1.2
The committee considers that this bill is compatible with human rights
as defined in the Human Rights (Parliamentary Scrutiny) Act 2011.
1.3
The committee notes that the bill engages right to equality and
non-discrimination in article 26 of the International Covenant on Civil and
Political Rights (ICCPR) and Article 5 of the Convention on the Rights of
Persons with Disabilities (CPRD). The committee considers that the Minister for
Infrastructure and Transport appears to have discharged the burden of
demonstrating that the removal of compensation for purely mental injuries
involved in items 1 and 5 of the bill is, in the circumstances, justified and
therefore consistent with article 26 of the ICCPR and article 5 of the CRPD.
1.5
The statement of compatibility for this bill identifies that the
proposed non-eligibility for damages with respect to individuals suffering
purely mental injuries in items 1 and 5 of the bill engages the right to
equality and non-discrimination in article 26 of the ICCPR and article 5 of the
CRPD, which specifically prohibits discrimination on the basis of disability
and guarantees persons with disabilities equal and effective legal protection
against discrimination on all grounds.
1.6
The statement of compatibility acknowledges that any difference in
treatment on the basis of disability - including physical and mental disability
- must have a legitimate aim and an objective and reasonable justification to
be consistent with these rights.
1.7
The statement of compatibility provides the following justification for
the differential treatment proposed by these amendments:
Legitimate objective
The objectives of the amendments are to balance the interests
of air crash victims and air operators and to harmonise Australia’s liability
arrangements with international arrangements which are widely recognised as
providing this balance.
In respect to the CACL Act, amendments to these provisions
have the objective of ensuring that the liability framework for domestic
flights is consistent with the benchmark liability framework for international
flights under the 1999 Montreal Convention. The 1999 Montreal Convention is
internationally recognised as providing an equitable balance between the
interests of airlines and accident victims. The amendments will ensure greater
consistency with this more equitable framework while removing unnecessary
complexities from the overall liability structure. The 1999 Montreal Convention
has been implemented by over 100 States, and covers the vast majority of
international flights. Many jurisdictions, including all European countries,
apply the 1999 Montreal Convention to domestic flights as well.
The current Australian domestic liability framework provides
compensation for ‘personal injury’. Courts have interpreted this provision as
allowing compensation for ‘pure mental injury’. The 1999 Montreal Convention
provides compensation for ‘bodily injury’, which has been interpreted by courts
as only allowing compensation for mental injuries when they are also
accompanied by other ‘physical’ injuries. The amendment to section 28 of the
CACL Act will therefore rectify a significant area of inconsistency between
Australia’s domestic liability framework and the international liability
framework, while still ensuring that air crash victims are afforded equitable
access to compensation.
In respect to the amendments to the DBA Act, these provisions
also have the objective of ensuring that there is an appropriate balance
between the interests of aircraft operators and the interests of air crash
victims. Specifically, the amendments respond to concerns raised by airlines
and insurers in the review of carriers’ liability and insurance. These concerns
relate to the potential for people to claim compensation under the DBA Act for
‘pure’ mental injury as a result of witnessing an air crash. This would expose
aircraft operators to a potentially very wide group of claimants on the basis
of strict and unlimited liability, thereby imposing incalculable risks on the
industry.
Reasonable and proportionate
The provisions in the Bill are not ‘blanket provisions’ in
relation to mental injuries. Mental injuries will still be compensable if the
claimant can show that they have also suffered other harm. In relation to the
third party victims (on the surface), a claimant may also pursue a claim for
‘pure mental injuries’ under the civil law.
The amendments ensure that there is an appropriate balance
between the interests of aircraft operators and the interests of air crash
victims. The DBA Act is generously weighted in favour of air crash victims,
insofar as it provides for strict and unlimited liability - there is no
requirement for air crash victims to prove fault on the part of the aircraft
operator, and there is no cap on the operator’s potential liability. However,
the aviation industry has raised concerns about the potentially large groups of
claimants, who as result of having witnessed a major aviation disaster, could
mount a claim under the DBA Act -without the requirement to prove fault- for
‘pure mental injury’ suffered as a result of having witnessed the crash.
The provisions will limit the scope of the air operators’
liability, while still ensuring that victims who have suffered physical harm or
property damage can access compensation for these injuries and damage, as well
as compensation for any mental injury suffered. This amendment will ensure a
more appropriate balance between the interests of air crash victims and
aircraft operators.
Therefore, to the extent that provisions may limit the right
to equality and non-discrimination, those limitations are reasonable, necessary
and proportionate in achieving a legitimate objective.