Aviation Law Week - 1.pdf

Why is Aviation Law important? The most important role of the law of aviation is to provide a framework that keeps the aviation industry safe, fair, and efficient. Aviation is widely regarded as one of the most extensive and strictly regulated human activities. What is Aviation Law? Aviation law is...

Why is Aviation Law important? The most important role of the law of aviation is to provide a framework that keeps the aviation industry safe, fair, and efficient. Aviation is widely regarded as one of the most extensive and strictly regulated human activities. What is Aviation Law? Aviation law is the branch of law that governs the legalities and business aspects of flight and air transport, such as air traffic rights, aviation safety and security, economic regulations of airlines, and the operation of airports. The Department of Infrastructure, Transport, Regional Development and Cities, branches Includes Minister for Infrastructure, Transport, Regional Development and Cities Civil Aviation Safety Authority Airservices Australia Australian Maritime Safety Authority International Air Services Commission Australian Transport Safety Bureau The Convention on International Civil Aviation (Chicago Conv. 1944) branches include International Air Services Agreement Chicago Convention (96 articles and 18 annexes) International Air Transport Agreement Article 43 establishes ICAO English common law system: Statute law (Acts/Regs/Legislation by parliaments/legislature) Case law (judge-made/judicial precedent by courts/judiciary) (also termed as “common law”) Aboriginal and Torres Strait Islander customary law: Landmark High Court of Australia decisions (especially the Mabo case and Wik Peoples case) and Native Title legislation Separation of Powers The 3 institutions/branches of government and the separation of their respective powers Legislative Power (the parliaments) – the power to make laws Executive Power (PM/Premier/Chief Minister & ministers of the Crown [the cabinet]) – the power to administer the law and conduct the affairs of the state Judicial Power (the courts) – the power to interpret and enforce the Law Late Medieval English Legal System The Crown The King/Queen (the Monarch) of England Legislative Power o Monarch takes advice whenever wants from “Peers of the Realm” (later the Parliament) o The Monarch decides whether a law is made as Monarch so determines Executive Power o Monarch appoints Ministers of the State who serves at Monarch’s pleasure o The King decides Government policy o The Monarch employs servants to carry out the will of the Monarch Judicial Power o Monarch appoints judges who serves at Monarch’s pleasure o Subjects (citizens) can appeal directly to the Monarch o The Monarch and the ministers (“of the Crown”) are not strictly bound by the law as are subjects Statute Law Made by the legislature (Acts of Parliament) Written Law – found in Statute books Egs: - Civil Aviation (Carriers’ Liability) Act 1959 (Cth) - Civil Aviation (Carriers’ Liability) Act 1962 (SA) - Civil Aviation Safety Regulations 1988 (Cth) - Work Health and Safety Regulations 2012 (SA) The Common Law (Case Law) The common customs and traditional laws of the land of England (unwritten) Found in decisions made by Judges E.g. Should the plaintiff's pilot have been and was in fact aware of the obvious risk of colliding with a kangaroo on the runway at Kempsey aerodrome, having read of the kangaroo hazard in the Notice to Airmen (NOTAM) and the En-Route Supplement Australia (ERSA) notice for the aerodrome? Kempsey Shire Council v Five Star Medical Centre Pty Ltd NSWCA 308 Doctrine of Precedent Binding precedent (must follow) Persuasive precedent (not obligatory to follow) Judges interpreting Statutes E.g. The meaning of “obvious risk” under section 5F of the Civil Liability Act 2002 (NSW) and kangaroos near airport runway (Kempsey’s case above) Statute law overrules Common Law where there is any inconsistency Modern English Legal System The Crown The King/Queen of England (the Monarch) Legislative Power 1. Parliament makes law Parliament decides when it will sit 2. Monarch must give Royal assent to laws (a formality only) 3. Monarch and the ministers of the Monarch (“the Crown”) are in nearly all cases bound by Acts of Parliament Executive Power 1. Monarch appoints Ministers of State based on which party won the general election. The party leader is appointed Prime Minister 2. The Ministers (form the cabinet) decide Government policy. Monarch must act on their advice. 3. Ministers of State are responsible to Parliament and must resign if they lose the confidence of the lower house 4. Ministers of State employ public servants to enact Government policy Judicial Power 1. Monarch appoints judges on the advice of Ministers of State who serve until age 70, resignation or removal by Act of Parliament 2. The final court of appeal is the Supreme Court (not the Queen) 3. Rule of Law: All are bound by the law, including the Government Modern English Legal System – Legislative Power (Parliament) The House of Commons (Lower house) 1. Elected by citizens based on local population 2. Members are called “MPs” “Member of Parliament 3. Proposed laws (called Bills) usually start here The House of Lords (Upper house) 1. Appointed by the Crown on the advice of the Prime Minister 2. Members are called “Lords/Ladies” 3. Bills are further debated here and scrutinised The Crown (The King or Queen) (“the Monarch”) 1. Hereditary Monarchy 2. Represented in Parliament by Ministers of State (who are MPs or Lords) 3. Gives Royal Assent to Bills. Once passed they become “Acts of Parliament” i.e. a law Modern English Legal System – Executive Power (The Government) The Cabinet (‘the Government’) 1. Made up of Ministers of State (are also MPs) 2. The Cabinet decides Government Policy (collective responsibility) 3. The leader of the Cabinet is the Prime Minister “first among equals” 4. Each Minister heads a Government Department Junior Ministers (‘the Government’) 1. Assist Cabinet Ministers to run departments 2. Are also MPs Government Party MPs 1. Supports the Government in Parliament (but they can rebel) 2. Vote in favour of Government bills in Parliament (if they want) Government Departments, Authorities, Bodies 1. Staffed by public servants employed by the Government 2. Tasked to administer the law and enact Government policy 3. Some are under direct control of Ministers of State (e.g. Treasury) 4. Some are semi or totally independent (e.g. Police) Modern English Legal System – Parliamentary Sovereignty In the English system the Crown-in-Parliament (The Crown, House of Commons & House of Lords) is sovereign. The UK Parliament can (in theory) make or unmake any law it wishes. No Parliament can bind a future Parliament This is justified largely on the basis that unlike the Crown or the Courts, it is elected by the people. That is why Government Ministers: 1. Must usually be members of Parliament 2. Are responsible to Parliament 3. Must resign if they lose the confidence of the Parliament 4. Can only spend money as approved by Parliament Modern English Legal System – Delegated Legislation The Parliament can use Acts of Parliament “Laws” to delegate law making authority to Ministers of State and other Government officials These are sometimes called regulations, orders, or statutory instruments They have the force of law just like an Act of Parliament This is usually done when the subject area changes frequently, or is highly detailed or technical (such as Aviation) However, delegated legislation is only valid if it is within the scope of authority granted by the Act of Parliament which gave the delegation. 1. For example a power giving the Minister power to make regulations about the colour of lighthouses cannot be used to make regulations about tea pots. Acts of Parliament override delegated legislation What about Australia? Upon the British colonial powers’ arrival in Australia, they set up Crown colonies. Consequently, all of the Laws of England (common law and statue law) which were relevant to the colony immediately transferred and became active there. The British also then set up colonial governments in each Australian colony modelled on the system in England. So every Australian colony had its own Parliament, Cabinet, Ministers of State, and Courts. Colonial Parliaments were sovereign but had certain limits 1. The UK Parliament (the “Imperial Parliament”) could still make laws for the colonies, which would override colonial laws. 2. Until the Colonial Laws Validity Act 1865 (Imp) The Colonial Parliaments could not make any law which was “repugnant” to British law (if it was intended to apply to the Colony). 3. After this Colonial Parliaments could make laws there different to British laws, unless the UK Parliament by paramount force expressly or impliedly intended a British law to apply to the colonies. In 1900 the Imperial Parliament (UK Parliament) passed the Commonwealth of Australia Constitution Act 1900 (Imp) which created an Australian Constitution. In 1901 The Australian Colonies federated and formed the Commonwealth of Australia under that Constitution. The Australian colonies became States in the Commonwealth. The Australian Constitution became the supreme law in Australia. All other statue law and common law is subordinate to it. The States kept their current systems of government (parliaments, courts etc), and a federal government was added on top. The Constitution can only be changed by a bill through the Federal Parliament and a referendum of Australia voters which achieves: 1. A majority of Australian voters overall, AND 2. A majority of voters in a majority of the States. It took until 1986 for Australia to become completely separate from British Law and the UK Parliament (we won’t worry about the details) Colony of South Australia The Crown Represented by the Governor Legislative Power 1. A State Parliament of two houses: House of Assembly (lower house): Elected by the people based on local Population Legislative Council (upper house): Elected by the people Statewide 2. The Governor must give Royal assent to laws (a formality only) Executive Power 1. The Governor appoints Ministers of State based on which party won the general election. The party leader is appointed Premier 2. The Ministers of State decide Government policy. The Governor must act on their advice. 3. Ministers are responsible to Parliament and must resign if they lose the confidence of the lower house Judicial Power 1. The Governor appoints judges on the advice of Ministers of State who serve until age 70, resignation or removal by Act of Parliament 2. The final court of appeal was the State Supreme Court 3. Rule of Law: All are bound by the law, including the Government 4. Lower courts include the Magistrates Court, and District Court Federal (Commonwealth) Government The Crown Represented by the Governor-General Legislative Power 1. A Federal Parliament of two houses: ▪ House of Representatives (lower house): Elected by the people based on local population ▪ The Senate (upper house): Each State has an equal number of Senators and the Territories have 2 each. Elected by people of each State. 2. The Governor-General must give Royal assent to laws (a formality only) Executive Power 1. The Governor-General appoints Ministers of State based on which party won the general election. The party leader is appointed Prime Minister 2. The Ministers of State decide Government policy. The Governor-General must act on their advice. 3. Ministers are responsible to Parliament and must resign if they lose the confidence of the lower house Judicial Power 1. The Governor-General appoints judges on the advice of Ministers of State who serve until age 70, resignation or removal by Act of Parliament 2. The final court of appeal is the High Court of Australia (this includes State court appeals) 3. Rule of Law: All are bound by the law, including the Government 4. Lower courts include the Federal Court and Federal Circuit & Family Court The Federal Parliament The Constitution divides powers between the Federal Parliament and the parliaments of the States. There are 3 types: 1. Exclusive/Specific Powers – Only the Federal Parliament can make laws about these matters 2. Concurrent/Shared Powers – Both the Federal and State parliaments can make laws about these matters 3. Residual Power – Only the State parliaments can make laws about these matters Exclusive/Specific Powers – egs: External affairs power (s51(xxiv)) (e.g. The Commonwealth of Australia v State of Tasmania (1983) 158 CLR 1 – “the Tasmanian Dam case” Federal/Commonwealth Land (s52) Customs and Excise (s90) Defence (s114) Currency (s115) Concurrent/Shared Powers (s51) Foreign and interstate trade and commerce – Important for Aviation! Acquisition of property Taxation Quarantine Corporations External Affairs – Important for Aviation! Astronomical and Meteorological Observations Immigration Matters referred to the Commonwealth Parliament by the States What if there is a conflict between Commonwealth and State Law? ▪ Section 109: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Direct and Indirect Inconsistency Residual Powers Anything that is not listed in the Constitution as a Concurrent or Exclusive power is left to the States. Examples include 1. Education 2. Health 3. General criminal law 4. Construction 5. Intra-state trade and commerce The Federal Parliament can only make laws in these areas if the States refer their powers to allow it Whereas State Parliaments can make laws about anything as long as it’s not an exclusive power of the Commonwealth or is inconsistent with a valid Commonwealth law. Federal Parliament Regulation of Aviation The Commonwealth Parliament initially used a combination of the external affairs (ratifying the 1919 Paris Convention) and foreign/interstate trade and commerce clause to regulate international, interstate and intrastate aviation R v Burgess; Ex parte Henry (1936) 55 CLR 608 o Burgess was charged under the Air Navigation Regulations 1920 (Cth) for flying without a licence o He flew around Mascot, including over and under the Sydney Harbour Bridge o The High Court held that Intra-state flying was not giving effect the Paris Convention, so the regulations were invalid with respect to intrastate aviation 1937 – The Commonwealth put forward a referendum to give it power over intrastate air navigation and aircraft – which was defeated o A majority of voters approved o But majorities were only achieved in 2 out of 6 states Federal Parliament Regulation of Aviation 1937 – The Commonwealth and States agreed to adopt Commonwealth Air Navigation Regulations into state law 1965 - Airlines of New South Wales v New South Wales (No 2) (1965) 113 CLR 54, the High Court held that: o Due to changes in the nature of aviation since 1937 (faster aircraft, greater density of air traffic), and the fact there was no real difference between interstate and intrastate aviation by this point, there was a strong need for common rules o A combination of the international & interstate trade and commerce power, and the external affairs power, gave the Commonwealth Parliament power over intrastate aviation o But this was limited only aviation safety, commercial and other regulation of intrastate aviation remained a State only power (Some states today still have intrastate aviation licencing regimes)