International Air Services and the Territory of Papua and New Guinea—Some Current Issues
| Published date | 01 June 1971 |
| Date | 01 June 1971 |
| Author | A. G. Hartnell |
| DOI | 10.1177/0067205X7100400206 |
| Subject Matter | Comment |
COMMENT
INTERNATIONAL
AIR
SERVICES
AND
THE
TERRITORY
OF
PAPUA
AND
NE\V
GUINEA-SOMECURRENT
ISSUES
By
A.
G.
HARTNELL*
1..
Introduction
On
27 April 1971 the Minister for External Territories informed
Parliament of the decision·of
the
Commonwealth Government
to
prepare
aprogramme
for
movement to ·full internal self-government in the
Territory
of
Papua
and
New
Guinea during the period from
1972
to·
1976
..
1
It
would
be
proper
for the detailed planning necessarily asso-
ciated with this move
to
take account
of
all problems
of
an
independent,
not
merely aself-governing, state. This comment looks
at
one
aspect
of
independence-a
policy for international civil aviation.
It
is assumed
that·
self government is consistent with unity
and
that
the
geographic'al
structure
of
aself-governing Territory would
be
the
same
or
very
similar
to
that
which exists
at
the
present time. This assumption
may
be considered unrealistic bearing
in
mind the existing inter-regional
distrost 'and the individual political movements
in
parts
of
the
Terri-
tory, particularly
New
Britain
and
Bougainville.
The
only basis for
such
an
assumption is
the
desire for unity held
by
both
the
Common-
wealth Government
and
the
Territory House
of
Assembly.
The
Territory
of
Papua
is apossession
of
the Commonwealth
of
Aus-
tralia, having being transferred from Britain
by
Letters
Patent
dated 18 March 1902.2
The
Commonwealth accepted authority for
the Territory
by
the
Papua
Act 1905
..
The
Territory
of
New Guinea
is a
Trust
territory
under
the Trusteeship System established by
the
Charter
of
the United Nations.3Article
40f
the Trusteeship Agree-
ment
gives
the
Govemment
of
Australia, as
the
sole administering
authop,ty,
the
same powers
of
legislation, administration and jurisdiction
in
and. over
the
Territory as
if
it
were
1ln
integral
part
of
Australia.
Australia. accepted the Trusteeship by the
Papua
and
New
Guinea
Act
1949.
In
this comment, areference
to
the uTerritory"
or
to
"T.P.N.G." is
to
be
taken
as
referring
to
the
Territory
of
Papua
and
·LL.B., B.Be.
The
research for this paper was undertaken with
the
assistance
of
the Ansett Air Law prize awarded
to
the author in 1969'
at
the Australian
National University.
1H.R.
Deb., 27 April 1971, 2049.
2Britain annexed
Papua
on
4September
188-8
and called it British New
Guinea.
SGermany annexed
the
Territory in 1888 but renounced its rights
by
Article
119
of
the Treaty
of
Versailles; in 1920 the League
of
Nations entrusted the
Territory to ·the Commonwealth
under
Mandate.
310
New Guinea, as constituted under the
Papua
and
New
Guinea
Act
1949-1971
(Cth).4
Australia claims sovereignty
over
the airspace
of
the
Territory
and
therefore the right to prohibit, restrict
or
regulate
the
use
of
such
airspace. Civil aviation
in
the Territory
is
basically governed
by
the
provisions of the Air Navigation Act
1920-1966
(Ctb).
Foreign air-
craft using Territory airspace
can
only lawfully
do
so
at
present with
the
.permission
of
the
Commonwealth
Government.'
When such per-
mission is given
to
aforeign aircraft engaged
in
commercial operations
involving the Territory,
it
will commonly
be
given having regard
to
the
terms
of
abilateral agreement benveen Australia
and
the .state· whose
nationality the relevant aircraft bears.
The
same is
true
of
aviation
relations between most states in the world today.
It
will
be
seen
later
in this
paper
that the Commonwealth Government
has
granted these
rights only sparingly
to
foreign airlines engaged in scheduled inter-
national flights
to
or
from the Territory.
The
terms "international" and "scheduled" should
be
defined im-
mediately. Adefinition
of
an
"international air service" is contained
in
Article
96
of
the Convention ·on International Civil Aviation 1944, a
convention which has set the framework within which international
civil aviation has developed since World
War
11.
6
That
Article defines
"international air serivce" as
an
air service which passes through
the airspace over the territory of more than
one
state.
Thus
aservice
between two points in
the
one state could nevertheless
1?e
an
"inter-
national air service" because
at
some
point
in flight
the
aircraft passes
through
the
airspace of
another
state.
No
fin
a!
definition
of
"scheduled"
exists,
but
in
1952
the
Council
of
the
International Civil Aviation
Organisation
(I.C.A.O.),
abody established
by
the above-mentioned
Convention, adopte·d adefinition
of
a"scheduled international .air
service".
By
this definition the characteristics which
make
aflight a
"scheduled" flight are
that
it
is performed
by
aircraft transporting
passengers, mail
or
cargo
for
remuneration
in
such a
manner
that
each
flight is open to use
by
members·
of
the public,
and
is operated
to
serve traffic between the same two
or
more points, either
in
accordance
with apublished timetable
or
with flights
so
regular
or
frequent
that
they constitute arecognizable systematic service.
This
paper
is primarily concerned with scheduled international services
and
it
does
not
consider non-scheduled services
other
th~
.incidentally.
1971] Comment 311
4
In
his speech
of
27 April 1911, the Minister for External Territories
announced that legislation would be introduced
in
the 1971 Budget session of
Parliament
to
change the name from the "Territory
of
Papu~
and
New Guinea"
to
"Papua New ·Guinea": H.R. Deb. 2051. Where appropriate
the
latter is used
in this paper.
sSee 58.
11
to
17
Air Navigation Act 1920-1966
(Cth).
6Aresult
of
the International Civil Aviation Conference--Chicago 1
November to 7December 1944.
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