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. 2

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. 3

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). 4

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

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. 6

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. 7

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

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). 9

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. 10

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? 11

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). 12

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

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.” 14

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). 15

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. 16

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). 17

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). 18

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

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. 20

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. 21

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). 22

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. 23

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. 24

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. 25

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. 26

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! 27