Asia Pacific Aviation Liability Event – February 2016

Comment by Joseph Wheeler, IALPG:
Asia Pacific Aviation Liability

Joseph has kindly allowed his review of the recent Asia Pacific Aviation Liability event in February 2016 to be reproduced here.

This inaugural event, jointly organised by IALPG and Aeropodium and hosted by Maurice Blackburn Lawyers in Sydney, provided a forum for the exchange of ideas, analysis of novel issues going forward, and for all attendees to get an appreciation of how and why aviation liability in respect of particularly recreational remotely piloted aircraft, is something that requires both policymaker, and community attention in Australia and further afield through Asia Pacific.

The myriad issues which emerge given the easy misuse and dangerous applications of remotely piloted aircraft are readily moderated by the fact that Australian safety regulators, and now more recently, many other states, are recognising the real level of risk carried by quickly developing technology.

Unlike model and radio controlled aircraft, which are notoriously difficult to learn how to fly, and have a well-established, historically responsible, and organised community of participants, remotely piloted recreational and aircraft come straight out of the box with exceptionally good stability controls, a variety of privacy-challenging features, and are thus affordable and accessible to those with diminished responsibility, children, and those who would purposefully (and successfully) use them for malicious or criminal purposes.

The seminar heard about recent statistics which put laser attacks on pilots as the number two cause for pilot incapacitation events in Australia in respect of high-capacity air transport operations. It is only with comprehensive federal, state and local level policy consideration that these fun but potentially dangerous aircraft will not join that list.

Presentations by Michael Nas, and Aidan Bruford, presented some surprising, but perhaps sobering realities in respect of drone misuse, and their frailties. For example Mr Nas presented statistics recently taken from the United States, that suggested the majority of incidents which could cause injury with drones happened above 400 feet above ground level. Four hundred feet is the regulated ceiling of unmanned aerial vehicles under Australia’s current regulations. It is the same case in the United States.

Furthermore, Mr Bruford from the Department of Infrastructure and Regional Development showed a YouTube video wherein a teenage boy demonstrated how he could use his iPad to assume third-party control of an operational drone, and disable it. The liability consequences of these matters are frightening, and laws which purport to restrict flight to certain altitudes, away from crowds, or even prevent flight in public spaces can only prevent misuse in a fraction of potential instances.

What is needed is more pervasive control and education, together with a different attitude towards remotely piloted aircraft from a variety of perspectives. For example, laser pointers are restricted imports in Australia, depending on their power. This recognition of their ability to be used as weapons, and the fact that much of the more “dangerous” hardware is available off the shelf as an import from other nations, goes some way to mitigating the risks of non–hobbyists taking to the skies with aircraft more powerful than their capability or responsibility level.

Additionally, the airworthiness standards issue in relation to these aircraft is a difficult, though not insurmountable challenge. In the defence realm, Wing Commander Andrew Bannister discussed how a risk framework was developed in order to inform various aspects of airworthiness. It is this outcome-oriented approach which may well be a key, if not the key, to ensuring the enormous diversity of remotely piloted aircraft are able to conform to a suitably reliable standard of airworthiness.

The problems of evidence in respect of drones that crash, causing injury or death, and the question of identifying the operator for the purposes of Australian compensation legislation for damage by aircraft are also difficult but not impossible to resolve. The FAA registration system, although arguably only regulating the already-compliant, demonstrates how operators themselves can and should be monitored by the overarching national airspace regulator, at least for the purpose of disseminating information/education material, and advice or counselling.

In fact, as CASA has a legislated mandate to foster education about the safe use of aviation, not just within the aviation industry, but within the community as a whole, it is uncertain why a registration system is not more broadly lauded locally as a good step forward. Certainly, as raised in the context of the seminar this week, the Australian government’s red tape reduction policy applies to even this area, such that more prescriptive regulation will only be considered if absolutely necessary. That is admirable, and forces Australians and the world to look outside black letter law to other ways of modifying and controlling behaviours which present a danger in the air and on the ground.

The seminar was a small step forward to making the conversation in respect of controlling the negative consequences of recreational remotely piloted aircraft use better appreciated for why it is important. This is certainly not, given our “corporate knowledge” of the adverse consequences of aviation such as fatal accidents, a discussion we should be having in the aftermath of a preventable disaster.

Our day to day focus, and certainly the focus of IALPG, is on aviation law, but to us that term is inextricably linked with social justice and aviation safety as an exercise in prevention rather than just cure.

I would like to thank all our speakers and sponsors for making the event a reality, and contributing to a valuable, enthusiastic, and eye-opening day of aviation law and policy discussion.

Joseph Wheeler is Principal of the International Aerospace Law & Policy Group (IALPG)

The original article can be found here.

 

Submissions to Australia’s Aviation Safety Regulation Review

The Australian Lawyers Alliance and the Aviation Law Department of Shine Lawyers have each made submissions to Australia’s Aviation Safety Regulation Review.

The Australian Lawyers Alliance recommended that the Panel should advise Government that:

1. Guidance material on CASA’s enforcement policy which guides CASA decision makers should be legally binding and itself enforceable under an Ombudsman-type arrangement akin to the Aircraft Noise Ombudsman.
2. Strict adherence to AAT expert evidence guidelines and procedural rules be demanded of all litigants in aviation administrative matters (both CASA and represented applicants).
3. Australia’s fatigue risk management system rules should be further developed by CASA in light of the merits of the US FAA approach which came into effect on 14 January 2014.
4. Australian aviation drug and alcohol management (DAMP) policy should be clarified by adding an “Objects” section to either Part 99 of the Civil Aviation Safety Regulations 1998 (Cth), or Part IV of the Civil Aviation Act 1988 (Cth), to reflect Parliament’s intention that DAMP rules operate to minimise harm in aviation, not punish.
5. In light of the Pel-Air and Transair air disasters, Australia should update its State Safety Program in recognition and reflection of Australia’s adherence to safety management standards set out in Annex 19 to the Chicago Convention which entered force on 14 November 2013, to assure the public of confidence in future regulator oversight and surveillance of operators.
6. CASA should undertake as a priority, a review of the need for regulations on cockpit automation and adapt and implement relevant recommendations of the FAA in its comprehensive September 2013 report on this subject including, in particular, a proposed requirement for Australian AOC holders to create explicit flight path management policies.

Shine Lawyers recommended to the ASRR Panel that it should advise the Government to:

1. Extend the concession Commonwealth employees travelling on Commonwealth business enjoy under Part III of the Air Accidents (Commonwealth Government Liability) Act 1963 (Cth) (AACL Act) to all Australians, or repeal Part III of the AACL Act; or
2. Review the AACL Act’s consistency with the policy behind the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACL Act), and update the AACL Act to reflect its original intent as expressed by Parliament in 1963; and
3. Remove all references to the term “personal injury” in s.12 of the AACL Act (or return that term to the wording of the CACL Act for consistency); and
4. Legislate for the imposition of adherence to the IATA (or some other suitable) intercarrier agreement as a condition for non-Australian airlines which service Australia (as recommended at Preliminary Finding 4 of the 2009 DOIRD Discussion Paper).

To read the submissions in full, visit the Aviation Law Blog page.

AAT Restores Right to Fly for Pilot

New Aviation Law Blog post:

AAT restores right to fly for pilot who was victim of assault
Joseph Wheeler

The Administrative Appeals Tribunal (AAT) recently set aside the decision of the Civil Aviation Safety Authority (CASA) to cancel the medical certificates of a Queensland commercial pilot who had suffered a fractured skull, when he was assaulted while out with friends in March 2013: Daniel Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013).

To continue reading, see the Aviation Law Blog page.

Partnership between Qantas & Emirates given Interim Authorisation by ACCC

The Interim Authorisation Decision of the Australian Competition & Consumer Competition (ACCC) in relation to Qantas Airways Limited & Emirates is now available on the Commission’s website.

The partnership has been given an Interim Authorisation (17/01/13) which allows marketing, capacity determination and other related logistical matters to be organised before code share operations begin, likely in April 2013. This is great news for Australian and European travellers in particular.

The Interim Authorisation Decision (17/01/13) and the Draft Determination (20/12/12) are available at http://www.accc.gov.au/content/index.phtml/itemId/1078153/fromItemId/278039/display/acccDecision