Opinion No. 1037
REFERRAL OF POWERS BY STATES TO COMMONWEALTH TO CARRY OUT PARIS CONVENTION ON AERIAL NAVIGATION: EXTENT OF COMMONWEALTH POWER TO CONTROL INTRA-STATE AIR NAVIGATION AS INCIDENTAL TO CARRYING OUT CONVENTION AND CONTROLLING INTER-STATE AIR NAVIGATION
CONSTITUTION, s. 51 fi), (xxix), (xxxix): COMMONWEALTH POWERS (AIR NAVIGATION) ACT 1920 (VIC), s. 3
13 January 1921
The Secretary to the Air Council
The Secretary to the Air Council has forwarded for advice the following memorandum of the Controller of Civil Aviation:
I do not think that the Commonwealth Powers (Air Navigation) Act 1920, passed by the Victorian Legislative Council on Friday, 17 December 1920, is substantially in accordance with the draft New South Wales Bill submitted by the Premier of New South Wales.
The Victorian Bill seems to limit the Commonwealth powers in regard to aerial intra-State regulation far more than does the approved New South Wales Bill, and if it is not amended may necessitate the setting up of separate administrative offices in the State.
The New South Wales Bill is designed to put into effect the resolution agreed at the Premiers' Conference on 24 May, and the draft was accepted on the understanding that all other State legislation should be uniform, and the Victorian Bill is not, in effect, uniform. Section
3 of the Victorian Act provides as follows:
3. The following matters are hereby referred to the Parliament of the Common-wealth (that is to say):-
- Any matter necessary or proper for performing the obligations of the Common-wealth towards the other contracting parties arising under the International Convention for the regulation of Aerial Navigation signed at Paris on the thir-teenth day of October One thousand nine hundred and nineteen (including every Annex thereto) or arising under any modification or amendment of the Conven-tion which may be made under Article thirty-four thereof; and
- Intercourse by aerial navigation between the State of Victoria and any other country or any State of the Commonwealth.
Clauses 2 and 3 of the New South Wales Bill read as follows:
- Subject to the limitations and reservations in this Act contained, the control of air navigation is referred to the Parliament of the Commonwealth.
- Nothing in this Act shall empower the Parliament of the Commonwealth, or any authority constituted or to be constituted under the Commonwealth, to affect or restrict the right of the State of New South Wales in regard to-
- the acquisition or ownership by the said State of aircraft or aerodromes; or
- the use for the purpose of the Government of the said State of aircraft operating within the said State; or
- police powers;
and such rights and powers shall be retained by the said State as if this Act had not been passed.
Bills in the same terms as the New South Wales Bill have been initiated in the Parliaments of Queensland and Tasmania. Copies of the Bills initiated in South Australia and Western Australia have not yet been received.
Under the New South Wales Bill it is proposed that the Commonwealth should have, subject to certain inconsiderable limitations, full control of both inter-State and intra-State air navigation.
The Victorian Act does not, however, in terms refer, to the Commonwealth Parliament, the control of intra-State air navigation insofar as such control is not necessary for the carrying out of the Convention.
I am of opinion, however, that, as incidental to the carrying out of the Convention and as incidental to the control of inter-State air navigation, the Commonwealth has considerable power to control intra-State air navigation. Exactly how far this incidental power extends can only be determined in connection with the consideration of the specific measures of control proposed by the Commonwealth.