Opinion Number. 1050

Subject

AIR NAVIGATION WHETHER AIR NAVIGATION LEGISLATION CAN BE BROUGHT INTO OPERATION WITHOUT REFERRAL OF POWERS BY STATES: EXTENT OF COMMONWEALTH POWER OVER INTRA-STATE AIR NAVIGATION

Key Legislation

CONSTITUTION, s. 51 (i), (vi). fxxixj. (xxxix): AIR NAVIGATION ACT 1920, ss. 2, 4: AIR NAVIGATION REGULATIONS, reg. 11

Date
Client
The Secretary to the Air Council

The Secretary of the Air Council has forwarded me the following minute for advice:

Section 2 of the Commonwealth Air Navigation Act No. 50 of 1920 provides that: 'This Act shall commence in relation to the several States and Territories on such days as are respectively fixed by Proclamation', and the Regulations contemplated by the Act relate to-

  1. the carrying out of the Convention for the Regulation of Aerial Navigation signed in Paris on 13 October 1919;
  2. the control of aerial navigation in the Commonwealth and Territories.

As regards (i), it is thought that the Commonwealth has powers to put into effect any necessary Regulations in relation thereto without legislative reference by the State Parliaments.

As regards (ii), it appears that the Commonwealth has very considerable powers as incidental to defence, trade, commerce and other specific powers.

In view of the probable delay in the passage through the State legislatures of enabling Acts, and the uncertainty as to the terms of such legislation when passed, the Minister would be glad of the opinion of the Solicitor-General as to whether the Commonwealth Act could be proclaimed forthwith, in order to give immediate effect to the Air Navigation Regulations (Statutory Rule No. 33 of 1921), reliance being placed on the Commonwealth powers above referred to.

The question whether the commencement of the Air Navigation Act 1920 should be proclaimed and the Regulations thereunder put into operation prior to a reference being made by State legislatures to the Commonwealth of the power to legislate with regard to air navigation depends upon the nature of the Regulations proposed to be enforced.

The Regulations so far as they relate to inter-State air navigation come within the trade and commerce power, and do not depend upon any State legislation for their legal enforcement.

I think also that the Regulations, so far as they relate to carrying out the Paris Convention of 13 October 1919, are within the legislative power of the Commonwealth.

Moreover, I am of opinion that a considerable measure of control over intra-state air navigation can be exercised by the Commonwealth as relating to inter-State trade or defence. It is difficult to say exactly how far this right of control extends; but I think that there are few of the Air Navigation Regulations recently passed which cannot be justified under one or other of these heads.

There are a few of the regulations about which I feel some doubt. For instance, regulation No. 11 dealing with trick flying appears to be directed, not to the safety of the air route, but to the safety of inhabitants of towns, etc. and may be ultra vires. But I think that for the most part the Regulations will stand, and that the Act and Regulations may reasonably be brought into operation without waiting for State legislation.

[Vol.17,p.263]