R v Burgess [1936] HCA 52;

R v Burgess [1936] HCA 52; - HCA 1936 case summary — Zoe

[4]

It is objected that this regulation is inconsistent with the convention because any British subject or person under His Majesty's protection may be registered as owner of an aircraft and that therefore the possible ownership of a registered aircraft is not limited to "Australian nationals" as art. 7 of the convention requires. There is not yet any established legal category of "Australian nationals" corresponding to the categories of Dominion nationals established by statute in Canada, South Africa and the Irish Free State. (See Halsbury's Laws of England, 2nd ed., vol. 11, pp. 118, 119.) The Commonwealth Parliament has not passed legislation of this character. In the absence of such legislation it is difficult to form a clear conception of the meaning of the term "Australian nationals." In Pitt Cobbett's Leading Cases on International Law, 4th ed. (1922), vol. i., p. 179, the meaning of the term "national" is discussed and it is identified with "subject" in the strict sense as distinguished from the looser sense in which all persons who for the time being are subject to the laws of a State may be described as "subjects" of that State. The latter wider class is divided by the learned author into three classes. As to the first class he says: "First, there is a class of persons who may be described as citizens or nationals comprising those who are politically and internationally members of the organized community represented by the State, and who share the national character, whether domiciled within its territory or not, and whether they enjoy full civic privileges or not." Further: "The nationals of a State comprise, as we have seen, all persons who are politically members of the organized community which the State represents; all those, in fact, who share in that political relationship which exists between the individual and the State to which he owes allegiance" (p. 180). In the absence of specific legislation there are difficulties in applying this conception to Australia for the purposes of a treaty which draws a distinction between Australia as one State and Canada and other parts of the Empire as other States. It is difficult, for example, to take the view that a person who would ordinarily be described as a "Canadian," and who has no relation to Australia other than the possession of British nationality in common with "Australians," may yet be an "Australian national" for the purposes of the convention. But reg. 17 (a) would appear to treat him as an Australian national for the purposes of the convention. So also persons in other parts of the world who are under His Majesty's protection, as well as such persons in Australian territory, are, it is said, included in reg. 17 (a).

[10]

The position therefore is that it is for Australian law to determine what persons shall be regarded as Australian nationals for the purposes of the convention. The general rule as to nationality in Australia is the same as that in Great Britain. Any person who is a British subject in Great Britain would be regarded as a British subject in Australia. Within the class of British subjects recognized as such in Australia there are in Australia no distinctions. The Canadian-born British subject in Australia, so far as nationality is concerned, is upon precisely the same footing as the Australian-born or English-born British subject. As to natural-born British subjects, see Nationality Act 1920, sec. 6. As to naturalized persons, see secs. 7, 11 and 15. Sec. 8 deals with the case of persons naturalized in an Australian colony or in the Commonwealth before the Nationality Act 1920. Markwald v. Attorney-General[32] shows that the Commonwealth Parliament may, if it chooses, confer, within the Commonwealth, the quality of being a British subject upon terms and conditions deemed appropriate by the Parliament, and that this local and limited naturalization is effective in Australia, though not in Great Britain. This is an exception to the general rule. Oppenheim is of opinion that even such a limited naturalization brings about the result that the naturalized person is, for all international purposes, a British subject (International Law, 3rd ed. (1920), par. 293), though Professor McNair, the editor of the 7th edition of this work (note 5 to par. 293), indicates that the entry of the Dominions into the field of international relations may necessitate the formal identification of those British subjects who possess the citizenship of a Dominion - the very problem which arises at this point in this case. Whatever may be the ultimate solution of this problem, it is at least clear, in my opinion, that it is within the province of Australian law to determine who are to be regarded in Australia as "Australian nationals." Thus the Commonwealth Parliament has the power to determine that all British subjects shall be so regarded. The Parliament has the power, if it elects so to do, to accept as Australian nationals in Australia all persons who are under His Majesty's protection. Not only alien friends resident within the jurisdiction, but even alien enemies so resident and enjoying His Majesty's protection, possess the same civil rights as British subjects unless special legislation (as in the case of the war of 1914-1918) deprives them of this position. See the summary of the law in Halsbury's Laws of England, 2nd ed., vol. 1, par. 756.

[32]

"The development of aerial navigation in the early years of the present century gave rise to much speculation as to the juridical nature of the air space and the extent of rights in it. That the air space over the open sea and over unoccupied territory is free and in the former case incapable of appropriation may be taken as almost universally admitted. With regard, however, to the air space over occupied land and waters, both national and territorial, there have been a number of competing theories, which may be summarized as follows: (1) That the air space is entirely free; (2) that upon the analogy of the maritime belt there is a lower zone of territorial air space and a higher unlimited zone of free air space; (3) that the air space to an unlimited height is entirely within the sovereignty of the subjacent State ... (4) that the air space is within the sovereignty of the subjacent State subject to a servitude of innocent passage for foreign civil but not military aircraft" (See Oppenheim's International Law, 4th ed. (1928), vol. i., "Peace," pp. 417 et seq.). But the existence of these competing theories of national rights and obligations indicates how easily disputes of a grave nature may arise between States as to the rights and obligations of their nationals in respect of the use of the air space over their territories. The matter was necessarily one for international co-operation and agreement, and it was the subject of agreement in the convention already mentioned. The convention recognizes that every Power has complete and exclusive sovereignty over the air space above its territory. The Imperial Air Navigation Act 1920 (10 & 11 Geo. V. c. 80), despite the competing theories already mentioned, recites that "the full and absolute sovereignty and rightful jurisdiction of His Majesty extends, and has always extended, over the air superincumbent on all parts of His Majesty's dominions and the territorial waters adjacent thereto." And the United States Air Commerce Act 1926 makes a similar assertion. But each contracting State, under art. 2 of the convention, undertakes in time of peace to accord freedom of innocent passage above its territory to the aircraft of other contracting States, provided that the conditions laid down in the convention are observed. The stipulations of the convention have been stated at some length by the Judicial Committee, in In re Regulation and Control of Aeronautics in Canada[33], and in the opinion of the Chief Justice in the present case, and I shall not repeat them. But it is plain that the stipulations cannot be carried out and given effect to in Australia without legislation upon a great variety of matters. The question is whether the power of the Commonwealth to make laws with respect to external affairs authorizes it to pass the necessary laws.

[33]

The form of legislation adopted in the Air Navigation Act 1920 is within the powers and discretion of the Commonwealth Parliament (Roche v. Kronheimer[34]; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan[35]). But is the Act a law with respect to external affairs? The Constitution, in the legislative power to make laws with respect to external affairs, recognizes that the Commonwealth will have political relations with other Powers and States, and legislative power is conferred upon it in comprehensive terms, so that it may control those foreign or external relations, and implement obligations that may have been assumed in the course of those relations. Again, this fact is recognized in the jurisdiction conferred by the Constitution, sec. 75, upon the High Court in all matters arising under any treaty or affecting consuls or other representatives of other countries. The Air Navigation Act enables the Governor-General to carry out and give effect to a convention made with other Powers and States. The convention for the regulation of aerial navigation concerns the relations of those Powers and States with Australia, and the intercourse of their nationals with Australia's nationals by means of aerial navigation. Its stipulations recognize the sovereignty of every State in the air space above its territories, and control and regulate the rights and obligations of the contracting Powers and States, and their nationals, in respect of the use of the air superincumbent on those territories. The convention is made with Powers and States external to Australia, and involves international obligations. But what else are external affairs of a State - or, to use the more common expression, the foreign affairs or foreign relations of a State - but matters which concern its relations and intercourse with other Powers or States and the consequent rights and obligations? The power conferred by the Constitution upon the Commonwealth to make laws with respect to external affairs must be exercised with regard to the various constitutional limitations expressed or implied in the Constitution, which restrain generally the exercise of Federal powers. The Commonwealth cannot do what the Constitution forbids. But otherwise the power is comprehensive in terms and must be commensurate with the obligations that the Commonwealth may properly assume in its relations with other Powers or States. It is impossible, I think, to define more accurately, at the present time, the precise limits of the power. It may be, as Willoughby suggests in connection with the treaty-making power in the Constitution of the United States, that the laws will be within power only if the matter is "of sufficient international significance to make it a legitimate subject for international co-operation and agreement" (Willoughby on The Constitutional Law of the United States, 2nd ed. (1929), p. 519). While neither the Constitution of the United States nor the British North America Act is a very safe guide to the construction of the Constitution Act of Australia, the decisions under those Acts are not opposed to the construction of the Australian Constitution that I adopt (See Missouri v. Holland[36] and the Aeronautics Case[37]). However the limits of the external affairs power may hereafter be defined or restricted, that power does, in my judgment, authorize the Parliament to confer upon the Governor-General power to make laws to carry out and give effect to the aerial navigation convention of 1919, because that convention recognizes sovereignty of the contracting parties in the air space above their territories, confers rights upon Australia and her citizens and assumes obligations in respect of the air space above Australia towards foreign powers or States and their nationals. 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.

[38]

The convention requires that aircraft must be registered in the State in which their owners are nationals and in that State alone. Their nationality is that of the State in which they are registered, and they must bear their nationality and registration marks and the name and residence of the owner, when engaged in international navigation (Convention, arts. 5-10; Oppenheim, International Law, 4th ed. (1928), vol. i., Peace, p. 420; McNair, The Law of the Air (1932), pp. 133-168). The national character of a person differs greatly in different countries. The "national of a State" is not a very precise expression. The British Nationality and Status of Aliens Act 1914-1933 prescribes rules which govern the question whether a person is or is not a British subject. But the question here is who may be regarded as a national for the purposes of the air convention (See Kramer v. Attorney-General[41]). At this point, the French text of the convention, which is equally authentic with the English, lends some assistance: "Les aeronefs ne seront immatriculés dans un des États contractants que s'ils appartiennent en entier á des ressortissants de cet État." "Ressortissants," I take it, are persons belonging to or lying under the jurisdiction of a court or a State. Alien residents within British territory are entitled to the protection of and owe obedience to the laws whilst they remain within the territory. They are persons under His Majesty's protection, and owe him temporary allegiance at all events: they are, I should say, "ressortissants" within the terms of the French text, and "nationals" within the terms of the English text of the convention. (See Pitt Cobbett, Leading Cases on International Law, 4th ed. (1922), vol. i., Peace, pp. 178 et seq.) Consequently, the provision of art. 17 (a) of the regulations enabling a certificate of registration in respect of an aircraft to be granted to British subjects and persons under His Majesty's protection is not, in my judgment, repugnant to or inconsistent with the provisions of the convention. Clauses (b) and (c) of that article are equally within power. (See Convention, arts. 7 and 30.)

[40]

There is one important difference between the Australian regulation and the Imperial Order in Council. The regulation (17) provides "unless the Minister otherwise directs," whereas the Order in Council allows no such discretion. But this difference does not, I think, invalidate the regulation. Abuse of the power is not likely, but, likely or not, the possible abuse of a power affords no ground for denying its validity. The convention itself does not prescribe the means by which the contracting States should give effect to it. Each State is free to adopt its own methods for that purpose, and in case of disagreement relating to the interpretation of the convention, art. 37 of the convention provides for the determination of the disagreement. But the question here is whether the discretionary power given to the Minister is incompatible with carrying out and giving effect to the convention. It enables the Minister to adapt the convention to the various circumstances and conditions of persons owning aircraft. It may be proper to allow some persons under His Majesty's protection, and not proper to allow others, to obtain a certificate of registration. Thus it may be legitimate to grant a certificate of registration to persons who, though aliens, have been long resident in the Commonwealth, and undesirable to grant it to others, who have little or no connection with the Commonwealth though nevertheless under His Majesty's protection. The discretion given to the Minister is not for the purpose of setting aside the convention, but for the purpose of carrying it out and rendering it effective in all circumstances and conditions. It is from this point of view that the power should be regarded, and not from the point of view of some possible but improbable abuse conjured up by unreasonable and destructive critics. The power is, in my judgment, compatible with the convention, and, if exercised bona fide and for the purpose of carrying out international obligations - as must be assumed - gives that flexibility in administration that is desirable and even necessary in relation to an international agreement.

[42]

A meticulous examination of the regulations also disclosed that the units of measurement stated in both the Imperial and the Australian regulations differ from those specified in the convention. But the difference is simply that in the regulations the unit is stated according to the British system, instead of according to the metrical system as in the convention. Thus, the convention prescribes that a flying machine when in the air or manœuvring on land or water under its own power shall carry forward a white light of such a character as to be visible at a distance of at least 8 kilometres, whereas the regulations prescribe 5 miles, which is substantially the equivalent of 8 kilometres. Again, in the rules for air traffic on and in the vicinity of aerodromes (annex D., sec. V.) the convention prescribes that at every aerodrome there shall be a flag hoisted in a prominent position which shall indicate that if an aircraft about to land or leave finds it necessary to make a circuit or partial circuit such circuit shall be left-handed (anti-clockwise) or right-handed (clockwise) according to the colour of the flag; a white flag shall indicate a right-handed circuit, and a red flag shall indicate a left-handed circuit. The Imperial regulations adopt these colours, but the Australian regulations substitute a blue flag for a white one to indicate a right-handed circuit. No doubt there are other differences of much the same character, but I do not find it necessary to enter into a minute examination of these minor details. The substitution in the regulations of the equivalent British unit of measurement for that used in the convention is an appropriate method of expressing its provisions, as that unit would be better understood in British countries than that adopted in the convention. The provisions in the convention as to the colour of flags used in the vicinity of aerodromes are directory in character, as is recognized, I think, in art. 51 of annex D. They are not essential provisions of the convention, and the disregard of a non-essential or directory provision cannot invalidate the whole regulations, and particularly reg. 6 under which the appellant is charged.

[43]

Lastly, I must refer to an argument based upon sec. 2 of the Air Navigation Act 1920. The Act was assented to on 2nd December 1920, but sec. 2 provides: "This Act shall commence in relation to the several States and territories on such days as are respectively fixed by proclamation." The Governor-General by a proclamation under his hand and seal fixed Monday, 28th March 1921, as the day upon which the Air Navigation Act 1920 should commence in relation to the several States and territories (Government Gazette 1921, p. 480). The Air Navigation Regulations were made on 11th February 1921, to come into operation forthwith. It is contended that the regulations were made on a day antecedent to the commencement of the Act, and therefore without any legal authority. The form of sec. 2 is probably attributable to the doubts that existed in Australia as to Commonwealth power in respect of air navigation. At a conference of the Premiers of the States in 1920, it was resolved that each of the Parliaments of the States should refer to the Parliament of the Commonwealth the matter of the control of air navigation, subject to the retention by each of the States of certain rights and powers specified in the resolutions. Some States passed Acts in this direction and others did not. (See Victoria, 1928, No. 3658, South Australia, 1921, No. 1469, Queensland, 12 Geo. V. No. 30, Tasmania, 11 Geo. V. No. 42.) It was desirable that the operation of the Air Navigation Act 1920 in the various States should coincide with the passing of such legislation - hence sec. 2. But the commencement of the Air Navigation Act did not depend on the passing of these Acts. It commenced on the day on which it received Royal assent, but its provisions were not to operate in the several States and territories until "such days as are respectively fixed by proclamation." In my opinion, therefore, the regulations were lawfully made in February 1921, but their provisions did not commence to operate in the several States until the day fixed, namely, 28th March 1921. See also Acts Interpretation Act 1901-1934, sec. 4.

[48]

The convention to which the statute refers was drawn up at the Peace Conference and on the date given it was signed on behalf of fifteen powers including Great Britain and the Dominions. It is apparently the convention referred to in art. 319 of the Treaty of Versailles, which imposes upon Germany the obligation of conforming to the rules comprised in it. The convention contains very elaborate provisions for the regulation of air navigation. The attempt by this means to obtain uniformity among nations in the rules governing the use of the air is based upon the adoption by the parties to the convention of certain jurisdictional principles. The first principle formulated is that each Power has complete and exclusive sovereignty over the air space above its territory and the territorial waters adjacent thereto. Next, in peace time, freedom of innocent passage is to be accorded aircraft of the parties to the convention, subject to their observance of the conditions laid down by the convention. Every State must apply its regulations without distinction. As a general rule, no State is to permit the flight above its territory of an aircraft belonging to a nationality not party to the convention. No aircraft is to be registered in a country unless it belongs wholly to nationals of that country. No aircraft can be registered in more than one country. Every aircraft engaging in international navigation shall bear nationality and registration marks and the name and residence of the owner shown in a prescribed manner. It must have a certificate of registration, of airworthiness, and of competence and licences for each member of the operating crew, and a special licence for any wireless operators. Wireless must be carried by any aircraft used in public transport and capable of carrying ten or more persons. Every aircraft of a country, party to the convention, has the right to cross the air space of any other such country without landing but it must follow the routes fixed by the latter country. These provisions are subject to special conditions and reservations. The convention then carries out in detail its policy of prescribing uniform regulations for the conduct of flying. Annexes deal elaborately with the marking of aircraft, airworthiness, log books, lights and signals, the rules of the air and rules for traffic on and near aerodromes. Another annex is devoted to a close regulation of the grant of certificates to pilots, navigators and engineers. An International Air Commission is set up and placed under the direction of the League of Nations. It is empowered to amend the provisions of any annex to the convention. It may also receive and make proposals for amendments to the convention. It has besides many less important duties arising out of the registration of aircraft, the collection and communication of information and the like.

[51]

The first question which arises is whether, having regard to the convention, the power conferred upon the Commonwealth Parliament by sec. 51 (xxix.) to make laws with respect to external affairs enables it to authorize the regulation forbidding a flight within a State unless the personnel be licensed. It is not easy to interpret and apply the power to make laws with respect to external affairs. Although it may enable the Parliament to make laws operating outside the limits of the Commonwealth, it cannot be supposed that its primary purpose was to regulate conduct occurring abroad. Prima facie, legislation confers rights and imposes duties to be enjoyed and fulfilled within the territory. In the case of such a power as that at present under consideration the presumption cannot confine the legislation to the Commonwealth in the same way as in the case of other powers. But the presumption cannot be reversed so that the power prima facie does not affect conduct within the Commonwealth and only that outside. I think it is evident that its purpose was to authorize the Parliament to make laws governing the conduct of Australians in and perhaps out of the Commonwealth in reference to matters affecting the external relations of the Commonwealth. The Commonwealth might under this power legislate to ensure that its citizens did nothing inside the Commonwealth preparatory to or in aid of some action outside the Commonwealth which might be considered a violation of international comity, as, for instance, a failure on the part of private persons to behave as subjects of a neutral power during a war between foreign countries. If a treaty were made which bound the Commonwealth in reference to some matter indisputably international in character, a law might be made to secure observance of its obligations if they were of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view that merely because the Executive Government undertakes with some other country that the conduct of persons in Australia shall be regulated in a particular way, the legislature thereby obtains a power to enact that regulation although it relates to a matter of internal concern which, apart from the obligation undertaken by the Executive, could not be considered as a matter of external affairs. The limits of the power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example. We are here concerned with a convention adopted under the full authority of the Crown and internationally binding in relation to this country. The matters with which it deals include the international recognition of sovereignty over the air and the relations of governments to the aircraft of other governments. It is, perhaps, wise to leave less formal arrangements with other countries and international agreements relating only to matters otherwise only of internal concern until questions arise under them. For, in my opinion, air navigation cannot be regarded as of this description. Even in the case of Australia, distant as she is from other countries, the aeroplane defies territorial boundaries. In international law it was a question how far sovereignty extends upwards, and, in 1919, it was one of practical importance in need of settlement by a convention among the nations. In conceding, as was done by the convention in question, that a country was entitled to control the use of the air above it for navigation by aeroplanes and airships, the nations raised problems concerning the terms and conditions upon which each would allow nationals of the others to enter into the air space it controlled. All these matters constituted international affairs. Elaborate and minute as the regulation of aeronautics agreed to by the convention undoubtedly is, it was in my opinion all relevant to the solution of these questions.

[56]

No one doubts that, like every other legislative power expressly conferred, the power to make laws with respect to trade and commerce with other countries and among the States carries with it legislative authority over whatever is incidental to the subject matter to which the power is addressed. Everything that is incidental to the main purpose of a power is contained within the grant. But I think it would be a matter of regret if the application of this principle to sec. 51 (i.) of the Commonwealth Constitution led to the adoption of so indefinite a standard of validity as that enunciated in these passages. The express limitation of the subject matter of the power to commerce with other countries and among the States compels a distinction however artificial it may appear and whatever interdependence may be discovered between the branches into which the Constitution divides trade and commerce. This express limitation must be maintained no less steadily in determining what is incidental to the power than in defining its main purpose. But, in any case, the second limb of sec. 4 of the Air Navigation Act 1920 does not appear to me to be based at all on the commerce power. "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. 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. The second limb of the section might have been capable of support if it had been expressly confined to inter-State air navigation. Possibly it may be proper to read it as if it were so restricted in view of sec. 15A of the Acts Interpretation Act 1901-1932. But, even so, the regulations in their natural meaning would not be authorized by the limb of sec. 4 in question and, if restricted to navigation between the States, the regulations would not apply to the present case.

[59]

The Air Navigation Regulations appear to me to run counter to these provisions. They contain no prohibition of aircraft which do not possess the nationality of a contracting State. The result of the second proviso to reg. 5 is that if a foreign aircraft belongs to any country which issues certificates, licences and log books substantially the same as those of the Commonwealth, it may land and continue its flight. Australian registration is not restricted to persons having any special connection with Australia by birth, domicil, residence and otherwise, although under art. 40 Australia is a distinct State for the purpose of the convention. Australian registration is not restricted even to British nationals. Clause 17 (a) extends it to "persons under His Majesty's protection." This includes alien friends resident in any British territory. "The subject of a State at peace with His Majesty, while permitted to reside in this country, is under the King's protection and allegiance" (per Viscount Finlay, Johnstone v. Pedlar[49]). No doubt it is for a State by its nationality laws to define what are its nationals. But the convention requires that only those who come within the definition it adopts shall be registered by a State party to the convention. The State cannot define nationals for general purposes and then for the purpose of registering aircraft disregard its own criteria of nationality. As between the parts of the British Empire Australian law does not define what British subjects are to be considered Australian nationals. Art. 40 of the convention appears to regard British subjects who are connected with Australia, whether by domicil, residence, or in some other manner, as Australian nationals. The nature of the connection presupposed is uncertain and vague and to reduce it to definition may be considered a step reasonably incidental to carrying out the convention. But this has not been done. The relation of Australia to the owners registered has been disregarded and they need not even be British subjects. Then again the requirements are not of uniform application to aircraft. For the Minister may direct that they shall not apply to any aircraft or person. The regulations depart also in many less important respects from the convention. It happens that at the point which directly concerns this case there is a failure to pursue the convention. A comparison of regs. 31 and 32 with annex E of the convention will show how far the requirements laid down by the regulations for ascertaining the fitness of pilots and navigators depart from those contained in the annex. There is much reason to suppose that they were not drawn for the sole purpose of carrying them into effect. At the time when the Act was passed, it was expected that States would proceed under pl. xxxvii. of sec. 51 of the Constitution (See Report of Royal Commission on the Constitution 1929, p. 183). However this may be, I think the basal principle of the regulations contains so important a departure from the requirements of the convention that they cannot be supported under so much of the Act as can be referred to the power to make laws with respect to external affairs. It is apparent that the nature of this power necessitates a faithful pursuit of the purpose, namely, a carrying out of the external obligation, before it can support the imposition upon citizens of duties and disabilities which otherwise would be outside the power of the Commonwealth. No doubt the power includes the doing of anything reasonably incidental to the execution of the purpose. But wide departure from the purpose is not permissible, because under colour of carrying out an external obligation the Commonwealth cannot undertake the general regulation of the subject matter to which it relates. Having regard to the nature of this departure in the present regulations, sec. 9A of the Acts Interpretation Act 1904-1932 can, in my opinion, have no application.

[78]

In relation to the Commonwealth Constitution very much the same argument as was presented by Harrison Moore in 1910 in relation to the "external affairs" power is repeated by those who contend that under art. 405 of the Treaty of Versailles, Australia is "a federal State, the power of which to enter into conventions on labour matters is subject to limitations." It is true that such subject matters as air navigation, the manufacture of munitions, the suppression of the drug traffic and standard hours of work in industry are not made express or separate subject matters of Commonwealth legislative power. But there is, in our view, an undoubted capacity in His Majesty to enter into international conventions dealing with any of these subject matters and necessarily binding upon and in respect of the Commonwealth. In truth, the King's power to enter into international conventions cannot be limited in advance of the international situations which may from time to time arise. And in our view the fact of an international convention having been duly made about a subject brings that subject within the field of international relations so far as such subject is dealt with by the agreement. Accordingly (to pursue the illustration) Australia is not "a federal State the power of which to enter into conventions on labour matters is subject to limitations." A contrary view has apparently governed the practice of the Commonwealth authorities in relation to the ratification of the draft conventions of the International Labour Office. In our opinion such view is wrong. Our opinion to that effect is in substantial accord with the views of the following publicists: C. W. Jenks (Journal of Comparative Legislation, November 1934, February 1935); Professor Manley O. Hudson (International Conciliation 1935, at pp. 129, 130); J. G. Starke, Australia and the Constitution of the International Labour Organization (International Labour Review, November 1935); Professor K. H. Bailey, vol. 1, Proceedings A.N.Z.S. 1 Law.

[93]

It would seem clear, therefore, that the legislative power of the Commonwealth over "external affairs" certainly includes the power to execute within the Commonwealth treaties and conventions entered into with foreign powers. The legislative power in sec. 51 is granted "subject to this Constitution" so that such treaties and conventions could not be used to enable the Parliament to set at nought constitutional guarantees elsewhere contained, such, for instance, as secs. 6, 28, 41, 80, 92, 99, 100, 116, or 117. But it is not to be assumed that the legislative power over "external affairs" is limited to the execution of treaties or conventions; and, to pursue the illustration previously referred to, the Parliament may well be deemed competent to legislate for the carrying out of "recommendations" as well as the "draft international conventions" resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations. The power is a great and important one. Having regard to the statement of the Privy Council in British Coal Corporation v. The King[65], recently repeated in James' Case[66], it would not be in accordance with established canons of construction to attempt to assign precise limits to its content. It is certain that the power includes, but also extends further than, the power assigned to the Parliament of the Dominion of Canada by sec. 132 of the British North America Act. Consequently the decisions of the Privy Council both in the Radio Communication Case[67] and the Aeronautics Case[68] support the validity of the power first specified in sec. 4 of the Air Navigation Act, viz., the power conferred upon the Governor-General to carry out and give effect to the air convention. No suggestion has been made that the entry into the convention was merely a device to procure for the Commonwealth an additional domestic jurisdiction and that suggestion could easily be refuted by referring to the setting up under chapter VIII. of the Convention of the Permanent International Commission for Air Navigation.

[107]

Art. 25 of the convention provided that each contracting State undertakes that every aircraft flying over the limits of its territory, and every aircraft, wherever it be, carrying its nationality mark, shall comply with the regulations contained in annex D. Annex D prescribes uniform rules as to lights and signals and rules of the air. Parts VIII. and IX. of the regulations deal with this subject matter. Speaking generally, the regulations are based upon the provisions of annex D, and they give substantial effect to most of the rules contained therein. But, even here, it is to be noted that the language and framework of Parts VIII. and IX. depart frequently from the arrangement and the language of the English text of the convention. The regulations substitute language which is never so clear as, and in some cases conflicts with, the provisions of annex D. By way of illustration, the distances given in the annex are expressed invariably in terms of the metrical system, but those responsible for the Commonwealth regulations have thought it sufficient to venture upon approximations to the prescribed distances, expressing such approximations in our own system of measurement. For instance, the rule as to lights contained in rule 5 (a) of sec. 1 of annex D required a flying machine when on the surface of the water, and not under control, to carry lights "not less than two metres apart one over the other"; but reg. 50 substitutes the distance of six feet, which is, of course, less than two metres. A comparison of the measurement references in Parts VIII. and IX. of the Commonwealth regulations shows similar discrepancies. Some of these may be less important than others. But, when the matter is regarded as a whole, it provides cogent evidence that those responsible for the Commonwealth regulations were not so much addressing their minds to the duty or obligation of performing and carrying out the terms of the convention contained in annex D, as adopting the annex merely as a working basis, reserving the right to make any modification or variation which was considered desirable. Such an attitude would be incredibly fatuous except upon the hypothesis that the regulation-making authority considered that it possessed a complete and unrestricted power to make general rules on the subject matter of civil aviation, and that it was not bound to confine its attention to the purpose of carrying out the convention.

At a glance

Court

Decision date

Before

Source

Judgment (166 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (2)

R v Burgess [1936] HCA 52; (1936) 55 CLR 608 (10 November 1936)