Dr Michael Eburn ANU College of Law CANBERRA ACT 2601

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Presentation transcript:

Dr Michael Eburn ANU College of Law CANBERRA ACT 2601 The law and its application to multiagency emergency responses on airports Dr Michael Eburn ANU College of Law CANBERRA ACT 2601

The issue How do state emergency management arrangements intersect with Commonwealth law during a multiagency emergency response at an airport? At airports supported by Aviation Rescue and Fire Fighting (ARFF) who is in control of emergency response? The issue is complicated by the interplay of State and Commonwealth laws.

Victoria, 2009 Victorian Bushfires Royal Commission, Interim Report (2009) 265, reproduced in Michael Eburn, Emergency Law (Federation Press, 4th ed 2013),

The legislative framework A prescribed 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.

But State law also applies States do not have the power to pass laws which have effect within Commonwealth places – Australian Constitution s 52 (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).

The Commonwealth Places … 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.

In an emergency Commonwealth law applies (such as the Air Services Act 1995 (Cth)); and State law (such as the Emergency Management Act 2005 (WA); State Emergency and Rescue Management Act 1989 (NSW); Emergency Management Act 2006 (Tas) etc) also applies. Are the laws inconsistent?

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).

For example: Emergency Management Act 2006 (Tas) Response Management Authorities are nominated for each hazard. For ‘Transport crash – aviation (less than 1000m from the airport runway)’ the RMA is ‘On-Site Agencies (e.g. Airservices Australia) TASPOL’. More than 1000m it’s TASPOL

ARFF 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).

Hobart International Airport – Aerodrome Emergency Plan “The role of Aviation Rescue and Firefighting (ARFF) is to provide the initial response to an emergency at the airport or within 1000 metres of the Aerodrome Boundary” “… Tasmania Fire Service … assist ARFF in combating any fire and in the rescue operations in aircraft crashes. TasFire … the Lead Agency for fires in the public areas of HIA other than Aviation Critical buildings …

TasPOL “The role of the Tasmania Police (TasPol) is to provide coordination and control in response to the emergency at HIA and to take command of the emergency response once it is established at the airport.”

For other airports What does your AEP say? Has it been written in cooperation with local police and emergency services? If there is an ARFF station – what is the agreement between state agencies and ARFF as to command and control?

Conclusion A prescribed airport is subject to Commonwealth law that includes applied State law. How emergencies are managed depends on pre-planning! Cooperation and relationships across agencies is critical.