A CONSTITUTIONAL ISSUE

New Zealand Herald, Volume LXXIII, Issue 22574, 12 November 1936, Page 12

A CONSTITUTIONAL ISSUE

Australian Federal authorities are perturbed because a High Court judgment declares that the Commonwealth has no general control over civil aviation within the Commonwealth. Apparently it was argued that because the Commonwealth had power to legislate for air transport between the States it was equally authorised to control such transport inside the States; but the Court rejected this contention, with the result that all Commonwealth regulations issued under the Air Navigation Act, 1920, become invalid. Reference to the Constitution Act suggests that what powers the Commonwealth does possess are conferred in an indirect way. First it is laid down that, subject to the Constitution, the Federal Parliament shall have power to make laws "with respect to trade and commerce with other countries and among the States." Later the Act says: "The power of the Parliament to make laws with respect to trade and commerce extends to navigation, shipping and to railways the property of the States." Thus Commonwealth control over transport which crosses State borders is indicated, though at the time when the Constitution Act was framed there was no such thing as air transport. Federal power to regulate and control trade and commerce between States has been successfully challenged recently, Section 92 to the Constitution, which declares that trade, commerce and intercourse among the States shall be absolutely free, having been adjudged binding on the Commonwealth. If control over transport is narrowed to its actual passing from one territory to another, it will be very difficult to say exactly what authority the Commonwealth has. Under these conditions it is easy to understand how disturbing the aviation judgment has been. It is another illustration of the problems created by a rigid, written Constitution which limits powers as often as it defines them.