Human Rights element to be incorporated into Australian Aviation Law
Published: 9 March 2019
When I think of ‘Human Rights law’ I picture the Magna Carta, or War Lords being sentenced for Crimes Against Humanity in the Hague; not the Civil Aviation Safety Authority (CASA) having to ensure that its aviation safety standards take into account economic and cost impact on the community. Yet this is precisely what is going down in Parliament right now with a proposed addition to the Civil Aviation Act 1988 (the Act) called the Civil Aviation Amendment Bill 2019 (the Bill).
The purpose of the Bill is to add a provision to the Act to ensure that, in developing and promulgating aviation safety standards, CASA takes into consideration the impacts of costs and the relative risk environment of the different aviation industry sectors.
Let’s look at the relevant section of the Act and proposed 46-word addition:
Section 9A of the Act is titled ‘Performance of functions’ that is, the performance of CASA’s functions. Below is the existing section of the Act with the Bill addition at (3) in bold italics:
9A Performance of functions
(1) In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2) Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.
(3) Subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
Note that the Bill does not create any requirements on individuals or organisations. Also, Parliament makes it clear that the safety of air navigation will remain the most important consideration for CASA in exercising its powers and performing its functions.
Human rights implications…
Australia is a party to a number of international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR).
The Bill engages the right to an effective remedy in Article 2(3) of the ICCPR which states that:
Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
What does this mean for me?
The introduction of this measure may create a new avenue of legal redress, which may promote the right to an effective remedy, where a person’s human rights have been violated through the creation of an aviation safety standard which does not appropriately consider cost impacts or relative sector risk.
To take a line from Australia’s most famous lawyer, Denis Denuto: “In summing up, it’s the constitution, it’s Mabo, it’s justice, it’s law, it’s the vibe and aah no that’s it, it’s the vibe. I rest my case.”
How it might apply…
As you may be aware, CASA is likely to mandate drone pilot accreditation and drone registration by mid-2019 which I have written about here.
Pursuant to the Bill, in developing and implementing accreditation and registration, CASA must “consider the economic and cost impact on individuals, businesses and the community” of its aviation safety standards. If for example, the cost is too high, or the economic impact is over-burdensome, or you can demonstrate that CASA simply did not consider economic and cost impacts, then a party aggrieved may have a right to a remedy.
Move over War Lords, we’re off to the Hague!
The Drone Lawyer.
9 March 2019.