Opinion Number. 1803

Subject

AVIATION CHARGESPROPOSED CHARGES FOR USE OF COMMONWEALTH AIRPORTS AND AVIATION FACILITIES: COMPONENTS OF PROPOSED ROUTE CHARGES: WAIVER OR REFUND OF CERTAIN CHARGES: COMMONWEALTH’S OBLIGATIONS UNDER AIRPORT LEASES: AIRPORT REVENUE

Key Legislation

AIR NAVIGATION ACT 1920 s 4: AIR NAVIGATION REGULATIONS reg 110A

Date
Client
The Attorney

(1)  The Acting Minister for Civil Aviation, after considering the views expressed in my submission of the 17th March, 1947,1 on matters arising out of Cabinet consideration of Agendum No. 1278 of 1946, has requested your advice as to the proposition to impose ‘route charges’ for the use of aerodromes and airway facilities on the basis that those charges represent two components.

(2)  The Acting Minister’s suggestion is that the proposed charges may be considered as being composed of two components, each of 50% of the total charge—one for landing facilities, the other for navigational aids—and that the former be waived or be the subject of a rebate in those cases where rights to the free use of landing facilities are held under current leases.

(3)  In the submission, referred to above, I expressed the view that a system of charges could validly be imposed under the Regulations for the use of facilities provided by the Commonwealth to which the user would otherwise have no legal right. In the case of certain airline operators who are lessees of areas at Commonwealth airports and who, under the terms of the lease, are permitted to use free of charge, for the purposes of the landing and departure of aircraft, the portion of the aerodrome to which the lease relates, I expressed the opinion that the proposed charges would be inconsistent with the Commonwealth’s covenant in the lease.

(4)  I took the view also that the right to use, free from Commonwealth charges, any Commonwealth owned and controlled landing ground included the right to such aids to the landing and departure of aircraft as may properly be regarded as component parts of the aerodrome.

(5)  In my opinion, the facilities properly to be regarded as adjuncts to landing grounds were distinguished from those facilities provided by the Commonwealth for the purposes of safe air navigation and control of airways.

(6)  Accordingly, I think that the Acting Minister’s suggestion that the proposed ‘route charges’, if regarded as representing two components—one for landing facilities and one for purely navigational aids for airways—the former to be waived or made the subject of a rebate in the case of the lessees, could validly be implemented under the Regulations.

(7)  As to whether the proposed division of the total charge, each component being regarded as 50% of the total, represents a fair division, having regard to the cost to the Commonwealth of establishing and maintaining the respective services, I am not in a position to express any opinion. It is important, I think, that the proportions should be related to that cost to establish the bona fides of the Commonwealth in the matter.

(8)  In furnishing my previous submission, I assumed with regard to the four classes of aircraft contemplated, namely, aircraft used for personal purposes, business purposes, non-scheduled airline services and regular scheduled airline services, respectively, that the lessees considered were included only in operators of the fourth class of aircraft. I understand now that some operators of the third class of aircraft are also parties to leases containing a similar clause as to the free use of areas at airports. In my opinion, similar considerations apply to these persons as to lessees included in the fourth class. That is to say, a registration fee or other charge representing both the components mentioned in the case of ‘route charges’ could not be imposed in its entirety without breach of the Commonwealth’s contractual obligations under the leases. Waiver or refund of the portion of the charge which represents the provision of landing grounds and aids incidental thereto would be necessary.

(9)  In furnishing my previous submission I also assumed that regulation 110A of the Air Navigation Regulations, which confers upon the Minster power, inter alia, to establish aerodromes and aids to aerial navigation and upon the Director-General power to fix a tariff of charges for the use of those facilities is a valid provision in exercise of the power conferred by section 4 of the Act. I have re-considered this aspect of the matter, and, although I do not think the matter is entirely free from doubt, I take the view that the making of a regulation in the terms of regulation 110A is authorized by the general words of section 4 of the Act.

(10)  I am not aware as to whether the aerodromes and aids to aerial navigation which have been established by the Commonwealth have, in fact, been established in pursuance of regulation 110A. I think, however, that, if any doubt on this matter exists, the situation could be rectified by amendment of the regulation to provide, in effect, that the regulation shall apply in relation to aerodromes and aids, whether established by the Commonwealth before or after the commencement of that regulation.

[Vol. 37, p. 455]

1 Opinion No. 1795.