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Thursday, 19 November 1936

Senator HARDY (New South Wales) . - I had hoped that the Leader of the Opposition (Senator Collings) would clearly, detail his reasons for believing that transport should become the function of the Commonwealth.

Senator Collings - They are quite obvious.

Senator HARDY - It was not that I required those reasons in order that I might make up my mind in regard to this bill, 'because I believe that . aviation should come under the control of the Commonwealth Government. It was because I should be most interested to catalogue the reasons of the honorable gentleman, so that I could compare them one by one with the reasons given by the New South Wales Labour party - incidentally, the larger section of the Australian Labour party - which has already decided to oppose this referendum tooth and nail. The announcement of the Leader of the Opposition that he will treat the measure from a non-party viewpoint was most refreshing. On matters of tariff and future legislation, I trust that he will be able to follow this precedent. Evidently, the honorable gentle man and his colleagues are beginning to develop a national vision which they did not possess in the past.

In asking the Australian public to allow the control of aviation to belong to the Commonwealth beyond question, we are only following the example of other federations in the world. Every federal constitution of importance since the advent of aviation as a practical service vests in the federal legislature control over aviation. One excellent example of this is to be found in the new German constitution. The Reich has exclusive power in regard to air traffic and the control of it within the borders of Germany. The Austrian constitution of 1920 also vests power in regard to air navigation in the central authority. The Swiss federation, by referendum in 1921, granted to the federal body power to legislate over all aviation matters. In the United States of America, where the matter has been disputed several times, the Supreme Court has not hesitated to state on every occasion that the control of aviation should be vested in the federal body.

Senator E B Johnston - Does that apply to intra-state aviation?

Senator HARDY - I shall come to that matter in a moment. It is interesting to note that, ever since 1919, the National Advisory Committee on Aeronautics, representing more than 30 nations, has urged in every report the establishment of federal control. I bring these facts to the attention of honorable senators, to show that the Commonwealth, in seeking this power, is not asking for anything particularly original. It is only falling into line with an obvious world-wide trend dating from the time when aviation first became a practical thing. A point in which I was particularly interested was that upon which the challenge to the Commonwealth's power in respect of aviation was made before the High Court. I am, of course, aware of the terms of the judgment which has been given; but I should like the Minister, when replying to the second reading debate, to elucidate this point. Presuming that the regulation which was the cause of the overthrow of the power of the Commonwealth by the High Court had been embodied as part of the Inter- national Air Convention, would it then have been upheld by Their Honours? If it had been upheld, tremendous possibilities of the extension of Commonwealth powers would have been opened up. The air regulations which have been sponsored by the Commonwealth up to date are divided roughly under two headings : first, those principles which were entered into at the Convention for the Regulation of Aerial Navigation, which was subscribed to by 27 nations in October, 1919 ; and, secondly, the regulations which were actually sponsored by the Commonwealth for the purpose of controlling aircraft in this country. It is interesting to note those two divisions. The important principles to which Australia subscribed as a party to an international agreement were -

1.   The contracting parties recognize that every power has complete and exclusive sovereignty over the air space above its territory and territorial waters adjacent thereto.

2.   Each contracting State undertakes in time of peace to accord freedom of innocent passage about its territory to the aircraft of other contracting States, with reservations, and that, except by special and temporary authorization, the aircraft of non -contracting States shall not be so permitted.

It is quite obvious that that principle, which was accepted by Australia as an international obligation when it subscribed to the Air Convention, has not been challenged before the High Court -

3.   Each contracting State may deny the right of flight over certain prohibited areas that have to be notified.

4.   No aircraft may engage in international flying unless it is provided with an airworthiness certificate issued by the State whose nationality it possesses, and unless certificates of competency are held by all members of the operating crew of the aircraft.

In the control of aviation in Australia, however, it was found that other regulations were necessary. But the point to which I desire to draw attention is this: If the Commonwealth, by virtue of its authority with regard to external affairs, can in direct breach of the sovereignty of the States enter the State field in discharging the obligations of the International Air Convention, thus implementing powers not specifically conferred by the Constitution, what an extraordinary vista of extended powers is opened up !

The regulations for the control of aviation within Australia, one of which was set aside by the judgment of the High Court in the Henry case, related to the following : -

(a)   the conditions of issue and renewal of certificates and licences for pilots, ground engineers, aircraft, &c. ;

(b)   the licensing and regulation of aero dromes :

(c)   the conditions under which aircraft may be used for carrying goods, passengers, and mails;

(f)   the imposition of penalties for non-com pliance with such regulations.

Let us suppose that another International Air Convention adopts standard rules of the air, as to how aeroplanes shall land, what certificates shall be held by a ground engineer or what a pilot shall do under a certain set of circumstances. What would be the position? According to the judgment of the High Court, such rules must override the laws of a State. I do not say that the States should run contrary to the Commonwealth in this matter. I have already emphasized that I think the control of aviation should be vested in the Commonwealth, but I believe that this judgment of the High Court will prove to be more serious and far-reaching than any of its previous decisions relating to the Constitution.

It is interesting to study the evidence given before the Peden Commission, which, in 1927, investigated the operation of the Constitution in regard to aviation. Expert witnesses were examined as to whether the power to control aviation should be exercised by the Commonwealth or the State authorities. Mr. Geoffrey Hughes, then president of the New South Wales Aero Club, stated-

Not only doI think it expedient that the Commonwealth should have power to create this unified law, but I am convinced that there are difficult and highly important defects in any scheme of individual State legislation, no matter how uniform it may be made. I submit it is beyond argument that, whatever maybe done, and whether the Commonwealth legislates for the whole of Australia, or whether the individual States legislate for themselves, there are two absolute essentials. Firstly, there roust be in every part of Australia some control of aviation. Secondly, there must be uniformity as to the rules and requirements for safe navigation in the air. These two essentials can be achieved by either of two means - the separate establishment of control by the States on uniform lines, and the establishment of unified control by the Commonwealth.

The division of authority according to the distinction between interstate and intra-state trade or commerce is utterly inpracticable when applied to aviation, and the form of control that is necessary. The position would be much worse in Australia, with a few large States, and probably much intra-state aviation, than it is in the United States with a great number of States, and practically all aviation of an interstate character. There is absolutely no other industry or means of locomotion in which control necessitates supervision of the product from the drawing board through all the processes of manufacture to the finished article, and then throughout the life of the machine.

There is no means of travel which is so unrestricted by physical boundaries. What man owning an aeroplane can say: "I will use this only within the boundaries of New South Wales", or "Victoria", as the case may be. What man in the air or on the ground can define with certainty the moment when the aeroplane passes through the air of New South Wales from the air of Queensland? The same aeroplane, which one day is used to bring Newcastle as near to Sydney as Parramatta is on land, may next day be used to bring Brisbane as close as Bathurst, or Melbourne nearer than Tamworth.

Aircraft, which have already broken down internationalboundaries cannot be restricted to provincial boundaries. I am convinced that it is in the best interests of public safety, and in the best interests of aviation itself, that Australia should be governed by one law of the air, and that the Commonwealth should have full power, without interference from individual States.

Although the above opinions were expressed by the former president of the Aero Club in New South Wales, the branch of the Australian Labour party in that State has announced its determination to oppose the proposal to be submitted to the people at the referendum. In the most outstanding decision given in the United States of America on the subject of the control of aviation, the Supreme Court of Wisconsin held that whilst interstate commerce and intrastate commerce was ordinarily subjected to regulations made by different sovereignties, when the circumstances were such that the supreme authority could not exercise complete and effective control over interstate commerce, State legislation did not constitute an invasion of the federal power. It will be seen that the proper and only possible course to pursue is to vest full power in regard to aviation in the Commonwealth legislature.

Senator Guthrie - Surely nobody is opposed to that.

Senator HARDY - Yes ; the New South Wales Labour party has announced its intention to oppose it tooth and nail. I submit that when this Parliament secures full authority in regard to aviation, steps should be taken to remove civil aviation from the control of the department under which it now operates, and to place it under a separate department. It is anomalous that it should be under the control of the Defence Department.

Senator Guthrie - That would be required in a time of war.

Senator HARDY - Admittedly. In a time of national emergency the services or the mercantile marine would be invaluable, but in times of peace we do not place it under the control of the naval authorities. In the United States of America civil aviation is under the control, not of the Department of Defence, but of the Department of Commerce. In India, although it was originally administered by the Department of Defence, it is now under the control of the Department of Public Works. In Canada the control of civil aviation has been transferred from the Department of National Defence to the Department of Transport. Every nation recognizes that civil aviation is playing an increasingly important part in connexion with transport. The reasons for placing civil aviation under the control of the Defence Department are gradually disappearing. We must remember that civil aviation was a child of the war and that its development began in the post war period. The report of the committee which in 1934 inquired into the control of private flying and civil aviation in the United Kingdom makes interesting reading. I quote the following extract from the report -

It has been urged in many quarters that the administration of civil aviation is too much subjected to military standards and procedure, and that its natural development is being cramped by its close association with the fighting service.

This relationship of a civil activity to a fighting service is admittedly anomalous.

That is not the submission of a particular witness, but the conclusion of the committee after a thorough and intense investigation. It shows clearly that the development of civil aviation has been cramped, because of its close association with the fighting services. Every honorable senator will agree that it is anomalous to associate civil aviation with the Department of Defence. After dealing with the reasons for the association of civil aviation with the military services immediately after the war, the report proceeds.

Those reasons have lost their force to-day, and it cannot be denied that there would he political advantages in entrusting to a purely civil department the encouragement and administration of a form of transport which, in spite of the progress made since the war, is still in its infancy.

We, in Australia, are out of date in persisting with control of civil aviation by the Department of Defence.

Senator Guthrie - The honorable senator is right.

Senator HARDY - Another extract reads -

Civil aviation at its rebirth after the war found at its service the fully developed technical organization created for the Royal Air Force and has undoubtedly derived considerable advantages in the post from its military associate and from the high standards required by it in aircraft construction.

We desire, however, to emphasize the point, to which in our opinion far too little attention has yet been paid, that civil aeroplanes are diverging from military machines in design unci characteristics, and a purely civil technique in construction is arising.

That is a most important point. The principles which govern the construction of civil aircraft are entirely different from those which govern the construction of military aircraft. The report goes on to say -

The day will arrive when civil air transport will have definitely assumed its place in the world as one of the main forms of communication.

Senator Guthrie - We see that already.

Senator HARDY - Notwithstanding the developments which have taken place, and the intention to link the Old Country with Australia by means of a more frequent air service, the regulation of civil aviation, instead of being under the Commerce Department or the Department of the Interior, is still under the Defence Department. A further paragraph from the report to which I have referred states -

We consider it of the highest national and international importance that the day should be hastened - or at least prepared for. As progress is made to that stage, the anomaly of a military body like the air council continuing to be responsible for its administration will become more and more pronounced.

It is true that the United Kingdom has not yet transferred in its entirety the control of civil aviation from the defence authorities, but there is in that country a general recognition on tho part of thinking nien that before long civil aviation will be placed under the Minister for Transport. That is the logical place for it to be. I say advisedly that it is illogical for us in Australia to restrict the development of civil aviation by insisting that it shall remain under the control of the military authorities. I support the bill.

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