Legal Research
Cases
R v Burgess; ex parte Henry

R v Burgess; ex parte Henry

Link copied

Case Copied 10 November 1936 85 min read

Contents

On this page

Ex PARTE HENRY.

ON APPEAL FROM A COURT OF PETTY SESSIONS OF Constitutional Law (Cth.) - Legislative power - Aerial navigation - -International

convention - Treaty obligations--External affairs - Control of civil aviation throughout Commonwealth Statute- Regulations- Validity- The Constitution (63 &64 Vict. C. 12), sec. 51 (i.), (xxix.)-Air Navigation Act 1920 (No. 50 April 16, 17,

of 1920), sec. 4-Air Navigation Regulations (S.R. 1921 No. 33).

Sec. 4 of the Air Navigation Act 1920 authorized the Governor-General to make regulations for the purpose of carrying out and giving effect to the con- vention for the regulation of aerial navigation signed in Paris on 13th October 1919 and any amendment thereof, and for the purpose of providing for the control of air navigation in the Commonwealth and the territories. The convention was made between heads of States of the allied and associated Powers, including the Commonwealth of Australia, and was ratified by His Majesty King George V., on behalf of the British Empire, on 1st June 1922.

55 CLR 609

authorized the making of regulations for the purpose of controlling air navigation in the Commonwealth was invalid.

The Air Navigation Regulations made under sec. 4 of the Air Navigation Act 1920 were made to apply to all civil aviation throughout the Commonwealth. Although the regulations largely followed the convention they did not embody all its provisions, and in some respects differed therefrom.

Held, by Latham C.J., Dixon, Evatt and McTiernan JJ. (Starke J. dissenting), that the regulations were invalid because they did not carry out and give

In re Regulation and Control of Aeronautics in Canada, (1932) A.C. 54,

APPEAL, by order for prohibition, from a Court of Petty Sessions of New South Wales.

Upon an information laid by Vernon William Burgess, an officer of the Civil Aviation Branch, Department of Defence, and the District Superintendent of Civil Aviation in Sydney, Henry Goya Henry was charged before a Court of Petty Sessions of New South Wales that on 30th September 1934 an aircraft of which he was "then the pilot and personnel did fly in contravention of the Air Naviga- tion Regulations made under the Air Navigation Act 1920, within the limits of the Commonwealth, namely near Mascot in the State of New South Wales, without the personnel of the said aircraft being licensed in the prescribed manner." The defendant, whose pilot's licence had been suspended for fourteen days from 28th September 1934, admitted that on the date charged in the informa- tion he, as pilot, made several flights in an aircraft. None of the flights extended beyond a short distance from the Mascot Aerodrome, Sydney, nor beyond the boundaries of the State of New South Wales. The defendant was convicted.

The Air Navigation Act 1920 received the Royal assent on 2nd December 1920, and was proclaimed to commence on 28th March 1921. By sec. 4 the Governor-General was authorized to make regulations for the purpose of carrying out and giving effect to the convention for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Burgess; ex parte Henry and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1936] HCA 52
Decision Date: 10 November 1936

CaseChat Overview and Summary

The case of *R v Burgess; ex parte Henry* concerned an appeal to the High Court of Australia following a conviction in a New South Wales Court of Petty Sessions. The appellant, Henry Goya Henry, was charged with contravening the Air Navigation Regulations by flying an aircraft without the personnel being licensed, an offence under regulations made pursuant to the *Air Navigation Act 1920* (Cth). Henry argued that both the Act and the Regulations were invalid.

The central legal issue before the High Court was whether the Commonwealth Parliament possessed the constitutional power to enact legislation and regulations controlling civil aviation within the limits of a single State, such as New South Wales. This question was primarily framed by reference to the external affairs power under section 51(xxix) of the Constitution, as the regulations purported to implement an international convention on aerial navigation. The Court also considered whether the power to regulate inter-state and international aviation extended to intra-state aviation.

A majority of the High Court (Latham C.J., Dixon, Evatt, and McTiernan JJ., with Starke J. dissenting) held that the regulations were invalid. The majority reasoned that while the Commonwealth had power to legislate with respect to inter-state and international aviation, this power did not extend to regulating intra-state aviation. They rejected the argument that the practical necessity of uniform control for safety reasons justified extending Commonwealth power to intra-state flights, citing previous High Court decisions that strictly distinguished between inter-state and intra-state commerce. Furthermore, the majority found that the Air Navigation Regulations did not faithfully implement the international convention they purported to give effect to, differing in significant respects and omitting certain provisions, thereby exceeding the scope of the external affairs power.

Consequently, the High Court made absolute the order nisi for a writ of prohibition, quashing the conviction. The Court concluded that the *Air Navigation Act 1920* and the *Air Navigation Regulations* were beyond the legislative power of the Commonwealth Parliament in so far as they purported to control air navigation within a single State.

Orders