R v Burgess; Ex parte Henry
Encyclopedia
R v Burgess; Ex parte Henry (1936) 55 CLR
608 was a case decided in the High Court of Australia
regarding the scope of the trade and commerce power and the external affairs power, in sections 51(i)
and 51(xxix)
respectively, of the Constitution.
and then flying around, over and under the Sydney Harbour Bridge
. He was convicted of breaching regulation 6 of the federal Air Navigation Regulations which prohibited an unlicensed person from flying an aircraft "within the limits of the Commonwealth". The regulations were made pursuant to section 4 of the Aircraft Navigation Act 1920, which authorised the Governor-General to make regulations to give effect to the Convention for the Regulation of Aerial Navigation. He challenged the constitutional validity of the regulation.
The majority (Latham CJ, Evatt & Mctiernan JJ) took a broad view of the external affairs power, and accepted that the Commonwealth could enact legislation pursuant to a bona fide international treaty. Latham CJ dismissed arguments attempting to exclude the external affairs power from encompassing certain domestic subjects. Evatt and McTiernan JJ concluded that once a treaty was signed and entered into, the provisions contained therein were brought under the external affairs power by virtue of their inclusion in the treaty.
The minority (Starke & Dixon JJ) took a narrower approach, with Starke J arguing that the treaty had to be 'of sufficient international significance to make it a legitimate subject for international co-operation and agreement'. Dixon J considered that the power of the Commonwealth to implement treaties through legislation was necessarily limited by the federal nature of the Constitution, so the subject matter of the treaty upon which it was based had to be 'indisputably international in character'.
Even under the broad view of the external affairs power, the Court invalidated the regulations on the grounds that they did not carry out and give effect to the conventions of the treaty.
in 1937 to have the Constitution amended to give it express power over aviation. Although the measure received 53.56% of the 'yes' vote nationwide, it did not gain a majority support in a majority of states, with only Victoria and Queensland supporting the measure. http://www.aec.gov.au/_content/when/referendums/dates.htm
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...
608 was a case decided in the 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...
regarding the scope of the trade and commerce power and the external affairs power, in sections 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...
and 51(xxix)
Section 51(xxix) of the Australian Constitution
Section 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
respectively, of the Constitution.
Background
Henry Goya Henry was an aviator who had his aviation licence suspended. Two days after the suspension he nevertheless flew a plane, setting off from Mascot airportSydney Airport
Sydney Airport may refer to:* Sydney Airport, also known as Kingsford Smith International Airport, in Sydney, Australia* Sydney/J.A. Douglas McCurdy Airport, in Nova Scotia, Canada...
and then flying around, over and under the Sydney Harbour Bridge
Sydney Harbour Bridge
The Sydney Harbour Bridge is a steel through arch bridge across Sydney Harbour that carries rail, vehicular, bicycle and pedestrian traffic between the Sydney central business district and the North Shore. The dramatic view of the bridge, the harbour, and the nearby Sydney Opera House is an iconic...
. He was convicted of breaching regulation 6 of the federal Air Navigation Regulations which prohibited an unlicensed person from flying an aircraft "within the limits of the Commonwealth". The regulations were made pursuant to section 4 of the Aircraft Navigation Act 1920, which authorised the Governor-General to make regulations to give effect to the Convention for the Regulation of Aerial Navigation. He challenged the constitutional validity of the regulation.
External affairs
The Constitution gave no express power to the Commonwealth to regulate aviation, a subject that did not exist when the Constitution was drafted at the end of the 19th century. The Commonwealth argued that its rules were made in pursuance of an international convention and were, therefore, laws with respect to external affairs.The majority (Latham CJ, Evatt & Mctiernan JJ) took a broad view of the external affairs power, and accepted that the Commonwealth could enact legislation pursuant to a bona fide international treaty. Latham CJ dismissed arguments attempting to exclude the external affairs power from encompassing certain domestic subjects. Evatt and McTiernan JJ concluded that once a treaty was signed and entered into, the provisions contained therein were brought under the external affairs power by virtue of their inclusion in the treaty.
The minority (Starke & Dixon JJ) took a narrower approach, with Starke J arguing that the treaty had to be 'of sufficient international significance to make it a legitimate subject for international co-operation and agreement'. Dixon J considered that the power of the Commonwealth to implement treaties through legislation was necessarily limited by the federal nature of the Constitution, so the subject matter of the treaty upon which it was based had to be 'indisputably international in character'.
Even under the broad view of the external affairs power, the Court invalidated the regulations on the grounds that they did not carry out and give effect to the conventions of the treaty.
Trade and commerce
The only other power that seemed available was 'trade and commerce with other countries and among the States'. Mr Henry however, had not been flying from or to any other state or country. The Commonwealth argued that the commingling in air routes and airports of aircraft proceeding intrastate with those travelling interstate, enabled it to control all aircraft. The Court rejected the commingling argument, preferring to maintain an arbitrary distinction between interstate and intrastate trade. Mr Henry could not be prevented by the Commonwealth from stunt-flying around Sydney Harbour under the commerce power. The Constitution clearly distinguished between intrastate and interstate commerce, and confined the Commonwealth to the latter.Result
The Commonwealth held a referendumAustralian referendum, 1937 (Aviation)
Constitution Alteration 1936 sought to give the government legislative power with respect to air navigation and aircraft. The question was put to a referendum in the Australian referendum, 1937.-Results:...
in 1937 to have the Constitution amended to give it express power over aviation. Although the measure received 53.56% of the 'yes' vote nationwide, it did not gain a majority support in a majority of states, with only Victoria and Queensland supporting the measure. http://www.aec.gov.au/_content/when/referendums/dates.htm
See also
- Section 51(i) of the Australian ConstitutionSection 51(i) of the Australian ConstitutionSection 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...
- Section 51(xxix) of the Australian ConstitutionSection 51(xxix) of the Australian ConstitutionSection 51 of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs"....
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....