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Thursday, 15 October 1964

Senator WRIGHT - We are in the Gilbertian situation where every Opposition member who has spoken in this debate has made quite clear his own political point of view that as a constitutional power, this power should reside in this Parliament. We have also on record in this Parliament the report of the Joint Committee on Constitutional Review. On that Committee the Opposition had six representatives. The Government also had six representatives, led by the Attorney-General of that time. We had the advantage on that Committee of working with the late Sir John Latham, if I may be permitted to mention him, without mentioning others. The late Sir John Latham was a figure who, in constitutional, parliamentary and public life in this country demanded respect on every count. He put forward the view that the constitutional power in relation to civil aviation, obviously without question should wholly belong to the Federal Parliament. That was the view of each of the 12 members of the Committee. After tracing the growth of the industry, we said in the report -

In the Committee's mind, there can be no doubt but that the undivided subject of aviation is a national matter.

Reference was made in the text of the report to the responsibility that the Federal Parliament had assumed all through the years, the building up of the aviation industry and the great contribution that the Federal exchequer had made to its resources in the way of capital equipment, including aerodromes, air traffic control stations, navigation aids and the like, as will as subsidies to the airlines which needed them to assist development.

I regret that the constitutional amendment recommended by the Committee has not been made by referendum. We live in a country where the exposition of the meaning of the Constitution is the prerogative of our High Court. The High Court's interpretation of the Constitution is revealed in the course of decisions that it makes. The High Court does not issue treatises year by year. It gives judgments upon cases. Therefore the decision handed down in February 1964 contained what was regarded by the members of the Joint Committee on Constitutional Review as a new interpretation of the civil aviation power belonging to the Federal Parliament.

The Government's legal advisers, I am informed, take the view that the regulations under challenge tonight are constitutionally justified by the opinions expressed by High Court judges in the Airlines of New South Wales case. I wish I had unlimited confidence in that view. I have not. But it is presumptuous of me to do any more than mention the matter. I believe that the proper attitude in this circumstance for one in my position is to accept the advice that the Crown has been given and assume that the exposition in this High Court case justifies as a matter of interpretation of the Constitution as it exists at present the exercise of the power in these regulations.

I wish to refer to two aspects of that proposition. It should be noted that the regulation under discussion extends the Commonwealth's jurisdiction to all air navigation within Australian territory, unbounded by the existence of interstate trade, overseas trade, or relationships with Territories. As I understand it, one of the bases upon which that power is exercised over all air navigation within Australian territory - not merely interstate, but intrastate air navigation - is a viewpoint taken as to the meaning of the external affairs power based upon the existence of the Chicago Convention of 1944.

I remind the Senate that Mr. Justice Dixon, when this matter was first before the Court, expressed concern in these terms -

On the other hand, it seems an extreme view that merely because the Executive Government undertakes with some other country that the conduct of persons in Australia shall be regulated in a particular way, the Legislature thereby obtains a power to enact that regulation, although it relate to a matter of internal concern which, apart from the. obligation undertaken by the Executive, could not be considered as a matter of external affairs. The limits of the power can only be ascertained authoritatively by a course of decision in which the application of general statements is illustrated by example. . . . The aeroplane defies territorial boundaries. . . . The regulation of air navigation may well be regarded as an entire subject.

It is not delimited either by State boundaries or national boundaries. My colleague from Tasmania, the Minister for Civil Aviation (Senator Henty), this afternoon referred to what His Honour said in the course of giving his decision in 1954 - that a study of the schedule to the Convention suggests that obligations are placed upon the Commonwealth which extend over the whole territory of Australia and that in almost all respects the legislative power which arises from the need to carry out the Convention given by the Constitution would suffice to support laws made with a complete disregard of the distinction between interstate and intrastate trade. He went on to say that the actual framework of the regulations as they were at the time of that decision were limited to overseas trade, interstate trade and matters in relation to the Territories.

I myself fear in the evolution of our Constitution too expansive a use of the interpretation there referred to of the external affairs power. 1 share with the State Premiers a concern that if this is the basis of this regulation, the matter needs to be closely watched. But, Mr. President, it is not our job to interpret the Constitution. That is the job of the High Court. The Premiers in addressing their communications to us in that respect, may mean only to remind us that they would be the first to recognise that argument along such a line could be effectively addressed only to the High Court. So 1 forbear to refer more fully to this judgment. The Minister for Civil Aviation (Senator Henty) referred to it quite fully this afternoon.

There are passages in the judgment of Mr. Justice Taylor which, 1 would have thought, would have caused some hesitation before unqualified confidence was expressed in the view that the High Court thought that the Commonwealth could readily step into intrastate air transport, which may be a different thing from intrastate air navigation. I make only a passing reference to the judgment of Mr. Justice Taylor.

That leads me to say that I have received a telegram today from the Premier of Tasmania. I do not see any disrespect in his action in sending it to me. 1 have given the telegram very thoughtful consideration especially as 1 know that its terms are the unanimous resolution of the Parliament of Tasmania But the first thing that I want to make quite clear is that I, as a senator from the State of Tasmania, am not a delegate either of the Tasmanian Government or of the Tasmanian Parliament. I have my responsibility to form an opinion of what is proper regarding civil aviation in the interests of Tasmania. I do so. I bear in mind the marvellous air services that have been developed between Tasmania and the mainland in the last 20 years, and I ask myself having regard to the facilities that have been provided in Tasmania, whether it is to the interests of that State to suggest that its purely intrastate air services would be better under State control than operated as an adjunct of Federal control. To that question I find only one obvious answer. Therefore, if in the 1890's I had attended the conventions that founded the Constitution and if somebody had told me that 70 years hence there would be aviation services of the sort that can be seen now, I would have regarded myself as the veriest dwarf of a statesman moulding this nation if I said that the intrastate control of civil aviation should be reserved to the States any more than 1 would have reserved to them intrastate control of posts and telegraphs, broadcasting and television. The nature of the activity defines interstate boundaries as national boundaries. Therefore, 1 speak, having regard to the lateness of the hour, more briefly than I would have, but definitely of what I think is essential for the benefit of all the States of Australia. I believe that civil aviation should come under one power and one control and should not be chipped off and segmented by sectional State interests. That is the question of power.

Some members of the Opposition have said: "We are not arguing the existence of power. We are saying, though that the power is not being exercised bona fide. We are saying that what you are doing today is in a circumstance that is causing disquiet in the country. It is being exercised for the purpose of assisting Ansett." I am a person who has been heard' on the dangers of Executive power more often than is good for my acceptability in this chamber.

Senator Hannaford - At least you have been consistent on it.

Senator WRIGHT - I am going to be consistent on it tonight. This is not an occasion which has arisen out of any motive to assist Ansett. This is an occasion which arose when the Premier of New South Wales in 1960 or 1961 issued a directive to his Commissioner of Road Transport to review the services operated by the two airlines in that State, East-West Airlines Ltd. and Airlines of New South Wales Pty. Ltd. The shareholders of Airlines of New South Wales had paid for and developed air routes representing 70 per cent, of the intrastate air trade, and East-West Airlines had paid for and developed 30 per cent, of the intrastate air trade in that State. The Government of New South Wales gave a directive that 19 per cent, of the interests of Airlines of New South Wales should be confiscated, as it were, and transferred to East-West Airlines. That sort of executive action ought to be headlined. I see the superficial Press floating around the chamber with the caption, " Labour gives Ansett a rap." / wonder what the reaction would be if the Victorian Government said to the " Agc " newspaper: "Within 24 hours, 20 per cent, of your circulation shall be transferred to the ' Herald ' newspaper ".

Senator Cavanagh - It is a ridiculous analogy.

Senator WRIGHT - lt is not a ridiculous analogy. When you issue a public licence for air navigation, you enter into a contract with the licensee in good faith. So long as he observes all the laws and conditions of the licence, and pays his money to develop goodwill on that route, nobody in a fairminded British community would ever suggest that without compensation he should be arbitrarily deprived of his goodwill in the route that he had developed. When application was made to the High Court, the litigation, for some reason or other, continued until 25th February 1964. The status quo was maintained until the Privy Council dealt with the matter in July of this year. What is the responsibility of the Federal Parliament after having invested money which Senator Cormack reasonably assessed as amounting to £1,500,000 a year?

Senator Ormonde - Is that for intrastate airlines?

Senator WRIGHT - Yes. When we take into consideration head office expenses, administrative expenses, development expenses and subsidies, that would be the cost to the exchequer which could reasonably be attributable to intrastate airlines each year. As we going to allow arbitrary political interference with the airlines when what is required is a sensible rationalisation that will assure profitable operation to each of them?

Having put that as briefly as I can, it seems to me scandalous in the extreme, and certainly no tribute to the intelligence of those who advance the suggestion, to say that the Commonwealth Government is wanting in bona fides because it sees fit at this juncture to take control of all air navigation so that it can prevent the fiasco which the Labour Government of New South Wales wishes, for political .purposes, to foist upon the industry. So much for the paranoic obsession that this action stems from the Government's desire to assist Ansett. Who is this man Ansett? He is a successor to Ivan Holyman, a man who, in 1924, worked for his living as a bus driver and who, by his own energy and ingenuity, has built himself up in a free enterprise community. I do not believe that there is any man or woman in this Senate who is entitled to point a questioning finger at Mr. Ansett's integrity or at this Government's integrity. This was done once, to my knowledge, and immediately the then Minister for Civil Aviation took action before a judge and jury. As a consequence of that action, the defamer went to prison and thereby the integrity of this Parliament was uniquely upheld. That is a special debt that we owe the former Minister for Civil Aviation. Members of the Opposition who come along yelping these innuendoes without having any material on which to base them do nothing to assist us to decide, first, whether constitutional power exists in the Commonwealth, and secondly, if it does exist, whether it has been exercised in a bona fide manner. They have produced not a scintilla of evidence, but they make innuendoes in the hope that the Press will publish them under headlines that will seep through the country as debris seeps down to the dirt.

I reject the basis upon which this motion for disallowance is founded because the question of the existence of power is a matter for the High Court. The bona fides of the Commonwealth's action is beyond question and the need for the exercise of unified jurisdiction is this field is beyond question. So I ask myself whether or not, merely because the power is taken by regulation, I should assent to the disallowance of the regulations. Every honorable senator here knows my views about the use of regulations. In the very first week after the regulations were gazetted the Opposition has been alert enough to bring them before this chamber for debate, and I rejoice in the fact that they are being debated, although I would have wished the tenor of the Opposition's attack to be more creditable.

The Department of Civil Avaition has administered its affairs by regulation all through its history. The regulations in existence at the time these amending regulations were issued run into 149 pages. Therefore, it seems inappropriate for me to oppose the amendments merely on the basis that the power is taken by regulation instead of by act of Parliament, especially when I strongly believe that the national interest demands a unified control over the important province of civil aviation.

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