Perth airport – Emergency law

1. 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

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

3. 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.

4. 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).

5. The airport operator • The landlord and operates the airport facilities. • It has obligations to all the stakeholders.

6. 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.

7. 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.

8. The operator must comply with Commonwealth law • Such as the: • Aviation Transport Security Act 2004 (Cth); and • Air Services Act 1995 (Cth).

9. 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).

10. 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.

11. 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?

12. 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).

13. Westplan – Air Crash • “… is to detail the management arrangements for preparation and response to an air crash emergency within WA…”

14. 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.”

15. 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).

16. 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.

17. 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).

18. 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).

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

20. 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.

21. 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.

22. 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).

23. 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.

24. 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.

25. 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.

26. 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.

27. 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!