Australian National Airways Pty Ltd v Commonwealth
Encyclopedia
Australian National Airways Pty Ltd v Commonwealth (No 1) (1945) 71 CLR
29 - most commonly known as Australian National Airways Pty Ltd v Commonwealth and also referred to as The Airlines Case or the ANA Case - was a High Court of Australia
decision. The case dealt with limits of the powers of the Australian Federal Government under sections 51
and 92 of the Australian Constitution
. The outcome of the case was that the Federal Government could found a federally-owned airline
, but it could not hinder private sector
competition with that airline.
Federal Government of Prime Minister
Ben Chifley
introduced a bill
into in the House of Representatives
that would have the effect of nationalising interstate Airlines in Australia. At the time, Australian National Airways
("ANA") was the dominant domestic carrier in Australia. After the bill received Royal Assent as the "Australian Airlines Act (1945)", it was immediately challenged by ANA in the High Court in its "original jurisdiction" as arbiter of Constitutional Law. ANA argued that the Act was in breach of sections 51 and 92 of the Constitution.
ANA then sought to apply for a certificate under Section 74 of the Australian Constitution to appeal to the Privy Council
for a judgment on further restriction of Commonwealth powers. That application was denied in Australian National Airways Pty Ltd v Commonwealth (No 2) [1946] 71 CLR
115.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
29 - most commonly known as Australian National Airways Pty Ltd v Commonwealth and also referred to as The Airlines Case or the ANA Case - was a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
decision. The case dealt with limits of the powers of the Australian Federal Government under sections 51
Section 51(i) of the Australian Constitution
Section 51 is a subsecton of Section 51 of the Australian Constitution enables the Commonwealth Government of Australia both to regulate and to participate in trade and commerce with other countries and among the States. The potential reach of s51 is very broad...
and 92 of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
. The outcome of the case was that the Federal Government could found a federally-owned airline
Airline
An airline provides air transport services for traveling passengers and freight. Airlines lease or own their aircraft with which to supply these services and may form partnerships or alliances with other airlines for mutual benefit...
, but it could not hinder private sector
Private sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
competition with that airline.
Background
In mid-1945, the LaborAustralian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
Federal Government of Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Ben Chifley
Ben Chifley
Joseph Benedict Chifley , Australian politician, was the 16th Prime Minister of Australia. He took over the Australian Labor Party leadership and Prime Ministership after the death of John Curtin in 1945, and went on to retain government at the 1946 election, before being defeated at the 1949...
introduced a bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
into in the House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
that would have the effect of nationalising interstate Airlines in Australia. At the time, Australian National Airways
Australian National Airways
Australian National Airways was Australia's predominant carrier from the mid-1930s to the early 1950s.-The Holyman Airways Period:On 19 March 1932 Flinders Island Airways began a regular aerial service using the Desoutter Mk.II VH-UEE Miss Launceston between Launceston, Tasmania and Flinders...
("ANA") was the dominant domestic carrier in Australia. After the bill received Royal Assent as the "Australian Airlines Act (1945)", it was immediately challenged by ANA in the High Court in its "original jurisdiction" as arbiter of Constitutional Law. ANA argued that the Act was in breach of sections 51 and 92 of the Constitution.
Decision
The High Court, per curiam, found that while nationalised enterprises could be established, ss 51 and 92 did not empower the Commonwealth to acquire pre-existing enterprises (in this case, an airline).ANA then sought to apply for a certificate under Section 74 of the Australian Constitution to appeal to the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
for a judgment on further restriction of Commonwealth powers. That application was denied in Australian National Airways Pty Ltd v Commonwealth (No 2) [1946] 71 CLR
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
115.
See also
- Two Airlines PolicyTwo Airlines PolicyThe Australian Two Airlines Policy was a policy of Australian Federal Governments from the late 1940s to the 1990s. Under the policy, only two airlines were allowed to operate flights between state capital city and major regional city airports...
- Engineers Case
- Garfield BarwickGarfield BarwickSir Garfield Edward John Barwick, was the Attorney-General of Australia , Minister for External Affairs and the seventh and longest serving Chief Justice of Australia...
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....