Aviation Law
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Aviation Law
For no particular reason, I'm trying to understand the realtionship between State Law and Federal Law regarding aviation. The thing that got me thinking about this was the dcision by the State Government of Victoria to "ban" aerial advertising over certain venues. in addition, the relationship between seaplane operators and water police is intruiging, as are the local police "investigating " accidents. Then there is the question of local councils purporting to "ban" aircraft from landing on private property.
I don't think the State of Victoria has the Constitutional power to do anything but watch aircraft fly, but I can't find any references. I know CASA permission is required to "fly over public gatherings etc.
My last look at this subject was i about 1982, when I was advised that Victoria and at least one other state had ceded their powers over air navigation to the crown, and WA and NSW hadn't - (which was why certain regional airlines existed).
Can anyone point to any references which establish jurisdiction, or the lack of it?
I don't think the State of Victoria has the Constitutional power to do anything but watch aircraft fly, but I can't find any references. I know CASA permission is required to "fly over public gatherings etc.
My last look at this subject was i about 1982, when I was advised that Victoria and at least one other state had ceded their powers over air navigation to the crown, and WA and NSW hadn't - (which was why certain regional airlines existed).
Can anyone point to any references which establish jurisdiction, or the lack of it?
The Constitution came into effect 3 years b4 Wright Brothers first flight so power and scope to legislate comes from section s51 of Constitution - international and interstate trade and commerce, external affairs and aquisition of property.
Air Navigation Act 1920 derived from "external affairs" by ratifying Paris convention.
R v Burgess;Ex parte Henry (1936) 55 CLR 608 found that where ANRs are in conflict with Paris convention they are unconstitutional hence invalid. In this case a pilot was found not guilty for flying without a licence because it was intrastate (around Mascot).
1937 Government convened meeting with States. States adopt ANRs as State Law.
1965 High Court case finds that Commonwealth no longer depended on the States to enforce ANRs on intrastate operations hence federal laws apply throughout.
Hope this helps a little. I am only 1 quarter through my aviation law course so can't fully answer the question. Sorry.
Air Navigation Act 1920 derived from "external affairs" by ratifying Paris convention.
R v Burgess;Ex parte Henry (1936) 55 CLR 608 found that where ANRs are in conflict with Paris convention they are unconstitutional hence invalid. In this case a pilot was found not guilty for flying without a licence because it was intrastate (around Mascot).
1937 Government convened meeting with States. States adopt ANRs as State Law.
1965 High Court case finds that Commonwealth no longer depended on the States to enforce ANRs on intrastate operations hence federal laws apply throughout.
Hope this helps a little. I am only 1 quarter through my aviation law course so can't fully answer the question. Sorry.
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Tim Tams, I am only half way through my law degree so I will be no help at all 
The Federal Govt has the sole power to regulate aviation (and railways etc) under s51 parts xxxii - xxxiv. I think Kellie has it right also that the often-refferred-to external affairs power (Part V, s51 xxix) is the catch-all that validates the Paris convention (1920) and the Chicago convention (1946) as binding upon the government of the Commonwealth.
This does not prevent the states from passing laws that impact on Aviation - for example, workers comp, land taxes and equal opportunity in NSW, and of course the Air Transport Council in NSW which regulates RPT routes wholly within NSW with less than 50,000 pax per annum.
Note that the NSW Air Transport Council can't regulate interstate air transport in & out of NSW - that would be unconstitutional!
I think you will find that State govts have environmental planning and control powers, giving them the right to legislate to control noise pollution and visual pollution. What is Melbourne's equivalent of the "Balmain basket-weavers" and he one-legged lesbian Surfboard maker's guild?
The Federal Govt has the sole power to regulate aviation (and railways etc) under s51 parts xxxii - xxxiv. I think Kellie has it right also that the often-refferred-to external affairs power (Part V, s51 xxix) is the catch-all that validates the Paris convention (1920) and the Chicago convention (1946) as binding upon the government of the Commonwealth.
This does not prevent the states from passing laws that impact on Aviation - for example, workers comp, land taxes and equal opportunity in NSW, and of course the Air Transport Council in NSW which regulates RPT routes wholly within NSW with less than 50,000 pax per annum.
Note that the NSW Air Transport Council can't regulate interstate air transport in & out of NSW - that would be unconstitutional!
I think you will find that State govts have environmental planning and control powers, giving them the right to legislate to control noise pollution and visual pollution. What is Melbourne's equivalent of the "Balmain basket-weavers" and he one-legged lesbian Surfboard maker's guild?
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Hi TT
I've recently bought an excellent book on the subject "Aviation Law in Australia" by Ronald I C Bartsch http://www.thomson.com.au/catalogue/shopexd.asp?id=273
There is not much comment on the role of local councils with the exception of a paragraph regarding environmental regulation where the opinion is that local government and councils have shown a lack of foresight on land use issues. Issues of noise and incompatible nature of adjacent land usage arise. Perhaps this is how bans on airborne advertising arise?
In brief, the author provides an overview of the application of aviation law in Australia by examining the regulatory framework:
"In Airlines of NSW Case (No 2) it was held that the Commonwealth Parliament has authority to legislate with respect to matters concerning air safety and operational issues, not only for international and interstate civil aviation, but also with respect to intrastate operations. The States, however, because of federal constitutional limitations, retain authority to regulate certain commercial and financial aspects of intrastste services. Those States that choose to continue to 'regulate' intrastate commercial aviation do so predominantly by the granting of specific route licences."
"...in Australia the federal Department of Transport and Regional Services (DoTARS) is responsible for the administration of most aviation related legislation."
"...at the State level, legislation impinging on aviation varies from State to State and, in some instances, because of constitutional limitations, the Commonwealth is reliant upon the enactment of consistent State legislation to provide for uniform coverage."
Hope this helps with what you're looking for.
I've recently bought an excellent book on the subject "Aviation Law in Australia" by Ronald I C Bartsch http://www.thomson.com.au/catalogue/shopexd.asp?id=273
There is not much comment on the role of local councils with the exception of a paragraph regarding environmental regulation where the opinion is that local government and councils have shown a lack of foresight on land use issues. Issues of noise and incompatible nature of adjacent land usage arise. Perhaps this is how bans on airborne advertising arise?
In brief, the author provides an overview of the application of aviation law in Australia by examining the regulatory framework:
"In Airlines of NSW Case (No 2) it was held that the Commonwealth Parliament has authority to legislate with respect to matters concerning air safety and operational issues, not only for international and interstate civil aviation, but also with respect to intrastate operations. The States, however, because of federal constitutional limitations, retain authority to regulate certain commercial and financial aspects of intrastste services. Those States that choose to continue to 'regulate' intrastate commercial aviation do so predominantly by the granting of specific route licences."
"...in Australia the federal Department of Transport and Regional Services (DoTARS) is responsible for the administration of most aviation related legislation."
"...at the State level, legislation impinging on aviation varies from State to State and, in some instances, because of constitutional limitations, the Commonwealth is reliant upon the enactment of consistent State legislation to provide for uniform coverage."
Hope this helps with what you're looking for.
