Download - Perth airport – Emergency law
Perth airport – Emergency law
Dr Michael Eburn
ANU College of Law
The Australian National University
CANBERRA ACT 0200
P: + 61 2 6125 6424
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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!