Airlines of New South Wales Pty Ltd v New South Wales (No 2)

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Airlines of New South Wales Pty Ltd v New South Wales (No 2)

This 1965 High Court of Australia case asked whether the Commonwealth could regulate intrastate air navigation (inside New South Wales) and, in particular, whether certain Commonwealth regulations dealing with licensing of air services were valid.

Facts in brief
- Airlines of New South Wales (Airlines NSW) applied for a licence to operate a Sydney–Dubbo route but was refused under New South Wales (NSW) law.
- NSW then challenged the validity of the Commonwealth’s Air Navigation Regulations, which had been amended to apply to intrastate navigation.
- The regulations at issue included: Regulation 198 (licensing of aircraft for public transport), Regulation 199(4) (the Director‑General of Civil Aviation considers safety, regularity and efficiency), and Regulation 200B (authorising the conduct of operations by granting licences).

The decision
- The Court confirmed that the Commonwealth has power under Section 51(i) of the Constitution to regulate interstate and foreign air navigation for safety, regularity and efficiency.
- However, the Commonwealth does not automatically have power to regulate intrastate navigation. It can regulate intrastate activities only to the extent that doing so is necessary to protect the safety, regularity and efficiency of interstate or foreign air navigation, and only if the law applies equally to intrastate and interstate activity.
- Regulations 198 and 199(4) were upheld as valid because they regulate intrastate activities to support the safety and smooth operation of interstate air navigation.
- Regulation 200B, by contrast, attempted to authorise intrastate air operations themselves (granting licences to operate routes), which went beyond a safety/regulatory measure and was therefore invalid.

Key points
- The court rejected the American doctrine of commingling, which would allow intrastate activities to be absorbed into the federal power by tying them to interstate activities.
- It also rejected the idea that reserved state powers could automatically curb Commonwealth power; the decision emphasises the Australian federation’s dual structure and constitutional text.
- The ruling clarifies that Commonwealth regulation can cover intrastate aviation only to the extent needed to protect interstate and foreign air navigation, not to grant general intrastate licensing powers.

Outcome
- Regulations 198 and 199(4) were valid.
- Regulation 200B was invalid.