Opinion No. 1903
COMPULSORY INSURANCE OF AIRLINE PASSENGERS: COMMONWEALTH LEGISLATIVE POWER TO IMPOSE STRICT LIABILITY ON INTERSTATE AND INTRASTATE AIRLINES IN RESPECT OF DEATH OR INJURY FROM AVIATION ACCIDENTS: COMMONWEALTH POWER TO LEGISLATE TO REQUIRE AIRLINE OPERATORS TO INSURE PASSENGERS AGAINST INJURY OR DEATH: WHETHER A COMMONWEALTH LAW WOULD BE CONSISTENT WITH WARSAW CONVENTION IN RELATION TO INTERNATIONAL AIRLINES
AIR NAVIGATION ACT 1920: CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO INTERNATIONAL CARRIAGE BY AIR done at Warsaw on 12 October 1929
22 September 1950
Minister for Civil Aviation
I refer to previous correspondence relating to the legal powers of the Commonwealth with regard to the question of compulsory insurance of air passengers against death or injury resulting from an aircraft accident.
I agree that it would be desirable to apply uniformly throughout Australia, so far as possible, Mr. Justice Wolff’s suggestion for the imposition on air transport operators of strict liability in respect both of death and of injury to passengers, and the duty of compulsory insurance against that liability.1
On the question of constitutional power, the position seems to be that—
(a) the Commonwealth has full power to impose the obligations in question on air operators in the Territories of the Commonwealth and interstate air transport;
(b) though the matter is not wholly free from doubt, the necessary provision could probably be made by means of Regulations under the Air Navigation Act 1920–1947;
(c) the Commonwealth has no power to impose these obligations upon intrastate operators, though by force of State law any Commonwealth Regulations under the Air Navigation Act will certainly in some States, and possibly in all States except Queensland, automatically apply to intrastate operators;
(d) in order to secure a certain and uniform law, it would be desirable to consult the States before actually making any Regulations under our own Act;
(e) the Commonwealth could not apply a strictly identical rule to international air operators without departing from the Warsaw Convention, which at present is applied in Australian law.
The constitutional and legal position is complex. The Solicitor-General has furnished me with a detailed analysis, with which I am in general agreement, and of which I forward a copy for your information and assistance.2
[Vol. 39, p. 292]