Originally Posted by
Icarus2001
How is a state government regulating a route and price fixing even legal given only the Commonwealth controls aviation, WA pulls the same trick. I would love to see it challenged.
As Lead Balloon has pointed out, the Commonwealth's powers regarding aviation are limited.
Having been written pre-aeroplane, the Australian Constitution makes no mention of aviation, so there is no explicit Commonwealth power to regulate aviation per
S.51. The 1937 referendum that sought to provide the Commonwealth with powers to legislate on air navigation and aircraft failed; it was carried in only two states.
Both prior and subsequent to that referendum, the powers exercised by the Commonwealth regarding aviation had typically been conferred upon it by the states. For instance, for the Commonwealth to form the Department of Civil Aviation in 1921 under the
Air Navigation Act 1920 (Cth) the states typically enacted empowering legislation (eg
The Commonwealth Powers (Air Navigation) Act 1921 (Qld), Commonwealth Powers (Air Navigation) Act 1920 (Vic) and similar state acts) to facilitate that.
Notably, New South Wales did not pass specific legislation regards the
Air Navigation Act 1920 (Cth). So when the DCA suspended Mr Goya Henry for flying around, over and under the Sydney Harbour Bridge in 1934, the High Court upheld Henry's challenge that the suspension was unconstitutional. (
R v Burgess; Ex parte Henry (1936) 55 Commonwealth Law Reports 608).
The 1937 referendum attempted to address the High Court's ruling and it failed. The war then saw the states generally fall into line over conferring additional powers to the Commonwealth (eg
Commonwealth Powers Act 1942 (NSW), Commonwealth Powers Act 1943 (Qld) and similar)
Fast forward to 1965 and there was a shift in High Court opinion. In
Airlines of NSW Pty Ltd v New South Wales the Court held that Commonwealth had power to license all air navigation on the basis of safety, regularity and efficiency of the operations, including purely intrastate operations. Part of their thinking was that with air travel, there is no real meaningful distinction between interstate and intrastate regards the capability of an aircraft or its operation. But the intrusion of the Commonwealth into intrastate aviation was limited, as determined by the High Court in 1976. In
Attorney-General (WA); Ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission (1976) the Court held that while the Commonwealth could regulate intrastate air operations in order to ensure physical safety, it could not do so for the purpose of ensuring the economic viability and commercial success of that operation.
Queensland's regulated routes are managed under the
Transport Operations (Passenger Transport) Act 1994. The purpose of that Act is to achieve the provision of the best possible public passenger transport at reasonable cost to the community and government. Given the economic tilt of the Queensland legislation and the fact that it doesn't seek to intrude onto the Commonwealth's patch of safety regulations, it is doubtful that a challenge to its operation would be successful.