The following resolution of the Air Traffic Committee has been submitted to me with a request for advice on the question raised in the resolution:

That the Attorney-General be asked to advise as to the constitutional position of the Commonwealth in regard to legislation on the subject of aerial navigation.

That it be pointed out that it is urgent that a uniform law operative throughout Australia be passed at an early date.

That it be suggested that the States might refer the subject to the Federal Parliament under section 51 of the Constitution, sub-section xxxvii.

As aerial navigation was not in contemplation when the Constitution was framed, no provision can be found in the Constitution conferring on the Parliament of the Commonwealth power in express terms to legislate in regard thereto. Although the subject is spoken of as 'aerial navigation' it is more properly termed 'aviation'. It has already been laid down by the High Court that the meaning of the terms used in the Constitution 'must be ascertained by their signification in 1900': Attorney-General for New South Wales v. Brewery Employees Union of New South Wales 6 C.L.R. 469 (see judgment of Griffith C.J. at p. 501). The word 'navigation', occurring in section 98 of the Constitution in the collocation of 'navigation and shipping', cannot, therefore, in my opinion, be regarded as extending to aerial navigation, or aviation. In any case, if the word 'navigation' does so extend, the power is subject to the limitations contained in section 51 (i) (see Kalibia v. Wilson 11 C.L.R. 689).

The powers of the Parliament of the Commonwealth to legislate regarding aerial navigation or aviation are, in my opinion, contained principally in placitum (i) of section 51 of the Constitution, namely, 'trade and commerce with other countries, and among the States'. In addition, legislation may be enacted in relation to aviation as incidental to the naval and military defence of the Commonwealth, and the postal and telegraphic services, and possibly under other powers. Under the trade and commerce power the Commonwealth legislation must of course be restricted to interstate and foreign trade and commerce, and aerial traffic, intrastate, except as incidental to some purpose of Commonwealth administration cannot be controlled by the Commonwealth under the trade and commerce power (see Kalibia v. Wilson 11 C.L.R. 689).

I have been supplied by the Secretary of the Air Traffic Committee with a memorandum showing the nature of the legislation desired. The following matters are included as being those upon which it is desired the Commonwealth should legislate in relation to aerial traffic:

Registration of air machines, pilots and aerodromes, fees for same.

Inspection of the above.

Issue of certificates.

Records to be kept at aerodromes (consumption of petrol, etc.) and logbooks of machines, to be sent to Statistical or Meteorological Bureau.

Ownership and registration of air traffic business concerns, limitation of intra-Australian traffic to Australian-owned machines.

Regulation of right to land, also forced landings, charges and compensation. Accidents. Identification marks on machines, and inspection of records by police.

Precaution against air piracy, also evasion of arrest by criminals. Air police.

Air 'lighthouses' and exclusive right to use lights of special type.

Navigation rules for the air, heights to be observed, and rules for landing by day and night.

Regulation of use of wireless and other signals between machines and aerodromes.

Overseas air traffic. Limitation of right of entry to specified places. Anti-aircraft batteries for same, and right of same to order landing.

Issue of licence to Australian-owned machines, before leaving overseas.

Bills of lading. Customs entries and search. Prohibition of carriage of specified goods.

Areas over which flying will be prohibited: large towns, warships, forts, dockyards, arsenals, and ordnance stores.

Subsidy for air machines standardised to approved patterns.

These powers are, in my opinion, so extensive in their nature as to embrace some matters which are quite outside the scope of the legislative powers of the Parliament of the Commonwealth, and, as the subject-matter is not one which permits of satisfactory legislation by the States as regards intrastate commerce and by the Commonwealth as regards interstate commerce, it appears to be essential that additional powers be obtained by the Commonwealth either by alteration of the Constitution or by reference by the States under section 51 (xxxvii) of the Constitution.

The Commonwealth has power to deal fully with respect to all aircraft arriving in or departing from the Commonwealth of Australia.

[Vol. 16, p. 126]