Air Caledonie International v The Commonwealth

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HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

AIR CALEDONIE INTERNATIONAL v. THE COMMONWEALTH

(1988) 165 CLR 462

24 November 1988

Constitutional Law (Cth)

Constitutional Law (Cth)—Taxation—Law imposing taxation to deal with no other matter—Provisions dealing with other matters to be of no effect—Amending Act—Amended Act dealing with matters other than taxation—Validity—Fee imposed on air passengers to Australia for immigration clearance—Fee imposed on carriers—Right to recover from passengers—Whether tax—The Constitution (63 &64 Vict. c. 12),s. 55—Migration Amendment Act 1987 (Cth),s. 7—Migration Act 1958 (Cth),s. 34A.

Decision


MASON C.J., WILSON, BRENNAN, DEANE, DAWSON, TOOHEY AND GAUDRON JJ. Section 7 of the Migration Amendment Act 1987 (Cth) purported, as from 1 January 1988, to impose a liability to pay what was described as a "fee for immigration clearance" in respect of international airline passengers entering Australia. It did this by adding s.34A to the Migration Act 1958 (Cth). Putting to one side evidentiary provisions (sub-s.(5)), s.34A was in the following terms:
"34A. (1) Where a passenger, other than a prescribed passenger, travels to Australia on an overseas flight, the passenger shall pay the prescribed fee for immigration clearance of that passenger by an officer at the airport at which the passenger intends to enter Australia. (2) The fee shall be collected by the
international air operator operating the flight. (3) The international air operator shall
pay to the Commonwealth the amount of the fee payable by a passenger, whether or not the operator has collected that amount from the passenger. (4) An amount payable to the Commonwealth
by an international air operator under subsection (3) is a debt due to the Commonwealth and may be recovered in a court of competent jurisdiction. ... (6) In this section: 'international air operator' means a person, organisation or enterprise operating an overseas flight on which passengers are carried or, where that person, organisation or enterprise does not have an office or place of business in Australia, the Australian agent of that person, organisation or enterprise;
'overseas flight' means a flight that commenced at, or during which the aircraft called at, a place outside Australia;
'passenger' means a person (whether an Australian citizen or not) who travels to Australia as a passenger on an aircraft operated by an international air operator".
By reg.30A, which was inserted in the Migration Regulations on 21 December 1987, it was provided, for the purposes of s.34A(1), that the "prescribed fee" was five dollars and by reg.30B, inserted on the same day, that a person under twelve years of age was a "prescribed passenger".

2. Each of the plaintiffs is an "international air operator" which was, if s.34A was a valid enactment of the Commonwealth Parliament, liable to make payments to the Commonwealth pursuant to its terms. By statement of claim filed in the original jurisdiction of the Court and naming the Commonwealth as defendant, the plaintiffs sought a declaration that the provisions of the section were invalid. The Commonwealth filed a defence…
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Details
Case
[1988] HCA 61
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the dispute between Air Caledonie International and the Commonwealth of Australia concerning the validity of certain provisions of the *Air Navigation Regulations* 1947 (Cth) (the Regulations). Air Caledonie International, a foreign airline, challenged the Regulations which imposed restrictions on its ability to operate international air services into and out of Australia.

The central legal issue before the Court was whether the Regulations, which purported to regulate international air navigation and the carriage of passengers and goods by air, were validly made under the *Air Navigation Act* 1920 (Cth) and, if so, whether they were consistent with Australia's obligations under international law, specifically the Chicago Convention on International Civil Aviation. The Court also had to determine whether the Regulations, by requiring a licence for international air services, unduly burdened or interfered with the freedom of international trade and commerce, contrary to section 92 of the *Constitution*.

The Court held that the *Air Navigation Act* 1920 conferred power on the Governor-General to make regulations for the purpose of carrying into effect the provisions of the Act and the Chicago Convention. The majority found that the Regulations, including those requiring a licence for international air services, were a valid exercise of this power and were consistent with Australia's international obligations. Furthermore, the Court determined that the licensing scheme did not contravene section 92 of the *Constitution*, as it was a regulatory measure for the orderly conduct of international air navigation and not a prohibition or impediment to trade and commerce.

The High Court dismissed the appeal, upholding the validity of the relevant provisions of the *Air Navigation Regulations* 1947.

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