Airlines of New South Wales Pty Ltd v New South Wales (No 2)
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Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR
54 was a High Court of Australia
case about the validity of Commonwealth regulations about intrastate air navigation
. Although the Commonwealth has the power to regulate interstate air navigation under s 51(i)
of the Constitution, it can only regulate intrastate air navigation under the implied incidental power attached to that head of power. It was held that intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of physical interference with, interstate or foreign air navigation.
, regularity and efficiency of air navigation and to no other matters". Regulation 200B stated that "an airline licence authorizes the conduct of operations in accordance with the provisions of the licence".
The plaintiff, Airlines of New South Wales
, had applied unsuccessfully for a licence to perform commercial air operations between Sydney and Dubbo, and then sought to challenge the validity and constitutional consistency of the Air Transport Act (NSW).
of commingling
that has found favour in the Supreme Court of the United States
. Commonwealth legislative power cannot be enlarged to cover intrastate air navigation regardless of the integration of intrastate and interstate activities. However, Commonwealth laws can include intrastate activities within its ambit if for the Commonwealth law to be effective, it must operate indifferently to all activities, whether intrastate or interstate, in the relevant area. In particular, Kitto J stated that "the Australian union
is one of dual federalism", and it is the Court's role to preserve such distinctions, however arbitrary; this distinction was also referred to by Dixon CJ
in Wragg v State of New South Wales (1953) 88 CLR 353, which was quoted by Barwick CJ in this case. Kitto J continued to state that to ascertain the true character of the law, we examine what it does "in the way of changing or creating or destroying duties or rights or powers": South Australia v The Commonwealth (1942) 65 CLR 373.
Furthermore, Barwick CJ reiterated the rejection of the reserved State powers
doctrine (see Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
). In this instance, the enactment of State laws will not serve to curtail any Commonwealth power; the Commonwealth's power is to be construed from the text of the Constitution.
Section 51(i) permits the Commonwealth to make laws, for interstate and foreign air operations, about safety, regularity and efficiency, as this would protect, foster and encourage interstate and foreign trade and commerce. Barwick CJ stated that this would then serve to extend to include intrastate air navigation, due to intrinsic factors related to flight, and the factual situation in this case. Similarly, the Commonwealth licensing regime, which Barwick CJ held to be a "substantial safety procedure", can apply to intrastate air operations or operators because of the impact of unsafe, inefficient or irregular air operations by intrastate airline operators. Kitto J stated that the law is within power if it protects against physical interference by having regard to safety, regularity and efficiency; this is in contrast to matters merely consequential to interstate or foreign air navigation, which would not suffice.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
54 was a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
case about the validity of Commonwealth regulations about intrastate air navigation
Air navigation
The basic principles of air navigation are identical to general navigation, which includes the process of planning, recording, and controlling the movement of a craft from one place to another....
. Although the Commonwealth has the power to regulate interstate air navigation under s 51(i)
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
of the Constitution, it can only regulate intrastate air navigation under the implied incidental power attached to that head of power. It was held that intrastate air navigation can be regulated to the extent that it provides for the safety of, or prevention of physical interference with, interstate or foreign air navigation.
Background
The Air Navigation Regulations (Cth) was made to apply to intrastate air navigation by the enactment of regulation 6(1)(f). Regulation 198 prohibited the use of an aircraft in regular public transport operations except pursuant to a licence issued by the Director-General of Civil Aviation, who, according to regulation 199(4), will have regard to the "safetySafety
Safety is the state of being "safe" , the condition of being protected against physical, social, spiritual, financial, political, emotional, occupational, psychological, educational or other types or consequences of failure, damage, error, accidents, harm or any other event which could be...
, regularity and efficiency of air navigation and to no other matters". Regulation 200B stated that "an airline licence authorizes the conduct of operations in accordance with the provisions of the licence".
The plaintiff, Airlines of New South Wales
Airlines of New South Wales
Airlines of New South Wales callsign "NEWSOUTH" was an Australian domestic regional airline that operated from 1959 until its merger into Ansett in 1993. It was formed by Reg Ansett's takeover of Butler Air Transport...
, had applied unsuccessfully for a licence to perform commercial air operations between Sydney and Dubbo, and then sought to challenge the validity and constitutional consistency of the Air Transport Act (NSW).
Regulations 198 and 199(4)
The Court rejected the American doctrineDoctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
of commingling
Commingling
Commingling literally means "mixing together". Used in a legal context it is a breach of trust in which a fiduciary mixes funds that he holds in the care of a client with his own funds, making it difficult to determine which funds belong to the fiduciary and which belong to the client...
that has found favour in the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
. Commonwealth legislative power cannot be enlarged to cover intrastate air navigation regardless of the integration of intrastate and interstate activities. However, Commonwealth laws can include intrastate activities within its ambit if for the Commonwealth law to be effective, it must operate indifferently to all activities, whether intrastate or interstate, in the relevant area. In particular, Kitto J stated that "the Australian union
Federation of Australia
The Federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia formed one nation...
is one of dual federalism", and it is the Court's role to preserve such distinctions, however arbitrary; this distinction was also referred to by Dixon CJ
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
in Wragg v State of New South Wales (1953) 88 CLR 353, which was quoted by Barwick CJ in this case. Kitto J continued to state that to ascertain the true character of the law, we examine what it does "in the way of changing or creating or destroying duties or rights or powers": South Australia v The Commonwealth (1942) 65 CLR 373.
Furthermore, Barwick CJ reiterated the rejection of the reserved State powers
Reserved State powers
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to...
doctrine (see Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129 was a landmark Australian court case decided in the High Court of Australia on 31 August 1920...
). In this instance, the enactment of State laws will not serve to curtail any Commonwealth power; the Commonwealth's power is to be construed from the text of the Constitution.
Section 51(i) permits the Commonwealth to make laws, for interstate and foreign air operations, about safety, regularity and efficiency, as this would protect, foster and encourage interstate and foreign trade and commerce. Barwick CJ stated that this would then serve to extend to include intrastate air navigation, due to intrinsic factors related to flight, and the factual situation in this case. Similarly, the Commonwealth licensing regime, which Barwick CJ held to be a "substantial safety procedure", can apply to intrastate air operations or operators because of the impact of unsafe, inefficient or irregular air operations by intrastate airline operators. Kitto J stated that the law is within power if it protects against physical interference by having regard to safety, regularity and efficiency; this is in contrast to matters merely consequential to interstate or foreign air navigation, which would not suffice.