Perth airport – Emergency law

Dr Michael Eburn

ANU College of Law

The Australian National University

CANBERRA ACT 0200

P: + 61 2 6125 6424

E: michael.eburn@anu.edu.au

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An airport

• Is a complex city with many stakeholders: – The airport operator;– The airlines;– Lessees;– The Commonwealth;– The State; – The travelling public.

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Legal duties

• Arise by: – Statute – the Parliament says you have to do

something; – Contract – you agree to do something; and– Common law – legal principles developed

over time create an obligation.

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Common law duties

• Depend on a number of relevant features, importantly– Knowledge of the risk;– Vulnerability of those at risk;– Control of the hazard;– Statutory and other obligations.– (Caltex Refineries v Stavar [2009] NSWCA 258).

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The airport operator

• The landlord and operates the airport facilities.

• It has obligations to all the stakeholders.

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The airlines and lessees

• Have to look after their passengers and their shareholders.

• The shops and commercial enterprises have to look after visitors to their areas.

• They also have obligations to the airport.• There is shared responsibility for

emergency management across the airport.

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The legislative framework – the C’th

• A prescribed airport, including Perth Airport, is a ‘commonwealth place’ (Australian Constitution ss 51 and 52; Commonwealth Places (Application of Laws) Act 1970 (Cth) s 3 and Commonwealth Places (Application Of Laws) Regulation 2014 (Cth) reg 5).

• That does not make the Commonwealth the owner of an airport, just its regulator.

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The operator must comply with Commonwealth law • Such as the:

– Aviation Transport Security Act 2004 (Cth); and

– Air Services Act 1995 (Cth).

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Application of State law

• States do not have the power to pass laws which have effect within Commonwealth places because of s 52 of the Constitution (Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 and The Queen v Phillips (1970) 125 CLR 93).

• So the Commonwealth passed the Commonwealth Places (Application of Laws) Act 1970.(R v Porter (2001) 53 NSWLR 354).

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The Commonwealth Act

• Adopts State law as Commonwealth law – ‘according to its tenor’. (Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4; R v Giannakopoulos & Marzilli [2013] SASCFC 50).

• State laws do apply to Commonwealth places:– But not if they are inconsistent with Cth law;

or– The regulations say they don’t.

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At the airport

• Commonwealth law applies (such as the Air Services Act 1995 (Cth)); and

• State law (such as the Emergency Management Act 2005 (WA)) also applies.

• Are the laws inconsistent?

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Emergency Management Act 2005 (WA)• Requires appointment of Hazard

Management and Combat agencies (ss 4 and 6).

• Requires the creation of relevant emergency policies and plans (ss 17 and 18).

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Westplan – Air Crash

• “… is to detail the management arrangements for preparation and response to an air crash emergency within WA…”

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Perth Airport Aerodrome Emergency Plan (3.2.1):“… response to emergencies is the responsibility of relevant State and Commonwealth emergency management agencies … The response will be reflective of the State arrangements for the risk or hazard encountered.”

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The legislation assumes a key role for state agencies• State emergency services, when

responding to an emergency, may: – Enter a landside or airside security zone of

the airport;– They do not need an ASIC;– They do not need to pass security screening;– They can keep their ‘tools of trade’.

(Aviation Transport Security Regulations 2005 (Cth) regs 3.13, 3.18, 3.19, 3.26, 4.10, 4.11 & 4.62).

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Westplan Air Crash

• WA police are the hazard management agency.

• AFP assume initial control and coordination of emergency at Perth airport, until they are in a position to hand over to WA Police.

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Air Services Australia

• “Provide aviation rescue fire fighting services at major airports and response within 1000 metres of an aerodrome;

• Provide fire fighting suppression response capabilities;

• Provide advice on issues relating to rescue.” (Westplan Air Crash p 31).

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They are not necessarily in charge…

• The ‘officer in charge’ is either – the person nominated by Air Services

Australia; or– A member of the State’s fire and rescue

services where that is in accordance with an agreement between Air Services Australia and the State.(Air Services Regulations 1995 (Cth) regs 4.04 & 4.05).

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For other emergencies

• Relevant Westplans apply eg:– Animal and Plant Biosecurity;– Collapse;– Earthquake;– Fire;– Flood;– Hazardous materials emergencies;– Road Crash.

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Does every emergency trigger a Westplan• No, lots of matters are dealt with locally –

an incident.• The plans do not, however, need a formal

declaration.• Deal with it locally, call for help when you

need it.

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Liability

• What do you know?• What do you own?• What can you do?• What can others do? • What have you agreed to do?• Plan in advance and negotiate ownership

of the problem.

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The obligation is to act ‘reasonably’

• Which takes into account:– The likelihood of the risk;– The potential consequences;– The expense, inconvenience and difficulty of

taking remedial action; and– Any other conflicting obligations.

(Wyong Shire v Shirt (1980) 146 CLR 40).

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Whether you are liable

• Depends on much more than the law. • Plaintiffs sue for many reasons.• Insurers have to consider their

shareholders interests and their best possible outcome.

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Liability does not depend on

• Filling in a form – (what you actually do is more important, but the forms help);

• Sticking to the plan – (unless it’s reasonable to do so);

• That nothing bad happens.

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Personal liability

• No personal civil liability – employers are liable for the negligence of employees.

• Possible (but rare) under Occupational Safety and Health Act 1984 (WA).

• Criminal charges for gross negligence – most likely in driving matters – don’t crash the fire (or any other) truck.

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Whether you are liable or not, there will be an inquiry.• CASA;• Police;• WorkCover;• The Coroner (deaths and fires);• A Royal Commission.• There will be an inquiry, and it won’t be

fun.

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Conclusion

• Perth airport is operated by a Pty Ltd company.

• It is subject to Commonwealth law that includes applied State law.

• It is not the case that an airport has ‘nothing to do’ with the State services.

• How emergencies are managed depends on pre-planning!