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Originally Posted by Lookleft
(Post 10191957)
You might want to expand on that statement. When the Constitution came into being aviation didn't exist so how can they lay claim to aviation as part of their residual powers?
I suggest you have a look at the history of litigation, right back to the '20s, the challenges to Commonwealth moves over aviation, and the ebb and flow, it is a complication that is, as far as I know, unique to Australia. Start with the first and second Goya Henry cases. Interestingly, the nearest is US, where "state aircraft" (such as state police services) are not subject to Federal (FAA) rules. Indeed, FAA's own fleet is not subject to FAA rules, just the policies of FAA ---- which seems to be to comply with its own rules, unless it is convenient to do otherwise. It is clear that state services here, such as police, or NSW NPWS would also not be subject to Commonwealth rules, and such as CASA, if they chose to push the point. Tootle pip!! |
Start with the first and second Goya Henry cases. Pay particular attention to what the Court held by a majority opinion. |
Originally Posted by Lookleft
(Post 10192021)
I have and it is not where it finishes, how about you try Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965).
Pay particular attention to what the Court held by a majority opinion. You should actually read what I actually write, I said there is a long history, which I find quite interesting, but the fact remains, aviation is "state's rights", and various moves, over the years, for the Commonwealth to "take over" have come to naught. At the present day, the best the Commonwealth has is the "Dam Case", (Gordon below Franklin) that confirms the powers of treaties in the hands of the Commonwealth. I always mention the early challenges to Commonwealth autocracy, Goya Henry was a person, whose acquaintance I would have liked to have made. Tootle pip!! |
I think there are a sufficient number of words from a sufficient number of judges to support the conclusion that the Commonwealth has power with respect to the safety regulation of aviation. And pray to whatever deity/ies to which you might subscribe, sacrifice an animal, rub whatever crystals and burn whatever incense as keeps the evil spirits away, that 6 states and numerous Territories don’t have power, in addition to the Commonwealth, to set up their own little CASAs with their own little intrastate aviation safety regulatory rules. The problem is CASA’s selectively convenient interpretation of the word “safety”. It’s a word that means almost everything and just about nothing. “Safety” is an infinitely malleable concept that is therefore justification for just about anything. |
You should actually read what I actually write, I said there is a long history, which I find quite interesting, but the fact remains, aviation is "state's rights", and various moves, over the years, for the Commonwealth to "take over" have come to naught. In a nutshell, aviation is "state's rights", not the Commonwealth Government. |
Lookleft,
I know exactly what I wrote, and stand by it. That you are not able to comprehend is your problem, not mine. Lead Balloon is quite correct, of course, in general the Commonwealth has the power to administer ALMOST all of civil aviation via S 51 of the Constitution. But not ALL of it, and the most interventionist state is Queensland. Most (all) states maintain certain commercial aviation licensing powers, quite separate to the Commonwealth. I know well what the dam case was all about, a confirmation of the power conferred by the treaty making powers under the Constitution, if you can't work out how that possibly impacts aviation,(or many other fields where the Commonwealth and an international treaty is involved) I can't help you. Tootle pip!! |
Years ago we had an Ops Inspection where the CAA (then) guy said...I hope you are not flying jobs interstate.
Having just just come back from an NT project, I wondered... What the !!!...and took the 'safer' option and replied NO. He gave me a spiel about an INTRAstate Licence...more confusion in my head as Air Nav charges then covered the country, didnt they..? I had a chat with the Qld dept of Transport and on explaining what we did...not fare paying passenger carriage, the guy just laughed and said...Enjoy your travels INTERstate...nothing to do with us for your operation. Yet another example of the "Experts" not knowing their arsk from their elbow. |
warsaw convention 1921. Certain Australian states ceded aviation powers to the Commonwealth as a prelude to Australia signing up. Some did not, notably WA, NSW and, I think, Queensland. Those that didn't cede can make laws about aviation. The others cannot. |
And, to the extent that those state laws are inconsistent with Commonwealth laws relating to aviation safety, the Commonwealth laws will prevail. The states can still regulate intrastate aviation on economic grounds, and some still do. The licensing of intrastate air routes is done for economic reasons - e.g to give an operator monopoly rights to a route, to increase the financial viability of the route. The states had to pass carriers liability insurance legislation so that there was a uniform national scheme for carriers liability insurance. That’s because insurance isn’t about safety. |
LB, my understanding is that the states that ceded powers to Canberra in the 1920's CANNOT legislate about aircraft. That is also why local government in places like Victoria cannot prohibit you from using an aircraft on your property, as many of the so and so's would love to do....... To put that another way the Victorian Government doesn't have the power itself, so it can't delegate the same to a council. Commercial land use as an airport (ie a business) they can stop, but that is under a different head of power. |
The constitutional concept is “referral” of power. Yes - some states did refer some aviation-related powers to the Commonwealth. However, it may be that that which the states referred may be un-referred. Here are some words from a bloke who became the Chief Justice of the High Court of Australia: There is an important open question as to whether a reference unlimited in time is irrevocable.[40] However there is little controversy that a referral may be for a fixed period.[41] The uncertainty as to whether a reference unlimited in time is revocable will no doubt have the consequence that for the foreseeable future most, if not all, references will contain a sunset clause. Might not make any difference so far as laws relating to aviation safety are concerned. That horse has long since bolted and been captured by the Commonwealth. |
I guess if we think CASA is a PITA, they have nothing on local councils. |
So I guess there is no controversy after all. Aviation is definitely a Commonwealth jurisdiction. |
Not quite. You appear not to be paying close enough attention. Aviation safety is definitely a Commonwealth “jurisdiction”. |
In part... |
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