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
An airport
• Is a complex city with many stakeholders:
– The airport operator;
– The airlines;
– Lessees;
– The Commonwealth;
– The State;
– The travelling public.
2
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.
3
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).
4
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.
6
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).
8
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.
10
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).
12
Westplan – Air Crash
• “… is to detail the management
arrangements for preparation and
response to an air crash emergency within
WA…”
13
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.
16
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).
17
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).
18
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).
22
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.
23
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!
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