Airlines of New South Wales Pty Limited v. New South Wales [No. 2]1
| Author | Pauline R. Armstrong |
| Published date | 01 June 1965 |
| Date | 01 June 1965 |
| DOI | http://doi.org/10.1177/0067205X6500100214 |
| Subject Matter | Article |
348 Federal Law Review
[VOLUME
1
they have been content to state conclusions without any indication
of
the
reasoning behind them. The power given under section
51
(v)
is
one
which enables the Commonwealth not only to regulate postal, telegraphic,
telephonic and other like services
but
also to engage in providing those
services. Australian National Airways
v.
Commonwealth
'9
is, indeed,
authority for the proposition
that
in the case
of
certain
of
the powers
given in section
51
the Commonwealth may itself engage in the activities
over which it has control. But before the Court decided
in
that
case
that the Commonwealth had such apower,
it
satisfied itself
that
the
activity in which the Commonwealth proposed to engage corresponded
to the activity over which the Commonwealth
had
been given powers.
In
the case under review the majority judges appear to have skated over
that question. Before it
is
possible to say whether any particular activity
is
incidental to the provision
of
aservice it
is
essential to be quite sure
of
what the service is.
As amatter
of
logic it
is
no doubt as correct to say that 'telephonic
service' means any service rendered by means
of
the telephone as to
say
that'
telephonic'
is
used adjectivally and means thus aservice enabling
one to use atelephone system. The Chief Justice appears to adopt the
first interpretation when he speaks
of
the time service provided by the
Postmaster-General's Department.
20
But
if
the words, postal telegraphic
and telephonic are interpreted in that fashion it may lead to some odd
results.
For
instance the Commonwealth could set up acorporation to
print and publish novels which
it
would then send to persons who had
paid areader's licence
fee.
Provided that it sent the books through the
post it might then claim that by so doing
it
was providing apostal service
in accordance with its powers under section
51
(v).
Leaving aside any
question
of
interstate trade, it
is
difficult to
see
any distinction between
the activities
of
the Australian Broadcasting Commission and that
of
the
hypothetical novel selling corporation. Yet the writer feels
that
the
High Court would certainly have baulked
at
declaring the latter scheme
valid.
G.
J.
DAVIES
AIRLINES
OF
NEW SOUTH WALES PTY LIMITED
v. NEW SOUTH WALES [No.
2r
Constitutional
law-External
affairs
power-Trade
and commerce power
-Civil
aviation-Commonwealth and State legislation.
Recent conflict between the Government
of
New South Wales and the
controllers
of
the State's major airlines has resulted in adecision
of
the
High Court
of
paramount importance in laying the boundaries
of
State
and Federal power over civil aviation. Although technically avictory
19
(1945)
71
C.L.R. 29.
20
(1964-1965)
38
A.L.J.R. 376,
377.
1(1964-1965)
38
A.L.J.R. 388. High Court
of
Australia; Barwick C.J., McTiernan,
Kitto, Taylor, Menzies, Windeyer and Owen JJ.
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