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Thursday, 19 November 1936


Senator A J McLACHLAN (SOUTH AUSTRALIA) (Postmaster-General) . - I move -

Th at the bill be now read a second time.

This measure represents another effort on the part of the Commonwealth to make a provision which could not have been made when the Federal Constitution was framed. It also represents somewhat vividly a principle which emerged from the discussion on the Constitutional

Alteration (Marketing) Bill, namely, that there are many subjects requiring legislation which could not have been foreseen prior to the inception of federation.

Briefly, the purpose of this measure is to ask the Parliament and the electors to approve an alteration of the Constitution to give to the Commonwealth power to legislate with respect to aviation. It is proposed to ask for general powers over aviation, or in the terms of the proposed alteration of the Constitution, over " air navigation and aircraft ". The proposed additional powers are being sought in consequence of the recent decision of the High Court in the Henry case. It would appear from the judgments of the learned justices in that case that the power of the Commonwealth Parliament with respect to civil aviation is confined to three categories, namely - (1) legislation for carrying out an international convention with respect to aviation; (2) legislation under the trade and commerce power in so far as aviation has an interstate or international character; and (3) legislation as to aviation in the territories. It will be noticed that the power of the Commonwealth in respect of aviation is not complete, as it does not extend to aviation of an intrastate character. If the proposed alteration is made the power will be complete, and will extend to intra-state, interstate and international aviation. The purpose of the bill is to seek power to legislate over intra-state aviation. It will, I think, assist honorable senators in considering this measure if I outline the legal position in Australia with regard to aviation before a decision was given by the High Court in the Henry case. The Commonwealth is a party to the International Convention for the regulation of aerial navigation signed at Paris in 1919, which is largely, but not wholly, concerned with international flying. In 1920, the question of implementing this convention was the subject of much consideration, and, at the conference of Commonwealth and State Ministers held that year, resolutions were passed that it was desirable that the States should refer to the Commonwealth the power to make laws with respect to air navigation, re- taining for each State - (a) the right to own and use State aircraft operating within the State for governmental purposes, and (b) the police powers of the States.

Queensland and Tasmania passed acts which were in accordance with the resolution. The Queensland Act was not to come into force until proclaimed, whereas the Tasmanian Act operated from the date on which it was passed. The Parliaments of Victoria and South Australia passed legislation in a different form, but the acts were not proclaimed. It is interesting to note that the Victorian and South Australian legislation provided for transferring to the Commonwealth power to make laws with respect to aviation, first, within the terms of air conventions, and secondly, within the scope of interstate aviation. In other words, those acts were intended to transfer to the Commonwealth the powers it is now seen to possess. At that time, of course, it was not appreciated that the Commonwealth had legislative power to give effect to the International Air Convention. We now know, as the result of the High Court decision in the Henry case, that legislation passed in those two States would not have affected or added to the powers of the Commonwealth. In New South Wales and Western Australia, bills were introduced into the parliaments, but were not proceeded with. Briefly, that was the position in and immediately after 1920. On the assumption that these referring acts would be passed by the various States, the Commonwealth Parliament passed an Air Navigation Act in 1920. That act empowered the Governor-General to make regulations for the purpose of giving effect to the convention - that power has now been upheld - any amendment of the convention, and for the control of air navigation in the Commonwealth and the territories of the Commonwealth. That act has, by the decision of the High Court, been in part invalidated; because the effect of the decision of the High Court is, that while regulations may be made to give effect to the convention and for the purpose of controlling air navigation between the States in the Commonwealth, they cannot be made to cover generally operations within the terri torial boundaries of the Commonwealth. In order to ensure that the Commonwealth Parliament shall have power to enact legislation similar to the act of 1920, a constitutional alteration, whether by a reference of power or an addition of power as is now proposed, is necessary. The reference of powers in connexion with aviation has not proved to be satisfactory up to the present, and the Government has decided to adopt the method of seeking the necessary powers by means of an alteration of the Constitution.

A practical consideration that I desire to bring under the notice of honorable senators in support of the vesting of full powers in the Commonwealth with respect to aviation is that it is essential in the interests of safety in air navigation that uniform rules should be observed. When the Henry case was before the High Court the Chief Justice (Sir John Latham) said -

Uniform rules designed to secure the airworthiness of aircraft and the competencyof pilots, and uniform flying rules as to flight, the passing of aircraft in flight, and, in particular, ascent from and descent to aerodromes, are clearly desirable in the interests of all who use the air for flying. If the rules, e.g., for landing upon an aerodrome, are not uniform, so that the one pilot lands in a clockwise direction while another pilot, in the same place, obeying another set of rules, lands in an anti-clockwise direction, there is very grave risk of serious accident. Upon these and similar considerations the argument is based that in order to deal effectively with the subject of aircraft flying between the States, or between Australia and other countries, the Commonwealth Parliament must also have the power to deal with aircraft flying only within the limits of one State which use, as a matter of absolute necessity, the same air, and as a matter of practical necessity, the same aerodrome. The illustrations which have been given indicate the difficulties of any double control of aviation and might well be used to support the contention that it is wise or expedient that there should be a single control of this subject matter.

The proposal is similar to that recommended by theRoyal Commission on the Constitution. In making its recommendations, a majority of the members of the commission said -

We recommend that a power to make laws with respect to aviation bo conferred on the Commonwealth Parliament.

All the expert witnesses on this subject who appearedbefore the commission were agreed that the Commonwealth should have this power, and, as is shown elsewhere in this report, the State Premiers at one time passed a resolution that it was desirable that the power to make laws with respect to aviation, with certain reservations, should be transferred by the States to the Commonwealth.

Effect could, we think, be given to this recommendation by inserting in section 51 of the Constitution the following paragraph : - (vib) Air navigation and aircraft.

As I have already indicated, in 1920 the Premiers agreed to hand over certain powers to the Commonwealth. The matter was again considered by the Premiers in 1929. The report of that conference contains the following -

It was the general opinion that legislative provision with reference to aviation was defective, and that the position required immediate attention. It was agreed that the Commonwealth Parliament should draft a bill to be submitted to the governments of the States, transferring to the Commonwealth Parliament full power to legislate with respect to aviation and matters incidental to aviation. The State Governments undertook to consider whether they would submit the bill to their parliaments at an early date.

The subject was again discussed at the conference of Commonwealth and State Ministers in 1934 and, finally, at the conference held in Adelaide in August last, a committee representative of Commonwealth and State Ministers agreed that the States should pass legislation referring this power to the Commonwealth Parliament. To summarize the position : The High Court has declared in no uncertain language that there are limits to the Commonwealth's power to control aviation; substantial agreement has been reached with the States from time to time that the aviation power should be vested in the Commonwealth Parliament; and the Royal Commission on the Constitution which investigated the subject decided that the power should be vested in the Commonwealth and it recommended accordingly. It will, therefore, be appreciated that the Government has good reason to believe that the course it has adopted in placing this matter before the people is the best in all the circumstances.

I have been informed that 95 per cent. of the flying organizations operating in Australia are adhering to the regulations laid clown by the Commonwealth, even though in the matter of intra-state flying they could ignore them. There are, however, other factors,such as the contracts into which they have entered with insurance companies to be taken into con sideration. If these regulations were not adhered to, the levies imposed upon these companies or organizations would possibly be increased. The position which has arisen presents difficulties which have to be faced promptly by this Parliament, and by the people who, I feel sure, will support the Government's proposal. There appears to be unanimity of opinion amongst honorable senators as to the necessity for the Commonwealth to exercise these powers. On previous occasions I have mentioned that the reference of powers has caused considerable doubt in legal circles. The AttorneyGeneral (Mr. Menzies), the Assistant Minister in this chamber (Senator Brennan), and I, hold the view that ref erred powers are effective, but some distinguished members of the legal fraternity contend that powers that have been transferred, as provided for in section 51, are not an effective method of endowing this Parliament with jurisdiction on behalf of the Australian people. As there are other important measures still to be considered by the Senate, I shall not dilate further upon the proposed alteration of the Constitution in this respect. I commend the bill to honorable senators, and trust that it will have a speedy passage.







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