I am in receipt of your memorandum No. 732 dated the 12th February 1937 relative to a request that facilities be afforded Miss Amelia Earhart by the Commonwealth in connexion with a round the World flight proposed to be made in March 1937.

Section four of the Air Navigation Act 1920 – 1936 provides as follows:

4. The Governor-General may make regulations for the purpose of carrying out and giving effect to the Convention and the provisions of any amendment of the Convention made under article thirty-four thereof and for the purpose of providing for the control of Air Navigation–

1. in relation to trade and commerce with other countries and among the States; and
2. within any Territory of the Commonwealth.

In pursuance of that power the Air Navigation Regulations (Statutory Rules 1936, No. 156 as amended by Statutory Rules 1936, No. 161) have been made.

The application of those regulations is limited to:

1. aircraft engaged in international navigation;
2. aircraft engaged in air navigation in relation to overseas or interstate commerce; and
3. aircraft engaged in navigation in one or more Territories (See regulation 5).

Regulation 7 provides that an aircraft to which the regulations apply shall not fly above Australian territory unless amongst other things:

1. it bears a nationality mark and a registration mark in accordance with the requirements of the Convention;
2. it is certified airworthy; and
3. its pilot and crew hold certificates of competency.

These provisions to the extent to which they relate to aircraft engaged in international navigation and possessing the nationality of a contracting State are to give effect to the Convention.

Articles 10, 11 and 12 of the Convention provide as follows:

Art. 10 All aircraft engaged in international navigation shall bear their nationality and registration marks as well as the name and residence of the owner in accordance with Annex A.

Art. 11 Every aircraft engaged in international navigation shall, in accordance with the conditions laid down in Annex B, be provided with a certificate of airworthiness issued or rendered valid (3) by the State whose nationality it possesses (4).

Art. 12 The commanding officer, pilots, engineers and other members of the operating crew of every aircraft shall, in accordance with the conditions laid down in Annex E, be provided with certificates of competency and licences issued or rendered valid (3) by the State whose nationality the aircraft possesses (4).

These Articles must, in my opinion, be construed as applying only to aircraft possessing the nationality of a contracting State. Primarily, they impose a duty on each contracting State to see that aircraft possessing its nationality comply with the requirements of these three articles if they engage in international navigation.

If an aircraft of a contracting State complies with these and other conditions laid down in the Convention it is entitled to ‘freedom of innocent passage’ above the territory of every other contracting State (See Article 2).

With the exception, however, of Articles 25 and 26, which impose obligations with respect to aircraft in general, the contracting parties have no obligations under the Convention with respect to the admission or exclusion from their territories of aircraft from non-contracting States or with respect to the flying of such aircraft above their territories.

Article 5 of the original Convention provided as follows:

No contracting State shall, except by a special and temporary authorization, permit the flight above its territory of an aircraft which does not possess the nationality of a contracting State.

This Article was, however, by a Protocol dated 15th June, 1929, which entered into force on 17th May, 1933, modified to read as follows:

Art. 5 Each contracting State is entitled to conclude special conventions with non-contracting States (2).

The stipulations of such special conventions shall not infringe the rights of the contracting Parties to the present Convention (2).

Such special conventions in so far as may be consistent with their objects shall not be contradictory to the general principles of the present Convention (2).

They shall be communicated to the International Commission for Air Navigation (2) which will notify them to the other contracting States (1).

It will, therefore, be seen that in lieu of an express prohibition in relation to aircraft not possessing the nationality of a contracting State, there is now merely a declaration of the right of a contracting State to conclude with non-contracting States special conventions not subversive of the rights of the contracting States or repugnant to the Convention.

Apart, however, from the right to enter into such special Conventions, it appears to be left to each contracting State to legislate as it thinks fit with respect to aircraft from non-contracting States, subject only to the provisions of the Convention which are of general application.

It is, therefore, in my opinion, open to the Commonwealth, subject to those provisions of general application, to legislate as it thinks fit with regard to the entry of such aircraft into Australia and their regulation and control while in Australia. I am, however, doubtful whether the power given by section 4 of the Air Navigation Act is sufficiently wide to authorize the making of regulations with respect to these matters except in relation to aircraft engaged in trade and commerce.

In the case of Miss Earhart, I understand that it is desired that she should not be subject to the requirements of regulation 7. By regulation 4 of the Air Navigation Regulations, declared by the High Court in Goya Henry’s case⁽¹⁾ to be invalid, provision was made for certain exemptions from the provisions of the regulations. With respect to this provision His Honour the Chief Justice said in his judgment:

Further, regulation 4(1)(b) provides that the regulations shall not affect or restrict the rights of any State Government in respect of ‘the Police powers of the State’. Whatever this phrase may mean, such an exemption is not authorised by the Convention and is inconsistent with carrying it into effect.

Finally, regulation 4(2) permits the Minister upon the recommendation of a Department of the Commonwealth to exempt any aircraft or person from the whole or any part of the regulations. This again is plainly inconsistent with giving effect to the Convention according to its terms.⁽²⁾

It will be observed that the provisions there discussed were wide enough to permit of exemption being granted to any aircraft whatsoever (including aircraft possessing the nationality of a contracting State) and in respect of regulations, to give effect to provisions of the Convention of general application (Articles 25 and 26). Those provisions of the regulations were accordingly inconsistent with the Convention which makes no provision for any exemptions, except in respect of certain State aircraft. The same objection would not, however, in my opinion, exist with regard to an exemption (whether in terms or by implication) of aircraft from a non-contracting State in respect of specified provisions of the regulations not being regulations giving effect to provisions of the Convention which are of general application.

Regulation 5(1) limits the application of the regulations to certain specified classes of aircraft. I am inclined to the view, although not without some doubt, that it would be competent for the Governor-General to exclude from the application of regulation 7 aircraft which the Minister, the Board or some other authority is satisfied possesses the nationality of a non-contracting State and is not engaged in overseas or interstate commerce.

If the provisions of regulation 7 were so modified there would appear to be no legal difficulty with respect to Miss Earhart’s flight above Australian territory.⁽³⁾

[Vol. 30, p. 103]

(1) R v Burgess; Ex parte Henry (1936) 55 CLR 608.

(2) Ibid, 653 (Latham CJ).

(3) Amelia Earhart, with her navigator Fred Noonan, landed in Port Darwin, Northern Territory, and Lae, New Guinea, in late June 1937 on her second attempt to circumnavigate the world by air. Her plane later crashed somewhere over the central Pacific Ocean near Howland Island on or about 2 July 1937. Earhart had then travelled around 35,000 kilometres and had 11,000 kilometres remaining to complete her world flight. See Rumerman, K 2009, Amelia Earhart, US Centennial of Flight Commission, Washington DC, Website Link, accessed 25 February 2011.