Australian National Airways Pty Ltd v Commonwealth (No 2)

Australian National Airways Pty Ltd sought a certificate from the High Court of Australia under section 74 of the Constitution. The company wished to appeal to the Privy Council against the High Court's decision concerning the validity of the Australian National Airlines Act 1945. Specifically, the company sought a certificate that the question of whether certain remaining provisions of the Act were within the legislative power of the Commonwealth Parliament under sections 51(i) and 51(xxxix) of the Constitution ought to be determined by His Majesty in Council. The dispute arose from the High Court's earlier judgment, which had declared some provisions of the Act invalid for infringing section 92 of the Constitution but upheld the validity of other provisions, including the establishment of a national airline corporation.

The High Court was required to determine two principal matters. Firstly, whether the question for which the certificate was sought constituted a "question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States" within the meaning of section 74 of the Constitution. Secondly, if it did, whether there were sufficient special reasons to justify granting the certificate, thereby allowing an appeal to the Privy Council on that specific question. The company argued that the matter was of great importance and that it would be desirable for all issues to be open for decision by the Privy Council if special leave to appeal were granted.

The High Court, in dismissing the application, held that the question concerning the legislative power of the Commonwealth Parliament under section 51(i) of the Constitution, in relation to the Australian National Airlines Act, did indeed raise a question as to the limits inter se of the constitutional powers of the Commonwealth and the States. This was based on the principle established in *Jones v. Commonwealth Court of Conciliation and Arbitration*, where a decision affirming the existence of a Commonwealth power that extended over an area of potential State power was considered to involve an "inter se" question. The Court found that the importance of the question alone was not a sufficient special reason to grant a certificate, and the argument that all issues should be open for Privy Council determination was based on an unfulfilled hypothesis, as special leave to appeal had not yet been sought or granted.

The application for the certificate was refused.