-off and landing of aircraft, and the prescribing and policing of safety precautions. I do not overlook, indeed I respectfully adopt, the observations of Dixon J., as he then was, in R. v. Burgess; Ex parte Henry [1] that "under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates" [1] . But in carrying out an obligation, measures that at one time might have been unnecessary may, with changing circumstances, become necessary. It is not that the nature of the power changes. What changes are the conditions and circumstances within which the power is exercisable, and in consequence the particular aspects of the subject-matter that can be regulated. The great development in recent times of air traffic of all kinds in Australia, including overseas and inter-State air traffic, has created a situation to-day that is very different from that of thirty years ago. The proper regulation in the interests of safety of the operations of inter-State and overseas airlines, and the due execution by Australia of the international obligations it has accepted, may well make it desirable that the one authority should exercise sole control of all movement of aircraft in the air and of matters connected with such movement, that is to say of all matters connected with how aircraft may be used.

Airlines of New South Wales Pty Ltd v New South Wales - [1964] HCA 2 - HCA 1964 case summary — Zoe