HIGH COURT OF AUSTRALIA

                                      Australian National Airways Pty Ltd

                                                           Vs.

                                                   Commonwealth

                             (Latham C.J., Rich, Starke, Dixon and Williams JJ.)

                                                 14 December 1945

Latham C.J.

Demurrers to statements of claim in three actions instituted by air transport companies against the
Commonwealth of Australia, the Treasurer of the Commonwealth, the Minister of State for Air and
the Director-General of Civil Aviation of the Commonwealth. Australian National Airways Pty. Ltd.
is a company which is engaged in the business of providing air services between stopping places in
two or more States, and it also conducts entirely intra-State services. Guinea Airways Ltd. conducts
a service between a State of the Commonwealth and a Territory of the Commonwealth, another
service with stopping places in two or more States, and also intra-State services. This company also
proposes to re-establish air services wholly within the Territories of Papua and New Guinea, which
were suspended during the war with Japan. MacRobertson-Miller Aviation Co. Ltd. conducts a
service between Perth in the State of Western Australia and Katherine in the Northern Territory,
with intermediate stopping places both in the State of Western Australia and in the Northern
Territory.

The plaintiffs conduct their various services under licences issued under the Air Navigation
Regulations (Statutory Rules 1937 No. 81, as amended), reg. 79, which assumed its present form in
1940. Regulation 79, sub-reg. (1), provides that no aircraft shall be used in a regular public transport
service except under the authority of and in accordance with a licence issued by the Director-
General, and sub-reg. (3) provides that the Director-General may issue a licence upon such
conditions, in addition to compliance with the Regulations (which relate to airworthiness of craft,
training and licensing of pilots, safety rules for flying &c.), as the Director-General considers
necessary, or he may refuse to issue a licence. All the plaintiff companies hold licences which expire
on 31st December 1945.

Regulation 6 provides that the provisions of the Regulations, other than those contained in the First
Schedule (which are made in pursuance of an International Air Convention--cf. R. v. Burgess; Ex
parte Henry[1]) shall apply to--

             (a)

             international air navigation within Australian territory,

             (b)

             air navigation in relation to trade and commerce with other countries and among
             the States,
             (c)

             air navigation within the Territories,

       and to aircraft engaged in such navigation and aerodromes open to public use by such
       aircraft.

The plaintiffs claim a declaration that the Australian National Airlines Act 1945 and reg. 79 are
invalid, together with appropriate injunctions. The defendants have demurred to the whole of each
statement of claim upon the grounds that the facts alleged do not disclose any cause of action, that
the relevant provisions of the Air Navigation Regulations are valid, and that the Australian National
Airlines Act is valid.

The Act, s. 6, provides for the establishment of a commission to be known as the Australian
National Airlines Commission which (s. 6 (2)) is to be a body corporate. The function of the
Commission (s. 19) is to provide

       airline services for the transport for reward, of passengers and goods by air--

             (a)

             between any place in a State and any place in another State;

             (b)

             between any place in any Territory of the Commonwealth and any place in
             Australia outside that Territory; and

             (c)

             between any place in any Territory of the Commonwealth and any other place in
             that Territory.

Section 19 (1) provides that these services are to be provided "with full regard to safety, efficiency
and economy of operation." Section 19 (2) is as follows:--

       It shall be the duty of the Commission to exercise the powers conferred by the last
       preceding sub-section, as fully and adequately as may be necessary to satisfy the need
       for the services specified in that sub-section, and to carry out the purposes of this Act.

The plaintiffs founded an argument on this provision to the effect that it showed an intention that it
should be the duty of the Commission to satisfy completely by its own services the need for all the
services specified, and therefore to establish a monopoly in those services. For the defendants it was
contended that this provision meant no more than that it should be the duty of the Commission to
supplement existing services in so far as they did not satisfy existing needs from time to time, and
not necessarily to insist upon providing the whole of the services. Section 19 (3) (misprinted 19 (2))
provides that the Commission, with the approval of the Minister, may exercise in relation to airline
services between any place in Australia and any place outside Australia the like powers as it has in
relation to the other airline services referred to in the section.

The Commission is given power to lease or purchase property (s. 21) and is empowered (s. 22) to
enter into agreements with the Minister for the transport of mails by air. Section 24 makes the
Commission a common carrier, and under s. 25 the Minister may, if he is satisfied that it is in the
interests of the development of Australia to do so, direct the Commission to establish, alter or
continue to maintain any inter-State or Territorial airline service. There is a provision in s. 25 (2)
intended to protect the Commission against financial loss in certain cases where it suffers a loss by
reason of carrying out any such direction.

Section 29 applies the provisions of the Air Navigation Regulations to the Commission in the same
manner as they apply to any other persons. The Treasurer may provide £3,000,000 for the purposes
of the Commission (s. 30). Section 37 provides that the Commission shall pay all rates, taxes and
charges (other than income tax) imposed by or under any law of the Commonwealth and such other
rates, taxes or charges as the Minister specifies. Apparently under this provision the Commission
will not be liable to pay income tax, and will only pay such other Commonwealth and State taxes as
the Minister may elect to specify.

Section 39 provides for the disposition of any profits derived by the Commission. Such profits may
be applied after payment of interest and repayment of advances in the establishment and
development of airline services. Any balance of profits is to be applied in such manner as the
Minister, with the concurrence of the Treasurer, directs.

Under Part III. the Commission is given powers of compulsory acquisition of any aircraft or other
property required for the purposes of the Commission. No question as to this part of the Act has
been raised in these proceedings.

Part IV., containing ss. 46-49, has been the subject of special attention in the arguments submitted to
the Court. Section 46, sub-s. (1), refers to inter-State airline services, and sub-s. (2) refers to
Territorial airline services. These terms are defined in s. 4. The definitions show that an inter-State
airline service is a service which has scheduled stopping places in two or more States, and that a
Territorial airline service is one which (not being an inter-State service) has a scheduled stopping
place in a Territory of the Commonwealth. Section 4 also contains a definition of "adequate airline
service" in the following terms:--

       "adequate airline service" means--

             (a)

             an inter-State airline service which is adequate to meet the needs of the public for
             inter-State transport by air between scheduled stopping places of the service; or

             (b)

             a Territorial airline service which is adequate to meet the needs of the public for
             transport by air between scheduled stopping places of the service of which at least
             one is within a Territory of the Commonwealth.
Section 46 (1) provides that where an airline licence is issued to the Commission in respect of an
inter-State airline service and the Commission has established that service, any airline licence held
by any person (other than the Commission or a contractor with the Commission) in respect of any
service providing inter-State transport by air between any of the scheduled stopping places of the
service established by the Commission shall (with an exception in respect of international airline
services) and insofar as it authorizes inter-State transport by air between any of those stopping
places of passengers or goods embarked or loaded for transport solely between those stopping
places, be inoperative "so long as there is an adequate airline service between those stopping places
by reason only of the services operated by the Commission and the services operated by
contractors." Section 46 (2) is a corresponding provision relating to Territorial airline services, the
precise terms of which will be considered later.

Under these provisions the Commission will obtain a monopoly of inter-State and Territorial
services in all cases in which, and so long as, the Commission provides an "adequate airline
service."

Section 47 provides that the licensing authority (that is, the licensing authority under the Air
Navigation Regulations) shall not issue to any person other than the Commission or a contractor
with the Commission, any airline licence (a) which would authorize inter-State transport between
any scheduled stopping places of any airline service operated by the Commission, or by a contractor
with the Commission, or (b) which would authorize transport between any scheduled stopping
places, not being places in a State, of any airline service so operated, unless and except to the extent
to which the licensing authority is satisfied that, having regard to the airline service operated by the
Commission or any contractor, the issue of the licence is necessary to meet the needs of the public
with respect to inter-State or Territorial airline services.

Section 49 provides that a person shall not enter into a contract to transport by air for reward any
person or goods, to be transported by air for reward, or to have any other person or any goods
transported by air for reward in the course of the operation of any prescribed inter-State airline
service or Territorial airline service operated by any person other than a person holding an airline
licence in respect of that service, not being a licence which is inoperative by virtue of s. 46.

Part V. of the Act contains provisions with respect to compensation for property compulsorily taken
and for loss or damage suffered by reason of the application of s. 46.

Section 69 authorizes the Commission to make by-laws with respect to various matters relating to
the operation of air services.

The Act is introduced by a preamble which recites that it is expedient to provide for the fostering
and encouragement of trade and commerce with other countries and among the States, the
maintenance and development of the Defence Force, the development of the Territories and the
carriage of mail by air. There are no provisions in the Act which relate to defence and the Act has
no more relation to defence than any legislation which deals with any means of transport in general
terms. The Act provides that the Commission may make contracts for the carriage of mail, but
otherwise has no relation to the power to make laws with respect to postal and telegraphic services.
The arguments in support of the Act were based upon the trade and commerce power contained in s.
51 (i.) of the Constitution and the power to legislate with respect to the Territories of the
Commonwealth: See s. 122 of the Constitution.

The Act provides for the establishment by the Commission of both inter-State airline services and
Territorial airline services. Different considerations affect the constitutional validity of these
respective provisions. I propose first to refer to the provisions dealing with inter-State airline
services. The relevant provisions of the Constitution are s. 51 (i.), which provides that the
Commonwealth Parliament shall have power to make laws for the peace, order and good
government of the Commonwealth with respect to "(i.) trade and commerce with other countries
and among the States," and s. 92, which provides that "on the imposition of uniform duties of
customs, trade, commerce and intercourse among the States, whether by means of internal carriage
or ocean navigation, shall be absolutely free."

It is argued for the plaintiffs that the power to make laws with respect to inter-State trade and
commerce does not enable the Commonwealth Parliament to pass legislation creating a corporation
and authorizing it to take part in such trade and commerce. This legislative power, it is contended, is
limited to regulating such trade and commerce conducted by persons other than the Commonwealth
or authorities created by the Commonwealth. The Act does not purport to permit or authorize or
require the Commonwealth Government itself to take part in such trade and commerce. The
Commission created by the Act, however, is subject in various matters to ministerial control: See,
for example, ss. 19 (3), 21 (2) and (3), 25, 31, 32, 33, 35, 37, 38, 39.

It is next contended for the plaintiffs that the Act is directed towards setting up a monopoly for the
Commonwealth in all the services to which the Act relates, including inter-State services. The
establishment of such a monopoly is said not to be authorized by s. 51 (i.) or any other provision of
the Constitution, and to constitute an infringement of s. 92. This argument is based upon the
contention that s. 92 protects inter-State transportation as being in itself inter-State trade and
commerce, and therefore must concede that under s. 51 (i.) there is power to legislate with respect to
inter-State transportation.

It is also argued in relation to services from and to the Territories that the Commonwealth
Parliament has no power to make laws with respect to trade and commerce between the States and
the Territories. Section 51 of the Constitution gives power only to make laws with respect to trade
and commerce among the States and with foreign countries, and contains no reference to the
Territories. Section 122, it is conceded, gives full power to make laws for the Territories, but not, it
is contended, to project (as it were) Territorial laws into the States so as to give Federal legislative
control in any State of any part of a service with any Territory.

It is contended for the plaintiffs that if any of the provisions to which reference has been made are
invalid the whole Act is invalid, because the invalid provisions cannot be severed from the other
provisions of the Act.

Further, the operation of the Act depends upon the grant of a licence to the Commission under the
Air Navigation Regulations. It provides (s. 46) that if the Commission provides an adequate service
any licence to competitors with the Commission in respect of that service shall be inoperative. It is
contended for the plaintiffs that reg. 79 gives to the licensing authority an uncontrolled discretion
not limited by any matters relative to the exercise of any Federal power, and therefore creating an
arbitrary power of prohibiting inter-State trade and commerce, and that such a provision is an
infringement of s. 92.
For the defendants it is contended that the Act is a law with respect to trade and commerce with
other countries and among the States and for the government of the Territories. It is argued that the
monopoly of air services which the Act seeks to establish is conditioned upon the provision of
adequate services by the Commission, so that the operation of the Act cannot bring about any
diminution or restriction of inter-State trade and commerce by air, with the result that the Act does
not constitute an infringement of s. 92. It is argued that even if Part IV. of the Act, which contains
what have been called the monopoly provisions, is invalid, these provisions are severable from the
rest of the Act and that the rest of the Act is valid. It is further contended that the Territorial
provisions are valid and are all severable from any provisions relating to inter-State trade and
commerce. Regulation 79 of the Air Navigation Regulations is said to be valid because it should be
regarded as authorizing the granting and refusal of licences only upon grounds which are associated
with the legitimate exercise of Federal power in relation to inter-State trade and commerce and to
the Territories.

The first question which I consider relates to the power of the Commonwealth Parliament to
legislate with respect to air transportation under the trade and commerce power contained in s. 51
(i.) of the Constitution. The Act is an Act which deals entirely with transportation. It does not deal
with trade and commerce between the States in the sense of commercial transactions by way of the
purchase, sale and exchange of commodities between a person in one State and another person in
another State. It has been argued for the plaintiffs that transportation of passengers or goods
between States for profit is necessarily trade and commerce among the States.

The plaintiffs must contend that transportation is trade and commerce in order to obtain protection
from s. 92. On the other hand, the defendants claim that legislation with respect to transportation is
legislation with respect to trade and commerce under s. 51 (i.) so as to justify the Act, but when s.
92 is approached they are willing to draw distinctions between trade and commerce itself and
instruments used in trade and commerce, such as aircraft, motor cars or other means of carriage,
thus endeavouring to prevent or limit the application to the Act of any considerations arising from s.
92. For the defendants much reliance was placed upon Willard v. Rawson[2]; R. v. Vizzard; Ex parte
Hill[3]; and Riverina Transport Pty. Ltd. v. Victoria[4]. It was contended that these cases show that a
distinction should be drawn between transportation as a subject and trade and commerce as a
subject. It is true that in these cases certain statutes were construed as relating to motor cars
regarded as integers of traffic and instruments of commerce rather than as relating to the
transportation of goods and persons by motor cars. But I think that it is a mistake to regard these
cases as establishing the proposition that inter-State transportation is not itself included within the
category of inter-State trade and commerce. In Willard v. Rawson[5], Rich J. based his view with
respect to the Act there in question (which was a motor car Act requiring registration of motor cars)
upon the opinion that the statute was not concerned with trade, commerce or intercourse as such, but
only with motor vehicles considered as machines, integers of traffic, users of the highway and
potential sources of danger and annoyance to the public; that is, as I understand the distinction, a
law with respect to motor cars does not become a law with respect to trade and commerce simply
because motor cars can be used in trade and commerce. In R. v. Vizzard[6], Rich J. took the same
view of the statute there in question[7]. But his Honour, in referring to McArthur's Case[8], pointed
out that McArthur's Case "denied that trade between the States was limited" (my italics) "to mere
inter-State movement of persons or things"[9], it plainly being conceded that trade between the
States included such movement. So also his Honour was at pains to point out that the transactions to
which the Act related did not include "the actual transfer of goods from one place to another and the
actual movement of individuals"[10]. Starke and Dixon JJ., who dissented, each took the view that
inter-State transportation was inter-State trade and commerce: See the report[11]. The difference of
opinion between the learned judges was based upon the different view taken of the character of the
Act in question: See, e.g., per Dixon J.[12] as to motor vehicles being regarded as machines,
integers of traffic, &c. Evatt J. drew a distinction between trade and commerce and instruments of
trade and commerce, but referred to s. 92 as postulating "the free flow of goods inter-State" and said
that that produced the result that, "consignment and delivery, being part of commercial intercourse,"
could not be prevented or obstructed by State legislation[13]. McTiernan J. said "trade, commerce
and intercourse includes the carriage of passengers or goods for hire or in the course of any trade or
business"[14]. Accordingly I am of opinion that Willard's Case[15] and Vizzard's Case[16] do not
prevent the Court from holding that inter-State transportation, certainly when conducted for profit,
is itself inter-State trade and commerce.

In construing both s. 51 (i.) and s. 92 it should be remembered that the words to be considered are
not only "trade and commerce," but "trade and commerce among the States." The conception of
trade and commerce among the States is in my opinion quite inseparable from movement of goods
and persons. Commerce in itself does not necessarily involve transportation or movement of goods.
There may be a sale of goods on the spot by a vendor to a purchaser, the commercial transaction
being concluded without any movement of the goods. But when the trade or commerce is inter-State
there must be either actual or contemplated movement of goods or persons.

In my opinion this view is strongly supported by the words of s. 92. Section 92 does not merely
refer to trade, commerce and intercourse among the States, but it refers to such trade, commerce and
intercourse "whether by means of internal carriage or ocean navigation." Internal carriage and ocean
navigation are not only means by which trade and commerce may incidentally be conducted or
effectuated. They are means without which inter-State trade and commerce cannot possibly take
place.

In the United States of America, where the Congress has power to regulate commerce among the
States, it is well settled that inter-State transportation is inter-State commerce. Such transportation
includes the transportation of persons as well as of goods, of telegrams, of gas, of electric current.
All this is trade and commerce: See Pensacola Telegraph Co. v. Western Union Telegraph Co.[17];
Gloucester Ferry Co. v. Pennsylvania[18]; United States v. Hill[19]. In the leading case of Gibbons
v. Ogden[20] it was held that navigation itself was commerce, and this case has been followed and
applied on very many occasions: See County of Mobile v. Kimball[21]. In Caminetti v. United
States[22] the Mann Act, prohibiting the transportation of women over State lines for immoral
purposes, was upheld and it was again decided that the Congress had power to legislate under the
commerce power with respect to the transportation of passengers.

The Act is essentially a transport Act. It deals with airline services which are conducted for profit.
They are, in the ordinary sense of the word, commercial enterprises and are inter-State in character.
By these services passengers may be carried who are not on commerce bent, e.g. holiday-makers
and school children. So also goods may be carried which are not being conveyed for the purpose of
being bought and sold. But those who provide the services carry on the business of providing air
transport between the States. In my opinion the providers of these services, irrespective of the
relation to trade and commerce of the persons whom or the goods which they carry, are themselves
engaged in inter-State trade and commerce. The Act, being a law with respect to inter-State
transportation, is, in my opinion, a law with respect to trade and commerce among the States.

It is further argued, however, that the power to make laws with respect to trade and commerce does
not include a power to prescribe the persons who may engage in trade and commerce, and, more
particularly, does not include a power to create a corporation for the purpose of engaging in trade
and commerce. It is pointed out that s. 51 (xx.) entitles the Commonwealth Parliament to make laws
with respect to "foreign corporations and trading or financial corporations formed within the limits
of the Commonwealth." These words assume that the corporations in respect of which this
legislative power is exercised are corporations which exist by reason of some law other than a
Federal law enacted under this power (Huddart, Parker & Co. Pty. Ltd. v. Moorehead[23]).

In the case of some of the subjects with respect to which the Commonwealth Parliament is given
power to legislate under s. 51, it is plain that the power is a power to make laws with respect to the
conduct of persons other than the Commonwealth or any agency of the Commonwealth. Placita
(xvii.) bankruptcy and insolvency, (xxi.) marriage, (xxii.) divorce and matrimonial causes, (xxiii.)
invalid and old-age pensions, (xxvii.) immigration and emigration, (xxviii.) the influx of criminals,
and others, are matters in which the Commonwealth does not take part, but in respect of which the
Commonwealth Parliament may legislate. In the case of other subjects, however, it appears to me to
be quite plain that the nature of the subject is such as to entitle the Commonwealth to make laws
with respect to the Commonwealth (by itself, or by a Commonwealth agency) taking part in the
very subject matter itself. For example, placita (ii.) "taxation" is plainly taxation by the
Commonwealth; (iii.) "bounties" are bounties to be granted by the Commonwealth; (iv.) "borrowing
money" relates to borrowing money by the Commonwealth; (v.) "postal &c. services" include such
services provided by the Commonwealth; (vi.) "the naval and military defence of the
Commonwealth" includes defence by the Commonwealth. Under the power to legislate with respect
to "(vii.) lighthouses, lightships, beacons and buoys" Parliament may authorize the Commonwealth
to establish lighthouses &c. So also under (viii.) "astronomical and meteorological observations" the
Commonwealth Parliament may legislate, as in fact it has done, for the actual making and control of
such observations. Similarly, under (xi.) "census and statistics" the Commonwealth itself can take a
census. Under (xiii.) "banking other than State banking" the Commonwealth Parliament can create a
bank, as in fact it has done in the case of the Commonwealth Bank. It is unnecessary to extend the
illustrations beyond those already given. There can be no reason in law why the power to make laws
with respect to trade and commerce with other countries and among the States should not include a
power to make laws enabling the Commonwealth itself, or a body established by the
Commonwealth, to take part in such trade and commerce.

It is true that the Commonwealth has no general power to create corporations, but when the
Commonwealth Parliament exercises a legislative power it is for the Parliament, subject to any
constitutional prohibition, to determine the means of securing an object which it is legitimate under
the power for the Parliament to pursue. Thus the establishment of the Commonwealth Bank was a
means of giving effect to an approved policy with respect to banking. In the well-known case of
McCulloch v. Maryland[24] it was held that if Congress can exercise a power it can create a
corporation to carry that power into effect: See Jumbunna Coal Mine No Liability v. Victorian Coal
Miners' Association[25], relating to the creation of corporations for the purpose of giving effect to
the industrial arbitration power.

In the United States of America it has been held that Congress can, under the commerce power,
provide for the incorporation of a bridge company to build a bridge between two States (Luxton v.
North River Bridge Co.[26]); or to construct railways across States (California v. Central Pacific
Railroad Co.[27]). Such decisions were doubtless responsible for the grant of power to the
Commonwealth Parliament to make laws with respect to the acquisition and construction of
railways by the Commonwealth but subject to an express limitation requiring the consent of the
State concerned: See Constitution, s. 51 (xxxiii.) and (xxxiv.). If this limitation had not been
introduced, the Commonwealth Parliament would have been able to create corporations to construct
and operate inter-State railways in Australia as it thought proper.

For these reasons in my opinion the fact that the Act authorizes the establishment by the
Commonwealth of a corporation to carry on inter-State trade and commerce does not constitute any
objection to the validity of the Act.

If s. 51 (i.) of the Constitution were the only relevant constitutional provision it may be that the
Commonwealth Parliament could create any monopoly of which it approved in any form of inter-
State transportation. But the inter-State trade and commerce power of the Commonwealth
Parliament is limited by s. 92. Can such trade and commerce, including as it does inter-State
transportation, be said to be absolutely free if a Federal law can confer an exclusive right to provide
such transportation upon a single approved Federal agency? If this can be done in the case of air
transport it can also be done in the case of land and sea transport.

The next question for consideration, therefore, is whether the Act, in so far as it deals with inter-
State transport, infringes s. 92. In the first place, for reasons already stated, inter-State transportation
is protected by s. 92, which specially provides for the freedom of inter-State movement of persons
and goods whether by internal carriage or ocean navigation. Inter-State air transport is plainly a
form of internal carriage.

The mere giving of authority to any person, whether a natural person or a corporation, to enter into
inter-State trade and commerce cannot be any infringement of s. 92. But the Act is plainly designed,
in some of its provisions, to give a monopoly of inter-State air transport to the Commission, and
therefore to exclude all other persons from providing such transportation. Reference has already
been made to ss. 19 (2), 46, 47 and 49.

The Act is very different from the statutes which were considered in Willard's Case[28] and
Vizzard's Case[29]. It cannot be described as an Act for the purpose of co-ordinating and regulating
transport. These provisions of the Act (ss. 46, 47, 49) will (as the Commission establishes adequate
services) absolutely prevent any person or company other than the Commission or a contractor with
it providing inter-State air transport, however efficient and safe and satisfactory that transport might
be.

It is true that the establishment and continuance of the monopoly of the Commission is conditioned
upon the provision of adequate services by the Commission. It may be doubted whether this
provision can be taken at its face value. Theoretically, as soon as the Commission failed to provide
an "adequate service," other persons could obtain licences and establish services, and existing
licences, if any, would cease to be inoperative. But an airline service cannot be organized overnight,
and it cannot be maintained in operation if at any moment the Commission could by using more
aeroplanes or otherwise improving facilities, provide an adequate service, and so make the licence
of any competitor inoperative. Thus the statutory provision that, if the Commission does not provide
adequate services, it will be open to other persons to do so may well be an illusory guarantee of
adequate services for the users of airlines. But I deal with the question apart from these
considerations, which may be said to depend upon opinion or anticipation rather than upon actual
existing fact.

The Act has been drafted upon the basis that if adequate services are provided for the users of
airlines, there can be no infringement of s. 92. But if, as I have said, s. 92 protects inter-State
carriers as well as persons who use the services of carriers for the transport of goods or passengers,
the fact that the Act will secure adequate services (if that can be taken to be the case) does not
exclude the application of s. 92. I consider the operation of the Act, therefore, not only in relation to
members of the public using inter-State air services, but also in relation to persons who are engaged,
or who may desire to engage, in the business of providing inter-State air services.

In James v. The Commonwealth[30] the Privy Council expounded the meaning of s. 92. I have
endeavoured to apply the principles of this decision in a number of cases, and I refer particularly to
Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd.[31] and Gratwick v. Johnson[32]. I venture to
repeat what I said in the former case: "One proposition which I regard as established is that simple
legislative prohibition (Federal or State), as distinct from regulation, of inter-State trade and
commerce is invalid. Further, a law which is directed against inter-State trade and commerce is
invalid. Such a law does not regulate such trade, it merely prevents it. But a law prescribing rules as
to the manner in which trade (including transport) is to be conducted is not a mere prohibition and
may be valid in its application to inter-State trade, notwithstanding s. 92"[33].

In the present case the Act is directed against all competition with the inter-State services of the
Commission. The exclusion of other services is based simply upon the fact that the competing
services are themselves inter-State services. The Act is a prohibition, with a single exception, of
such services, and that prohibition is quite independent of any considerations relating to safety,
efficiency, airworthiness, &c., which otherwise might have been relied upon as the basis of an
argument that the statute regulated such services in the sense of introducing regular and orderly
control into what otherwise might be unregulated, disorderly, possibly foolishly competitive, and
therefore inefficient services. The exclusion of competition with the Commission is not a system of
regulation and is, in my opinion, a violation of s. 92. If a provision of this character does not
infringe s. 92 when applied to carriers, I can see no answer to the contention that a similar provision
might be applied to all inter-State traders without any breach of s. 92. If that were the case, the
Commonwealth Parliament could create a corporation and give it an exclusive right to engage in
every form of inter-State trade and commerce, or, without creating a corporation, could give an
exclusive licence to a particular person to engage in such trade and commerce. Such a result would
reduce s. 92 to almost complete insignificance. In my opinion Part IV. of the Act, so far as it relates
to limitations in respect of inter-State airline services, is invalid because it offends against s. 92 of
the Constitution.

It is now necessary to consider the provisions of the Act relating to Territorial airlines. In this case
no difficulty arises from s. 92, which applies only to trade and commerce among the States, and not
to trade and commerce as between the States and any Territory or as between the Territories
themselves. As already stated, s. 51 (i.) is irrelevant as a source of power. A Territory cannot be held
to be "another country" within the meaning of that provision. Section 122 provides that the
Parliament may make laws for the government of any Territory. Under this provision the Parliament
has full power to make such laws for the government of a Territory as it thinks fit.

Thus the Commonwealth Parliament in the case of a Commonwealth Territory has the same power
as a colony of Australia had before Federation. The Commonwealth legislative power in respect of a
Territory to-day includes all the power of a State Parliament in respect of a State, but includes that
power as if it were not limited by the co-existence of the Commonwealth with certain paramount
powers. The Commonwealth Parliament may make laws which completely control all matters
within a Territory, and therefore can provide for a monopoly of air services and exclude all
competition within a Territory. It can, as between Territory and Territory, establish complete control
over air services because it can in each Territory control all landings and all departures and all other
activities in relation to the services. But a law for the government of a Territory cannot operate as
law in a State. For example, a law for the government of the Northern Territory can control any
matter in the Northern Territory and therefore can prevent aircraft from Western Australia landing in
the Territory. So also under a Territorial law aircraft could be prevented from leaving the Territory
for Western Australia or for any other place. But no law passed under a power to make laws for the
government of the Northern Territory can operate as law in Western Australia or in any other State.
The position is exactly the same as between, for example, Western Australia and South Australia. A
Western Australian law does not operate in South Australia and vice versa. A Western Australian
law cannot control the conduct of persons in South Australia so as to make them amenable to any
punishment in South Australia--or elsewhere than in Western Australia. So a Territorial law, though
fully effective in relation to the Territory, cannot be enforced outside the Territory in respect of
which it is made.

Thus the Commonwealth Parliament can legislate under s. 122 with respect to what may be called
the Territorial end of a service between a Territory and a State, even though a Territorial law cannot
deal with the State end of such a service. In this sense, but in this sense only, the Commonwealth
Parliament can provide for the establishment of an air service between a Territory and a State--in
just the same way and to the same extent as the Commonwealth Parliament can authorize the
establishment of an air service between Australia and India. Such legislation would be effective in
Australia, but it could not change the law or operate as law in India, and the effective establishment
of the service would depend upon Indian co-operation. Thus provisions with respect to services
between the Territories and the States are not effective, in my opinion, otherwise than as Territorial
law, that is, as controlling the services by law in the Territory and not elsewhere. There cannot,
however, in my opinion, be any objection to the enactment of an Act so far as it authorizes the
establishment in a Territory of a service between the Territory and the State. Whether the service
can be established in fact depends, however, not only upon the Commonwealth, but also upon the
State concerned, as in the case of the illustration which I have given with respect to India.

These limitations upon the possible scope of Territorial law are, I think, recognized in the Act.
Section 46 (2) is in the following terms:--

       Where an airline licence is issued to the Commission in respect of a Territorial airline
       service and the Commission has established that service, any airline licence held by any
       person, other than the Commission or a contractor, in respect of any airline service
       which provides transport by air between any of the scheduled stopping places of the
       service established by the Commission, not being places in a State, shall, by virtue of
       this section (unless it has been issued in respect of a section of an international airline
       service authorized by the Commonwealth) and insofar as it authorizes transport by air
       between any of those stopping places of passengers or goods embarked or loaded for
       transport solely between those stopping places, be inoperative so long as there is an
       adequate airline service between those stopping places by reason only of the services
       operated by the Commission and the services operated by contractors.

This provision must be read with the following definitions contained in s. 4:--

       "Australia" includes the Territories of the Commonwealth.
       "inter-State airline service" means a service providing for the transport by air, for
       reward, of passengers or goods and operating from one place in Australia to another
       place in Australia and having scheduled stopping places in two or more States.

       "Territorial airline service" means a service (not being an inter-State airline service)
       providing for the transport by air, for reward, of passengers or goods and having a
       scheduled stopping place in a Territory of the Commonwealth.

Thus a Territorial airline service is either a service with all its stopping places in a Territory or
Territories, or with stopping places in a Territory or Territories and also in a single State. If it had
stopping places in two or more States, it would be an inter-State service and would therefore be
excluded from the category of Territorial airline services by reason of the words in the definition of
such services "not being an inter-State airline service."

The definitions which I have mentioned produce the result that services which provide inter-State
transport are not affected by ss. 46 (2) and 47 (b). In those sections the words "not being places in a
State" are important. They show that intra-State transport in not affected by these provisions. Thus
first, ss. 46 (2) and 47 (b) cannot infringe s. 92, and, secondly, they do not purport to give any
operation within a State to laws enacted under s. 122 for the government of a Territory. In my
opinion there is no valid objection to s. 46 (2) or s. 47 (b) upon constitutional grounds.

Section 49 creates offences in relation to inter-State airline services as well as in relation to
Territorial airline services. These offences consist in certain dealings with persons operating airline
services without a licence or with a licence rendered inoperative by s. 46. If the licensing provisions
are invalid with respect to inter-State services (a matter with which I still have to deal), s. 49 is
invalid in relation to inter-State services. Further, if the provisions of s. 46 as to inter-State licences
becoming inoperative are invalid (as in my opinion they are) s. 49 is invalid on that ground in
relation to inter-State licences.

I am therefore of opinion (1) that the provisions authorizing the establishment of the Commission
and its entry into the service of inter-State air transportation which are contained in Part II. of the
Act are not invalid upon any of the grounds relied upon by the plaintiffs. (I express no opinion with
respect to s. 37, authorizing the Minister to exempt the Commission from the payment of State
taxes); (2) that Part IV., Limitations in respect of Airline Services, is invalid in its application to
inter-State services by reason of infringement of s. 92; that is, ss. 46 (1) and 47 (a) are invalid and s.
49 is invalid in so far as it applies to inter-State services.

The next question which arises is whether the invalid provisions contained in Part IV. can be severed
from the rest of the Act so as to allow the rest of the Act to stand.

It was contended for the plaintiffs that the provisions of the Act show a clear intention of Parliament
which could be described in the words "monopoly or nothing," and that if the monopoly provisions,
that is Part IV., fail, the whole Act must fail. It was argued in a general way that the Commonwealth
Parliament would not think of entering into air services at all upon a competitive basis, but this
argument, unless founded upon the actual terms of the Act, is only speculation upon policy, as to
which varying views may be entertained with equal propriety. A court cannot merely assume that
monopoly is of the essence of the Act. The intention of Parliament must be ascertained by an
examination of the terms of the Act, and not otherwise.

I do not agree with the contention on this point of the plaintiffs. In my opinion the Act has been
carefully drafted so as to avoid difficulties in the application of s. 15A of the Acts Interpretation Act
1901-1941. I regard this provision as a direction to the Court to treat all statutes as being valid as far
as possible, and to assume, as the general intention of Parliament, that as much of an Act shall
operate as can operate, even if other parts may fail. In the present case special pains have been
taken, it appears to me, to make the different provisions of the Act severable. For example
"adequate airline service" is defined separately in relation to inter-State and Territorial services; the
powers of the Commission to establish services in s. 19 are described under separate heads; the
provisions relating to monopoly of services are separated completely from the other parts of the Act.
I agree with the contention of the plaintiffs that s. 19 (2) means that it shall be the duty of the
Commission to establish adequate (i.e. full) services as defined. This provision doubtless "looks
towards" ss. 46 and 47. But it is not inseparably bound up with these provisions--that is, in other
words, it cannot be said that s. 19 (2) would not have been enacted apart from ss. 46 and 47. It is
possible for s. 19 (2) to operate even if the monopoly provisions fail. Section 15A of the Acts
Interpretation Act is a direction that it shall be held to be valid so as to operate as far as possible.

The invalidity of the inter-State provisions in Part IV. does not, in my opinion, affect the Territorial
provisions. The two sets of provisions are separately expressed and can operate quite independently
of each other. The definitions of the two classes of services in s. 4 are carefully expressed so as to be
mutually exclusive. If the inter-State provisions are struck out of Part IV.

the rest of the Act can operate according to its terms. Thus I am of opinion that the invalid
provisions are severable and that the Act as a whole is not invalid by reason of the invalidity of
portion of Part IV.

The other question which arises relates to reg. 79 (3) of the Air Navigation Regulations, constituting
Part VII. of the Regulations. This regulation, before the making of Statutory Rules 1940 No. 25,
was in the following form:--

             (1)

             Aircraft shall not be used by any person in the operation of a regular public
             transport service except under the authority of, and in accordance with, a licence
             issued to that person by the Board.

             (2)

             An applicant for any such licence shall furnish such information in relation to the
             proposed service as the Board requires.

             (3)

             The Board shall, if satisfied as to the safety of the proposed service, issue a licence
             (in these Regulations referred to as "an airline licence") subject to such conditions,
             in addition to compliance with these Regulations, as the Board considers necessary
             to ensure the safety of the aircraft and of the persons to be carried by the aircraft.

             (4)
             Subject to Part XIII. of these Regulations, an airline licence shall remain in force
             for a period of one year from the date of issue, and may, from time to time, be
             renewed by the Board for a further period not exceeding one year.

I see no reason to question the validity of the regulation in this form.

Statutory Rules 1940 No. 25 provided as follows:--

       Regulation 79 of the Air Navigation Regulations is amended by omitting sub-regulation
       (3) and inserting in its stead the following sub-regulation:--

             (3)

             The Director-General may issue a licence (in these Regulations referred to as "an
             air-line licence") upon such conditions, in addition to compliance with these
             Regulations, as the Director-General considers necessary or he may refuse to issue
             the licence.

The question which arises is whether this provision is valid.

Other Parts of the Regulations relate to many matters affecting the safety and efficiency of air
services. Thus Part III. relates to the conditions of flight within Australian territory and includes
many conditions as to safety. Part IV. deals with registration and marking of Australian aircraft. Part
V. allows certificates of airworthiness to be given only after the Director-General of Civil Aviation
is satisfied that aircraft comply with a satisfactory standard. Regulation 58 provides that a person
shall not act as a pilot, navigator, or radio operator of an Australian aircraft unless he holds a licence
under the Regulations, and there are provisions for the examination and qualifications of such
persons. Other Parts of the Act relate to log books, inquiries into air accidents, aerodromes and air
beacons, international airways and the suspension or cancellation of licences and certificates.

Unless a person who is proposing to provide an air transport service is in a position to show that he
has complied with all the various regulations to which I have referred, he cannot (apart altogether
from any considerations depending upon reg. 79) use his aircraft or employ his personnel in such a
service. Regulation 79 (3) reinforces the other regulations by expressly requiring complipliance with
those regulations as a condition of obtaining a licence. The provision in reg. 79 that the Director-
General may issue a licence upon such conditions "in addition to compliance with these
Regulations" as he considers necessary shows (1) that compliance with the regulations is necessary,
and (2) that, before he issues a licence, the Director-General may require compliance with some
conditions which are not specified in or ascertainable by reference to any of the regulations. Thus
reg. 79 (3) as enacted by Statutory Rules 1940 No. 25 gives to the Director-General in this respect a
quite general and uncontrolled discretion. The defendants relied upon Shrimpton v. The
Commonwealth[34], where what was called an absolute discretion was entrusted by a regulation to
the Treasurer. The Court held that the discretion was not absolute, but was to be limited by reference
to the purposes disclosed by other provisions in the Regulations. In the present case, however, it is
impossible to apply such a principle for the purpose of limiting the discretion of the Director-
General under reg. 79 (3). The purposes of the Regulations in all their other provisions are
completely provided for by those provisions and in the requirement of reg. 79 (3) that all other
regulations must be complied with. Accordingly the effect of reg. 79 (3) is to set the Director-
General absolutely at large, with the result that he could exercise his discretion upon any grounds
whatever.

I consider this provision in the first place in its application to inter-State air services, when s. 92 is
relevant to its validity. The vesting of such a discretion to control inter-State transportation is, in my
opinion, inconsistent with s. 92 of the Constitution. I am unable to distinguish reg. 79 (3) from the
provision which the Court held to be invalid in Gratwick v. Johnson[35]. In that case I was of
opinion that there were no provisions "which can be relied upon for the purpose of preventing the
Director-General of Land Transport from exercising his powers in a completely arbitrary manner.
No indication is given of the matters which he is to take into account in determining whether to
grant or refuse a permit"[36]. The position is the same in the present case as to the conditions "in
addition to compliance with these Regulations" which the Director-General can impose upon
applicants for licences. Accordingly reg. 79 (3) is seen to be a provision that persons cannot take
part in providing air transport services in relation to trade and commerce among the States (see reg.
6) unless they are permitted to do so by the Director-General of Civil Aviation. Such a provision is
"directed against" inter-State transportation in the sense condemned by the Privy Council in James v.
The Commonwealth[37]. Accordingly, in my opinion, reg. 79 (3) is invalid in its application to
inter-State services.

But, as far as air services within the Territories are concerned, the Commonwealth Parliament can
legislate as it pleases. It can, if it thinks proper, make the right to engage in any activity within a
Territory dependent upon the arbitrary discretion of an official.

Regulation 79 does not purport to apply to intra-State services: See reg. 6. Intra-State services are
not included in any of the categories (a), (b) and (c) of reg. 6. Thus reg. 79, as a Commonwealth
regulation, is invalid only in so far as it applies to inter-State services.

All the States, except Tasmania, have passed Air Navigation Acts adopting the Commonwealth Air
Navigation Regulations as amended from time to time. See the Air Navigation Acts of New South
Wales of 1938, and of Victoria, Queensland, South Australia and Western Australia of 1937. The
effect of this State legislation is to enact reg. 79 as State law and as applying in the same manner in
the State as the regulation applies, as a piece of Territorial legislation, in the Territories. These
provisions can validly operate, however, only within the respective States and only in relation to
other than inter-State services. The objections to reg. 79 as Commonwealth legislation are based
upon s. 92, and those objections are equally applicable to reg. 79 as State legislation, for s. 92 binds
both the States and the Commonwealth (James v. The Commonwealth[38]). Thus the State Acts do
not affect in any way the conclusion that reg. 79 is invalid in relation to inter-State services. They
do give effect to reg. 79 in the States in which they are in force in respect of intra-State services and
"the State end" of Territory-single State services. But Commonwealth and State legislation
combined cannot overcome s. 92 of the Constitution in relation to inter-State services.

If then reg. 79 is invalid in relation to inter-State air services, is it invalid altogether?

I am of opinion that reg. 79, which applies to international, inter-State and Territorial services (see
reg. 6), can be held to be invalid as to inter-State services, and to be valid in relation to other
services. I base this view upon the separation of categories of air navigation made by reg. 6, which
specifies in (a), (b) and (c) the scope of application of the Part of the Regulations which contains
reg. 79. Air navigation between the States is comprehended within category (b). Even if the
application of the regulation to such air navigation is prevented by reason of s. 92, there is nothing
to prevent the full operation of the regulation in relation to categories (a) and (c) and the rest of
(b)--air navigation in relation to trade and commerce with other countries. In Newcastle and Hunter
River Steamship Co. Ltd. v. Attorney-General for the Commonwealth[39] a single collective
expression applied to both inter-State and intra-State trade and commerce. If limited to the former
subject it would have been valid. If limited to, or as applied to, the latter subject it was invalid. The
court held that the provision in question was valid as applied to inter-State commerce. It is much
easier in the present case, where categories are separately expressed (Pidoto v. Victoria[40]), to
apply the doctrine of severability, so as to preserve the validity of reg. 79 as applied to other than
inter-State air services.

I add that I agree with my brother Dixon that the legislative intention of Statutory Rules 1940 No.
25 was to repeal par. 3 of reg. 79 altogether and to substitute for it a provision intended to be
comprehensive and applying to all cases within its terms. I agree that it cannot validly so apply. But
I do not conclude that the repeal was intended to be effective only if the whole of the substituted
provision was valid. The provisions of the Acts Interpretation Act as to severance are general
expressions of legislative intention. Section 46 (b), which deals with regulations, requires the Court
to hold regulations to be valid to the extent to which they are not in excess of power. I do that by
holding that though the regulation fails in relation to inter-State services, it operates in relation to
Territorial services.

The MacRobertson-Miller Aviation Co. Ltd. conducts no inter-State services and is not affected by
the invalidity of the Act or of reg. 79 so far as those provisions apply to inter-State services. In the
opinion of my brethren reg. 79 (3) as introduced by Statutory Rules 1940 No. 25 is entirely invalid,
and therefore, in their opinion, the demurrer should be overruled in the action brought by this
company. In my opinion reg. 79 (3) is not completely invalid, but is invalid only in respect of inter-
State services, and therefore, in my opinion, is applicable to the plaintiff company. In this case,
therefore, I would allow the demurrer.

In the other cases I am of opinion that the demurrers should be overruled. The plaintiffs are entitled
to a declaration that s. 46 (1) of the Act and so much of ss. 47 and 49 and of reg. 79 of the Air
Navigation Regulations as apply to inter-State airline services are void. In my opinion they are not
entitled to any other relief upon the case made in their statements of claim.

Rich J.

Some of the arguments addressed to the Court in the cases now before us lead me to preface my
reasons by observations which I should otherwise have thought so trite as to be superfluous. The
questions at issue go to the validity of one Commonwealth statute, and of a regulation made under
another, providing for, or relating to, the setting up of airline services to be conducted by a
Commission on behalf of the Commonwealth. Now, it cannot be too clearly understood that this
Court is not in the smallest degree concerned to consider whether such a project is politically,
economically, or socially desirable or undesirable. It is concerned only with the questions whether it
is within the constitutional powers of the Commonwealth Parliament to pass an Act, or for the
regulation-making authority to make a regulation, of the type which has been called in question, and
if so whether the Act or the regulation is, in whole or part, a valid exercise of power. The solution of
the questions turns upon the proper construction of the Constitution. Under the Australian Federal
system, the Commonwealth Parliament can make laws only upon subjects on which it is specially
invested with power to make laws by the Constitution. Upon all other subjects, laws can validly be
made, if they can validly be made at all, not by the Commonwealth but by the States. Hence, our
task is purely legal. It is to examine those provisions of the Constitution which confer legislative
power upon the Commonwealth Parliament and to see whether the legislation which has been
challenged is wholly, or if not wholly to some extent, within one or more of the powers which the
framers of the Constitution thought fit to confer upon it.

If the legislation is to be upheld, it must be, in the main, by virtue of clause 51 (i.) of the
Constitution, which empowers the Parliament, but subject to the Constitution, to make laws with
respect to "trade and commerce with other countries, and among the States." By the Australian
National Airlines Act 1945 provision is made for setting up a Commission to establish and operate
airline services for the transport, for reward, of passengers and goods by air (a) between State and
State, (b) between a Commonwealth Territory and any other part of Australia, (c) within a
Commonwealth Territory, and (d) between Australia and places outside Australia.

The first question is whether such a provision is within the trade and commerce power conferred by
clause 51 (i.), assuming that power not to be restricted in any relevant respect by any other part of
the Constitution. "Trade is a very wide term: it is one of the oldest and commonest words in the
English language. Its great width of meaning and application can be seen by referring to the heading
in the Oxford English Dictionary. But it must always be read in its context. That gives it the special
connotation appropriate to the particular case" (per Lord Wright in Aristoc Ltd. v. Rysta Ltd.[41]). In
a particular context, it may be seen to be intended to be restricted to selling or otherwise trading in
goods; but here we find it in a Constitution, and "a Constitution must not be construed in any
narrow and pedantic sense" (James v. The Commonwealth[42]). I have no doubt that, as here found,
the phrase "trade and commerce" is wide enough to include not only the sale and disposition of
goods but the transport of goods and persons, and not only the transport of goods and persons
incidentally to the disposition of goods, but such transport as an end in itself.

I am of opinion also that the Commonwealth Parliament's trade and commerce power is not
restricted to the regulation of trade and commerce carried on by private persons, but is wide enough
to authorize provision for the carrying on of trade and commerce by the Commonwealth itself. It
was pointed out in Reg. v. Burah[43] that when a question arises in regard to a Constitution whether
the prescribed limits have been exceeded, the only way in which a court of justice can properly
determine the question is by looking to the terms of the instrument by which, affirmatively, the
legislative powers were created, and by which, negatively, they are restricted. If what has been done
is legislation, within the general scope of the affirmative words which give the power, and it violates
no express condition or restriction by which the power is limited, it is not for any court of justice to
inquire further, or to enlarge constructively those conditions and restrictions. The Constitution
contains no express provision against trading by the Commonwealth, and no necessary implication
of a prohibition of such trading is involved in any of the express provisions.

I am of opinion, therefore, that the attack which has been made on the Act, as being legislation on a
matter which lies outside the trade and commerce power altogether, cannot be supported; and I am
of opinion, also, that the combined operation of clauses 51 (i.) and 122 is sufficient to authorize
legislation for the provision of airline services between a Commonwealth Territory and any other
part of Australia, or within a Commonwealth Territory, although, to the extent to which any such
service may also be inter-State, it is subject to clause 92.

The next question is concerned with the validity of Part IV. of the Act, which provides for
conferring upon the Commission a monopoly in respect of the airline services which it is to
establish and operate. Section 46 (1) provides that, when the Commission has established a service,
any airline licence held by anyone else in respect of any service which provides inter-State transport
by air between any of the Commission's stopping-places (unless it is for an authorized international
service) shall, so far as it authorizes transport between those stopping-places of passengers or goods
embarked for transport solely between them, be inoperative so long as the Commission itself
supplies an adequate airline service between them. Section 47 prevents, among other things, the
issue of a licence which would interfere with the Commission's inter-State monopoly so long as it is
maintaining an adequate service. The fact that the Parliament is here seeking to enable the
establishment of a trading monopoly for the Commonwealth does not, of itself, affect the validity of
Part IV. There is nothing in the Constitution which prevents the setting-up of monopolies as such. It
has been urged, however, that the vesting in the Commonwealth of a monopoly of a particular class
of inter-State trade infringes the express provision of clause 92 of the Constitution that trade,
commerce and intercourse among the States, whether by means of internal carriage or ocean
navigation, shall be absolutely free. How, it is said, can trade, commerce and intercourse among the
States by air transport be said to be free if the Commonwealth arrogates to itself the right not merely
to engage in this class of trade but to exclude everyone else from it? Authorities on the meaning and
operation of clause 92 are numerous and not altogether consistent. The leading case is James v. The
Commonwealth[44], but even this does not, and could not be expected to, provide a ready solution
for every question that arises in practice. Their Lordships put the matter in a nut-shell by saying
that, "The true criterion seems to be that what is meant is freedom as at the frontier." They went on
to elaborate this by saying that it means freedom from customs duties, imposts, border prohibitions,
and restrictions of every kind. "Freedom in s. 92 must be somehow limited, and the only limitation
which emerges from the context, and which can logically and realistically be applied, is freedom at
what is the crucial point in inter-State trade, that is at the State barrier"[45]. Their Lordships point
out, however, that it is not necessary, in order to be obnoxious to clause 92, that an Act should
discriminate against inter-State trade; it may contravene it though it operates in restriction both of
intra-State and inter-State trade[46]; and burdens and hindrances on inter-State trade may take
diverse forms and appear under various disguises. "In every case it must be a question of fact
whether there is an interference with this freedom of passage"[47]. It would appear from their
Lordships' comments on s. 98 of the Post and Telegraphs Act 1901-1923 that they took the view that
the monopolization by the Commonwealth of some forms of intercourse is not necessarily
repugnant to clause 92 to the extent to which it may affect inter-State intercourse; but I do not
regard their Lordships as meaning that no form of monopolization of a particular class of inter-State
trade should be regarded as impeding it if it can be described as "canalization." They appear to have
been influenced in their remarks by the consideration that letter-carrying is a very specialized form
of intercourse, as to which, at the establishment of the Commonwealth, the limitation notoriously
existed in ordinary usage in all modern civilized communities[48]. The question in every case being
one of fact, I am unable to feel any doubt that, on the facts of the present case, the monopoly
provisions of ss. 46 (1) and 47 (a) do constitute a direct infringement of the express provision of
clause 92 for freedom of trade, commerce and intercourse among the States, and are therefore
invalid. Since, however, clause 92 is applicable only inter-State, it does not invalidate the non-inter-
State provisions of ss. 46 (2) or 47 (b) or 49 of Part IV.

I pass now to the question whether, the monopoly provisions of the Act being in part bad, the Act is
wholly invalidated or invalidated only to the extent to which it is unconstitutional. Having regard to
s. 15A of the Acts Interpretation Act 1901 as amended, it must be treated as a valid enactment to the
extent to which it is not in excess of power, unless it is expressly provided, or appears by necessary
implication from what is expressly provided, that it is intended by Parliament that the Act, or some
part of it, is to be inoperative as a whole or not at all. There is, in the present cases, no such express
provision, and, in my opinion, no such necessary implication. Hence, the general provisions of the
Act are valid.

As regards reg. 79, I agree with my brother Dixon, whose reasons on all points I have had the
advantage of reading, and with which I am in general agreement, that this stands good in the form
which it had before the purported amendment made by Statutory Rules 1940 No. 25, the purported
amendment being invalid and inoperative.

For the reasons I have given I am of opinion that the three demurrers should be overruled and
judgment given in the respective suits for the plaintiffs. In the suits of the Australian National
Airways Pty. Ltd. and of Guinea Airways Ltd. there should be a declaration that in Part IV. of the
Australian National Airlines Act 1945 sub-s. (1) of s. 46, so much of s. 47 (including par. (a)), and
so much of s. 49 as refer to an inter-State airline service or services are invalid and that the
purported adoption of Statutory Rules 1940 No. 25 of the amendment to sub-reg. (3) of reg. 79 of
the Air Navigation Regulations 1937-1939 is void.

In the suit of MacRobertson-Miller Aviation Co. Ltd. the declaration of right should be limited to
the invalidity of Statutory Rules 1940 No. 25, because the plaintiff is interested only in a Territorial
line.

Starke J.

These actions raise by demurrer the question whether the Australian National Airlines Act 1945 is
wholly or in part beyond the constitutional power of the Commonwealth and also whether Part VII.
of the Air Navigation Regulations as amended is within the powers conferred upon the Governor-in-
Council by the Air Navigation Act 1920-1936.

The Airlines Act is an Act to provide for the establishment and operation of national airline services
by the Commonwealth and for other purposes. It sets up a Commission which it incorporates, and,
subject to the provisions of the Act and the Air Navigation Regulations, requires it to

       do all that is necessary or convenient to be done for, or as incidental to, or in relation to,
       or in connexion with, the establishment, maintenance or operation by the Commission
       of Airline Services for the transport, for reward, of passengers and goods by air--

             (a)

             between any place in a State and any place in another State;

             (b)

             between any place in any Territory of the Commonwealth and any place in
             Australia outside that Territory; and

             (c)

             between any place in any Territory of the Commonwealth and any other place in
             that Territory.

And the Commission with the approval of the Minister may exercise in relation to airline services
between any place in Australia and any place outside Australia the like powers: See ss. 6 and 19.
The Commission is empowered to acquire real and personal property and also to acquire
compulsorily aircraft or other property (not being land) for the purposes of the Commission (ss. 21,
42-45). Moneys are appropriated by the Act to meet expenditure necessary for the purposes of the
Act (s. 30). The provisions of the Air Navigation Regulations apply so far as applicable to and in
relation to the Commission in like manner as they apply to and in relation to other persons (s. 29).
These Regulations set up a licensing authority in respect of public transport services (Regulations,
Part VII., Public Transport Service). And Part IV. of the Airlines Act imposes limitations in respect
of airline services the purpose of which is to give the Commission the right to operate the airline
services mentioned in s. 19 and to exclude all other corporations or persons therefrom. Where an
airline licence is issued to the Commission in respect of an inter-State airline service and the
Commission has established that service, any airline licence held by any person other than the
Commission or its contractors, in respect of any inter-State airline service, which provides inter-
State transport by air between any scheduled stopping places of the service established by the
Commission, is inoperative so long as there is an adequate airline service between those stopping
places by reason only of the services operated by the Commission and its contractors. A similar
provision is enacted in respect of Territorial airline services (s. 46 (2)). The licensing authority is
prohibited from issuing to any person other than the Commission or its contractors in respect of an
inter-State airline service, an airline licence which would authorize inter-State transport by air
between any scheduled stopping places of any airline service operated by the Commission or its
contractors and similarly in respect of Territorial airline services unless and except to the extent to
which the licensing authority is satisfied that having regard to the airline services operated by the
Commission and its contractors the issue of the licence is necessary to meet the needs of the public
with respect to inter-State and Territorial airline services (s. 47). And s. 49 imposes sanctions upon
persons operating inter-State or Territorial airline services without a licence which is operative.

The constitutional powers relied upon in support of the Airlines Act and the licensing regulations are
the postal power (Constitution, s. 51 (v.)), the defence power (Constitution, s. 51 (vi.)), the trade
and commerce power (Constitution, s. 51 (i.)), and the power in relation to the Territories
(Constitution, s. 122). But the Act cannot be sustained under either the postal or the defence power;
its provisions afford no reasonable or substantial basis for the conclusion that the Act is one with
respect to postal services or defence and that, if I am not mistaken, was in the end conceded in
argument. The object of the Act is to establish national and commercial airline services to the
exclusion of other airline services. The Act must find its constitutional basis in the trade and
commerce power and in the power relating to the Territories, for there is no other that can support it.
The Parliament has, subject to the Constitution, power to make laws for the peace, order and good
government of the Commonwealth with respect to trade and commerce with other countries and
among the States and this power extends to navigation and shipping and to the railways of the State
(Constitution, s. 51 (i.), s. 98; Australian Steamships Ltd. v. Malcolm[49]). In the Constitution of the
United States the power is to regulate commerce with foreign nations and among the several States
and with the Indian tribes. In the Constitution of Canada, British North America Act 1867 (30 & 31
Vict. c. 3), it is the regulation of trade and commerce. But there is little if any difference, I think,
between the power to make laws with respect to trade and commerce and the power to make laws to
regulate, or for the regulation of, trade and commerce. And since the decision, Huddart Parker Ltd.
v. The Commonwealth[50], in this Court the view can no longer be maintained that the constitutional
power in the Australian Constitution to make laws with respect to trade and commerce with other
countries and among the States is limited to general rules of conduct to be observed by those
engaged in the operation of commerce with respect to those operations (Australian Steamships Ltd.
v. Malcolm[51]), and does not enable the Commonwealth itself or its instrumentalities to engage in
or carry on commerce. In Gibbons v. Ogden[52] Marshall C.J. said: "Commerce, undoubtedly, is
traffic, but it is something more; it is intercourse", and Griffith C.J. in Australian Steamships Ltd. v.
Malcolm[53] accepted that description. Trade and commerce among the States is not an isolated
journey across a State boundary line (See Willis on Constitutional Law, p. 288), but the flow of
business among the States. It includes the movement of goods or persons from one State to another,
transportation by land, sea or air, and it also includes something more such as sales of goods
tangible or intangible by persons in one State to persons in another. Or as was said in this Court in
W. & A. McArthur Ltd. v. Queensland[54]: "Trade and commerce between different countries--we
leave out for the present the word intercourse--has never been confined to the mere act of
transportation of merchandise over the frontier. That the words include that act is, of course, a
truism. But that they go far beyond it is a fact quite as undoubted. All the commercial arrangements
of which transportation is the direct and necessary result form part of trade and commerce." The
power to regulate commerce or to make laws with respect to commerce is "to prescribe the rule by
which commerce is governed. It extends not only to those regulations which aid, foster and protect
the commerce, but embraces those which prohibit it" (United States v. Darby[55]). The power "is
complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other
than are prescribed in the Constitution" (Gibbons v. Ogden[56]). Accordingly there is no reason for
denying that the Parliament can under the trade and commerce power exclude all persons from the
field and grant the Commonwealth itself and its instrumentalities an exclusive right or monopoly in
that field: Cf. Wilson v. Shaw[57].

But the power to make laws with respect to trade and commerce in the Australian Constitution is
subject to the provisions contained in s. 92: "Trade, commerce, and intercourse among the States,
whether by means of internal carriage or ocean navigation, shall be absolutely free."

The object and effect of the Airlines Act is to exclude every person but the Commission established
by the Commonwealth and its contractors from traffic and intercourse among the States by air so
long as there is an adequate airline service established by the Commission or its contractors. It is
contended that the Transport Cases in this Court established the validity of the Airlines Act and that
it does not contravene the provisions of s. 92 (R. v. Vizzard; Ex parte Hill[58]; O. Gilpin Ltd. v.
Commissioner for Road Transport and Tramways (N.S.W.)[59]; Bessell v. Dayman[60]; Duncan and
Green Star Trading Co. Pty. Ltd. v. Vizzard[61]; Riverina Transport Pty. Ltd. v. Victoria[62]). "A
law," it has been said, "prescribing rules as to the manner in which trade (including transport) is to
be conducted is not a mere prohibition and may be valid in its application to inter-State trade
notwithstanding s. 92" (Milk Board (N.S.W.) v. Metropolitan Cream Pty. Ltd.[63]). But why this is
so is by no means clear. It is said that the provisions which operated in restriction of the free
movement of goods in the Transport Cases were no invasion upon the freedom of inter-State trade,
but a mere co-ordination and rationalizing of services (Duncan and Green Star Trading Co. Pty. Ltd.
v. Vizzard[64]), which, I suppose, means that as a matter of fact there was no interference with the
freedom of the passage of goods passing into or out of a State (James v. The Commonwealth[65]),
and that even though the restriction operated upon the movement of goods in inter-State trade. But
the Airlines Act cannot be justified as a mere co-ordination and rationalizing of services.

Willard v. Rawson[66] was also relied upon, but that was an Act to regulate the use of motor cars on
the highways, and a majority of the Court denied that it operated so as to interfere with the absolute
freedom of inter-State trade. The case has no application to the Airlines Act.

A more difficult case to my mind is that of the Milk Board (N.S.W.) v. Metropolitan Cream Pty.
Ltd.[67]. There are expressions in that case repeating similar expressions in the case of Peanut
Board v. Rockhampton Harbour Board[68], asserting that s. 92 does not preclude the nationalization
or socialization of industries although some effect upon inter-State commerce may be caused
thereby. The Court expressed no opinion upon the matter, but what it held was that the Milk Act
1931-1936 of New South Wales, which established a system of control of production, transport and
marketing, wholesale and retail, of milk and cream in every milk distributing district established by
the Act and compulsory marketing, was not obnoxious to the provisions of s. 92. It was conceded, I
think, that the decision was contrary to prior decisions of the Court, but it was said that the view of
the Judicial Committee in James v. The Commonwealth[69] was that legislation might be enacted
for the administration of a compulsory marketing scheme so long as it was not directed against
inter-State trade without contravening the provisions of s. 92. In my opinion, that decision conflicts
with the decision of this Court in the Peanut Board Case[70] which, I think, was approved by the
Judicial Committee in James v. The Commonwealth[71] and I prefer the decision in the Peanut
Board Case[72].

The object of s. 92 is to maintain freedom of inter-State competition--the open and not the closed
door--absolute freedom of inter-State trade and commerce. An Act which is entirely restrictive of
any freedom of action on the part of traders and which operates to prevent them engaging their
commodities in any trade, inter- or intra-State, is, in my opinion, necessarily obnoxious to s. 92.

The Airlines Act is not a compulsory marketing Act but it does operate to control air transport
among the States and is pointed directly at that trade or business. It operates to preclude everyone
engaging in that trade and business other than the Commission and its contractors so long as
adequate service is provided. In my opinion such an enactment is obnoxious to the provisions of s.
92.

The legislative power of the Commonwealth with respect to trade and commerce with other
countries is not limited by s. 92 and subject to other provisions of the Constitution, e.g. s. 98, may
be exercised to its full extent. Likewise the authority of the Parliament to make laws for the
Government of the Territories is undoubted (Constitution, s. 122) and that power is not limited by
the provisions of s. 92. It is a plenary power complete in itself, and acknowledges no limitations
other than are prescribed by the Constitution (Gibbons v. Ogden[73]). Cf. Dorr v. United States[74];
Rassmussen v. United States[75]. But I would add that the Territories are not independent political
bodies separated and detached from the Commonwealth. They are under the authority of the
Commonwealth which might, I should think, assist them financially and establish and maintain
communication with them in such manner as Parliament thinks fit subject to any limitations
prescribed by the Constitution. This authority flows from the relationship of the Commonwealth and
the Territories if not from the incidental power contained in the Constitution (s. 51 (xxxix.)).

It has also been contended that the Airlines Act is wholly bad and cannot be severed from the
provisions relating to inter-State trade which are obnoxious to s. 92. That contention is untenable
both because of the provisions of the Acts Interpretation Act 1901-1941, s. 15A, and because there
is left intact in the Airlines Act, dealing with matters within the power of the Commonwealth, a
body of provisions, namely, air transport with other countries and in the Territories, consistent,
workable and effective (Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty.
Ltd.[76]). It may be that these provisions will be ineffective commercially, but that is not a matter
for the consideration of this or any Court.

Lastly, Part VII. of the Air Navigation Regulations (Statutory Rules 1937 No. 81 as amended by
Statutory Rules 1940 No. 25) has been attacked. Regulation 79 provides that the Director-General of
Civil Aviation may issue an airline licence upon such conditions, in addition to compliance with the
Regulations, as the Director-General considers necessary or he may refuse to issue a licence. In my
opinion that regulation is bad because it contravenes s. 92 of the Constitution. It so operates that no-
one may engage in inter-State trade without the licence of the Director-General.

The result is that the demurrers which go to the whole of the causes of action alleged by the
plaintiffs should be overruled.

Dixon J.

The determination of these three cases turns upon the question whether the Australian National
Airlines Act 1945 is to any and what extent ultra vires and upon a further question concerning the
validity of a regulation made under the Air Navigation Act 1920-1936. The regulation relates to the
licensing of aircraft for a public transport service and some of the provisions of the Airlines Act
assume the existence and validity of such a regulation.

The general character of the Act can be briefly described under five heads. It sets up a Commission,
a corporate body, with powers necessary and appropriate for establishing, maintaining and carrying
on airline services for the transport of passengers and goods between States, to and from Territories
and within Territories. It provides for the compulsory acquisition of aircraft and other property,
except land, required for the purposes of the Commission. It provides for compensation. It gives the
Commission a monopoly of any route for which it provides an adequate service. It makes it
incumbent upon the Commission to obtain a licence under the Air Navigation Regulations, but, in
some degree, it rests the Commission's monopoly on those Regulations, because, when the
Commission provides an adequate service, the licence of any person in respect of the route becomes
inoperative and no such licence is again to be issued so long as the Commission maintains an
adequate service. Though the preamble of the statute refers to defence and to the carriage of mail by
air in reciting why it is expedient to make the provisions contained in the enactment, it is apparent
that primarily the legislative power upon which the Act must be supported is that with respect to
trade and commerce with other countries and among the States. But so much of it as deals with
airline services in connection with Territories cannot easily be referred to that power, and some
other legislative power must be found to support those provisions.

It is convenient, however, to consider first whether, putting on one side the effect of s. 92, the
leading provisions of the Airlines Act can be regarded as an exercise of the commerce power. It is
objected that they cannot be supported under that power because it contemplates the legislative
regulation of overseas and inter-State trade and commerce and not the entry of the Government
itself into that field of activity. The argument places upon the words of the constitutional power an
interpretation according to which it would fall far short of authorizing the Parliament to establish a
government monopoly or government undertaking in trade and commerce. The interpretation
conceives of trade and commerce with other countries and among the States as a description of a
section of the economic life of the community made up of countless forms of activity on the part of
individuals, inter-related and organized and sustaining a flow of goods and services. The subject of
the power is, therefore, treated as a recognized phenomenon of national life existing independently
of the Commonwealth. The power, it is said, on its bare reading is but a power to make laws for the
regulation of these activities, not to undertake them. Only because it was fitter that Federal
legislation should deal with inter-State and foreign transactions were trade and commerce divided
notionally into two sections. What was inter-State and overseas was assigned to the Commonwealth
and what was intra-State was reserved for the States. But that, according to the view contended for,
was as subjects of legislative regulation and not of government participation.

I am of opinion that this argument ought not to be accepted. It plainly ignores the fact that it is a
Constitution we are interpreting, an instrument of government meant to endure and conferring
powers expressed in general propositions wide enough to be capable of flexible application to
changing circumstances. It confuses the unexpressed assumptions upon which the framers of the
instrument supposedly proceeded with the expressed meaning of the power. A law authorizing the
government to conduct a transport service for inter-State trade, whether as a monopoly or not,
appears to me to answer the description, a law with respect to trade and commerce amongst the
States. It is only by importing a limitation into the descriptive words of the power that such a law
can be excluded.

There is, however, a further difficulty in the application of the commerce power to the transport
services which the Commission is authorized to conduct. So far I have spoken advisedly of a
transport service for inter-State commerce. But the airline services contemplated are for passengers
or goods and many of the passengers carried may not be engaged in any matter of commerce.

If an inter-State transportation service is regarded, not as itself constituting commerce among the
States, but only as a means by which such commerce is or may be conducted and at the same time
the inter-State movement of people is considered not of itself to form commerce among the States,
it would seem to follow that the purpose of the airline services to be established under the Act is not
confined to inter-State trade and commerce and exceeds the power. In R. v. Smithers; Ex parte
Benson[77] Higgins J. draws a contrast, in reference to the movement of persons from one State to
another, between, on the one hand, school children returning from holidays and friends visiting
friends, and, on the other hand, commercial travellers returning to their warehouses.
Notwithstanding the addition, in s. 92, of the word "intercourse" to the words "trade" and
"commerce," I am not disposed to think that there is much covered by the word "intercourse" that
falls outside the commerce power. Actual movement of persons or goods among the States will, I
should imagine, be regarded as enough here as it is in America. See Covington & Cincinnati Bridge
Co. v. Kentucky[78]; Caminetti v. United States[79]; United States v. Hill[80]. Probably, too, it will
be taken to extend to acts and transactions involving such movement. But this view is part and
parcel of a more general interpretation or understanding of the conception of inter-State commerce
under which the place given to the carriage of goods and persons, transportation, is anything but
subsidiary. That is to say, as it is inseparable from the movement of things and people, it cannot be
regarded as something which falls within the power only because it is ancillary or auxiliary,
incidental or conducive to the essential object of the power, as perhaps might be the case if the inter-
State buying and selling of commodities were regarded as the exclusive object. From the beginning,
the doctrine prevailing in the United States has been that transportation occupied a central place in
the conception of commerce as a subject of the power. In the concurring opinion which Johnson J.
added to that of Marshall C.J. in Gibbons v. Ogden[81], an opinion relying more than did that of the
Chief Justice on the exclusive characteristics of the commerce power, there occurs the following
passage: "When speaking of the power of Congress over navigation, I do not regard it as a power
incidental to that of regulating commerce; I consider it as the thing itself; inseparable from it as vital
motion is from vital existence." In Hannibal & St. Joseph R.R. Co. v. Husen[82] Strong J. for the
court said: "Transportation is essential to commerce, or rather it is commerce itself." How far the
reasoning in the Transport Cases in this Court[83] accommodates itself with this doctrine is a matter
for consideration. There is, I think, some logical force in the view that, if inter-State transportation
is relegated to the position of an operation that is merely ancillary or incidental to the commercial
interchange of goods among the States and is not of itself commerce, then it follows that the
Airlines Act is wider than the power. For it provides an air service, and an exclusive air service, for
passengers independently of the commercial or non-commercial character of their journey. But I am
not prepared to accept the hypothesis and to give effect to it as restrictive of the trade and commerce
power. On the contrary, I shall act upon the opinion that, if not all inter-State transportation, at all
events all carriage for reward of goods or persons between States is within the legislative power,
whatever may be the reason or purpose for which the goods or persons are in transit.

I am, therefore, of opinion that so much of the Airlines Act as relates to inter-State air services is
within the commerce power and that, apart, of course, from the effect of s. 92, which must be
separately considered, its validity so far may be supported as an exercise of that power.

It is contended, however, that so much of the Airlines Act as affects to govern and authorize the
establishment by the Commission of air services with the Territories of the Commonwealth is ultra
vires. The argument begins with the thesis that a Territory, excepting possibly a Mandated Territory,
cannot be described as "another country" within the meaning of the expression, trade and commerce
with other countries and among the States. Of course it is not a State. It is then said that s. 122 is the
only other relevant legislative power in relation to Territories, apart from the Seat of Government,
which is, of course, governed by s. 52 (i.). The power conferred by s. 122, it is contended, is
insufficient to support the provisions relating to airline services with the Territories. It is said that it
is power to make laws only for the government of the Territory and enables no more to be done
within the federally organized parts of the Commonwealth, or on the routes connecting the territory
with them, than, for example, a legislature established within a Territory for its government might
do within those parts or on those routes.

The provisions of the Airlines Act expressly dealing with the Territories are s. 4 (definitions of
"Territorial airline service" and "adequate airline service"); s. 19 (1) (b) and (c); s. 46 (2); s. 47 (b);
s. 49, and par. (c) of the preamble. It must be conceded that these clauses considered in combination
with the general provisions of the Act, amount to laws operating in Australia and elsewhere with
respect to air communication with the Territories. To support such legislation some power seems to
be needed to make laws in that connection which will have an operation in Australia. It was
contended that even although the power given by s. 122 might be regarded as an independent
legislative power restricted in its geographical operation to the Territories, at the same time it could
be used to justify the establishment of services radiating out, so to speak, from each Territory. The
analogy is that of a State which in virtue of its power to make laws in and for the State might
establish a shipping service with any place outside its boundaries, whether within or beyond
Australia. The law passed by the State would not in such a case operate coercively outside the State
but would nevertheless authorize the carrying on of the service and the use of such port facilities
and the like as were made available in other jurisdictions. This appears to me to be an artificial and
narrow justification of the legislation and, moreover, does not recognize that the Airlines Act is
meant to operate on the same basis throughout Australia and its Territories as a law of the
Parliament. I should see no difficulty myself in treating s. 122 as aided by s. 51 (xxxix.) and in
interpreting the Constitution as a whole as meaning that the Commonwealth Parliament could make
laws concerning the Territories including communications and all other matters arising from the
connection between the Commonwealth and the Territory or dependency. However, it is said that
such cases as Buchanan v. Commonwealth[84], R. v. Bernasconi[85] and Porter v. The King; Ex
parte Chin Man Yee[86] make it necessary to treat s. 122 as an independent power complete in itself
and outside the general system of government. I admit that it is difficult to reconcile the Australian
cases on the subject, but I think that the decision in Porter's Case[87] tends in the contrary direction
and that so does some of the reasoning in Mainka v. Custodian of Expropriated Property[88], and
also that of some of the judgments in Ffrost v. Stevenson[89], where antecedent steps of the
reasoning in Mainka's Case[90] were criticized. As to the commerce power, it is not easy to see how
such a Territory as the Northern Territory could be described either as another country or a State;
but it is to be noted that, under the analogous American power, Holmes J. appears to have been
prepared to adopt the assumption that trade with the Territories could be covered (Hanley v. Kansas
City Southern Railway Co.[91]), giving the power no doubt a wide general interpretation implying
some extension beyond its exact text. Moreover, Congress has included the Territories in many laws
otherwise referable to the commerce power. One such law is dealt with in Cincinnati Soap Co. v.
United States[92]. Clearly the commerce power is treated as embodying a principle. But, however
that may be, it seems to me that, by placing a territory under the authority of a government with full
power to govern it by direct legislation and otherwise, it is necessarily implied that it may control
communications, including transport between the two countries, if they are separated by sea, or, if
not, across the common boundary by inland means.

We should avoid pedantic and narrow constructions in dealing with an instrument of government
and I do not see why we should be fearful about making implications. It is absurd to contemplate a
central government with authority over a territory and yet without power to make laws, wherever its
jurisdiction may run, for the establishment, maintenance and control of communications with the
territory governed. The form or language of s. 122 may not be particularly felicitous but, when it is
read with the entire document, the conclusion that the legislative power is extensive enough to cover
such a matter seems inevitable. For my part, I have always found it hard to see why s. 122 should be
disjoined from the rest of the Constitution and I do not think that Buchanan's Case[93] and
Bernasconi's Case[94] really meant such a disjunction. I think the provisions I have mentioned
affecting the territory are valid.

For the foregoing reasons, I am of opinion that the objections to the validity of the provisions of the
Airlines Act on the ground that they are outside the enumerated legislative powers of the Parliament
affirmatively granted are not well founded.

There remains to be considered the formidable objection that, except in relation to Territories, Part
IV. of the Act, which provides that, upon routes adequately served by the government service, it
shall have a monopoly, violates the restraint imposed upon Federal power by s. 92 and that Part IV.
is an inseparable part of the statute, which, therefore, fails as an entirety.

It is, I think, important to see exactly what Part IV. does. The first of the four sections of which it
consists, s. 46, has two sub-sections, one dealing with what is called an inter-State airline service
and the second with a Territorial airline service. Of the latter it is unnecessary to say more in
connection with s. 92 than that, although s. 92 does not affect trade, commerce or intercourse with
the Territories, yet, on the definition of a Territorial airline service, it is possible that it will include
some inter-State carriage of goods or persons. It is with the former, the inter-State airline services,
that we are immediately concerned. Sub-s. (1), which deals with them, proceeds upon the
assumption that, for any inter-State airline service existing at the time when the Commission
establishes a service covering any of the stopping places of the existing service, a valid licence
under the Air Navigation Regulations will be needed and will be held. It provides that, when certain
conditions are fulfilled, the licence, in so far as it authorizes inter-State air transport, shall become
inoperative, which means, of course, that for the licensee to continue the service would contravene
the Air Navigation Act and Regulations. The conditions are, in effect, (1) that an airline licence for a
particular inter-State service has been issued under the Regulations to the Commission specifying
the terminal and intermediate stopping places of the service; (2) that the Commission has
established the service; (3) that the existing service provides inter-State transport by air between
some of the scheduled stopping places; and (4) that the service of the Commission, or its
contractors, by itself provides an adequate airline service between those stopping places. In those
conditions the existing licence becomes inoperative and remains inoperative as long as the
Commission maintains an adequate airline service between such stopping places. Under the Air
Navigation Regulations airline licences may not be granted or renewed for a longer period than a
year, so that it may be assumed a licence rendered inoperative is unlikely during its currency to
revive owing to the Commission's service becoming inadequate. But the next section of the Airlines
Act, s. 47, contains a prohibition, subject to a condition by way of exception, against the licensing
authority issuing to anybody but the Commission or, at its request, to a contractor with the
Commission, an airline licence for an inter-State service authorizing transport by air between any of
the Commission's scheduled stopping places, or those of such a contractor. The condition by way of
exception is expressed in the following words, "unless, and except to the extent to which, the
licensing authority is satisfied that, having regard to the airline services operated by the Commission
and contractors, the issue of the licence is necessary to meet the needs of the public with respect to
inter-State airline services."

Nothing turns on s. 48, but s. 49 completes Part IV. by making it penal to enter into a contract for
the transportation by air of persons or goods in the course of the operation of an inter-State airline,
unless operated by a person holding an airline licence that has not become inoperative. The
provision covers the consignor or intending traveller as well as the carrier. With these provisions
must be read s. 19, particularly sub-s. (2). Sub-s (1) empowers the Commission "with full regard to
safety, efficiency and economy of operation" to establish, maintain and operate airline services for
the transport for reward of passengers and goods by air, between States, with Territories and within
Territories, and to do all that is incidental thereto. Sub-s. (2) then says that it shall be the duty of the
Commission to exercise the powers conferred by sub-s. (1) as fully and as adequately as may be
necessary to satisfy the need for services specified in that sub-section and to carry out the purposes
of the Act.

The short effect of these provisions when read together appears to me to be, so far as material, to
require the Commission, on obtaining a licence, to supply an adequate service for the route licensed
and then, when and so long as that is done, to exclude any other inter-State air carrier from the same
stopping places by preventing his holding a licence effective for any of them. The principle upon
which they proceed evidently is that facilities for the carriage by air for reward of persons and
things should be assured, so far as may be, but that, so long as that is done, they should be an
exclusively governmental function.

It is not material to inquire why this principle was adopted. It may have been adopted as a matter of
policy. On the other hand, it may have been adopted because it was thought that it would involve
less inconsistency with the constitutional freedom of trade, commerce and intercourse among the
States by internal carriage than if the exclusion from inter-State air routes of all but government
airlines were absolute. Some ground for such a view might be found if two assumptions were
justified. The first is that trade, commerce and intercourse among the States is nothing but the
interchange of goods and the movement of people. The second is that s. 92 may be confined by
interpretation to a denial to the various governments only of legislative or executive authority to
obstruct the flow or reduce the volume in which the people move or the traffic in goods proceeds. If
these assumptions were made out, it is, perhaps, not difficult to see in them a basis for a contention
that a law establishing a monopoly of a form of transport might be compatible with s. 92, provided
that it contained sure stipulations for the furnishing of transport or of that form of transport,
adequate to the flow or volume. It is interesting to find in the opinion of Johnson J. in Gibbons v.
Ogden[95], already cited, an emphatic statement of the opposite view of the effect of a monopoly in
a form of transport. As is well known, that great case turned upon the monopoly which the State of
New York had granted to Fulton and Livingston at the end of the eighteenth century upon condition
that they constructed a steamboat that would navigate against the current of the Hudson. They
fulfilled the condition and, as a result, enjoyed for some years an exclusive franchise for navigating
New York waters by steam. The decision in Gibbons v. Ogden[96] was that it was inoperative
against Federal law. Johnson J. placed his judgment upon the quasi-exclusiveness of the commerce
power, a doctrine which though not part of the ratio decidendi of the Court was expounded by
Marshall C.J. in such a way as to establish it. Johnson J. treated the matter as evident and used some
of the very words of s. 92. He said: "The grant to Livingston and Fulton interferes with the freedom
of intercourse among the States; and on this principle its constitutionality is contested"[97]. His
Honour, in effect, took the view that the principle did form part of the constitutional law of the
United States and for that, among other reasons, the monopoly did not avail. It is, however, better
not to pursue the analogy presented in the United States, if for no other reason, because in America
it is always invasive action by a State that is in question. Here I think that we should apply s. 92 in
the light of the general guidance given by the two decisions of the Privy Council and of the
authority of the Transport Cases[98]. The Transport Cases formed the foundation of the argument in
support of Part IV. and to my mind our decision must in a great measure depend upon a proper
interpretation of those authorities. There is an extensive passage in the judgment of Rich J. in
Vizzard's Case[99], set out in the judgment of Evatt and McTiernan JJ. in Gilpin's Case[100], a
judgment in which Rich J. himself agreed. Having set it out, Evatt and McTiernan JJ. say that, in
their opinion, it truly describes the legislation under consideration in that case, and they proceed to
say: "Absolute freedom of trade, commerce and intercourse among the States does not mean that a
resident of one State possesses the right to transport goods or travel to a place in another State in
whatever vehicle or by whatever route or at whatever time or at whatever speed he may choose.
And a law which imposes a limitation upon his choice is not necessarily inconsistent with s. 92 of
the Constitution."

In the case of Duncan and Green Star Trading Co. Pty. Ltd. v. Vizzard[101], Evatt J. recurs to the
same idea in expressing the effect of the Transport Cases: "Those cases determine that the
imposition of non-discriminatory limitations of choice as to the means and routes of land transport
is not necessarily inconsistent with s. 92, and that the New South Wales State Transport (Co-
ordination) Act 1931 is valid."

It is, I think, unnecessary to transcribe once more the passage from the judgment of Rich J. But it
makes the following points: (1) The State legislation then in question was directed at (a) an ordered
system of transportation (b) without irrational competition tending to its mutual destruction. (2) The
operation of the legislation in no way depended upon the inter-State character of the traffic, but
applied uniformly to intra-State and inter-State traffic. (3) "A law of that character which did
differentiate between the two kinds of traffic might well be held directly to restrain inter-State
trade." (4) The legislation regulated and did not suppress transport and it regulated it with a view in
the long run to facilitate it by ensuring that a superabundance of transport at one time did not lead to
a deficiency at another. (5) It did not affect actual commercial dealings, the transfer of goods from
one place to another, and the actual movement of individuals. (6) It dealt with motor vehicles as a
means to trade, commerce and intercourse inter-State and intra-State, "but they are aids or
implements to effect the thing, they are not the thing itself."

The last two of these reasons or observations, which I take to be adopted by the majority of the
Court as explaining the decisions, have in the past appeared to me to mean that the use of motor
vehicles in the carriage of goods from one State to another is an incident of trade, commerce and
intercourse, but is not itself protected by s. 92. The actual decisions in and the full reasoning of the
Transport Cases are plainly shown to be inapplicable by the emphasis placed on the first four of the
foregoing points. They have no analogy in the statute now under consideration. But to my mind the
feature of the Transport Cases which is material is the sharp differentiation between commercial
dealings, or perhaps commercial and other intercourse, on the one hand, and, on the other hand,
motor vehicles as means or implements used for that purpose and no more.

We are here concerned with the trade or business of carrying men and goods over inter-State air
routes, a thing which I should have thought intrinsically as much inter-State commerce as the sale
and delivery of goods from one State to another and, therefore, necessarily within the protection of
s. 92. But does the contrast made in the passage to which I have referred in the judgment of Rich J.
amount to a decision that the trade or business of providing inter-State carriage of men and things
does not itself lie within the concept of trade, commerce and intercourse among the States; that it
forms no part of the denotation of commerce because it has not the attributes required by the
definition though, because it is conducive to commerce, it may in some respects be regulated under
the commerce power? After a full study of the Transport Cases I have come to the conclusion that
they do not decide this proposition. In the pragmatical solution which those cases gave to a problem
which they approach as a complex the essential features of the legislation were examined for the
purpose determining its practical operation upon inter-State commerce and intercourse regarded as a
sum of activities: to see whether it obstructed, restricted, retarded or impaired, not some operations
of commerce considered separately or in isolation, but the commerce between New South Wales and
Victoria considered as a whole. The legislation was, in effect, treated as part of an attempt to make
the internal transport of the State a planned structure, a framework within which the freedom
guaranteed by s. 92 subsisted and even by which that freedom was secured. The reasons given for
the solution necessarily comprised much that was really directed to denying that in the character and
operation of the legislation factors or features could be found to which s. 92 was inimical. It is, I
think, in the course of this demonstration that, among other things, any adverse effect upon the flow
of trade is excluded and the relation in fact which transport has to trade in goods is emphasized. It is
to be noticed that it is not the business of inter-State carrying but motor trucks themselves which
Rich J. describes as aids or implements to commerce and intercourse but not the thing itself. The
decision was, I think, based upon a combination of all the considerations mentioned in the passage,
negative and positive, particularly the fact that it was the undifferentiated road transport of the State
that was regulated on a non-discriminatory basis.

The Airlines Act, however, appears to me to raise quite a different question. It is whether the
elimination by governmental action, legislative and executive, of the business of inter-State
transportation as such in favour of a State undertaking is consistent with s. 92. If the test laid down
by Lord Wright in James v. The Commonwealth[102], freedom at the frontier, be applied, it is plain
that it is because the business involves crossing the frontier that it is eliminated. It is not like the
post office, something which undertakes an exclusive function independently of State boundaries.
Nor, may it be added, does it resemble the post office in being a traditional function of government,
dealt with as such in the Constitution, and nowhere forming a business. It is no answer to the
application of Lord Wright's test to say that, because the general exclusion in time and place of the
business of air transport in favour of a government undertaking could only be accomplished under
the commerce power, the freedom infringed must necessarily be related to State boundaries. If, on
the other hand, the answer is offered that the transmutation of the business into a government
undertaking means that the function is still freely carried on, it is met by the proposition, so often
enunciated by Isaacs J., that in s. 92 "free" means free from governmental restriction or obstruction,
whether legislative or executive, a proposition for which the judgment of Lord Atkin in James v.
Cowan[103] is authority. It comes back, in my opinion, to the position of the business of inter-State
transportation as part of commerce and intercourse. If it is part of the denotation of that expression
in s. 92, as I think it clearly must be, then I see no escape from the conclusion that Part IV. is
inconsistent with that constitutional restraint. If, on the other hand, carrying on inter-State
transportation were held to be outside the protection of s. 92, it would be hard indeed to bring it
directly under s. 51 (i.). In that case the legislative power could affect it only as an incident of the
subject matter of the power. There would then arise the difficulty to which I have already referred,
that to provide for the carriage of passengers not concerned in commerce might be considered
outside the power. My opinion, however, is that inter-State transportation falls directly under s. 51
(i), but is also within the protection of s. 92. For the reasons I have given, I think that s. 92
invalidates so much of Part IV. as is not concerned with the Territories.

Upon this view the question arises whether the consequence is to bring the whole Act down or, on
the contrary, the void provisions are to be severed from those which otherwise might be validly
enacted. The validity of the general provisions of the Act has not been attacked on other grounds
and is assumed.

The question of severability really falls into two. One of them arises within Part IV. itself. For it
deals alike with Territorial airlines and with inter-State airlines and the invalidity of the attempt to
make the inter-State airline service a monopoly may conceivably be regarded as leaving the
monopoly of the Territorial airlines unaffected.

The other and more important question is whether Part IV., as a whole, can be severed from the rest
of the Airlines Act. It is said on the part of the plaintiffs that it contains provisions indispensable to
the conception upon which the statute is based. To authorize the establishment of an airline service
to operate as a monopoly is one thing, to authorize one to compete in air transport is another.
Accordingly, it is said, the invalidity of Part IV. changes the character of the measure. Further, it is
pointed out that sub-s. (2) of s. 19, to which reference was made in the earlier part of this judgment,
is linked with Part IV. It imposes upon the Commission the duty of exercising its powers of
establishing, maintaining and operating airline services as fully and adequately as may be necessary
to satisfy the need for such services: compare the definition in s. 4 of . Reliance is placed upon this
provision as itself contemplating an exclusive service and as measuring the Commission's duty on
that assumption. These considerations are, no doubt, important and, prior to the enactment of s. 15A
of the Acts Interpretation Act 1901-1941, they might have proved decisive. But that provision has,
in effect, introduced a rule of construction whereby unless an intention affirmatively appears to the
contrary, the provisions of a statute are to be taken as independent of one another and not
interdependent. The application of the provision is seldom easy, but it is illustrated by a number of
decisions of this Court, a collection of which will be found in Fraser, Henleins Pty. Ltd. v.
Cody[104], and it is further elucidated by the industry expended in the United States upon the
exposition of similar clauses. But I think little help is to be gained from abstract discussions of the
effect of severability provisions. As a practical conclusion, it comes back to the manner in which the
intention of the legislature is to be ascertained, that is to say, the presumptions to be made. My view,
which I repeat, is that such severability clauses "establish a presumption in favour of the
independence, one from another, of the various provisions of an enactment, to which effect should
be given unless some positive indication of interdependence appears from the text, context, content
or subject matter of the provisions"[105].
Now the general considerations upon which the argument against severability is founded may be
conceded. But the difference, great as it is between the establishment of an exclusive and a non-
exclusive government airline service, does not control the answer to the question what did
Parliament intend. To say that Parliament intended that the service in the conditions prescribed by s.
46 and s. 47 should be exclusive is to throw little or no light on the question whether the intention
that they should be exclusive was paramount, so that the intention that there should be a government
service was completely dependent upon it. In many departments of the law we are faced with the
problem of deciding what is essential and what is not essential for the purpose of carrying out sub
modo an intention which is expressed on the assumption that it will be entirely effective: See
Attorney-General (N.S.W.) v. Perpetual Trustee Co. (Ltd.)[106]. The solution often depends on an
intuitive understanding of the underlying purpose of the plan of the framer of the instrument. But it
is precisely that uncertain and undesirable mode of solution that s. 15A supersedes.

In the present case the arrangement and text of the enactment appear to me to support, rather than
weaken, the presumption that the main provisions are, so to speak, to stand upon their own feet in a
question of ultra vires. No doubt if Division 2 of Part II, dealing as it does with the powers,
functions and duties of the Commission, were void the whole Act would collapse. But it by no
means follows that provisions separated in the arrangement of the Act and logically consequential in
operation upon Part II. are indispensable to Part II. itself. Part II. is entitled "Limitations in respect
of Airline Services" and is drafted as belonging to a distinct subject matter. It is a gratuitous
assumption that Parliament would not have a governmental airline unless it were a monopoly. The
basis for such an assumption is found rather in the business inferences favoured in active and
practical pursuits than in the considerations affecting the adjustment of policies to constitutional
exigencies. The draftsman of the Airlines Act, whatever may have been in the minds of the authors,
seems to have been at pains in the formal structure of the Act to give it the appearance of
separability. The argument from s. 19 (2) is, I think, fallacious. Doubtless it imposes a duty upon the
Commission to provide a service adequate to all the traffic. The performance of the duty would at
the same time operate to fulfil the conditions of s. 46 or s. 47. But no inference can be drawn that,
but for ss. 46 and 47, s. 19 (2) would not have been adopted. There is in my opinion no sufficient
ground for saying that Part IV. is inseverable.

There is greater difficulty in the minor question whether within Part IV. the provisions relating to
the Territories can be severed from those invalidated by s. 92. In s. 46 there is a formal separation;
in s. 47 there is an incomplete formal separation, and in s. 49 there is a formal combination of the
provisions relating to the inter-State and Territorial services. The inferences to be drawn from
arrangement and those from probabilities are not, perhaps, conclusive. But neither s. 46 (2) nor s. 47
(b) can affect inter-State transportation. By definition (s. 4) an inter-State airline service is excluded
from the application of the expression "Territorial airline service." And also by definition "inter-
State airline service" covers services which pass through two or more States into a Territory or by
way of a Territory from one State to another. For "Australia" is defined to include the Territories
and "inter-State airline service" is defined to mean "a service providing for the transport by air, for
reward, of passengers or goods and operating from one place in Australia to another place in
Australia and having scheduled stopping places in two or more States."

It follows that s. 46 (2) and s. 47 (b) are capable of full operation without touching traffic protected
by s. 92. I think, therefore, that they should be regarded as unaffected by the invalidity of s. 46 (1)
and s. 47 (a). I am, therefore, of opinion that Part IV. is to this extent internally severable. But, even
if it were wholly invalid, it would not, in my opinion, bring down the rest of the Act.
This conclusion makes it necessary to consider the validity of reg. 79 of the Air Navigation
Regulations consisting of Statutory Rules 1939 No. 2 and Statutory Rules 1940 No. 25. Regulation
79 forms Part VII., which is entitled "Public Transport Service." The other parts of the Regulations
are in the main concerned with the control of aviation and air navigation in the interests of safety,
organization, order and the like. But this Part deals with air transport services. As reg. 79 stood in
1937, it was as follows:--

             79.

                   (1)

             Aircraft shall not be used by any person in the operation of a regular public
             transport service except under the authority of, and in accordance with, a licence
             issued to that person by the Board.

                   (2)

             An applicant for any such licence shall furnish such information in relation to the
             proposed service as the Board requires.

                   (3)

             The Board shall, if satisfied as to the safety of the proposed service, issue a licence
             (in these Regulations referred to as "an airline licence") subject to such conditions
             in addition to compliance with these Regulations, as the Board considers necessary
             to ensure the safety of the aircraft and of the persons to be carried by the aircraft.

                   (4)

             Subject to Part XIII. of these Regulations, an airline licence shall remain in force
             for a period of one year from the date of issue, and may, from time to time, be
             renewed by the Board for a further period not exceeding one year.

The Board referred to was the Civil Aviation Board. In 1939 the Director-General of Civil Aviation
was substituted for it.

In the form in which reg. 79 stood at that stage, I should think it would have been upheld. The
matter was not argued and I do not express a concluded opinion about it. But, having regard to the
duty of the Board under sub-reg. (3), there appears to be no basis for an argument against the then
regulation under s. 92.

By Statutory Rules 1940 No. 25, however, a new sub-regulation was substituted for sub-reg. (3).
Statutory Rules 1940 No. 25 is as follows:--

       Regulation 79 of the Air Navigation Regulations is amended by omitting sub-regulation
       (3) and inserting in its stead the following sub-regulation:--

             (3)

             The Director-General may issue a licence (in these Regulations referred to as "an
             air-line licence") upon such conditions, in addition to compliance with these
             Regulations, as the Director-General considers necessary or he may refuse to issue
             the licence.

This, if valid, effected a change in the character of reg. 79. It became, so far as its natural meaning
goes, a prohibition subject to licence, with power to grant or refuse the licence and impose
conditions upon the licensee without any express restriction as to the grounds. Unless restrained by
interpretation or by the operation of s. 46 (b) of the Acts Interpretation Act 1901-1941, I should
think that a regulation of that nature would be bad as contrary to s. 92, in its operation on inter-State
transport. It is enough, I think, to refer to Gratwick v. Johnson[107]. But the question is whether it
ought to be read down in some way so as to be valid. It is suggested that with the help of s. 46 (b)
and upon a survey of the other purposes of the Regulations, the exercise of the discretion might be
confined by interpretation so as to avoid inconsistency with s. 92. An analogy was sought in the
course taken in Shrimpton v. The Commonwealth[108]. But there we were dealing with the ambit of
a constitutional power and with regulations affording some guidance as to purpose. The difficulty
here lies in the fact that Part VII. deals with a subject standing apart from the field covered or the
general purpose served by the rest of the Regulations and by the further fact that the object of the
amendment of 1940 appears to have been to enlarge the discretion; while we are invited to confine it
almost within its former limits.

In my opinion we cannot read into sub-reg. (3) a limitation in respect of the ground of refusal
drastic enough to save its validity. But it is, in my opinion, the validity of the amendment made by
Statutory Rules 1940 No. 25 that is involved. That was a distinct act of subordinate legislation and
its validity must be considered by what it affected to do. It affected to substitute a new sub-reg. (3)
which, if effective, would make the restraint in sub-reg. (1) conflict with s. 92. That seems to me to
mean that pro tanto the adoption of Statutory Rules 1940 No. 25 was invalid and reg. 79 stands in
its orginal form; that is as it was in 1939. There was no intention to repeal former sub-reg. (3)
independently of the adoption of the new sub-reg. (3). The invalidity of the new sub-regulation,
therefore, involves the consequence that the old sub-reg. (3) stands.

I am, therefore, of opinion that the purported amendment of sub-reg. (3) of reg. 79 by Statutory
Rules 1940 No. 25 is void and that it should be so declared.

I think that the three demurrers should be overruled and judgment pronounced in the respective suits
for the plaintiffs. In the suits of Australian National Airways Pty. Ltd. and of Guinea Airways Ltd.
there should be a declaration that in Part IV. of the Australian National Airlines Act 1945, sub-s. (1)
of s. 46, so much of s. 47 (including par. (a)), and so much of s. 49, as refer to an inter-State airline
service or services, are invalid and that the purported adoption by Statutory Rules 1940 No. 25 of
the amendment to sub-reg. (3) of reg. 79 of the Air Navigation Regulations 1937-1939 is void.

In the suit of MacRobertson-Miller Aviation Co. Ltd. the declaration of right should be limited to
the invalidity of Statutory Rules 1940 No. 25, because that plaintiff is not interested in inter-State
airlines, but in a Territorial airline.

Williams J.

These are demurrers by the defendants to three actions brought for the purpose of impeaching the
validity of Part VII. of the Air Navigation Regulations, and of the whole of the Australian National
Airlines Act 1945, or alternatively ss. 46, 47 and 49 of that Act and for consequential relief.
The defendants to each action are the same, namely the Commonwealth of Australia, the Treasurer
of the Commonwealth, the Minister of State for Air and Civil Aviation for the Commonwealth, and
the Director-General of Civil Aviation of the Commonwealth.

The plaintiff in the first action, Australian National Airways Pty. Ltd., is a company incorporated
under the laws of the State of Victoria which carries on regular public transport services by air for
reward of passengers and goods operating from one place in Australia to other places in Australia.
Some of the services have scheduled stopping places in two or more States and some are wholly
intra-State. Such services are carried on in accordance with and on routes specified in airline
licences purporting to have been issued to the plaintiff by the defendant the Director-General of
Civil Aviation under Part VII. of the Air Navigation Regulations.

The plaintiff in the second action, Guinea Airways Ltd., is a company duly incorporated under the
laws in force in the State of South Australia which carries on regular public transport services by air
for reward of passengers and goods operating from one place in Australia to other places in
Australia. One of such services has scheduled stopping places in one State and a Territory of the
Commonwealth, one has scheduled stopping places in two or more States and some are wholy intra-
State. Such services are carried on in accordance with and on routes specified in airline licences
purporting to have been issued to the plaintiff by the Director-General of Civil Aviation under Part
VII. of the Air Navigation Regulations.

The plaintiff in the third action, MacRobertson-Miller Aviation Co. Ltd., is a company duly
incorporated under the laws of the State of Western Australia which carries on a regular public
transport service providing for the transport by air for reward of passengers and goods operating
from Perth in the State of Western Australia to Katherine in the Northern Territory with numerous
scheduled intermediate stopping places both in the State of Western Australia and in the Northern
Territory. Such service is carried on in accordance with and on the routes specified in airline
licences purporting to have been issued to the plaintiff by the Director-General of Civil Aviation
under Part VII. of the Air Navigation Regulations.

Prior to 8th February 1940, reg. 79, contained in Part VII. of the Air Navigation Regulations, which
is headed Public Transport Service, provided that (1) aircraft should not be used by any person in
the operation of a regular public transport service except under the authority of, and in accordance
with, a licence issued to that person by the Board, and (3) the Board should, if satisfied as to the
safety of the proposed service, issue a licence (referred to as an airline licence) subject to such
conditions, in addition to compliance with the Regulations, as the Board considered necessary to
ensure the safety of the aircraft and of the persons to be carried by the aircraft. On 8th February
1940 this regulation was amended by omitting sub-reg. (3) and inserting in its stead the following
sub-reg. (3): The Director-General may issue a licence (in these Regulations referred to as an airline
licence) upon such conditions, in addition to compliance with these Regulations, as the Director-
General considers necessary or he may refuse to issue the licence.

The Air Navigation Regulations (including Part VII.) purport to have been made by the Governor-
General, that is by the Federal Executive Council, under the power to make regulations conferred
upon the Governor-General by the Air Navigation Act 1920 as amended by the Air Navigation Act
1936. This Act gives the Governor-General power, inter alia, to make regulations for the purpose of
providing for the control of air navigation (a) in relation to trade and commerce with other countries
and among the States, and (b) within any Territory of the Commonwealth. The plaintiffs each claim
declarations that Part VII. of these Regulations is not authorized by the Act, and is beyond the
powers of the Governor-General in Council and void, or alternatively a declaration that if this part,
upon its true construction, confers upon the defendant, the Director-General of Civil Aviation, an
absolute and uncontrolled discretion to refuse to issue, to refuse to renew, or to refuse to cancel, any
airline licence or licences, it is unauthorized, ultra vires, and void.

Part VII. applies to inter-State trade and commerce and to the Territories by virtue of reg. 6 of the
Air Navigation Regulations which provides that they shall apply, inter alia, to air navigation in
relation to trade and commerce with other countries and among the States, and to air navigation
within the Territories, and to aircraft engaged in such navigation, and aerodromes open to public use
by such aircraft.

The effect of the Act is to delegate to the Governor-General for the purpose stated the powers of
legislation conferred upon the Parliament with respect to trade and commerce with other countries
and among the States by s. 51 (i.) and with respect to Territories by s. 122, of the Constitution. This
delegated power to legislate under s. 51 (i.) would, of course, be as much subject to the prohibition
contained in s. 92 as an Act of the Parliament itself. To cover the case of flying intra-State, the Air
Navigation Regulations are brought into force in each State by Acts of the Parliaments of each
State, passed in or about the year 1937, providing that the Air Navigation Regulations in force from
time to time under the Commonwealth Air Navigation Act 1920-1936 or any Act amending that Act
shall be in force in the State.

The Australian National Airlines Act 1945 is intituled an Act to provide for the Establishment and
Operation of National Airline Services by the Commonwealth and for other purposes. The plaintiffs
in each action claim a declaration that the Act is beyond the powers of the Parliament of the
Commonwealth, contrary to the provisions of the Constitution of the Commonwealth and void, or
alternatively a declaration that ss. 46, 47 and 49 of the Act are beyond the powers of the Parliament,
contrary to the Constitution and void. The Act contains a preamble that, in order to ensure, among
other things, that (a) trade and commerce with other countries and among the States are fostered and
encouraged to the greatest possible extent; (b) the maintenance and development of the Defence
Force of the Commonwealth in relation to the defence of Australia by air and the establishment of
plant and equipment necessary for that Force are assured; (c) the development of the Territories is
promoted with the utmost expedition; and (d) the carriage of mail by air within Australia is
promoted to meet the needs of the people of Australia, it is expedient to provide for the matters
hereinafter set out. But no attempt has been made by the defendants to support the validity of the
Act except as an exercise of the powers conferred upon the Parliament of the Commonwealth by ss.
51 (i.) and 122 of the Constitution.

The Act consists of seven parts. In Part I., headed "Preliminary" it is only necessary to refer to the
definitions in s. 4 of , and . These definitions are as follows:--

       "adequate airline service" means--

             (a)

             an inter-state airline service which is adequate to meet the needs of the public for
             inter-state transport by air between scheduled stopping places of the service; or

             (b)

             a Territorial airline service which is adequate to meet the needs of the public for
             transport by air between scheduled stopping places of the service of which at least
             one is within a Territory of the Commonwealth.

       "inter-State airline service" means a service providing for the transport by air, for
       reward, of passengers or goods and operating from one place in Australia to another
       place in Australia and having scheduled stopping places in two or more States.

       "Territorial airline service" means a service (not being an inter-state airline service)
       providing for the transport by air, for reward, of passengers or goods and having a
       scheduled stopping place in a Territory of the Commonwealth.

Part II. is headed "The National Airline Services" and consists of four Divisions, of which it is only
necessary to refer to Div. 1, headed "Establishment and Constitution of the Australian National
Airlines Commission"; Div. 2, headed "Powers Functions and Duties of the Commission", and Div.
3, headed "Finances of the Commission." Division 1 incorporates an authority of the
Commonwealth, to be known as the Australian Airlines Commission, which shall have and may
exercise the rights, powers, authorities and functions conferred, and shall be charged with and
perform the duties and obligations imposed, upon it by the Act.

Division 2 contains s. 19, which, so far as is material, provides:--sub-s. (1), that for the purposes of
this Act and subject to the provisions of this Act and subject to the Air Navigation Regulations and
with full regard to safety, efficiency, and economy of operation the Commission may do all that is
necessary or convenient to be done for, or as incidental to, in relation to, or in connection with, the
establishment, maintenance or operation by the Commission of airline services for the transport, for
reward, of passengers and goods by air (a) between any place in a State and any place in another
State; (b) between any place in any Territory of the Commonwealth and any place in Australia
outside that Territory; and (c) between any place in any Territory of the Commonwealth and any
other place in that Territory; sub-s. (2), that it shall be the duty of the Commission to exercise the
powers conferred by the last preceding sub-section as fully and adequately as may be necessary to
satisfy the need for the services specified in that sub-section and to carry out the purposes of this
Act.

Division 3 is headed "Finances of the Commission", and provides for an advance by the Treasurer
out of the Consolidated Fund of such amount not exceeding in all the sum of £3,000,000 and such
further amounts as are from time to time appropriated by the Parliament for the purpose, as are, in
the opinion of the Minister, required by the Commission; and that the moneys of the Commission
shall be applied in discharging the obligations of the Commission as therein mentioned, and the
profits derived from the operations of the Commission shall be applied as therein mentioned.

Part III. is headed "Compulsory Acquisition of Aircraft and Other Property", and contains s. 42,
which provides that the Commission may for the purposes of this Act, by notice served on the
owner or published in the Gazette, acquire any aircraft or other property (not being land) required
for the purposes of the Commission.

Part IV. is headed "Limitations in respect of Airline Services", and contains ss. 46 to 49. Section 46
(1) provides that where an airline licence is issued to the Commission in respect of an inter-State
airline service and the Commission has established that service, any airline licence held by any
person, other than the Commission or a contractor, in respect of any inter-State airline service which
provides inter-State transport by air between any of the scheduled stopping places of the service
established by the Commission shall, by virtue of this section, ... and in so far as it authorizes inter-
State transport by air between any of those stopping places of passengers or goods embarked or
loaded for transport solely between those stopping places, be inoperative so long as there is an
adequate airline service between those stopping places by reason only of the services operated by
the Commission and the services operated by the contractors. Section 46 (2) contains similar
provisions where an airline licence is issued to the Commission in respect of a Territorial airline
service and the Commission has established that service. Section 47 provides that the licensing
authority shall not issue to any person, other than the Commission or a contractor to whom the
Commission has requested the licensing authority to issue a licence (a) in respect of an inter-State
airline service an airline licence which would authorize inter-State transport by air between any
scheduled stopping places of any airline service operated by the Commission or any contractor; or
(b) in respect of a Territorial airline service, an airline licence which would authorize transport by
air between any scheduled stopping places not being places in a State of any airline operated by the
Commission or any contractor, unless, and except to the extent to which the licensing authority is
satisfied that, having regard to the airline services operated by the Commission and contractors, the
issue of the licence is necessary to meet the needs of the public with respect to inter-State airline
services or Territorial airline services. Section 49 provides that:--A person shall not enter into a
contract--(a) to transport by air for reward any person or goods; (b) to be transported by air for
reward; or (c) to have any other person or goods transported by air for reward, in the course of the
operation of any prescribed inter-State airline service or Territorial airline service operated by any
person, other than a person holding an airline licence in respect of that service, not being a licence
which is inoperative by virtue of s. 46 of this Act.

The plaintiffs in the first and second actions, in respect of their inter-State airline services, contend
that reg. 79 of the Air Navigation Regulations and ss. 46, 47 and 49 of the National Airlines Act are
void because they contravene s. 92 of the Constitution. They also contend that the invalidity of these
sections avoids the whole Act because they cannot be severed from the rest of the Act under s. 15A
of the Acts Interpretation Act 1901-1941.

They also contend that the Act is not a valid exercise of the powers conferred upon the Parliament
by s. 51 (i.) of the Constitution on the ground that this placitum does not authorize legislation
setting up an authority of the Commonwealth to engage in trade and commerce among the States
and with other countries, but only authorizes the Parliament to regulate such trade.

The plaintiff in the second action in respect of its service between a State and a Territory, and the
plaintiff in the third action in respect of its service between a State and a Territory, are in a different
position to the plaintiff in the first action, because s. 92 only applies to trade and commerce and
intercourse among the States. The plaintiffs in respect of these services can, therefore, only benefit
from the attack upon the validity of ss. 46, 47 and 49 of the Act on the ground that they contravene
s. 92 of the Constitution if that attack succeeds, and the effect of that success is to destroy the
validity of the whole Act.

Assuming, therefore, the rest of the Act, and particularly s. 19 (1) (b), survives, these plaintiffs also
contend that the power of the Parliament to make laws for the Territories under s. 122 does not give
it power to make extra-territorial laws, and that it can only legislate under this section in respect of
intra-Territorial airline services.

I agree with the submission that the Statute of Westminster, adopted by the Statute of Westminster
Adoption Act 1942, does not operate to give legislation passed under s. 122 any extra-territorial
operation against a State that it would not have had prior to the adoption. But the Parliament can
make laws under s. 122 with respect to any airline services that have a stopping place in the
Territory which provide that no person shall operate such a service in the Territory except a person
licensed to do so by the Commonwealth, or provide that the Commonwealth shall have a monopoly
of such services.

Section 19 (1) (b) refers to an airline service between any place in any Territory of the
Commonwealth and any place in Australia outside that Territory. Since Australia is defined by s. 4
of the Act to include the Territories of the Commonwealth, such a service could exist between a
Territory and another Territory, or between a Territory and a State, or between one or more
Territories and one or more States. But if the service had scheduled stopping places in more than
one State it would be an inter-State airline service and not a Territorial airline service. The operation
of s. 19 (1) (b) is, therefore, confined to airline services operating in two or more Territories, or in
one or more Territories and in one State. The Parliament of the Commonwealth would have power
to provide what services should operate in one or more Territories. But in the case of a service
between one or more Territories and a State, I am unable to find any power in the Constitution
which would enable the Parliament to legislate so as to bind the State. The words "other countries"
in s. 51 (i.) do not, in my opinion, include Territories. Section 51 (xxxix.) empowers the Parliament
to make laws for the peace, order and good government of the Commonwealth with respect to
matters incidental to the execution of any powers vested by the Constitution in the Parliament.
Assuming that this placitum applies to legislation under s. 122, it would not, I think, be incidental to
laws for the government of a Territory to make a law affecting the sovereignty of a State. If the
Parliament has power under this placitum to make a law binding a State in respect to
communications between a Territory and a State the strange result follows that it possesses as a
legislative power incidental to s. 122 a power analogous to s. 51 (i.), but without the limitation
imposed by s. 92. I can find nothing in Buchanan v. The Commonwealth[109], R. v.
Bernasconi[110], Mainka v. Custodian of Expropriated Property[111], Porter v. The King; Ex parte
Chin Man Yee[112], or Ffrost v. Stevenson[113] to support the existence of such a power, and there
is a great deal in the reasoning of these cases to the contrary. The Commonwealth is not helpless in
the matter. It can, if it wishes, admit the Territories to the Commonwealth as States under s. 121 of
the Constitution, and the new and previous States would then all be subject to Commonwealth
legislation under s. 51 (i.) and entitled to the protection of s. 92. If, therefore, a State would not
agree to co-operate with the Commission the result would be that there would be no services
between that State and the Territory, but this would not affect the validity of s. 19 (1) (b), if
severable, as a valid exercise of the powers conferred upon the Parliament by s. 122.

The plaintiff in the second action also alleges that prior to 1942 it carried on a regular public
transport service wholly within the Territories of the Commonwealth of Papua and New Guinea,
that such services were suspended owing to the war with the Japanese, and it is desirous of re-
opening such services. But the Parliament would plainly be entitled to enact s. 19 (1) (c) as an
independent enactment, so that this sub-section would only be invalid if the whole Act is invalid.

The plaintiffs who operate inter-State services do not contend that the carriage of passengers and
goods by air for reward is not part of trade and commerce within the meaning of s. 51 (i.), or that
Parliament cannot regulate this carriage so as to provide for the safety of navigation by air among
the States. They do not therefore object to reg. 79 in the form in which it appeared prior to 8th
February 1940, but they do object to the new sub-reg. (3) added to reg. 79 on that date on the
ground that it contravenes s. 92 of the Constitution. The new sub-regulation gives the Director-
General express authority to impose such conditions, in addition to compliance with the
Regulations, as he considers necessary upon the issue of a licence, and to refuse to issue a licence,
so that he now has an absolute discretion to grant or refuse a licence, and therefore, a discretion to
prohibit, or to prohibit except on certain conditions, a person from operating a regular public inter-
State transport service.

The most important sections in the Act are ss. 19, 46 and 47. Section 19 (2), in my opinion, imposes
upon the Commission the duty of providing airline services which are completely capable of
carrying all the passengers and goods requiring carriage by air for reward between any place in a
State and any place in another State; between any place in any Territory of the Commonwealth and
any place in Australia outside that Territory; and between any place in any Territory of the
Commonwealth and any other place in that Territory. In other words the Act is intended to create a
complete Government monopoly in the transport of passengers and goods by air for reward
throughout Australia and its Territories except in respect of intra-State services. An argument was
submitted on behalf of the defendants that the words in s. 19 (2) "as may be necessary to satisfy the
needs for the services" specified in s. 19 (1) mean adequate to satisfy any insufficiency in these
services that may exist and which is not met by the existing services, or in other words that the duty
of the Commission is to supplement existing services so far as it may be necessary to do so in order
to give fully adequate services. But the definition of in s. 4 indicates that adequate service in the Act
means a service adequate in itself to satisfy the public needs, and in s. 19 (2) this meaning is
reinforced and placed beyond the possibility of doubt by the addition to "adequately" of the word
"fully." Sections 46 and 47 prescribe the manner in which this duty is to be fulfilled. Sub-section (1)
of s. 46 refers to inter-State airline services, while sub-s. (2) refers to Territorial airline services. The
sub-sections provide that when a licence has been issued to the Commission and the Commission
has provided an adequate service, licences issued to other persons to operate competing airlines will
be inoperative so long as the Commission provides an adequate service. Section 47 prohibits the
licensing authority from issuing a licence to any person other than the Commission or its contractors
unless and except to the extent to which the licensing authority is satisfied the airline services
provided by the Commission are inadequate to meet the needs of the public with respect to inter-
State airline services and Territorial airline services. So far, therefore, from the duty of the
Commission being to satisfy the needs not satisfied by the existing services, it is the duty of the
Commission fully to satisfy the public needs, and for that purpose to provide services which
supersede all existing services, and it is only to the extent to which the Commission fails to fulfil
this duty that the licensing authority is authorized to issue a licence to some person other than the
Commission or one of its contractors. The purpose of the Act is, therefore, absolutely to prohibit
persons other than the Commission or its contractors engaging in the business of transporting
passengers and goods by air for reward between the places mentioned in s. 19, so long as the
Commission gives an adequate service, and to permit such persons to engage in such business only
to the extent to which the licensing authority is satisfied that the services provided by the
Commission are insufficient to meet the needs of the public.

Section 92 of the Constitution provides that on the imposition of uniform duties of customs, trade,
commerce, and intercourse among the States, whether by means of internal carriage or ocean
navigation, shall be absolutely free. The meaning of the section, which is binding upon the
legislatures of both the Commonwealth and the States, has been discussed in many cases. Section 51
(i.) of the Constitution provides that the Parliament of the Commonwealth shall, subject to this
Constitution, have power to make laws for the peace, order, and good government of the
Commonwealth, with respect to trade and commerce with other countries, and among the States.
The Parliaments of the States also have a concurrent power, preserved to them by s. 107 of the
Constitution, subject to territorial limitations, to make laws with respect to trade and commerce with
other States and countries. If a law of a State is inconsistent with a law of the Commonwealth, s.
109 provides that the latter shall prevail, and the former shall, to the extent of the inconsistency, be
invalid.

The Constitution must be construed as a whole, and so as to reconcile, as far as possible, the
existence of these legislative powers with the prohibition upon their exercise imposed by s. 92. In
performing this task the Court must be guided by the views expressed by Lord Wright upon the
meaning, scope, and operation of the section when delivering the judgment of the Privy Council in
James v. The Commonwealth[114]. In the judgment his Lordship discussed a number of the previous
decisions of this Court. He pointed out that, in the cases preceding McArthur's Case[115], this Court
was concerned with the question of freedom in passing the State borders. These cases all proceeded
on the basis that s. 92 bound the Commonwealth as well as the States. In McArthur's Case[116] it
was held that the section did not bind the Commonwealth and this opinion prevailed until it was
overruled by the Privy Council in James v. The Commonwealth[117]. It is evident that Lord Wright
considered that McArthur's Case[118] was wrongly decided, not only in holding that s. 92 did not
bind the Commonwealth, but also in holding that the Queensland Act, there in question, infringed
the section. He said: "There was no prevention or hindrance under the Act in respect of the passage
of goods from State to State; the law applied equally to all goods sold in the State whether or not
they came across the border ... in truth the decision deprived Queensland of its sovereign right to
regulate its internal prices"[119]. It is also evident that his Lordship considered that Vizzard's
Case[120] was correctly decided, that he accepted the general approach to s. 92 and reasoning of
Evatt J. in that case, and that he gave his express approval to the particular passage in the judgment
of Evatt J. cited[121]. Lord Wright concluded by saying that "the true criterion seems to be that
what is meant is freedom as at the frontier or, to use the words of s. 112, in respect of goods passing
into or out of the State," that "in every case it must be a question of fact whether there is an
interference with this freedom of passage," and that "as a matter of actual language, freedom in s. 92
must be somehow limited, and the only limitation which emerges from the contest and which can
logically and realistically be applied, is freedom at what is the crucial point in inter-State trade, that
is at the State barrier"[122].

It is to be noted that Lord Wright only referred to the restriction on the passage of goods from State
to State, and that he did not mention restrictions on the means by which these goods were being
conveyed when they passed from State to State. But the Dried Fruits Act 1928-1935 which was held
by the Privy Council to contravene s. 92 was an Act which provided, inter alia, that, except as
provided by the Regulations, the owner or person having possession or custody of dried fruits
should not carry any dried fruits from a place in one State into or through another State to a place in
Australia beyond the State in which the carriage began, unless he was the holder of a licence
authorizing him to carry such dried fruits, and the carriage was in accordance with the terms and
conditions of the licence.

In the United States the business of carrying passengers and goods for reward from one State to
another has been held on many occasions to be of the essence of inter-State commerce (Chicago and
Northwestern Railway Co. v. Fuller[123]; Philadelphia Mail Steamship Co. v. Pennsylvania[124];
Hoke v. United States[125]; Dahnke-Walker Milling Co. v. Bondurant[126]; Caskey Baking Co. v.
Virginia[127]; Edwards v. California[128]; Northwest Airlines v. Minnesota[129]). I shall cite a few
short passages from these cases. In Chicago and Northwestern Railway Co. v. Fuller[130] it is said:
"Commerce is traffic, but it is much more. It embraces also transportation by land and water, and all
the means and appliances necessarily employed in carrying it on." In Philadelphia Mail Steamship
Co. v. Pennsylvania[131] it is said: "This transportation was an act of inter-State and foreign
commerce. It was the carrying on of such commerce. It was that, and nothing else." In Hoke v.
United States[132] it is said: "Commerce among the States, we have said, consists of intercourse
and traffic between their citizens, and includes the transportation of persons and property. There
may be, therefore, a movement of persons as well as of property; that is, a person may move or be
moved in inter-State commerce." In James v. Cowan[133] Isaacs J., in a judgment which Lord Atkin
referred to in the Privy Council on appeal as "a convincing judgment"[134], pointed out that the
right of inter-State trade and commerce protected by s. 92 is a personal right attaching to the
individual, and that is a right of passing from one State to another, of transporting goods from one
State to another, and dealing with them in another State. There can be no doubt, in my opinion, that
to engage in the business of transporting passengers and goods by air for reward from one State to
another is to engage in inter-State commerce. If it is not, then the provisions of the Air Navigation
Regulations and of the National Airlines Act relating to air navigation among the States must fall to
the ground, because they derive their entire validity from s. 51 (i.) of the Constitution. In order,
therefore, that reg. 79 (3) and the National Airlines Act in their relation to commerce among the
States should be valid, they must be, in the former case a delegated exercise, and in the latter case an
exercise, of s. 51 (i.) which does not contravene s. 92. As ss. 51 (i.) and 92 appear in the same
Constitution, there must be a field of legislation open to the Parliament of the Commonwealth under
s. 51 (i.), just as there must be a field of legislation preserved to the Parliaments of the States by s.
107, which does not coincide with the area fenced off by s. 92.

It was contended on behalf of the defendants that the reasoning of the majority of this Court in
Vizzard's Case[135] (and the analogous cases of O. Gilpin Ltd. v. Commissioner for Road Transport
and Tramways (N.S.W.)[136]; Duncan & Green Star Trading Co. Pty. Ltd. v. Vizzard[137]; Riverina
Transport Pty. Ltd. v. Victoria[138]) should be followed, and that, if this is done, reg. 79 (3) and the
Act, in their relation to inter-State commerce, must be held to be valid. But Lord Wright has said
that the question whether an Act contravenes s. 92 is in every case one of fact, and these decisions
must, therefore, in my opinion, all be regarded as decisions upon their particular facts. The question
in each case is, does the legislation in fact interfere with the freedom of passage from one State to
another. In answering this question, the considerations adverted to as material in the judgments in
Vizzard's Case[139] and the analogous cases must be given careful attention, but they all appear to
be based fundamentally on the right of a State to make laws of a general non-discriminatory
character for regulating the care and upkeep and preserving the financial stability of public utilities,
particularly railways and roads, established and maintained at the expense of the State. So in the
United States, where the power to regulate commerce among the States has been held to be an
exclusive power, it has also been held that the laws of a State may validly provide for such matters
as the licensing of drivers, the registration of motor vehicles, and the exaction of a licence fee as a
contribution to the upkeep of the roads; and for a licensing system which limits the number or the
weight and size of vehicles using the roads in the interests of the public safety (Bradley v. Public
Utilities Commission[140])--and see the cases in the Supreme Court of the United States cited in
the Constitution of the United States (annotated by the Senate to 1st January 1938, pp. 187-189) and
in the judgment of McTiernan J. in Vizzard's Case[141]. In Vizzard's Case[142] and the analogous
cases this Court has perhaps gone further in upholding State legislation of this nature than the
Supreme Court of the United States. But this would appear to be because the railways in Australia
are all owned by the States, so that, in establishing and maintaining roads, the States are creating
means of competition with their own instrumentalities.

It is a matter of public notoriety that a few years after the end of the last war there was a tremendous
increase in the amount of motor traffic in Australia and that about this time great improvements
were made to the main roads of many of the States. Thus in New South Wales the Main Roads
Board was constituted by the Main Roads Act 1924, and in 1926 the Federal Aids Roads Act was
the first of a number of Commonwealth Acts which authorized the expenditure, under agreements
between the Commonwealth and the States, of Commonwealth revenue upon the establishment and
maintenance of the main roads of the States. This increase in motor traffic caused competition
between carriage by road and rail, and this led to the passing in New South Wales of the Transport
Co-ordination Act, which was held to be valid in Vizzard's Case[143], restricting the carriage of
passengers and goods in New South Wales by road to vehicles licensed under the Act. In Vizzard's
Case[144] Evatt J. said that "the Act proceeds upon the broad principle that the interests of the State
call for the regulation of the whole service of land transport wherever it is conducted upon the roads
of the State of New South Wales." There is no obligation imposed upon the States to facilitate trade
and commerce by building roads, so that, if they choose to do so and thereby provide means for
competition with their own railways, it is simply an exercise of their own sovereign rights to co-
ordinate traffic by rail or road, and to confine the use of the roads to particular persons and vehicles.
If the choice of these persons and vehicles has no relation to their passage across the border, but the
legislation operates without discrimination with respect to all persons and vehicles desirous of using
the roads, such legislation is not aimed or directed at inter-State commerce but at regulating,
maintaining, and co-ordinating a number of utilities for trade, commerce, and intercourse, State and
inter-State, provided by the State. So a State could, I should think, build a number of aerodromes,
and provide that only aeroplanes which fulfilled certain conditions could use such aerodromes, or it
could confine their use to aeroplanes owned by itself. Provided the conditions of use were non-
discriminatory and were unrelated to flying across the border, the legislation would not infringe s.
92. It would be legislation regulating the use of a further facility for all trade and commerce
provided by the State. And it would seem to follow that if the Commonwealth built aerodromes it
could also pass non-discriminatory legislation regulating the use of such aerodromes, or confining
their use to its own purposes: Cf. reg. 110A of the Air Navigation Regulations. But it would be a
different matter if a carrier or carriers of persons or goods by land were able to persuade the owners
of private land on each side of the border to build a road on which to carry on their business, and
one of the border States passed a law preventing such carriers crossing the border by such a road.
Such a law would not be made to regulate, preserve and co-ordinate facilities provided by the State,
but would be aimed at inter-State commerce and would contravene s. 92. In the same way
legislation by a State or the Commonwealth simply to prevent aeroplanes flying from one State to
another, and from using suitable aerodromes built in the States by private enterprise, would be an
infringement of this section. Such legislation would be an interference with the freedom of passage
of persons and goods from one State to another. And it would not matter, in my opinion, that the
Commonwealth was providing a service which was fully adequate to transport all business offering
in persons and goods from one State to another.

References in Vizzard's Case[145] and the analogous cases, to Acts, such as the New South Wales
Transport Co-ordination Act, providing a more orderly system of land transport, and to their having
the effect of facilitating and increasing the passage of persons and the flow of commodities to and
from the States concerned, must be read in the light of the particular facts of those cases, and
particularly in the light of the fundamental fact that the flow was facilitated and increased along
routes provided by the State itself. But in the case of air routes the only facilities which the
Commonwealth can provide are aerodromes and aids to navigation. Vizzard's Case[146] and the
analogous cases are, as I have said, authorities that the Commonwealth can exercise very wide
powers of control over the use of such facilities provided by itself. But private enterprises can also
provide suitable aerodromes and aids to navigation. These cases fall far short of establishing that it
is not a contravention of s. 92 for the Commonwealth to attempt to monopolize the business of
transporting persons and goods by air, although adequate facilities can be provided for this purpose
by private enterprise, and persons engaged in the business do not need to use aerodromes and aids to
navigation provided by the Commonwealth. Isaacs J., in the judgment already cited, said the
freedom guaranteed by s. 92 is a personal right attaching to the individual. To say to an individual
that he may not engage in the business of inter-State air carriage is a direct negation of that right. No
doubt that right can be regulated so far as may be necessary to make air navigation safe. But reg. 79
(3) and ss. 46 (1) and 47 (a) of the Act go far beyond anything that is required to regulate safety in
the air, or to give the Commonwealth reasonable control over those facilities which it can itself
provide to increase the flow of inter-State traffic by air. The only limit that can be imposed upon the
discretion conferred upon the Director-General of Civil Aviation by reg. 79 (3) to refuse a licence is
that the discretion must be exercised bona fide in furtherance of the purpose for which it was given
(Weinberger v. Inglis[147]; Liversidge v. Sir John Anderson[148]; Point of Ayr Collieries Ltd. v.
Lloyd-George[149]; Yoxford and Darsham Farmers' Association Ltd. v. Llewellin[150]; Swan Hill
Corporation v. Bradbury[151]). It is impossible to limit his discretion to matters related to safety in
navigation by air, because the amending regulation expressly extends his discretion beyond these
matters and provides that he may refuse to issue a licence. No guide can, therefore, be found in the
purpose and scope of the regulations which would enable reg. 79 (3) to be read down by
construction in accordance with s. 46 (b) of the Acts Interpretation Act 1901-1941 so as to confine
the discretion to refuse a licence to matters which would not contravene the right of the individual
to engage in the particular phase of inter-State commerce in question. It could be argued, however,
that reg. 6 would save the sub-regulation in its application to air navigation within the Territories,
and that it has an independent validity under the State Acts in relation to intra-State air navigation.
But its operation under the State Acts could affect inter-State commerce, and it is probable that it is
as invalid under these Acts as it is invalid as part of the law of the Commonwealth. In Pidoto's
Case[152] I expressed my opinion upon the manner in which ss. 15A and 46 (b) of the Acts
Interpretation Act operate. It appears to me that reg. 79 (3) was intended to have a complete and
inseverable operation under the laws of the Commonwealth, of the Territories, and of the States at
the same time, and that to construe it as valid in relation to the Territories, or even to the Territories
and States, would cause it to have a partial operation in these respects which would be altogether
different to that which it would have had if it had been completely operative. Sub-regulation 79 (3)
is, in my opinion, as great a contravention of s. 92 as the legislation held to be invalid in Gratwick v.
Johnson[153], and is inseverable and therefore wholly void.

Sections 46 (1) and 47 (a) of the Act are more obnoxious to s. 92 than reg. 79 (3). Section 46 (1)
renders inoperative existing licences for inter-State airlines and s. 47 (a) positively prevents the
Director-General issuing such licences except under the conditions therein specified, so that these
sub-sections operate to give a complete monopoly of the business of inter-State air transport in
Australia to the Commonwealth, and to prohibit any person other than the Commission or its
contractors engaging in this phase of trade and commerce among the States.

But I am of opinion that the contention that s. 51 (i.) of the Constitution does not authorize the
Commonwealth to incorporate an authority to engage in trade and commerce on its behalf must fail.
The power of legislation conferred by the placitum is plenary in its fullest sense, and must be given
a wide and liberal interpretation. It is not, like the commerce power in the Constitution of the United
States, a power to regulate trade and commerce. It is a power to make laws with respect to trade and
commerce. Even under the more limited power, the Supreme Court of the United States has held
that Congress can incorporate authorities to carry on businesses ancillary to facilities which it has
provided to promote the flow of commerce, such as the business of generating and selling electricity
as ancillary to the construction of reservoirs to control the flow of navigable rivers (Oklahoma Ex
Rel. Phillips v. Guy F. Atkinson Co.[154]). A law incorporating an authority to carry on trade and
commerce on behalf of the Commonwealth is, I think, a law with respect to trade and commerce.
Under s. 122 the Commonwealth can incorporate an authority to engage in trade and commerce on
its behalf in the Territories. The position is, therefore, that, except so far as prohibited by s. 92, the
Parliament of the Commonwealth can under s. 51 (i.) set up an authority to engage in the business
of carrying persons and goods by air for reward amongst the States, and can under s. 122 do so in
respect of such carriage in, into, and out of the Territories. Section 92 does not prevent the
Commonwealth creating a monopoly in such a business except in the case of trade and commerce
and inter-course among the States. Sections 46 (1) and 47 (a) of the Act, like reg. 79 (3), contravene
s. 92. But s. 46 (2) is carefully limited to rendering inoperative existing Territorial airlines licences
in respect of scheduled stopping places other than stopping places in a State, and s. 47 (b) is
carefully limited to prohibiting the licensing authority issuing a licence in respect of a Territorial
airline service which would authorize the transport by air between any scheduled stopping places,
not being stopping places in a State. I can see no reason, therefore, why these sub-sections, to which
s. 92 does not apply, should not be valid.

The result is that, of the legislation attacked, the only provisions which are in my opinion invalid in
themselves are reg. 79 (3) and ss. 46 (1), 47 (a) and s. 49 in relation to inter-State airline services.

The final question is whether the invalidity of these provisions of the Act invalidates the whole Act.
The provisions which are intended to create the monopoly are contained in Part IV. of the Act. If
they are all struck out, the rest of the Act is still capable of effective operation. The most difficult
provision in the rest of the Act is s. 19 (2). This section, as I have said, places upon the Commission
the duty to provide services fully adequate to carry the whole of the transportation by air of
passengers and goods for reward between the places mentioned in s. 19 (1) (a), (b) and (c). But
there is no legal impediment to the Commonwealth imposing such a duty upon its authority, even if
there are practical difficulties in performing the duties, arising in the case of s. 19 (1) (a) from
having to perform the duty in the face of competition, and in the case of s. 19 (1) (b) from having to
obtain the concurrence of the States concerned.

The power of expropriation conferred by Part III. of the Act would have to be construed, in
accordance with s. 15A of the Acts Interpretation Act, as subject to s. 92. But the Act as a whole
appears to have been carefully arranged, both in language and general structure, so as to contain in
its various Parts, Divisions and sections, provisions which are on their own face independent and
severable from each other. Even if the whole of Part IV. is struck out, the rest of the Act still
consists of Parts, Divisions and sections which would continue to have the same legal operation as
they would have had if the whole of the Act had been valid. Even in s. 19 itself, the powers and
duties of the Commission are carefully separated, so that if s. 19 (2) cannot operate independently of
Part IV. of the Act, there is no reason that I can see why s. 19 (1) should not have an independent
validity. The invalidity of ss. 46 (1), 47 (a) and part of s. 49 does not, therefore, invalidate the rest
of the Act.

For these reasons I am of the opinion that the demurrers should be overruled; that the plaintiffs in all
three actions are entitled to declarations that reg. 79 (3) of the Air Navigation Regulations is invalid;
and that the plaintiffs in the first and second actions are also entitled to declarations that ss. 46 (1)
and 47 (a), and s. 49 in relation to inter-State airline services, of the Australian National Airlines
Act, are void.

Australian National Airways Pty. Ltd. v. The Commonwealth and others.--Demurrer overruled.
Judgment for plaintiff with costs for a declaration that in Part IV. of the Australian National Airlines
Act 1945 sub-s. (1) of s. 46, so much of s. 47 (including par. (a)) and so much of s. 49 as refer to
inter-State airline services are invalid, and that Statutory Rules 1940 No. 25 is invalid.
Guinea Airways Ltd. v. The Commonwealth and others.--Demurrer overruled. Judgment for
plaintiff with costs for a declaration that in Part IV. of the Australian National Airlines Act 1945
sub-s. (1) of s. 46, so much of s. 47 (including par. (a)) and so much of s. 49 as refer to inter-State
airline services are invalid, and that Statutory Rules 1940 No. 25 is invalid.
MacRobertson-Miller Aviation Co. Ltd. v. The Commonwealth and others.--Demurrer overruled.
Judgment for plaintiff with costs for a declaration that Statutory Rules 1940 No. 25 is invalid.
Solicitors for the plaintiff in each action, Malleson, Stewart & Co.
Solicitor for the defendants, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.
[1] [1936] HCA 52; (1936) 55 C.L.R. 608.
[2] [1933] HCA 12; (1933) 48 C.L.R. 316.
[3] [1933] HCA 62; (1933) 50 C.L.R. 30.
[4] [1937] HCA 33; (1937) 57 C.L.R. 327.
[5] (1933) 48 C.L.R., at p. 324.
[6] [1933] HCA 62; (1933) 50 C.L.R. 30.
[7] (1933) 50 C.L.R., at p. 51.
[8] [1920] HCA 77; (1920) 28 C.L.R. 530.
[9] (1933) 50 C.L.R., at p. 50.
[10] (1933) 50 C.L.R., at p. 51.
[11] (1933) 50 C.L.R., at pp. 56, 59.
[12] (1933) 50 C.L.R., at p. 68.
[13] (1933) 50 C.L.R., at p. 87.
[14] (1933) 50 C.L.R., at p. 98.
[15] [1933] HCA 12; (1933) 48 C.L.R. 316.
[16] [1933] HCA 62; (1933) 50 C.L.R. 30.
[17] [1877] USSC 167; (1878) 96 U.S. 1 [24 Law. Ed. 708].
[18] [1885] USSC 125; (1885) 114 U.S. 196 [29 Law. Ed. 158].
[19] [1919] USSC 32; (1919) 248 U.S. 420 [63 Law. Ed. 337].
[20] [1824] USSC 18; (1824) 22 U.S. 1 [6 Law. Ed. 23].
[21] [1880] USSC 40; (1881) 102 U.S. 691 [26 Law. Ed. 238].
[22] (1917) 242 U.S. 470 [61 Law. Ed. 442].
[23] [1909] HCA 36; (1909) 8 C.L.R. 330.
[24] (1819) 17 U.S. 316 [4 Law. Ed. 579].
[25] (1908) 6 C.L.R. 309.
[26] [1894] USSC 169; (1894) 153 U.S. 525 [38 Law. Ed. 808].
[27] [1888] USSC 161; (1888) 127 U.S. 1 [32 Law. Ed 150].
[28] [1933] HCA 12; (1933) 48 C.L.R. 316.
[29] [1933] HCA 62; (1933) 50 C.L.R. 30.
[30] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1.
[31] [1939] HCA 28; (1939) 62 C.L.R. 116.
[32] [1945] HCA 7; (1945) 70 C.L.R. 1.
[33] (1939) 62 C.L.R., at p. 127.
[34] [1945] HCA 4; (1945) 69 C.L.R. 613.
[35] [1945] HCA 7; (1945) 70 C.L.R. 1.
[36] (1945) 70 C.L.R., at p. 15.
[37] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1.
[38] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1.
[39] [1921] HCA 31; (1921) 29 C.L.R. 357.
[40] [1943] HCA 37; (1943) 68 C.L.R. 87.
[41] (1945) A.C. 68, at p. 102.
[42] [1936] UKPCHCA 4; (1936) A.C. 578, at p. 614; 55 C.L.R. 1, at p. 43.
[43] (1878) 3 App. Cas. 889, at pp. 904, 905.
[44] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1.
[45] (1936) A.C., at pp. 630, 631, 55 C.L.R., at pp. 58, 59.
[46] (1936) A.C., at p. 628; 55 C.L.R., at p. 56.
[47] (1936) A.C., at pp. 630, 631; 55 C.L.R., at pp. 58, 59.
[48] (1936) A.C., at pp. 625, 626; 55 C.L.R., at pp. 54, 55.
[49] [1914] HCA 73; (1914) 19 C.L.R. 298, at pp. 307, 314, 327, 335.
[50] [1931] HCA 1; (1931) 44 C.L.R. 492.
[51] [1914] HCA 73; (1914) 19 C.L.R. 298, at pp. 305, 306.
[52] [1824] USSC 18; (1824) 22 U.S. 1, at p. 189 [6 Law. Ed. 23, at p. 68].
[53] (1914) 19 C.L.R., at p. 305.
[54] [1920] HCA 77; (1920) 28 C.L.R. 530, at p. 546.
[55] [1941] USSC 49; (1941) 312 U.S. 100, at p. 113 [85 Law. Ed. 616].
[56] [1824] USSC 18; (1824) 22 U.S. 1, at p. 196 [6 Law. Ed. 23, at p. 70].
[57] [1907] USSC 16; (1907) 204 U.S. 24, at pp. 33-35 [51 Law. Ed. 351, at pp. 356-357].
[58] [1933] HCA 62; (1933) 50 C.L.R. 30.
[59] [1935] HCA 8; (1935) 52 C.L.R. 189.
[60] [1935] HCA 5; (1935) 52 C.L.R. 215.
[61] [1935] HCA 43; (1935) 53 C.L.R. 493.
[62] [1937] HCA 33; (1937) 57 C.L.R. 327.
[63] [1939] HCA 28; (1939) 62 C.L.R. 116, at p. 127.
[64] [1935] HCA 43; (1935) 53 C.L.R. 493, at p. 503.
[65] [1936] UKPCHCA 4; (1936) A.C. 578, at p. 631; 55 C.L.R. 1, at p. 59.
[66] [1933] HCA 12; (1933) 48 C.L.R. 316.
[67] [1939] HCA 28; (1939) 62 C.L.R. 116.
[68] [1933] HCA 11; (1933) 48 C.L.R. 266, at pp. 302, 303.
[69] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1
[70] [1933] HCA 11; (1933) 48 C.L.R. 266.
[71] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1
[72] [1933] HCA 11; (1933) 48 C.L.R. 266.
[73] [1824] USSC 18; (1824) 22 U.S. 1, at p. 196 [6 Law. Ed. 23, at p. 70].
[74] [1904] USSC 157; (1904) 195 U.S. 138 [49 Law. Ed. 128].
[75] (1905) 197 U.S. 516 [49 Law. Ed. 862].
[76] [1939] HCA 27; (1939) 61 C.L.R. 735, at p. 772.
[77] (1912) 16 C.L.R. 99, at p. 118.
[78] [1894] USSC 192; (1893) 154 U.S. 204 [38 Law. Ed. 962].
[79] (1917) 242 U.S. 470 [61 Law. Ed. 442].
[80] [1919] USSC 32; (1919) 248 U.S. 420, 423 [63 Law. Ed. 337, 339].
[81] [1824] USSC 18; (1824) 22 U.S. 1, at p. 229 [6 Law. Ed. 23, at p. 78].
[82] [1877] USSC 181; (1877) 95 U.S. 465, at p. 470 [24 Law. Ed. 527, at p. 530].
[83] [1933] HCA 62; (1933) 50 C.L.R. 30; (1935) 52 C.L.R. 189, 215 [1935] HCA 43; ; (1935) 53
C.L.R. 493; (1937) 57 C.L.R. 327.
[84] [1913] HCA 29; (1913) 16 C.L.R. 315.
[85] [1915] HCA 13; (1915) 19 C.L.R. 629.
[86] [1926] HCA 9; (1926) 37 C.L.R. 432.
[87] [1926] HCA 9; (1926) 37 C.L.R. 432.
[88] [1924] HCA 20; (1924) 34 C.L.R. 297.
[89] [1937] HCA 41; (1937) 58 C.L.R. 528.
[90] [1924] HCA 20; (1924) 34 C.L.R. 297.
[91] [1903] USSC 7; (1903) 187 U.S. 617, at p. 619 [47 Law. Ed. 333, at p. 335].
[92] [1937] USSC 97; (1937) 301 U.S. 308, 322 [81 Law. Ed. 1122, 1133].
[93] [1913] HCA 29; (1913) 16 C.L.R. 315.
[94] [1915] HCA 13; (1915) 19 C.L.R. 629.
[95] [1824] USSC 18; (1824) 22 U.S. 1 [6 Law. Ed. 23].
[96] [1824] USSC 18; (1824) 22 U.S. 1 [6 Law. Ed. 23].
[97] (1824) 22 U.S., at p. 229 [6 Law. Ed., at p. 78].
[98] [1933] HCA 62; (1933) 50 C.L.R. 30; (1935) 52 C.L.R. 189, 215 [1935] HCA 43; ; (1935) 53
C.L.R. 493; (1937) 57 C.L.R. 327.
[99] (1933) 50 C.L.R., at pp. 50, 51.
[100] (1935) 52 C.L.R., at pp. 212, 213.
[101] (1935) 53 C.L.R., at p. 508.
[102] [1936] UKPCHCA 4; (1936) A.C. 578, at p. 630; 55 C.L.R. 1, at p. 58.
[103] (1932) A.C. 542, at pp. 558, 561; 47 C.L.R. 386, at pp. 396, 398.
[104] [1945] HCA 49; (1945) 70 C.L.R. 100.
[105] (1945) 70 C.L.R., at p. 127.
[106] [1940] HCA 12; (1940) 63 C.L.R. 209, at pp. 226, 227.
[107] [1945] HCA 7; (1945) 70 C.L.R. 1.
[108] [1945] HCA 4; (1945) 69 C.L.R. 613.
[109] [1913] HCA 29; (1913) 16 C.L.R. 315.
[110] [1915] HCA 13; (1915) 19 C.L.R. 629.
[111] [1924] HCA 20; (1924) 34 C.L.R. 297.
[112] [1926] HCA 9; (1926) 37 C.L.R. 432.
[113] [1937] HCA 41; (1937) 58 C.L.R. 528.
[114] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1.
[115] [1920] HCA 77; (1920) 28 C.L.R. 530.
[116] [1920] HCA 77; (1920) 28 C.L.R. 530.
[117] [1936] UKPCHCA 4; (1936) A.C. 578; 55 C.L.R. 1.
[118] [1920] HCA 77; (1920) 28 C.L.R. 530.
[119] (1936) A.C., at p. 620.
[120] [1933] HCA 62; (1933) 50 C.L.R. 30.
[121] (1936) A.C., at pp. 621, 622.
[122] (1936) A.C., at pp. 630, 631.
[123] [1873] USSC 131; (1873) 84 U.S. 560, at p. 568 [21 Law. Ed. 710, at p. 714].
[124] [1887] USSC 204; (1887) 122 U.S. 326, at p. 336 [30 Law. Ed. 1200, at p. 1201].
[125] [1913] USSC 60; (1913) 227 U.S. 308, at p. 320 [57 Law. Ed. 523, at p. 526].
[126] [1921] USSC 197; (1921) 257 U.S. 282, at pp. 290, 291 [66 Law. Ed. 239, at pp. 243, 244].
[127] [1941] USSC 95; (1941) 313 U.S. 117, at p. 119 [85 Law. Ed. 1223, at p. 1226].
[128] [1941] USSC 156; (1941) 314 U.S. 160, at p. 172 [86 Law. Ed. 119, at p. 124].
[129] [1944] USSC 114; (1944) 322 U.S. 292 [88 Law. Ed. 1283].
[130] [1873] USSC 131; (1873) 84 U.S. 560, at p. 568 [21 Law. Ed. 710, at p. 714].
[131] [1887] USSC 204; (1887) 122 U.S. 326, at p. 336 [30 Law. Ed. 1200, at p. 1201].
[132] [1913] USSC 60; (1913) 227 U.S. 308, at p. 320 [57 Law. Ed. 523, at p. 526].
[133] [1930] HCA 48; (1930) 43 C.L.R. 386, at pp. 418, 419.
[134] (1932) A.C., at p. 561.
[135] [1933] HCA 62; (1933) 50 C.L.R. 30.
[136] [1935] HCA 8; (1935) 52 C.L.R. 189.
[137] [1935] HCA 43; (1935) 53 C.L.R. 493.
[138] [1937] HCA 33; (1937) 57 C.L.R. 327.
[139] [1933] HCA 62; (1933) 50 C.L.R. 30.
[140] [1933] USSC 71; (1933) 289 U.S. 92, at pp. 95, 96 [77 Law. Ed. 1053, at p. 1056].
[141] [1933] HCA 62; (1933) 50 C.L.R. 30, at pp. 104-107.
[142] [1933] HCA 62; (1933) 50 C.L.R. 30, at pp. 104-107.
[143] [1933] HCA 62; (1933) 50 C.L.R. 30.
[144] (1933) 50 C.L.R., at p. 76.
[145] [1933] HCA 62; (1933) 50 C.L.R. 30.
[146] [1933] HCA 62; (1933) 50 C.L.R. 30.
[147] (1919) A.C. 606, at p. 626.
[148] [1941] UKHL 1; (1942) A.C. 206.
[149] (1943) 2 All E.R. 546.
[150] (1945) 173 L.T. 103, at p. 107.
[151] [1937] HCA 15; (1937) 56 C.L.R. 746, at pp. 757, 758.
[152] [1943] HCA 37; (1943) 68 C.L.R. 87, at pp. 130, 131.
[153] [1945] HCA 7; (1945) 70 C.L.R. 1.
[154] (1941) 313 U.S. 508 [85 Law. Ed. 1487]
</html</htm