Civil Aviation (Carriers’ Liability) Act 1967

Applied provisions. The central concept is that the State Act does not rewrite the liability rules but rather imports the Commonwealth Act’s Parts IV and IVA (and associated regulations) as State law, subject to textual adaptations set out in s 5. The applied provisions include all the substantive liability rules, definitions, limitation of liability amounts, procedural requirements for claims, and the carrier’s defences. The Act defines “applied provisions” in s 2(1) as “the provisions of the Commonwealth Act and the Commonwealth Regulations as they apply under this Act as laws of the State.” This means that whenever a practitioner reads a provision of Part IV or IVA of the Commonwealth Act, that provision is potentially applicable to intrastate carriage in NSW, but with the modifications in s 5. For example, s 5(c) adapts the reference in s 29(5) of the Commonwealth Act to “carriage referred to in subsection (4) of section 27 of that Act” so that it refers instead to a specific description of successive carriage: carriage between two places performed by two or more carriers in successive stages, regarded as a single operation, and where the State Act would have applied if performed by a single carrier. This ensures the successive carriage rules work for intrastate carriage.

Carriage to which this Act applies. Section 4 defines the scope carefully. The carriage must be of a passenger (the Act does not apply to cargo or baggage; those are covered separately under other regimes). The aircraft must be operated by the holder of an airline licence or a charter licence (terms defined in the Commonwealth Act or the Air Navigation Regulations) and the operation must be in the course of commercial transport operations. So private, non-commercial flights are excluded. The contract must be for carriage between a place in NSW and another place in NSW, or from a place in NSW back to that place. This covers both point-to-point flights wholly within the State and circular sightseeing flights that depart and return to the same airport. The exclusions are: (a) carriage to which Part IV of the Commonwealth Act applies (which covers interstate and international carriage under the Warsaw/Hague/Guadalajara regimes); (b) carriage to which the Warsaw Convention, Hague Protocol or Guadalajara Convention applies directly; and (c) carriage to which another convention, protocol or treaty having force of law under the Commonwealth Act and prescribed by regulations applies. So the State Act is a residual regime for purely intrastate commercial passenger flights that are not covered by any international or interstate liability scheme.

Stowaway. Section 6 imports s 42 of the Commonwealth Act, making it an applied provision. That section deals with a person who travels in an aircraft without the carrier’s consent. It typically makes the stowaway liable to the carrier for the fare and possibly for damages. The adaptation in s 6 changes references to a Part or Parts of the Commonwealth Act to references to the State Act. This means that the stowaway provisions operate as State law for intrastate flights.

Administration as Commonwealth laws. Section 6A introduces a unique concept: the applied provisions are to be administered and enforced as if they were Commonwealth laws, not State laws. Commonwealth authorities have the same enforcement powers, and the laws of the Commonwealth (including criminal procedure, evidence, appeal rights) apply to offences against the applied provisions, while State laws do not. This is a deliberate choice to achieve uniformity: a carrier operating both interstate and intrastate flights faces the same enforcement regime regardless of which leg of the journey is involved. However, s 6B allows regulations to reverse this entirely or partially, specifying that any or all of s 6A does not have effect, and conferring functions on a State authority. If State laws apply to offences, the offence becomes an indictable State offence (with possible summary disposal).

Inconsistent regulations. Section 7(3) gives the Governor power to make regulations “prescribing all matters which by the Commonwealth Act (including section 40) are required or permitted to be prescribed” for the purposes of the State Act, and such State regulations can be inconsistent with the Commonwealth Regulations. Where they are inconsistent, the Commonwealth Regulations cease to apply. This creates a potential for divergence between the Commonwealth regime and the State regime, although in practice the State has largely tracked the Commonwealth provisions. The tabling and disallowance mechanism (s 7(1), (2), (5)) ensures parliamentary oversight of Commonwealth Regulations that are imported, and allows either House to disallow a Commonwealth Regulation (or part) within fifteen sitting days after it is laid before the House.

Commercial air carriers operating wholly within New South Wales. The Act directly affects the holder of an airline licence or a charter licence who carries passengers on commercial transport operations wholly within NSW or on circular flights starting and ending in NSW. These carriers become subject to a statutory liability regime that limits their liability for passenger death or injury (as set out in Parts IV and IVA of the Commonwealth Act) but also imposes strict liability up to a certain limit, with a reversed burden of proof. The carrier must comply with the reporting and claim provisions of the Commonwealth Act as applied. Carriers who also operate interstate flights will already be familiar with the Commonwealth Act; the State Act ensures that the same rules apply to their intrastate services, reducing compliance complexity.

Passengers on intrastate flights. Passengers and their legal representatives are affected because their rights to claim damages for death or personal injury are governed by a uniform code that limits the carrier’s liability, provides certain defences (such as contributory negligence or that the damage did not result from the carrier’s fault or that it was caused solely by the fault of a third party - depending on the applicable part), and imposes time limits and notice requirements. Passengers cannot contract out of the statutory regime; the carrier’s liability is capped per passenger (the precise limits change over time via amendments to the Commonwealth Act and Regulations). The Act does not itself state the limit, but it is found in the incorporated Commonwealth provisions.

Commonwealth authorities. Section 6A confers powers on Commonwealth authorities (such as the Civil Aviation Safety Authority, the Australian Transport Safety Bureau, or the Director of Public Prosecutions) to enforce the applied provisions as if they were Commonwealth laws. This includes powers of investigation, prosecution, and the application of Commonwealth evidentiary and procedural rules. These authorities are affected because they must treat intrastate offences under the applied provisions as part of their workload, even though the source law is State legislation.

State authorities and the Governor. The Governor, on the advice of the State executive, can make regulations under s 7(3) and (7). The regulations can modify or replace the Commonwealth Regulations for intrastate carriage, potentially creating a different regime. State authorities may be designated under s 6B(1)(b) to exercise functions or powers if the regulations reverse the Commonwealth administration arrangement. The State Parliament is affected because it must receive and may disallow Commonwealth Regulations tabled under s 7.

Insurers and legal practitioners. Insurers of intrastate carriers must understand the applicable liability limits (which mirror the Commonwealth limits) and the claims process. Practitioners advising passengers or carriers must look to the Commonwealth Act as applied, but also check whether any State regulations have been made that deviate from the Commonwealth Regulations. The Act’s incorporation by reference means that the relevant law is a moving target: amendments to the Commonwealth Act automatically apply to intrastate carriage (because the definition of “the Commonwealth Act” in s 2 includes that Act as amended from time to time). Practitioners must keep abreast of Commonwealth amendments.

Persons assisting stowaways. The stowaway provision (s 42 of the Commonwealth Act as applied by s 6) may also affect persons who assist or conceal a stowaway, depending on the wording of that section (the source text of s 42 is not included in the user’s extract, but typically it creates an offence for the stowaway and possibly for others).

Carrier’s duty to pay compensation for death or injury. The core duty imported from Part IV of the Commonwealth Act is the carrier’s liability for death or personal injury of a passenger. Under the Warsaw/Hague regime as modified, the carrier is strictly liable up to a certain limit (currently around 260,000 Special Drawing Rights as per Commonwealth amendments, but the exact figure changes and is not in the State Act). The carrier must pay compensation without proof of fault up to that limit. Above that limit, the claimant must prove the carrier’s fault. The carrier also has a duty to issue a passenger ticket (with particulars such as the place of departure and destination) and to ensure that conditions of contract inform the passenger of the applicability of the liability rules.

Carrier’s right to limit liability. The carrier is entitled to limit its liability for each passenger to the prescribed amount, subject to exceptions. The carrier loses the right to limit liability if the damage resulted from its wilful misconduct or equivalent (the “Montreal Protocol No. 4” or “Hague Protocol” test, depending on which version is incorporated). The State Act does not specify these exceptions; they are in the Commonwealth Act.

Passenger’s right to claim. Passengers (or their dependants) have a right to claim compensation for death or bodily injury caused by an accident on board the aircraft or in the course of embarking or disembarking. The claim must be brought within a certain time limit (typically two years from the date of arrival at the destination, or from when the carriage ought to have arrived, or from the date the carriage stopped). The passenger must also give written notice of a claim within a specified period (often 21 days for damage to baggage, but for personal injury the notice period may be different). The State Act does not restate these; they are in the Commonwealth Act provisions.

Reversal of burden of proof. For claims up to the liability limit, the carrier cannot avoid liability by proving that it took all necessary measures or that it was impossible to take such measures. This is a strict liability regime. For claims above the limit, the burden shifts to the passenger to prove fault.

Successive carriage rights. Section 5(c) adapts the Commonwealth rule on successive carriage: where carriage is performed by two or more carriers in stages regarded as a single operation, each carrier is liable under the same regime as if it were a single carrier. The passenger can claim against the first carrier, the last carrier, or the carrier that performed the stage where the accident occurred.

Stowaway’s liability. The stowaway provision (s 42 of the Commonwealth Act applied by s 6) imposes a duty on the stowaway to pay the fare and any damages caused. The carrier has a right to detain the stowaway and recover its losses. The State Act does not alter that.

Crown rights and duties. Section 3 provides that the Act binds the Crown, meaning that State and Commonwealth entities operating intrastate flights are subject to the same liability rules. The Crown can be sued and has the same rights to limit liability.

Right to contract out forbidden. The Commonwealth Act (and hence the applied provisions) typically nullifies any contractual provision that purports to lower the carrier’s liability below the statutory limits or to waive the passenger’s rights. The State Act does not restate this, but it flows from the incorporated provisions.

Offences. The Commonwealth Act Parts IV and IVA contain offence provisions relating to, for example, failing to issue a ticket, failing to give notice of conditions of contract, or interfering with documents. The State Act imports those offences as applied provisions. Section 6A(2) provides that the laws of the Commonwealth apply to offences against the applied provisions as if they were offences against the Commonwealth Act, and the laws of the State do not apply. This means that penalties are those set out in the Commonwealth Act (which may include fines and imprisonment), prosecution is by the Commonwealth Director of Public Prosecutions, and appeals go to Commonwealth courts (the Federal Court, High Court). However, s 6B allows the regulations to reverse this: if regulations provide that s 6A does not have effect, then Commonwealth laws do not apply. In that case, the offence becomes an indictable State offence under s 6B(2), punishable under State law (likely a fine or imprisonment as set out in the State Crimes Act). The offence may be dealt with summarily with the consent of the prosecutor and defendant.

Enforcement powers. Under s 6A(2)(a), Commonwealth authorities have the same powers to enforce the applied provisions as they have to enforce the Commonwealth Act and Regulations. This includes powers of entry, inspection, seizure, and questioning conferred under the Commonwealth Civil Aviation Act 1988, the Regulatory Powers (Standard Provisions) Act 2014, or other Commonwealth legislation. If s 6A is reversed by regulation, then State authorities (e.g., NSW Police, the independent regulator under the Civil Aviation (State) Act) would have enforcement powers under State law.

Civil penalties. Parts IV and IVA of the Commonwealth Act also include civil penalty provisions (e.g., for non-compliance with ticket requirements). These would apply as applied provisions, enforceable by Commonwealth regulators with civil penalty orders from the Federal Court. The State Act does not differentiate between criminal and civil penalties; it just imports the provisions.

Limitation periods. The Commonwealth Act imposes a two-year limitation period for bringing a claim for damages (usually from the date of arrival or when the carriage ought to have arrived). The State Act does not alter this; it applies the Commonwealth limitation as a State law. This overrides the general State limitation periods for personal injury claims.

Jurisdiction. If the Commonwealth administration arrangement applies, claims and prosecutions are heard by Commonwealth courts. The applied provisions include provisions about jurisdiction (e.g., claims may be brought in the Federal Court or a State or Territory court of competent jurisdiction, but the State Act may affect that). Under s 6A, the intention is that Commonwealth courts have jurisdiction for enforcement. If the State administration applies, State courts have jurisdiction, and offences are indictable (subject to summary disposal).

Disallowance of Commonwealth Regulations. Section 7(5) provides a political enforcement mechanism: either House of the NSW Parliament may pass a resolution disallowing any Commonwealth Regulation (or part thereof) laid before it within fifteen sitting days, causing that regulation to cease to apply under the Act. This allows Parliament to veto imported regulations it considers inappropriate for intrastate carriage.

Commonwealth Act and Regulations. The primary interaction is with the Commonwealth Civil Aviation (Carriers’ Liability) Act 1959 and its regulations. The State Act’s applied provisions are a subset of the Commonwealth Act. There is a careful exclusion: s 4(a) excludes carriage to which Part IV of the Commonwealth Act applies. So for interstate or international flights, the Commonwealth Act applies directly; for intrastate flights, the State Act applies the same (or substantially the same) rules. This avoids dual application and conflict. However, conflict could arise if the State makes a regulation under s 7(3) that is inconsistent with a Commonwealth Regulation. In that case, the State regulation prevails for intrastate carriage, and the Commonwealth Regulation ceases to apply (s 7(3) and (6)). That could create a difference in liability limits or definitions between interstate and intrastate carriage. In practice, NSW has not exercised this power extensively, but it remains available.

International conventions. The State Act excludes carriage to which the Warsaw Convention, Hague Protocol, or Guadalajara Convention applies (s 4(b)), and carriage to which any other convention with force of law under the Commonwealth Act and prescribed applies (s 4(c)). This ensures that international carriage on domestic legs is not accidentally regulated by the State Act. For example, a flight from Sydney to London via Brisbane would have the international leg covered by the conventions and the domestic leg (Sydney to Brisbane) also covered by the conventions if it is part of a single international carriage contract. The State Act excludes such carriage, so the uniform international regime applies throughout.

State laws generally. Section 6A(2)(c) provides that the laws of the State do not apply to offences against the applied provisions. This is a displacement of State criminal law. For civil claims, the applied provisions also override any inconsistent State laws, such as the Civil Liability Act 2002 (NSW), because the State Act is a specific code for air carrier liability. However, the State Act does not contain an express provision stating that it excludes the general law; it relies on the incorporation of the Commonwealth Act provisions which themselves often provide that the rules are exclusive of any other liability (e.g., s 40 of the Commonwealth Act, which the State Act excludes by s 5, so the exclusivity provision is not applied). This is a potential gap: the Commonwealth Act s 40 (exclusivity) is not applied, so could a passenger bring a common law claim outside the statutory regime? Arguably no, because the applied provisions cover the field for the defined carriage, but a careful practitioner should check whether the State Act implicitly excludes common law claims. The Act is silent on that. The better view is that the applied provisions provide a complete code for claims arising out of the defined carriage, but this is not free from doubt and may depend on interpretation of the Commonwealth Act provisions that are applied (some of which provide that the carrier cannot be liable except under the treaty). However, s 40 is excluded, so the clause that typically says “any action for damages, however founded, can only be brought subject to the conditions and limits set out” is not applied. This is a notable gap: the State Act imports the liability rules but not the exclusivity clause. This could allow passengers to bring common law claims for damages, potentially undermining the limitation of liability.

Workers compensation and other schemes. The interaction with workers compensation laws is not addressed in the Act. A flight crew member injured on an intrastate flight may also be entitled to compensation under the Workers Compensation Act 1987 (NSW). The Act does not prevent dual recovery, but the carrier’s liability under the applied provisions may be reduced by the amount of workers compensation paid.

State regulations. The State may make regulations under s 7(7) for matters not inconsistent with the Act. Those regulations could deal with procedural aspects, forms, fees, or other administrative matters. They operate alongside the applied provisions.

The Act has been amended by three main instruments:

• 1971 No 8, s 2 (a) and (b). This amendment adjusted the definitions in s 2 and the scope of carriage in s 4. The precise changes are not stated in the text, but the amendment noted at s 2 and s 4 indicates that the definition of “the Commonwealth Regulations” and the exclusion for Part IV carriage were refined.
• 1987 No 48, Sch 32. This amendment dealt with s 7(4), which was repealed. Section 7(4) originally contained a provision that is now repealed; the amendment likely related to the tabling or disallowance mechanism.
• 1996 No 70, Sch 1 (1)-(10). This major amendment inserted s 6A (administration as Commonwealth laws), s 6B (alternative arrangements), and made various changes to ss 2, 4, 5, and 7. It also amended the definitions to include references to Part IVA of the Commonwealth Act (which was added to that Act in the 1990s to implement the Montreal Protocol No 4 and other reforms). The current version of the Act reflects these amendments. The 1996 amendments were significant because they aligned the State Act with the Commonwealth’s move toward a uniform administration model, and they added flexibility through s 6B to revert to State administration if needed.

The Act has not been amended since 1996 according to the text provided. However, the Commonwealth Act has been amended numerous times after 1996, and those amendments flow through automatically to the State Act because the definition of “the Commonwealth Act” includes that Act as amended from time to time. Those automatic updates are not reflected as State amendments. Therefore, a thorough understanding of the current State law requires checking the current Commonwealth Act and Regulations.

The Act remains in force and is likely still applied to intrastate carriage, though many commercial air services in NSW are interstate (e.g., Sydney to Melbourne) and thus not covered. Regional intrastate services (e.g., Sydney to Dubbo, or tourist flights in the Outback) would be covered. Charters and scenic flights are also within scope.

The user’s source does not cite any cases. The Act itself has generated limited reported case law, likely because most claims are resolved under the Commonwealth Act for interstate travel. Intrastate claims under the State Act would be heard in NSW courts and might not be widely reported. No significant litigation history can be derived from the provided text. The Act’s provisions have not been tested in landmark decisions that are widely known. Practitioners should search for NSW judgments citing the Act, but there is no notable precedent discussed in the source.

The missing exclusivity clause. Section 5 of the State Act excludes s 40 of the Commonwealth Act from application. Section 40 of the Commonwealth Act typically provides that the liability provisions of Part IV are exclusive, meaning no action against the carrier for death or injury can be brought outside the Part. Because s 40 is excluded, it is arguable that passengers on intrastate flights can bring common law actions for negligence without the limits imposed by the applied provisions. This would undermine the whole purpose of the Act (uniform limitation of liability). However, the applied provisions may still contain their own exclusivity effect: for example, the Warsaw Convention (as applied) might provide that the convention is the sole basis for liability. But the State Act does not apply the convention directly; it applies Parts IV and IVA of the Commonwealth Act, which may implement the convention with modifications. The absence of s 40 is a serious trap for carriers who assume that all state flights are subject to the same limits as interstate flights. A court might read the Act as impliedly providing a complete code, but that is uncertain. Carriers should ensure they have insurance that covers potential unlimited liability.

Commonwealth regulations can be disallowed by State Parliament. Under s 7(5), either House of the NSW Parliament can disallow a Commonwealth Regulation within fifteen sitting days after it is tabled. This means that the liability limits or other rules could suddenly change for intrastate carriage if Parliament disagrees with a Commonwealth Regulation. Carriers and insurers need to monitor NSW parliamentary disallowance notices.

State regulations can override Commonwealth Regulations. The Governor can make State regulations under s 7(3) that are inconsistent with Commonwealth Regulations, and the Commonwealth Regulations cease to apply. This could create two different regimes for interstate and intrastate carriage, complicating compliance for carriers that do both. It could also be used to impose higher or lower liability limits intrastate, or different procedural rules. At present, no such regulations are known, but the power exists.

Definition of “carriage to which this Act applies” is narrow. It only covers passengers; not cargo or baggage. The exclusion of baggage may be covered by the Commonwealth Act Part IVA (which includes baggage liability), but the State Act applies that Part only to carriage of a passenger. So liability for lost baggage on an intrastate flight might fall under the general law (the Carriage of Goods by Land and Air Act or common law) rather than the limited regime. The Act does not apply to charter flights that carry freight-only.

Successive carriage trap. If a passenger’s journey involves two separate carriers on an intrastate route, but the first leg is interstate and the second intrastate, the first leg is covered by the Commonwealth Act, the second by the State Act. The claims may be split between different regimes. The adaptation in s 5(c) only applies if the entire carriage would have been covered by the State Act if performed by a single carrier. That may not be the case if part of the journey is interstate. So the passenger must carefully determine which regime applies to each carrier.

Section 6A is not automatic; it can be switched off. Carriers and passengers should not assume that Commonwealth authorities will always enforce the applied provisions. If a regulation under s 6B is made, State authorities take over, and the procedures change. This could affect limitation periods, appeal rights, and the standard of proof. Check the current regulations.

No provision for mental injury or pure economic loss. The Commonwealth Act’s Part IV typically covers “death or personal injury of a passenger”. Personal injury has been interpreted in Australian courts to include mental injury only if it results from an accident. The State Act does not expand this. So claims for shock or distress without physical injury may not be covered.

The Act binds the Crown but does not specify liability limits. While the Crown is bound (s 3), the liability limits for Crown-operated flights within NSW are the same as for private carriers. However, the Crown may have sovereign immunity arguments, and the Act does not address whether the Crown can claim the same limitation of liability. The Commonwealth Act may have its own provisions on Crown liability; those are applied.

Determine if the Act applies. A carrier must first check whether the flight is within s 4. The carriage must be of a passenger, in an aircraft operated by the holder of an airline licence or charter licence, in the course of commercial transport operations, under a contract for carriage between two NSW places or from a NSW place back to that place. If the flight touches another State or territory, or is international, the Commonwealth Act applies (or the conventions directly). The carrier should also check if the flight is excluded under any of s 4(a)-(c). If the flight is purely intrastate commercial passenger carriage, the State Act applies and the carrier must comply.

Address the applied provisions. The carrier must read Parts IV and IVA of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) as they stand at the time, together with the Commonwealth Regulations for those Parts. The carrier must ensure its conditions of carriage, ticketing, and insurance coverage match those provisions. The limits of liability set out in the Commonwealth Act apply; the carrier must not contract out of those limits (though the exclusivity question is a trap). The carrier should display notices as required (usually at the ticket counter or on the ticket) informing passengers of the applicable liability limits.

Comply with ticket requirements. The Commonwealth Act typically requires that a passenger ticket be delivered and contain certain information: the places of departure and destination, stops, conditions of contract. For intrastate flights, these same requirements apply via the applied provisions. Failure to issue a proper ticket may deprive the carrier of the right to limit liability (the carrier becomes subject to unlimited liability). The carrier should train staff on the ticket content.

Report accidents. The applied provisions may require the carrier to give notice to the relevant authority (likely the Australian Transport Safety Bureau) of an accident that causes death or injury. Also, the carrier must preserve evidence and cooperate with investigations. Compliance with Commonwealth regulatory requirements (such as mandatory occurrence reporting) is required.

Insurance. The carrier must hold insurance that covers the strict liability up to the limit, and also cover potential claims above the limit if fault is proven. The carrier should also consider the risk that a court may not apply the exclusivity clause (since s 40 of the Commonwealth Act is not applied), leading to potential unlimited common law claims. Adequate insurance beyond the statutory limit is prudent.

Monitor regulations and amendments. The carrier must keep track of changes to the Commonwealth Act and Regulations (which automatically change the State regime) and any State regulations made under s 7. Subscribe to the Federal Register of Legislation and NSW legislation website for updates.

Stowaway procedures. If a stowaway is discovered, the carrier should follow the procedure in s 42 of the Commonwealth Act (applied by s 6). This likely includes the right to detain the person and recover costs. The carrier should have protocols for dealing with stowaways that comply with both aviation safety laws and the liability provisions.

Claims management. When a passenger injury or death occurs on an intrastate flight, the carrier must handle the claim in accordance with the applied provisions: acknowledge the claim, assess liability, calculate the limit, and pay compensation or deny liability within the timeframes. The carrier must be prepared for litigation in Commonwealth courts (if s 6A applies) or State courts (if s 6B applies). Keep records of ticketing, conditions of contract, and any notices given to passengers. Comply with the two-year limitation period (which is not extended by State law).

Review contract with passengers. Insert a clause in the contract of carriage that refers to the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) and the applied Commonwealth provisions, to put the passenger on notice that liability is limited and governed by statute. However, avoid contracting out of the statutory limits; that would be void.

Seek legal advice. Because the Act is a hybrid of Commonwealth and State law, and because of the missing exclusivity provision, carriers should engage aviation law specialists to review their compliance program and insurance coverage. The interaction with the general law is complex and not fully settled.