APL Semester 1 2001
Mark:77

Question 2

Whether the contestant will have committed an offence hinges on a number of issues concerning the various pieces of legislation surrounding the Commemoration Air Race:

i)The UK Act will only potentially be in conflict with the Commonwealth Act where the UK Act has legal force in Australia ()

Issue: Does the UK have the power to enact legislation which is applicable to Australia? ()

The Australia Acts saw the UK give up to legislation for Australia even by request. () S3 ousts the Colonial Laws Validity Act and the doctrine of repugnancy in relation to the states, () as the Statute of Westminster did for the Commonwealth in 1931. The request and consent of the NSW Government is therefore irrelevant. () As the last vestiges of UK ability to legislate for Australia were ceased in the 1986 legislation the only other issue is whether or not this law will have extra-territorial operation (ETO) () in Australia. The UK Parliament, like the Commonwealth, has an unhindered ability to make laws with ETO. However, issues of enforceability arise and as there is a contrary intention expressed by the legislature of the Commonwealth it is unlikely that the UK Act will offer the contestant any legal aid with clearing him of this offence. ()

ii)The same can be said of the PM’s statement. () The Prime Minister as a member of the executive, cannot impinge on Parliament’s exclusive law-making function (Stockdale v Hansard). The doctrine of Parliamentary Supremacy dictates that it is for the Parliament and Parliament only to legislate. No member of the executive, even the PM, can usurp this function by overriding or setting aside legislation of Parliament. () The Bill of Rights (1688)(Eng) which was considered by NZ HC in Fitzgerald v Mundoon, () provides that the ‘pretended power of the suspending of laws by regal authority without the consent of Parliament is illegal’. It is likely that an Australian court would affirm this NZ approach. Clearly, the statements made by the PM afford no immunity from the legislation. The courts and executive are bound to follow legislation made by Parliament (Picken). ()

iii)The International Aviation Authority cannot validly seek to override legislation made by either the Commonwealth or the states. Parliament has supreme law-making powers. Perhaps the only thing which would render the operation of the Aircraft Safety Act ineffective would be if there was some sort of conflicting Commonwealth statute which has impliedly or expressly repealed its intention. () If Australia had signed any treaties relating tot he preservation and commemoration of vintage aircraft and the Commonwealth Parliament had subsequently legislated on this issue under s51(2a) – external affairs – the Aircraft Safety Act 1993 would be invalid. NSW legislation would arguably be insufficient to do this under s109 of the Commonwealth Constitution (CC). (?)

iv)The fact that the inspector was not authorised under the act may give the contestant some legal assistance. There is no question of inconsistency under s109 of the CC as the Commonwealth and State laws are in agreement: the state law merely adds a qualification to the Commonwealth law. ()() The state legislation is affecting the way Commonwealth law is exercised, by adding that inspectors must be licensed and not the capacity of the Commonwealth to legislate (Henderson’s Case). () As the NSW Act is valid, the fact that the inspector was unable to produce a licence falls foul of s2 of the Aircraft Safety Act 1993. The authorisation given to inspectors under s2 arguably then is inapplicable to this case – as the legislation stipulates that inspectors are able to inspect vehicles when they land at Australian Airports and the ‘inspector’ was not an inspector for the purposes of the NSW act, the contestant may be able to avoid being charged on this account. ()

Conclusion

  • Validity of NSW law – the NSW constitution confers power in plenary terms upon the Parliament (s5) – but is restricted by s109 CC – discussed above. ()
  • The validity of Commonwealth law – the Commonwealth probably enacting this legislation using the external affairs power in s51(29) CC as this is a matter of ‘international concern’ – the preservation of vintage planes. There is therefore likely to be no question as to either of the Australian Acts. ( - refer s51(1))
  • The only point on which the contestant may be able to escape legal liability concerns the validity under the Aircraft Safety Act 1993 of the person who authorises his aircraft. (?) As the act only specifies planes ‘which land’, if he gets off on his point he will risk no further prosecution unless he seeks to land in an Australian airport again, in which case the navigation equipment will be considered ‘at the date of landing’. (?)