''Airlines of New South Wales Pty Ltd v New South Wales (No 2)'',
[.] was a
High Court of Australia
The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution.
The High Court was established fol ...
case about the validity of Commonwealth regulations about intrastate
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.
Successful air navigation involves piloting an air ...
. Although the Commonwealth has the power to regulate
interstate
The Dwight D. Eisenhower National System of Interstate and Defense Highways, commonly known as the Interstate Highway System, is a network of controlled-access highways that forms part of the National Highway System in the United States. Th ...
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.
Background
In October 1964 the ''Air Navigation Regulations'' (Cth),
[''Air Navigation Regulations'' 1947](_blank)
(Cth). were amended to make them apply to intrastate air navigation by the enactment of regulation 6(1)(f).
[''Air Navigation Regulations'' 1964 No 128](_blank)
(Cth). 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 "safety,
regularity and
efficiency
Efficiency is the often measurable ability to avoid wasting materials, energy, efforts, money, and time in doing something or in producing a desired result. In a more general sense, it is the ability to do things well, successfully, and without ...
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 (also known as Air New South Wales, Ansett NSW and Ansett Express) callsign "NEWSOUTH" was an Australian domestic regional airline that operated from 1959 until its merger into Ansett in 1993. It was formed by Reg A ...
, had applied unsuccessfully for a licence to perform commercial air operations between Sydney and
Dubbo
Dubbo () is a city in the Orana Region of New South Wales, Australia. It is the largest population centre in the Orana region, with a population of 43,516 at June 2021.
The city is located at the intersection of the Newell, Mitchell, and Gol ...
, and then sought to challenge the validity and constitutional consistency of the ''Air Transport Act'' 1964 (NSW).
[''Air Transport Act'' 1964](_blank)
(NSW).
The decision
Regulations 198 and 199(4)
The Court rejected the American
doctrine
Doctrine (from la, doctrina, meaning "teaching, instruction") is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system ...
of
commingling
In law, commingling is a breach of trust in which a fiduciary mixes funds held in care for a client with his own funds, making it difficult to determine which funds belong to the fiduciary and which belong to the client. This raises particular con ...
that has found favour in the
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
. 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 Wragg is a surname. Notable people with the name include:
* Arthur Wragg (1903—76), British illustrator
* Doug Wragg (born 1934), English soccer player
* Geoff Wragg (1930–2017), Racehorse trainer
* Harry Wragg (1902—85), British jockey an ...
'',
[.] 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".
[.]
Furthermore, Barwick CJ reiterated the rejection of the
reserved State powers
Reserved is a Polish apparel retailer headquartered in Gdańsk, Pomerania, Poland. It was founded in 1999 and remains the largest company of the LPP group, which has more than 1,700 retail stores located in over 20 countries and also owns such ...
doctrine (see ''
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
''Amalgamated Society of Engineers v Adelaide Steamship Co Ltd'', commonly known as the ''Engineers case'', . was a landmark decision by the High Court of Australia on 31 August 1920. The immediate issue concerned the Commonwealth's power under ...
''
[.]). 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.
Regulation 200B
Barwick CJ contrasted regulations 198 and 199(4) to regulation 200B. In the former, regulation of intrastate navigation was found to be in the Commonwealth's power to safeguard the safety of interstate and foreign air navigation. However, in the latter, the regulation purports to authorise the air operations themselves, as opposed to regulating the use of specified aircraft in those operations. The stimulation or authorisation of those operations that the regulation provides went beyond the regulation being a safety measure.
See also
*
Australian constitutional law
Australian 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.
Background
Constitution ...
References
{{reflist
*
Winterton, G. et al. ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney.
High Court of Australia cases
1965 in Australian law
Australian constitutional law
Trade and commerce power in the Australian Constitution cases
1965 in case law