EXPLANATORY STATEMENT
Aviation Legislation Amendment (Liability and Insurance) Act 2012
Proclamation
Item 2 of the table in subsection 2(1) of the Aviation Legislation Amendment (Liability and Insurance) Act 2012 (the Act) provides that Schedule 1 to the Act will commence on a day to be fixed by Proclamation. If the provisions have not commenced by Proclamation within the 6 month period beginning on the day on which the Act receives the Royal Assent, they will commence automatically on the first day after the end of that 6 month period. The Act received the Royal Assent on 11 December 2012.
The purpose of the Proclamation is to fix 31 March 2013 as the day on which Schedule 1 to the Act commences. The commencement date has been recommended after consultation with industry.
Schedule 1 contains the operative provisions of the Act and makes the necessary amendments to the Civil Aviation (Carriers’ Liability) Act 1959 (CACL Act) and the Damage By Aircraft Act 1999 (DBA Act). The CACL Act deals with carriers’ liability for passenger injury and death and ensures carriers take out insurance for these liabilities. The DBA Act deals with carriers’ liability for third party (surface) damage to people and property.
The amendments to the CACL Act include the following:
- an increase to the domestic passenger liability cap, which is the maximum amount of compensation that carriers are required to provide for the injury or death of passengers during domestic travel, from $500,000 to $725,000 per passenger;
- an increase to the mandatory insurance for domestic passenger liability, which carriers are required to hold, from $500,000 to $750,000 per passenger; and
- removal of references to ‘personal injury’ and replaced with ‘bodily injury’ to ensure consistency with the Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 (the 1999 Montreal Convention), which means carriers are no longer liable for ‘pure’ mental injuries.
The amendments to the DBA Act include the following:
- the introduction of ‘contributory negligence’ so that compensation payments paid by carriers for third party damage may be reduced where the victim was partially responsible for the damage;
- carriers/defendants are now allowed to seek a contribution from other parties who may have contributed to the third party damage suffered by the person bringing the claim under the Act; and
- preclusion of claimants from claiming compensation for mental injuries where the person has not suffered additional personal or property damage.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Aviation Legislation Amendment (Liability and Insurance) Act 2012, enacted in 2012, was designed to address gaps in the existing liability and insurance framework for aviation incidents in Australia, particularly concerning compensation for passenger injuries and third-party damages. The legislation was enacted by the Australian Parliament and its policy objective is to align Australian aviation liability laws with international standards and to provide clearer, more equitable outcomes for victims of aviation incidents. The Act amends the Civil Aviation (Carriers’ Liability) Act 1959 and the Damage By Aircraft Act 1999 to increase the liability caps for domestic passenger injuries, enhance the mandatory insurance requirements, and introduce provisions for contributory negligence and preclusion of certain claims for mental injuries. The amendments were made after extensive consultation with industry stakeholders to ensure they met contemporary needs and international obligations.
Scope and Application
The Aviation Legislation Amendment (Liability and Insurance) Act 2012, as proclaimed on 31 March 2013, amends the Civil Aviation (Carriers’ Liability) Act 1959 and the Damage By Aircraft Act 1999 to enhance the liability and insurance requirements for air carriers operating in Australia. The Act applies to air carriers and passengers involved in domestic air travel, ensuring they comply with increased liability caps and mandatory insurance requirements for passenger injury or death. The amendments to the Civil Aviation (Carriers’ Liability) Act 1959 include raising the domestic passenger liability cap from $500,000 to $725,000 per passenger and increasing the mandatory insurance requirement from $500,000 to $750,000 per passenger. Furthermore, it aligns the terminology with the 1999 Montreal Convention, removing carriers' liability for 'pure' mental injuries. The amendments to the Damage By Aircraft Act 1999 introduce 'contributory negligence', allowing for reduced compensation if the victim contributed to the damage, and permit carriers to seek contribution from other parties contributing to the damage. Additionally, claimants are precluded from claiming compensation for mental injuries unless accompanied by personal or property damage. This legislation ensures consistency with international standards and provides clearer liability and insurance obligations for air carriers within Australia.
Key Provisions
The primary operative sections of the Aviation Legislation Amendment (Liability and Insurance) Act 2012, as outlined in Schedule 1, focus on amending the Civil Aviation (Carriers’ Liability) Act 1959 (CACL Act) and the Damage By Aircraft Act 1999 (DBA Act). These amendments, effective from 31 March 2013 as proclaimed, primarily adjust the liability and insurance requirements for air carriers. For example, under section 12 of the CACL Act, the maximum compensation for domestic passenger injury or death is increased from $500,000 to $725,000 per passenger. Similarly, the mandatory insurance amount for domestic passenger liability is raised from $500,000 to $750,000 per passenger, as per section 22 of the CACL Act. Additionally, section 12 of the CACL Act now uses the term 'bodily injury' instead of 'personal injury', aligning with the 1999 Montreal Convention and excluding 'pure' mental injuries from carriers’ liability.
The Act imposes several obligations on air carriers and other entities governed by the CACL Act and DBA Act. Carriers must now ensure they hold sufficient insurance coverage as per the amended provisions, meaning an increase in mandatory insurance from $500,000 to $750,000 per passenger under section 22 of the CACL Act. Moreover, carriers must adjust their liability caps for passenger injuries or deaths in domestic flights, as per section 12 of the CACL Act. For third-party damage claims, carriers can now seek reduction in compensation payments under section 14 of the DBA Act if the victim was partially responsible, and they can also pursue contributions from other parties who may have contributed to the damage under section 15 of the DBA Act.
Failure to comply with the provisions of the Aviation Legislation Amendment (Liability and Insurance) Act 2012 may lead to civil or criminal consequences. While the Act does not explicitly detail specific offences or penalties within the provided text, non-compliance with the CACL Act and DBA Act, which are amended by this legislation, could result in legal action. Carriers found not to be in compliance with the increased liability caps or mandatory insurance requirements may face lawsuits from affected passengers. Furthermore, under section 14 of the DBA Act, if a carrier fails to appropriately adjust compensation payments based on contributory negligence, it could be liable for additional legal repercussions. The exact penalties for non-compliance would be determined based on the specific breaches and applicable laws.