The Aviation Law Review: Australia
Aviation in Australia is overseen through a combination of industry and regulatory bodies that deal with specific sectors of aviation, and the laws surrounding liability of carriers in Australia are administered under both international conventions and domestic legislation.
The federal government department responsible for aviation is the Department of Infrastructure, Transport, Regional Development and Communications. The role of this department in relation to aviation is to advise the federal government on policy and regulatory frameworks for airports and the aviation industry, manage administration of the government's interests in privatised airports, and provide policy advice to the Minister for the department on the efficient management of Australian airspace and on aircraft noise and emissions.2
Airservices Australia is a government-owned organisation established under the Air Services Act 1995 (Cth). Its functions include to 'provide services and facilities to give effect to the Chicago Convention, for purposes relating to the safety, regularity or efficiency of air navigation, whether in or outside Australia, including giving effect to other international agreements'.3 More specifically, Airservices Australia's main responsibility is airspace management, but it also has responsibility for aeronautical information, aviation communications, radio navigation aids and aviation rescue fire services.
Established under the Civil Aviation Act 1988 (Cth), the Civil Aviation Safety Authority (CASA) is the primary regulator of safety regulations in civil air operations both within Australia, and Australian aircraft operating outside Australian territory. In administering a number of statutes, CASA is responsible for regulating and maintaining standards for training, education, licensing and certification of both aircraft and operators. Its mission is to 'to promote a positive and collaborative safety culture through a fair, effective and efficient aviation safety regulatory system, supporting our aviation community'.
The Australian Transport and Safety Bureau (ATSB) is Australia's national transport safety investigator with responsibility for investigations of accidents in the aviation industry. Its functions are to assess and independently investigate transport safety matters, and identify factors affecting transport safety,4 and it is the body to which aviation accidents are reported. The ATSB works with other government and non-government bodies to improve safety in the industry. However, it is not a function of the ATSB to apportion blame or provide means to determine liability in respect of a transport safety matter5 and there are restrictions on the use of evidence gathered by it in the course of accident investigations.
As Australia is a country with a federal political system, there is also state legislation relating to the aviation industry.
Legal framework for liability
i International carriage
Through the Civil Aviation (Carriers' Liability) Act 1959 (Cth), Australia has implemented and given force to the following international conventions:
- the 1999 Montreal Convention (given force by Section 9B);
- the Warsaw Convention as Amended at the Hague 1955 (given force by Section 11);
- the Warsaw Convention 1929 (without the Hague amendments) (given force by Section 21);
- the Guadalajara Convention (given force by Section 25A); and
- the Montreal No. 4 Convention (given force by Section 25K).
The 1999 Montreal Convention came into effect in Australia on 24 January 2009. It was implemented through the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008. This had the effect of amending a number of pieces of legislation, including the Civil Aviation (Carriers' Liability) Act 1959, the Air Accidents (Commonwealth Government Liability) Act 1963 and the Civil Aviation Act 1988.
Provisions covering Australian domestic carriage, and travel not otherwise covered by any of the above conventions, are found in Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) (see subsection ii).
ii Internal and other non-convention carriage
Part IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) deals with 'other carriage'. This includes domestic travel in Australia, as well as travel from Australia to a country not covered by any of the five conventions implemented by the Act.
Section 27 provides that this Part:
applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract of carriage of the passenger:
a Between a place in a State and a place in another State;
b Between a place in a Territory and a place in Australia outside that Territory;
c Between a place in a Territory and another place in that Territory; or
d Between a place in Australia and a place outside Australia;
not being carriage to which the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara Convention applies.
Part IV imposes liability on a carrier, with certain exceptions, for injury or death caused to a passenger, or for the loss or damage to a passenger's baggage.6 Where no convention, Part IV, or any applicable state legislation applies, then an action will be governed by common law principles.
Other relevant pieces of legislation regarding carriage include the Customs Act 1901 (Cth), which regulates the import and export of goods via customs, and the carriage of dangerous goods is regulated by the Crimes (Aviation) Act 1991 (Cth) and its associated regulations.
iii General aviation regulation
In terms of the operation of civil aviation aircraft, the Civil Aviation Act 1988 (Cth) is the governing legislation, with its main object being to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.7 The Civil Aviation Safety Authority was established through this Act under Section 8, and its role is to oversee this and other pieces of legislation to ensure a safe and high-quality aviation sector.
'Aircraft' has been defined by the Civil Aviation Act 1988 (Cth) to include 'any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth's surface',8 and this includes helicopters, gyroplanes and many others as defined in Section 2(1) of the Civil Aviation Regulations 1988 (Cth).
iv Passenger rights
Australia has no specific consumer legislation with regard to aviation. Rather, the Competition and Consumer Act 2010, which commenced operation on 1 January 2011, replacing the Trade Practices Act 1974 (Cth), provides more generalised consumer protection and guarantees that apply across many industries. The Australian Competition and Consumer Commission (ACCC) was created in 1995, and its role is to enforce the Competition and Consumer Act and any other relevant legislation to ensure competition and its promotion is maintained, while protecting the interests and safety of consumers.
In relation to compensation to passengers for delay or cancellation, Australia has no specific legislation or right to compensation. As such, each passenger will have to rely on the terms and conditions listed in their terms of carriage. Passengers may be able to seek a right to compensation under the Montreal Convention 1999 (see subsection i for implementation into Australian law) for delay on applicable flights, unless the carrier can show that it took all reasonable steps or it was impossible to avoid the delay.9
While there is no direct provision dealing with the rights of disabled or handicapped passengers, CASA has made a number of Civil Aviation Orders (CAO) regarding processes and procedures surrounding these passengers. Under CAO 20.16.3, the carriage of handicapped persons must satisfy three requirements:
- the operator shall establish procedures that identify as far as possible passengers who are handicapped;
- the operator shall ensure that handicapped persons are not seated in an aircraft where they could in any way obstruct or hinder access to any emergency exit by other persons on the aircraft; and
- the operator shall ensure that there are procedures in place to enable particular attention to be given to any disabled passenger in an emergency, as well as ensure that individual briefings on emergency procedures are given in accordance with the requirements of CAO Section 20.11 (the briefing must include which emergency exit to use, and the person giving the briefing should enquire as to the most appropriate way of assisting the passenger so as to prevent pain or injury).
These requirements are made according to Section 235(7) of the Civil Aviation Regulations,10 which lists the penalty for contravening a direction given under the Section at 50 penalty units (currently listed at A$210).
v Other legislation
Competition and consumer protection
As mentioned in subsection iv, general competition and consumer legislation in Australia is contained within the Competition and Consumer Act 2010 (Cth). The Act incorporates the Australian Consumer Law in its Schedule 2, which includes provisions in relation to misleading and deceptive conduct, unconscionable conduct and unfair contract terms, and imposes obligations in relation to contracts for the supply of services to consumers.
Under the Civil Aviation Act Section 9A(2), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as practicable, the environment is protected from the effects of, and associated with, the operation and use of aircraft. Further to this, Airservices Australia is a Commonwealth entity that aims to implement environmentally responsible air traffic management and other services to the industry.
Licensing of operations
i Licensed activities
To be able to operate, an aircraft must be registered. This is done through an application to CASA, which keeps the public Australian Civil Aviation Register, and has the power to register, suspend or cancel a registration under the Civil Aviation Safety Regulations.13
An eligible person with regard to being a registered operator is a resident of Australia over 18 years of age and an Australian citizen (or holding a permanent visa), a corporation, a body incorporated under law in force in Australia, the Commonwealth, state or territory, or a foreign corporation lawfully carrying on business in Australia.14
Where the owner of an aircraft becomes a registration holder, but they are not an eligible person to be its registered operator, then they must appoint an eligible person as the registered operator.15 The penalty for flying an unregistered aircraft is a penalty of up to two years' imprisonment.16
An owner, operator, hirer or pilot of an Australian aircraft also requires an airworthiness certificate to operate, unless the regulations authorise a flight without one.17 Again, a person can apply for this through CASA, for the certain type of aircraft to be operated. Airworthiness is an ongoing obligation that must be maintained.
To conduct commercial activities as set out in Section 206 of the Civil Aviation Regulations, including the carriage of passengers or cargo, an air operator's certificate (AOC) is required from CASA under Section 27 of the Civil Aviation Act. An AOC is issued for a specific term determined by CASA, and an AOC holder must reapply prior to the expiry date for a renewal of the AOC.
In deciding whether a person is fit to hold an AOC, CASA may take into account such things as an applicant's financial position, and must issue an AOC if it is satisfied that the applicant has or is capable of complying with safety rules and other matters in relation to the applicant's organisation as set out in Section 28. The application must be in a form approved by CASA (Section 27AA)18 and CASA may impose certain conditions on the grant of the AOC that must be continually satisfied.
Under the Civil Aviation Act, CASA may grant a foreign aircraft AOC authorising the operation of a foreign-registered aircraft on flights that are not regulated domestic flights.19 CASA may give written notice to an applicant for a foreign aircraft AOC, requiring the applicant to give CASA relevant documentation including a copy of any air operator's certificates, limitations or conditions imposed by the authority on operations conducted by the applicant. In the notice, CASA must state whether the applicant needs to comply with lodgement requirements, or do something else.20
ii Ownership rules
To be a registered operator, a person needs to be an 'eligible person', which is defined as:
- a resident of Australia who is:
- 18 years of age or older; and
- an Australian citizen or the holder of a permanent visa;
- a corporation incorporated under the Corporations Act 2001;
- a body incorporated under a law (other than the Corporations Act 2001) in force in Australia;
- the Commonwealth, state or territory; and
- a foreign corporation carrying on business in Australia.21
Should an owner become a registered holder but not be an eligible person, they must appoint an eligible person as the registered operator of the aircraft they wish to register.22
With regard to obtaining an AOC, it may only be issued to a natural person or a body having legal personality.23
When forming a view of an applicant for an AOC, Section 28(2) of the Civil Aviation Act states that 'the financial position of the applicant is one of the matters that CASA may take into account.'
iii Foreign carriers
For foreign-registered operators to gain authorisation to operate in Australia, there are a few different avenues they can take.
The starting point is Section 26(1) of the Civil Aviation Act, which states that an aircraft shall not, except with permission of CASA, arrive in or depart from an Australian territory from a place outside an Australian territory. If the aircraft is already registered in a foreign territory, an application can be made for a foreign aircraft AOC through Section 27AE, which would allow the aircraft to operate on flights into and out of Australia; however, the flights must not be regulated domestic flights. If a person wishes to operate a foreign-registered aircraft on regulated domestic flights (and there has been no agreement with CASA under Section 28A(1)(a)), an application can be made to CASA under Section 27A for permission. CASA may only grant permission of this type if it is satisfied under Subsection (2) that: (1) the person not having a commercial presence in Australia has complied with conditions relating to obtaining personal liability insurance,24 and operation, maintenance and airworthiness conditions have been met; and (2) that in any case, to grant permission would not adversely affect the safety of air navigation.
Mention should be made of the close relationship between Australia and New Zealand. A New Zealand AOC will be recognised in Australia (known as a New Zealand AOC with ANZA (Australia New Zealand Aviation) privileges) and comes into force in Australia under Section 28C, where the holder gives a copy to CASA, as well as a written notice of conditions imposed on the AOC by the Director of CAA New Zealand, the holder's Australian and New Zealand contact details, and any other information prescribed by the regulations.
Safety and security
As a contracting state to the Convention on International Civil Aviation (the Chicago Convention), Australia has, in its Aviation State Safety Programme, set out a state safety policy, which ensures an effective safety system through various pieces of legislation.
The ATSB is an independent body established to investigate transport safety matters, assess reports on safety matters, informing the public about transport safety matters, and many other responsibilities as set out under the Transport Safety Investigations Act 2003 (Cth).
Under Sections 18 and 19 of this Act, immediately reportable matters, including death or serious injury to a passenger, serious damage to an aircraft or the aircraft going missing, must be immediately reported to a nominated official (ATSB or its CEO), and this must be followed up by a written report within 72 hours.
As regards ongoing safety matters, CASA's Maintenance Standards subcommittee oversees the relevant regulations. These include airworthiness standards and ongoing airworthiness requirements, a part of which is the need for ongoing maintenance to the standards set out in the Civil Aviation Safety Regulations.25
Part IVA of the Civil Aviation (Carriers' Liability) Act 1959 sets out the mandatory insurance requirements for carriers. It states that 'a person must not engage in, or propose to engage in, a passenger-carrying operation, unless an acceptable contract of insurance in relation to the operation is in force.'26
In respect of each passenger, Section 41C sets out that under a contract of insurance, the insurer's liability to indemnify the carrier against personal injury liability is required to be for an amount of no less than A$725,000 for domestic carriage, and 480,000 special drawing rights (SDR) for any Montreal Convention or other carriage.
The penalty for a person who intentionally contravenes Part IVA is up to two years' imprisonment.27
CASA is the regulating body with regard to aviation insurance in Australia, and has the enforcement of the insurance and financial requirements of Part IVA of the Civil Aviation (Carriers' Liability) Act specifically listed in the Civil Aviation Act as one of its functions.
Australia, however, does not require mandatory insurance for third-party damage.
The Damage by Aircraft Act 1999 allows recovery for damage to people or property on the ground as a result of any damage caused from an aircraft or parts of an aircraft.
Under the Montreal Convention Article 50, carriers are required to maintain adequate insurance covering liability under the Convention, so while there is no mandate for carriers to hold third-party insurance in Australia, it may be part of what a carrier considers to be 'adequate' insurance.
A contract of insurance may, under the Civil Aviation (Carriers' Liability) Regulations 2019,28 through the adoption of a standard exclusion clause, exclude liability for radioactive contamination, nuclear risks, noise and pollution; or war, hijacking and other perils as set out in Regulation 9 Subsections (2) and (3).
Competition in the aviation industry, and other industries in Australia, is governed by the Competition and Consumer Act 2010, which incorporates the Australian Consumer Law, found in Schedule 2. The body responsible for regulation is the ACCC. Specific to the aviation industry, the ACCC works with Airservices Australia, and assesses proposals in relation to various pricing agreements for airports and aviation generally.
Mergers and acquisitions in the market are regulated in accordance with Section 50 of the Competition and Consumer Act 2010. A corporation must not directly or indirectly acquire shares in the capital of a body corporate or acquire assets of a person if the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in any market. In determining whether an acquisition would have the effect of lessening competition, the ACCC must take into account:
- the actual and potential level of the market;
- the height of barriers to enter the market;
- the level of concentration in the market;
- the degree of countervailing power in the market;
- the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
- the extent to which substitutes are available or likely to be available in the market;
- the dynamic characteristics of the market including growth, innovation and product differentiation;
- the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor; and
- the nature and extent of vertical integration in the market.29
The Commission may then grant approval or clearance if it is satisfied of these factors.
'Cartel provisions' have a broad definition under the Act, and include price-fixing and controlling, as well as preventing or limiting the production capacity or supply of goods.30 Breaches of cartel law are dealt with specifically under Sections 45AF and 45AG (criminal sanctions) and 45AJ and 45AK (civil sanctions) of the Competition and Consumer Act 2010, which make it illegal for a corporation to make or give effect to a contract or understanding containing a cartel provision.
Part IV of the Civil Aviation (Carriers' Liability) Act 1959 states that where Part IV applies to the carriage of a passenger (see Section II.ii), the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury resulting from an accident that took place on board the aircraft or in the course of any of the operations of embarking or disembarking.31 The limit of liability of a domestic carrier in respect of each passenger (for injury or death) is A$925,000, and for carriage to which Part IV applies other than a domestic carrier, the limit of liability is 480,000 SDR.32 Damages are recoverable for the benefit of a passenger's personal representative in their capacity as personal representative, and can include damages for loss of earnings or loss of profits up to the date of death, the reasonable expenses of the funeral of the passenger, and medical and hospital expenses reasonably incurred in relation to injuries sustained prior to the death of the passenger.33 However, the court is not limited to financial loss resulting from the death of the passenger,34 and is therefore able to make an award for general damages for pain and suffering and loss of enjoyment of life up to the time of death. When assessing damages, the courts can vary widely in their assessments, further complicated as in some states, claims may involve juries in determining damages.
Establishing liability and settlement
The are no industry-specific mechanisms used to settle claims in Australia.
Under the Civil Aviation (Carriers' Liability) Act 1959, and Article 35 of the Montreal Convention 1999, an action must be brought within two years of the date of arrival of the aircraft at the destination, or, if the aircraft did not arrive at the destination, from the date at which it should have arrived, or the date at which the carriage stopped, whichever is later.35
Each state has a set of Civil Procedure Rules for each of their courts. While they are not uniform across Australia, most jurisdictions aim to deal with claims in a just, efficient and timely manner.36 To illustrate when a party may be joined to an action, under the Victorian provisions relating to the Civil Procedure Rules, a party may be joined as a defendant where the court makes an order. The court may add a person if that person is one who ought to have been joined as a party to ensure all questions in the proceeding are effectually and completely determined, or where a question may arise out of, or in connection with, any claim in the proceedings between any party and the person joined that is just and convenient to determine as between all parties.37
ii Carriers' liability towards passengers and third parties
Section 9C of the Civil Aviation (Carriers Liability) Act 1959 gives effect to Article 21 of the Montreal Convention, which limits the damages available to be claimed in compensation for the death or injury of a passenger.
However, Section 9C(1) also states that regulations may specify a number of SDR exceeding the relevant number of SDR, as specified in the Montreal Convention, and this has the effect of assuming the stated SDR are used instead of the relevant number of SDR in the Convention. In general, the Civil Aviation (Carriers Liability) Act 1959 makes a carrier liable for any injury or death of a passenger, or loss and damage to cargo.38
There is a strict liability on owners, operators, hirers and pilots who are required not to operate an aircraft in such a way as to endanger, or in a manner that could endanger, the life, person or property of another person.39 In Australia, as with many common law jurisdictions, strict liability means that there are no fault elements to be proved in making out the offence, but a defence of mistake is available.40
As regards third-party liability, owners and operators are jointly and severally liable to a person or property for damage resulting from their aircraft. This includes if 'a person or property on, in or under land or water suffers personal injury, loss of life, material loss, damage or destruction' caused by impact with an aircraft in flight or that was immediately in flight before the impact, impact with part of an aircraft that was damaged or destroyed in flight, impact with a person animal or thing that dropped or fell from an aircraft in flight, or something that occurred as a result of any of these occurrences.41 A person may not claim, however, if the injury suffered is mental injury caused by any of these occurrences, unless the person or property suffers other personal injury, material loss, damage or destruction.42
iii Product liability
As mentioned in Section II.iv, the ACCC is the body responsible for ensuring fair business practices across all industries in Australia. The provisions in the Australian Competition and Consumer Act provide protection for consumers in relating to the quality of products they purchase, including guarantees as to acceptable quality43 and fitness for purpose44 of goods, due care and skill,45 and reasonable time for supply46 of services.
Compensation for damage or personal injury in Australia is dealt with under a number of provisions. As a party to the Montreal Convention, the provisions dealing with compensation under Chapter III apply to relevant carriage in Australia. Damages are a monetary remedy that have the object of compensating the plaintiff for loss suffered by a defendant's wrong,47 and place the plaintiff in a position they would have been in but for the injury. As noted in subsection i, an action must be brought within two years of the date of arrival of the aircraft at the destination or if it did not arrive at the destination, the date at which it should have arrived, or the date at which the carriage stopped, whichever is later.48
Under common law, in personal injury matters, economic loss damages may be brought for special damages, for lost earning capacity or things arising from this, and non-economic damages for pain and suffering, loss of enjoyment of life and loss of expectation of life.
For an action in liability for death, Section 35(7) of the Civil Aviation (Carriers' Liability) Act 1959 states that the damages recoverable include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the passenger and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger.
Australia has seen a rapid escalation of use of drones49 and has taken a number of steps to control their use and mitigate the risks to public safety posed by their increased use.
Part 101 of the Civil Aviation Safety Regulations 1998 sets out the requirements for the operation of unmanned aircraft and Subpart 101.F relates to remotely piloted aircraft (RPA). Standard operating conditions require RPA to remain within visual line of sight, below 400 feet above ground level and away from restricted areas such as airports. CASA approvals are required for certain non-standard operations.
CASA has also introduced a Manual of Standards in Part 101 (Unmanned Aircraft and Rockets) Manual of Standards 2019.
Despite these measures and the introduction of mandatory RPA operators certificates (ReOC) and remote pilot licences (RePL) for use in certain circumstances – generally where used for commercial purposes or where RPA are large (as defined in the regulations), there remain significant concerns about the increased unauthorised use and the dangers posed as a result. CASA continues to engage in educating the community about the safe operation of drones, in particular recreational drones.
The Australian Transport Safety Bureau has reported that the number of 'near encounters' between RPAs and manned aircraft has doubled in the past three years, with some 194 occurrences in 2019.
Significant work is being done by both private industry and commercial interests on geofencing solutions in an attempt to mitigate risks.
The REPCON scheme was set up as a mechanism for voluntary and confidential reporting to the ATSB of issues that affect, or might affect, transport safety,50 and applies to manned aircraft, large RPA, small RPA and micro RPA.51
The scheme's primary purpose is to enable the ATSB to use the reports made to identify unsafe procedures, practices or conditions and to give information to the aviation industry, transport safety authority or an emergency services organisation in relation to an identified unsafe procedure, practice or condition to facilitate action, awareness and improvements in transport safety.52
A person may make a report to the ATSB about any reportable safety concern.53 The report should be made in writing, and must include the name of the person making the report, a description of the reportable safety concern and relevant contact details.54
The ATSB must not disclose restricted information55 relating to a report unless all personal information is removed.56 Restricted information may be disclosed that includes personal information where: it is not possible to remove the personal information without defeating the purpose for which the ATSB proposes to make the disclosure; the ATSB believes it necessary or desirable to disclose the information for one of the purposes of the scheme and it has obtained the consent of the person to whom the personal information relates prior to disclosure;57 or where the ATSB believes the disclosure is necessary for reporting, investigation or prosecuting a potential offence against Section 137.1 of the Criminal Code (false and misleading information), to reduce or prevent a serious or imminent threat to transport safety or a person's life and health, is in accordance with Part 6 (terrorism or unlawful interference with aviation) or necessary for reporting, investigating or prosecuting criminal conduct not mentioned in Part 6.58
There are further restrictions on the use of information in a report. A person must not use information to take disciplinary action against an employee of the person or make an administrative decision under an Act or an instrument made under an Act.59 The ATSB has an obligation to inform the Department of Infrastructure and Regional Development where it reasonably believes that information relates to either an act or unlawful interference with aviation that is an offence under the Aviation Transport Security Act 2004 or a terrorist act involving or relating to transport or a transport vehicle.60 Further, a report, and evidence about the contents of a report, is not admissible in court (save for proceedings under Section 137.1 Criminal Code as noted above).61
The Civil Aviation Act also provides a scheme where the holder of an authorisation, may have a reportable contravention disregarded if they can prove to CASA that they reported the contravention to the Executive Director of Transport Safety Investigation within 10 days of the contravention and before they were given a show cause notice.62 This may only be done once in a five-year period.63 The scheme is known as the Aviation Self Reporting Scheme, and the process for self-reporting, functions of the Executive Director and use of information is dealt with in Division 13.K.1 of the Civil Aviation Safety Regulations 1998 (Cth).
Protection is provided to whistle-blowers through both Commonwealth and state legislation. In particular, the Commonwealth Parliament passed the Public Interest Disclosure Act 2013, and each state and territory has similar legislation.64
The year in review
Aside from the increases in limits of liability under the Montreal Convention 1999, which took effect automatically in Australia with effect from 28 December 2019, and a couple of cases in which plaintiffs unsuccessfully sought to recover damages pursuant to the Montreal Convention 1999,65 the past year was a relatively quiet one for the industry until covid-19 turned the normal activity in the industry upside down.
The covid-19 pandemic and the early enforcement of 14-day compulsory quarantine restrictions on international travellers to Australia, while successfully controlling the spread of the virus, has had a very significant impact on both international and domestic carriage of passengers. Airlines have required significant government support, and the second major domestic airline Virgin Australia ceased trading while sale was negotiated.
Restrictions on movement between some but not all Australian states has also been imposed, which has had a significant effect on the domestic airline industry and on the general aviation sector.
The government continues to provide support for the aviation industry and is likely to be required to maintain support for some time yet.
The outlook for the sector in Australia is largely the same as that for the sector globally. The uncertainty regarding the spread and impact of covid-19 will be likely to have a long-term effect on both domestic and international carriage, even though the health impact of the virus in Australia has been much less significant than that in other parts of the world. By way of example, the very significant reduction of aircraft movements between the two major cities of Sydney and Melbourne on what has until covid-19 been one of the busiest domestic carriage routes in the world, is unlikely to recover quickly – as business travellers have become accustomed to cost advantages of online alternatives to face-to-face meetings.
Much will depend on the control of the virus both within Australia and globally as the sector seeks to rebuild. There has been much discussion about a possible opening up of travel between Australia and its near neighbour New Zealand, which has also had a relatively minimal health impact from the virus, but international travel more broadly will be likely to take much longer to be restored to its pre-virus levels and will be dependent on control of the spread and rebuilding of public confidence unless a vaccine can be found.
1 Andrew Tulloch is a partner at Colin Biggers & Paisley.
3 Air Services Act 1995 (Cth) Section 8(1)(a).
4 Transport Safety Investigation Act 2003 (Cth) Section 12AA.
5 ibid. Section 12AA(3).
6 Civil Aviation (Carriers' Liability) Act 1959 (Cth) Sections 28 to 29.
7 Civil Aviation Act 1988 (Cth) Section 3A.
8 ibid. Section 3.
9 Montreal Convention 1999 Article 19.
10 Civil Aviation Regulations 1988 (Cth).
11 Section 45.
12 Section 46.
13 Civil Aviation Safety Regulations 1998 (Cth) Part 47.
14 ibid. Regulation 47.010.
15 ibid. Regulation 47.100.
16 See footnote 7, Section 20AA(1).
17 See footnote 13, Part 21.
18 See footnote 7.
19 See footnote 7, Sections 27AE(4)(a).
20 ibid. Section 27AE.
21 See footnote 13, Regulation 47.010.
22 See footnote 13, Regulation 47.100.
23 See footnote 7, Section 27(2B).
24 See footnote 6, Section 41E.
25 Maintenance Standards are contained both within the Civil Aviation Safety Regulations and the Civil Aviation Regulations Part 4A.
26 See footnote 6, Section 41E.
27 ibid. Section 41E(2).
28 Civil Aviation (Carriers' Liability) Regulations 2019 (Cth) Regulation 9.
29 Competition and Consumer Act 2010 (Cth) Section 50.
30 ibid. Sections 45AD(2)–(3).
31 See footnote 6, Section 28.
32 ibid. Section 31as amended by Civil Aviation (Carriers Liability) Regulations 2019
33 ibid. Section 35(6)–(7).
34 ibid. Section 35(8).
35 ibid. Section 34.
36 See Civil Procedure Act 2010 (Vic) Section 7.
37 Supreme Court (General Civil Procedure) Rules 2015 (Vic) Rule 9.06; County Court Civil Procedure Rules 2018 (Vic) Rule 9.06.
38 See footnote 6.
39 See footnote 7, Section 29.
40 See, for example, Criminal Code Act 1995 (Vic) Section 6.1.
41 Damage by Aircraft Act 1999 (Cth) Section 10.
42 ibid. Section 10(1A).
43 See footnote 29, Schedule 2 Section 54.
44 ibid. Section 55.
45 ibid. Section 60.
46 ibid. Section 62.
47 Mahony v. J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 527.
48 Civil Aviation (Carriers' Liability) Act 1959 (Cth) Section 34, and Article 35 Montreal Convention 1999.
49 The current estimate is that there at least 50,000 and possibly hundreds of thousands of RPAs in Australia.
50 The scheme was established under Regulation 7 Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulations 2012 (Cth) as provided for in Section 20A Transport Safety Investigation Act 2003 (Cth).
51 Regulation 7(2) Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulations 2012 (Cth). Under Regulation 7(3), the meanings of large RPA, small RPA and micro RPA have the same meaning as in the Civil Aviation Safety Regulations 1998 (Cth).
52 Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulations 2012 (Cth) Regulation 8.
53 ibid. Regulation 10(1). A 'reportable safety concern' is defined in Regulation 10(2) as any issue that affects, or might affect, transport safety other than matters showing a serious and imminent threat to transport safety or a person's life or health, industrial relations issues and criminal conduct.
54 ibid. Regulations 11 and 12.
55 Defined in Section 3, Transport Safety Investigation Act 2003 (Cth).
56 See footnote 51, Regulation 16(1)(a).
57 ibid. Regulation 16(2).
58 ibid. Regulation 16(3).
59 ibid. Regulation 18.
60 ibid. Regulation 21(1).
61 ibid. Regulation 19(1)–(2).
62 See footnote 7, Section 30DO.
63 ibid. Section 30DQ.
64 Public Interest Disclosures Act 2012 (Vic), Public Interest Disclosures Act 2010 (NSW), Public Interest Disclosures Act 2010 (Qld), Public Interest Disclosures Act 2002 (SA), Public Interest Disclosure Act 2003 (WA) and Public Interest Disclosure Act 2012 (ACT).
65 Salih v. Emirates (No 2)  NSWDC 715 and Di Falco v. Emirates (No. 2)  VSC 654.