Civil Aviation (Carriers' Liability) Act 1961

Applied provisions. The central concept. Defined in section 3(1) as “the provisions of the Commonwealth Act and the Commonwealth Regulations as they apply under this Act as laws of the State”. These are not reproduced in the text of the State Act; they are incorporated by reference, dynamically, because the definition of “the Commonwealth Act” in section 3(1) refers to the Commonwealth Act “as amended and in force from time to time”. That means any future amendment to the Commonwealth Act automatically alters the content of the State Act without any further State legislative step. This dynamic incorporation is a double-edged sword: it reduces the need for State amendment bills but introduces compliance risk because the operative rules can change without notice in the Government Gazette of Western Australia.

Carriage to which this Act applies. Defined in section 5(1) by a set of inclusions and exclusions. Inclusions: the passenger is carried in an aircraft operated by the holder of an airline licence or a charter licence, in the course of commercial transport operations, under a contract for carriage between two places in the State. Exclusions: carriage covered by Part IV of the Commonwealth Act (which governs interstate and some international carriage), carriage covered by the Warsaw Convention, Hague Protocol, Guadalajara Convention, or any prescribed treaty. The effect is that this Act only covers purely intrastate commercial flights that are not already subject to a Commonwealth or international regime. The deeming provision in section 5(2) extends that to flights that begin and end at the same place (for example, scenic flights or joy flights that return to the departure airport), treating the contract as if it were between two places.

Parts IV and IVA of the Commonwealth Act. Part IV (sections 27 to 41J of the Commonwealth Act) establishes the liability of carriers for the death of or bodily injury to a passenger. It replaces the common law tort regime with a statutory cause of action, usually with limits on recoverable damages. Part IVA imposes a compulsory insurance requirement on carriers to cover those liabilities. The State Act explicitly excludes sections 27 (which defines the carriage to which Part IV applies), 40 (which deals with regulations for Part IV), 41 (which creates offences for certain acts), and 41J(8) (a provision dealing with insurance requirements). The exclusion of section 27 is necessary because the State Act defines its own scope of carriage in section 5. The exclusions of sections 40 and 41 and 41J(8) appear to reflect the fact that the State Act has its own regulation-making power (section 10) and its own offence and insurance provisions are not directly replicated.

Stowaways. Section 7 of the State Act applies section 42 of the Commonwealth Act, which makes it an offence for a person to travel in an aircraft without the carrier’s consent. This is a self-contained provision that sits outside the liability and insurance framework.

Administration as a Commonwealth law. Section 8 expresses Parliament’s intention that the applied provisions be “administered and enforced as if they were provisions applying as laws of the Commonwealth”. This is achieved by three mechanisms: (a) Commonwealth authorities (such as the Civil Aviation Safety Authority) have the same enforcement powers as they have under the Commonwealth Act; (b) Commonwealth criminal law, including procedural and evidentiary rules, applies to offences against the applied provisions; and (c) State criminal law does not apply. This avoids duplication of enforcement machinery but creates a potential jurisdictional oddity: a State Act creating offences that are prosecuted under Commonwealth law.

Alternative arrangements. Section 9 allows the Governor to make regulations that override section 8, either wholly or partially. If such regulations are made, Commonwealth authorities may be replaced by State authorities for enforcement, and the offences become State crimes (capable of being dealt with summarily at the election of the accused and with the prosecutor’s consent). This flexibility may be useful if Commonwealth enforcement agencies decline to act or if a policy decision is made to bring enforcement within the State justice system. However, it adds a layer of regulatory uncertainty for carriers, who must monitor not only the Commonwealth Act but also any State regulations that may alter the enforcement regime.

The Act directly affects airlines and charter operators that hold an “airline licence” or “charter licence” (terms undefined in this Act but presumably defined under State air navigation law) and that conduct commercial transport operations wholly within Western Australia. This includes regional airlines flying between towns in the State, scenic flight operators, and any company offering passenger flights that do not cross a State border and are not already covered by Commonwealth Part IV. The Act binds the Crown in right of the State (section 4), so government owned or operated airlines (if any) are also subject to it. Passengers on those flights are the beneficiaries of the statutory liability regime , they have a right to sue for injury or death under the applied Part IV provisions, subject to any limits and conditions in the Commonwealth Act. Passengers also face the risk that if they travel without the carrier’s consent, they commit an offence under the applied stowaway provision.

Commonwealth authorities, particularly the Australian Transport Safety Bureau or the Civil Aviation Safety Authority, are given enforcement powers under section 8. The Commonwealth Director of Public Prosecutions would normally prosecute offences against the applied provisions. State authorities, such as the WA Police or the WA Office of the Director of Public Prosecutions, are not involved unless a regulation under section 9 is made. The Act also imposes compliance burdens on insurers and legal advisers who must ascertain the current content of the Commonwealth Act and Regulations, which are incorporated dynamically.

The State Crown is bound, but the Act does not explicitly waive Crown immunity from suit or from criminal liability; that would depend on the Commonwealth Act provisions as applied. Because liability caps and insurance requirements from Part IV and IVA apply, the Act indirectly affects the cost and availability of intrastate air travel in Western Australia. Carriers must factor in insurance premiums and potential liabilities, which are ultimately passed on to passengers through ticket prices. This is a market intervention that substitutes statutory liability for freedom of contract , passengers and carriers cannot agree to lower limits or exclude liability, unless the Commonwealth Act itself permits it. The economic consequence is that intrastate air fares may be higher than they would be under a purely contractual regime, and small operators may be disproportionately burdened by insurance requirements.

The Act itself creates few duties or rights directly; most are imported from the Commonwealth Act. The key duties imposed on carriers include the duty to maintain compulsory insurance under Part IVA (as applied). The precise amount and terms of that insurance are set out in the Commonwealth Act and Regulations. Carriers must also comply with the liability regime in Part IV, which typically imposes strict liability for passenger death or injury arising from an accident on board or during embarkation/disembarkation, subject to a defence of contributory negligence and within prescribed monetary limits. These limits effectively cap the carrier’s exposure and operate as a trade-off: passengers receive a simplified claim process but cannot recover unlimited common law damages.

The rights of passengers are the mirror of these duties. A passenger (or their estate) has a statutory right to sue the carrier for damages for death or injury, but the amount recoverable is limited by the Commonwealth Act. Because section 6(c) of the State Act makes specific reference to section 29(5) of the Commonwealth Act (dealing with successive carriers), passengers on multi-stage intrastate flights where the carriage is regarded as a single operation have rights against each successive carrier. This is important for flights with intermediate stops, such as a Perth to Kalgoorlie service with a stop in Merredin.

The Act does not create any duty on passengers other than the prohibition on stowaway travel (section 7, applying section 42 of the Commonwealth Act). That provision makes it an offence for a person to travel in an aircraft without the carrier’s consent, and the penalty would be as set out in the Commonwealth Act.

Carriers also have a right to be indemnified or to rely on limits of liability under the Commonwealth Act. For example, the carrier may have a right to limit its liability per passenger, or to assert a defence if the injury was caused solely by the passenger’s negligence. These rights are not stated in the State Act but are incorporated.

The Act does not repeal or override any contractual rights or common law rights that a passenger might have outside the applied provisions, except that the Commonwealth Act itself may do so. For example, Part IV of the Commonwealth Act generally excludes other liability of the carrier arising out of the same accident. So the State Act, by incorporating that Part, effectively removes the right to sue in tort for intrastate flights covered by the Act. That is a significant restriction on the passenger’s freedom to choose a legal remedy.

Because the Act incorporates the offence provisions of Part IV and IVA of the Commonwealth Act (except sections 40 and 41 which are expressly excluded), the penalty amounts and enforcement mechanisms come from Commonwealth law. Section 8(2)(b) provides that the laws of the Commonwealth apply to offences against the applied provisions “as if they were offences against the Commonwealth Act or the Commonwealth Regulations”. That means Commonwealth sentencing laws, fines, and procedural rules apply. For example, an offence against a Commonwealth regulation made under Part IVA could carry a penalty of, say, 50 penalty units, which is then determined by the Commonwealth Crimes Act 1914.

Section 8(2)(c) expressly excludes the application of State criminal law to those offences. That means the WA Criminal Code and the Sentencing Act 1995 do not apply , a rare instance of a State Act ousting its own criminal procedure. However, this can be altered by regulation under section 9. If the Governor makes a regulation that section 8 does not have effect (or part of it), then State criminal law applies. Section 9(2) then provides that the offence is to be regarded as a crime under the laws of the State, but may be dealt with summarily if the accused elects and the prosecutor consents. This creates an unusual hybrid: an offence that is a crime (indictable) but can be heard in the Magistrates Court with the parties’ agreement.

Enforcement powers are vested in Commonwealth authorities under section 8(2)(a) and (3). That means inspectors from CASA or the Australian Transport Safety Bureau can board aircraft, request documents, and take enforcement action as they would for a purely Commonwealth matter. This avoids the need for the State to maintain its own air safety enforcement apparatus. The cost of enforcement is thus borne by the Commonwealth budget, not the State.

The practical effect is that a carrier operating intrastate in WA faces the same penalty exposure as one operating interstate, for the same breaches. But because the Commonwealth Act incorporates its own offence by cross-reference, the carrier must look at the Commonwealth Act and Regulations to know the exact penalty. This is a compliance burden, especially for small operators who may not regularly monitor Commonwealth legislative changes.

The Act operates as a complement to the Commonwealth Civil Aviation (Carriers’ Liability) Act 1959. Section 5(1)(a) excludes carriage to which Part IV of the Commonwealth Act applies, meaning the State Act only applies where the Commonwealth Act does not. The two regimes together ensure that all commercial air carriage in Australia (interstate, intrastate, international) is covered by some statutory liability and insurance framework. Where a flight crosses a State border, the Commonwealth Act applies; where it remains inside WA, this Act applies. This avoids a gap, but it also creates a distinction that can confuse passengers: a passenger injured on a Perth to Kalgoorlie flight has a State statutory claim, while a passenger on a Perth to Adelaide flight has a Commonwealth statutory claim, even though the claim may be identical in content.

The Act also interacts with international conventions. Section 5(1)(b) and (c) exclude carriage covered by the Warsaw Convention, the Hague Protocol, the Guadalajara Convention, or any prescribed treaty. So if an intrastate flight is part of an international journey (say, a feeder flight to an international connection), it remains governed by the international regime, not this Act. The prescription power in section 5(1)(c) allows the State to exclude future conventions by regulation, keeping the Act current.

Section 8(2)(c) excludes State criminal laws from applying to offences against the applied provisions. That means a carrier prosecuted under the applied provisions cannot rely on State defences, procedures, or sentencing options unless a regulation under section 9 is made. This could be problematic if the Commonwealth criminal law is less favourable to the defendant than State law. Conversely, it could be advantageous if Commonwealth law is more lenient.

The Act binds the Crown in right of the State, but it does not purport to bind the Crown in right of the Commonwealth or other States. It does not override the Trade Practices Act 1974 (now Competition and Consumer Act 2010) or the Australian Consumer Law, except to the extent that the Commonwealth Act provisions may themselves exclude other liability. Practitioners should check whether the applied provisions exclude concurrent causes of action under state fair trading laws.

The Act was originally enacted in 1961 and commenced on 22 December 1961 (see Gazette 15 December 1961). The first amendment came in 1970 by the Civil Aviation (Carriers’ Liability) Act Amendment Act 1970, which received assent on 15 October 1970. The next amendment in 1976 by Act No. 64 of 1976 was specifically retrospective in operation: it applied from 1 July 1976, but with a savings clause providing that the amendment “does not apply in relation to an accident or occurrence that took place before the first day of July, 1976” (see note 2 of the compilation). That means any accident before that date continued to be governed by the pre-1976 version of the Act, a rare instance of non-retrospective amendment.

The most significant set of amendments came from the Civil Aviation (Carriers’ Liability) Amendment Act 1996 (No. 80 of 1996), which was assented to on 14 November 1996 but did not commence until 1 September 1998 , nearly two years later , by proclamation in the Gazette on 28 August 1998. This 1996 amendment was a comprehensive rewrite: it inserted sections 8 (administration as Commonwealth laws), 9 (alternative arrangements), and 10 (regulations). It amended section 3 to insert the definitions of “applied provisions” and “Commonwealth authority”; amended section 5 to update the exclusion of Commonwealth Part IV and to add the deeming provision for same-place flights; amended section 6 to modify the reference to section 29(5) of the Commonwealth Act and to update wording; and amended section 7 to update the reference to the stowaway provision.

The final amendment shown in the compilation table is the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004, which amended section 9(2) to reflect changes in criminal procedure summary trial election rules. That amendment commenced on 2 May 2005.

The compilation table also notes that Part IV of the Commonwealth Act is about carrier liability and Part IVA is about compulsory insurance, and that the Commonwealth Act and regulations can be found at the now-defunct website “scaleplus.law.gov.au”. This highlights a practical problem: the Act incorporates an external document that has moved locations, and a practitioner must now find the current Commonwealth Act elsewhere.

The Act’s own text records no litigation history. There is no reference to any judicial interpretation of the Act in the source provided. However, because the Act incorporates Parts IV and IVA of the Commonwealth Act, the substantial body of case law under the Commonwealth Act (particularly decisions of the High Court and Federal Court on carrier liability limits, insurance obligations, and the definition of “accident”) would be persuasive authority for claims under this State Act. There may be unreported State District Court or Supreme Court decisions interpreting the Act, but the source does not provide them. The Act itself has been amended infrequently, suggesting it has not been the subject of frequent litigation or legislative controversy. However, the deeming provision in section 5(2) regarding flights that begin and end at the same place could be a source of interpretative dispute , for example, whether a scenic flight that takes off and lands at the same airport, but includes a landing at another airport, is still deemed to be between two places or falls outside the provision. The absence of publicly noted litigation may reflect the relatively small volume of intrastate air travel in WA and the fact that most claims are settled. The Act’s reliance on the Commonwealth Act means that any ambiguity in the Commonwealth Act’s provisions will be reproduced in WA and will require Western Australian courts to resolve it, potentially creating divergent state interpretations if Commonwealth courts have not settled the point.

Dynamic incorporation without notice. The Act applies the Commonwealth Act “as amended and in force from time to time”. That means a change to the Commonwealth Act automatically changes the content of this State Act. Carriers and advisers cannot rely on the State Act as printed; they must monitor Commonwealth amendments. If the Commonwealth Parliament increases liability limits or expands insurance requirements, the State Act changes instantly and without any State legislative scrutiny. This was a deliberate choice (section 3(1)), but it creates a risk that operators may not be aware of a change and may be non-compliant.

Circle flights caught by section 5(2). A contract for carriage that begins and ends at the same place in the State is deemed to be a contract between two places. This captures scenic flights, sightseeing loops, and training flights that carry passengers for commercial purposes. Operators of such flights who thought they were not subject to the liability regime because there is no “place” change are mistaken. They must have insurance and are subject to Part IV liability.

Exclusion of key Commonwealth sections. Section 6 only applies Parts IV and IVA “other than sections 27, 40, 41 and 41J(8)”. Section 27 is the definition of carriage for Part IV of the Commonwealth Act; its exclusion is logical because the State Act defines its own scope. But sections 40, 41 and 41J(8) contain substantive provisions: section 40 deals with regulations for Part IV, section 41 creates certain offences (such as false statements), and section 41J(8) is a saving provision for insurance. Their exclusion means that those specific offences and regulation-making powers are not part of the State Act. Carriers cannot be prosecuted under those sections under this Act, but the applied provisions may still contain other offences. Practitioners must carefully compare the Commonwealth Act text to see what is actually incorporated.

Administration ambiguity unless checked. Section 8 states the default is Commonwealth enforcement, but section 9 allows the regulations to override that. As at the compilation date of the Act provided, no such regulations are mentioned; but they could be made at any time. A carrier that has accustomed itself to dealing with Commonwealth authorities might suddenly find itself facing State police and a State prosecution. The existence of the regulatory power alone creates uncertainty: a prudent operator must monitor both the Gazette and any regulations made under section 9.

Retrospective limitation on 1976 amendment. The 1976 amendment (which presumably changed liability limits or insurance requirements) does not apply to accidents that occurred before 1 July 1976. Any claims arising from an accident before that date are governed by the pre-1976 law. This is an oddity that may still be relevant for historical litigation if a limitation period is extended.

Penalties not stated in the Act. The Act does not set out any penalty amounts. To know the applicable penalty for an offence, one must locate the relevant provision in the Commonwealth Act or Regulations as in force at the time. This is a compliance burden: a small operator cannot simply read the State Act. The same applies to liability limits; they are not listed here.

Stowaway provision scope. Section 7 applies section 42 of the Commonwealth Act only “within the State”. That means a stowaway who boards in WA but is discovered outside the State may not be caught by this Act. The territorial limitation is explicit.

A carrier operating intrastate commercial passenger flights in Western Australia must first determine whether its operations fall within the scope of section 5. That requires checking that the flight is not already covered by Part IV of the Commonwealth Act (i.e. it is not interstate or international) and that it is not covered by the Warsaw Convention or other prescribed treaties. If the flight is wholly intrastate, the carrier must ensure compliance with the applied provisions of Parts IV and IVA of the Commonwealth Act. That means obtaining and maintaining compulsory insurance as required by Part IVA and the Commonwealth Regulations. The amount and type of insurance will be specified in those regulations; the carrier should consult the current version of the Civil Aviation (Carriers’ Liability) Regulations (Cth) made under section 41A of the Commonwealth Act (which is not excluded by the State Act). A broker familiar with aviation insurance should be engaged.

The carrier should also implement procedures to handle passenger injury or death claims in accordance with Part IV of the Commonwealth Act. This includes issuing appropriate notices (if any are required), maintaining records of passenger manifests, and cooperating with any Commonwealth investigation. The carrier should be aware of the liability limits and defences available; for example, contributory negligence may reduce the carrier’s liability.

Because the Act incorporates the Commonwealth Act dynamically, the carrier must appoint a person responsible for monitoring amendments to the Commonwealth Act and Regulations. A subscription to the Federal Register of Legislation and a review of each new Commonwealth Act that amends the Civil Aviation (Carriers’ Liability) Act 1959 is essential. The carrier should also monitor the WA Government Gazette for any regulations made under section 9 of this Act that might alter the enforcement regime.

If the carrier conducts circle flights (beginning and ending at the same place), it must treat those flights as within the Act and comply accordingly, even if it previously considered them exempt.

In the event of an accident, the carrier must report to the relevant Commonwealth authority (such as the Australian Transport Safety Bureau) under Commonwealth law. The carrier should not assume that State reporting obligations apply; section 8(2)(c) excludes them unless regulations have been made.

Legal practitioners advising carriers should review the current text of the Commonwealth Act (as at the time of the advice) and confirm which provisions are excluded by section 6. They should also check whether any regulations under section 9 have been made that would change enforcement from Commonwealth to State. Because the State Act is short and relies entirely on external documents, the compliance burden is higher than for a self-contained statute. The practical cost of compliance includes legal fees to determine the current state of the law, insurance premiums, and administrative time to monitor changes. In an economically literate sense, this Act imposes a regulatory tax on intrastate air travel in WA, and the benefit of uniform liability rules must be weighed against the cost of constantly tracking Commonwealth amendments.