An Act to provide for the payment of damages by the Commonwealth and Authorities of the Commonwealth in respect of the death of, or personal injury to, certain persons travelling as passengers in aircraft
Part I—Preliminary
1 Short title
This Act may be cited as the Air Accidents (Commonwealth Government Liability) Act 1963.
2 Commencement
This Act shall come into operation on a date to be fixed by Proclamation.
4 Interpretation
In this Act, unless the contrary intention appears:
aircraft crew member means a person who performs functions as a member of the crew of an aircraft.
commercial transport operations means operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo.
Commonwealth authority means an authority of the Commonwealth, and includes a body corporate that is incorporated for a public purpose by a law of a Territory and is declared by the regulations to be a body corporate in relation to which this Act applies.
damages includes an amount received under a compromise or settlement of a claim for damages, whether legal proceedings had been instituted or not.
passenger, in relation to an aircraft, means any person lawfully entitled to be on board the aircraft other than a person who:
(a) is employed, as an aircraft pilot or aircraft crew member, by:
(i) a Commonwealth authority; or
(ii) a corporation;
that operates commercial transport operations; and
(b) is on board the aircraft for the purpose of performing functions as a pilot, or as another member of the crew, of the aircraft.
5 Operation of Act
This Act applies both within and outside the Commonwealth and extends to all the Territories.
Part II—Carriage in aircraft operated by the Commonwealth or a Commonwealth authority
6 Application of Part
(1) This Part applies to the carriage of a passenger in an aircraft operated by the Commonwealth or a Commonwealth authority, not being carriage to which Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 applies.
(2) This Part does not apply in relation to the death of, or injury to, a person in circumstances entitling any dependant of the person, or the person, to pension under the Veterans’ Entitlements Act 1986 (other than Part IV).
7 Application of certain provisions of Civil Aviation (Carriers’ Liability) Act 1959
Subject to this Part, the following provisions of the Civil Aviation (Carriers’ Liability) Act 1959, namely, section 28, subsection 32(1), sections 33 and 34, section 35 (other than subsection (2)) and sections 37 to 39 (inclusive) apply to and in relation to carriage to which this Part applies as if those provisions were incorporated in this Part and as if:
(a) references in those provisions to a carrier or the carrier were references to the Commonwealth or the Commonwealth authority by which the aircraft was being operated, as the case requires;
(b) references in those provisions to Australia included references to the Territories; and
(c) the reference in section 33 of that Act to section 31 of that Act were a reference to section 8 of this Act.
8 Limitation of amount recoverable under this Part
(1) The maximum liability of the Commonwealth or a Commonwealth authority under this Part in respect of any one person, by reason of his or her death or injury resulting from an accident, is:
(a) the amount applicable under subsection 31(1AA) of the Civil Aviation (Carriers’ Liability) Act 1959, unless paragraph (b) applies; or
(b) if, at the date of the accident, a regulation was in force under the Civil Aviation (Carriers’ Liability) Act 1959 prescribing an amount for the purposes of paragraph 31(1)(b) of that Act and that amount is higher than the amount applicable under subsection 31(1AA) of that Act—the amount so prescribed.
(2) The amount of any damages recoverable but for this subsection by a person from the Commonwealth or a Commonwealth authority by virtue of this Part in respect of a death or injury shall be reduced by any amount received or receivable by that person in consequence of the death or injury by reason of:
(a) insurance effected for the benefit of the deceased or injured person or his or her estate by the Commonwealth or the Commonwealth authority; or
(b) insurance effected by the deceased or injured person that is referable to an allowance granted by the Commonwealth or the Commonwealth authority for the purpose of enabling him or her to effect such insurance.
9 Liability under this Part to be in substitution for certain other liabilities
(1) Subject to the provisions of section 37 of the Civil Aviation (Carriers’ Liability) Act 1959, in its application by virtue of this Part, the liability of the Commonwealth or a Commonwealth authority under this Part in respect of the death of a passenger, or personal injury to a passenger that has not resulted in his or her death, is in substitution for any other civil liability of the Commonwealth or the Commonwealth authority in respect of that death or injury other than:
(a) a liability under Part IA, Part II or Part III of the Civil Aviation (Carriers’ Liability) Act 1959; or
(b) a liability arising otherwise than by reason of the operation of the aircraft by the Commonwealth or the Commonwealth authority.
(2) Notwithstanding anything contained in Part IA, Part II or Part III of the Civil Aviation (Carriers’ Liability) Act 1959, but without prejudice to the operation of section 10, any liability of the Commonwealth or a Commonwealth authority under this Part is not excluded by reason of the existence of any liability of the Commonwealth or of that Commonwealth authority under any of those Parts.
10 Liability of Commonwealth etc. independently of this Part
(1) Where, apart from this section, damages in respect of any death or injury are recoverable from the Commonwealth or a Commonwealth authority by or for the benefit of a person under this Part and such damages are also recoverable from the Commonwealth or a Commonwealth authority by or for the benefit of that person otherwise than under this Part:
(a) if damages are recovered otherwise than under this Part, damages are not recoverable under this Part; and
(b) if damages are recovered under this Part, the amount of damages recoverable otherwise than under this Part shall be reduced by the amount of the damages so recovered.
(2) In subsection (1), damages does not include:
(a) compensation under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 or the Seamen’s Compensation Act 1911; or
(b) a pension under the Veterans’ Entitlements Act 1986.
(3) Nothing in this section prevents the application of:
(a) section Part IV of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 or section 10A of the Seamen’s Compensation Act 1911; or
(b) section 74 of the Veterans’ Entitlements Act 1986;
in relation to damages recovered or recoverable under this Part.
Part III—Carriage in aircraft not operated by the Commonwealth or a Commonwealth authority
11 Application of Part
(1) Subject to this section, this Part applies to the carriage in an aircraft operated by a person other than the Commonwealth or a Commonwealth authority of a passenger being:
(a) a person who is:
(i) an employee within the meaning of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 or a person to whom that Act applies as if he or she were such an employee; or
(ii) a seaman to whom the Seamen’s Compensation Act 1911 applies, being a seaman employed by the Commonwealth or a Commonwealth authority;
and is travelling in the course of his or her employment by the Commonwealth or a Commonwealth authority;
(b) a person the cost of whose carriage has been, or is to be, borne by the Commonwealth or a Commonwealth authority; or
(c) a person travelling by air for the purposes of the Commonwealth or of a Commonwealth authority in pursuance of arrangements made or authority given by the Commonwealth or the Commonwealth authority.
(2) This Part does not apply to carriage to which Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 applies or to which any provisions of a State Act for the time being declared by the Minister by notice in the Gazette to correspond with the provisions of that Part apply.
(3) This Part does not apply in relation to the death of, or injury to, a person in circumstances entitling any dependant of the person, or the person, to pension under the Veterans’ Entitlements Act 1986 (other than Part IV).
(3A) Subject to this section, this Part applies to the carriage in an aircraft operated by a person other than the Commonwealth or a Commonwealth authority of a passenger, being a person to whom paragraph (1)(a), (b) or (c) would apply if the references in those paragraphs to the Commonwealth were references to the Australian Capital Territory and the references in those paragraphs to a Commonwealth authority were omitted.
(3B) For the purposes of the application of this Part in accordance with subsection (3A), the succeeding provisions of this Part have effect as if references in those provisions to the Commonwealth (other than references to a Commonwealth authority, or references to the Commonwealth in the expression whether in the Commonwealth or elsewhere) were references to the Australian Capital Territory.
(4) Subject to this section, this Part applies to the carriage in an aircraft operated by a person other than the Commonwealth or a Commonwealth authority of a passenger, being a person to whom paragraph (1)(a), (b) or (c) would apply if the references in those paragraphs to the Commonwealth were references to the Northern Territory and the references in those paragraphs to a Commonwealth authority were omitted.
(6) For the purposes of the application of this Part in accordance with subsection (4), the succeeding provisions of this Part have effect as if references in those provisions to the Commonwealth (other than references to a Commonwealth authority, or references to the Commonwealth in the expression whether in the Commonwealth or elsewhere) were references to the Northern Territory.
12 Liability of Commonwealth etc. for death or injury
Subject to this Part, where this Part applies to the carriage of a person, the Commonwealth, or, if the person is employed by a Commonwealth authority or a Commonwealth authority has borne, or is to bear, the cost of his or her carriage or has arranged for or authorized his or her carriage, that Commonwealth authority, is liable for damage sustained by reason of the death of that person or any personal injury suffered by that person resulting from an accident that took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
13 Application of certain provisions of Civil Aviation (Carriers’ Liability) Act 1959
Subject to this Part, the following provisions of the Civil Aviation (Carriers’ Liability) Act 1959, namely, sections 34, 35 (other than subsections (2) and (10)), 38 and 39, apply to and in relation to carriage to which this Part applies as if those provisions were incorporated in this Part and as if:
(a) references in those provisions to a carrier were references to the Commonwealth or a Commonwealth authority; and
(b) references in those provisions to Australia included references to the Territories.
14 Limitation of amount recoverable under this Part
(1) The maximum liability of the Commonwealth or a Commonwealth authority under this Part in respect of any one person, by reason of his or her death or injury resulting from an accident, is:
(a) the amount applicable under subsection 31(1AA) of the Civil Aviation (Carriers’ Liability) Act 1959, unless paragraph (b) applies; or
(b) if, at the date of the accident, a regulation was in force under the Civil Aviation (Carriers’ Liability) Act 1959 prescribing an amount for the purposes of paragraph 31(1)(b) of that Act and that amount is higher than the amount applicable under subsection 31(1AA) of that Act—the amount so prescribed.
(2) The amount of any damages recoverable but for this subsection by a person from the Commonwealth or a Commonwealth authority by virtue of this Part in respect of a death or injury shall be reduced by:
(a) the amount of any damages or compensation paid or payable in respect of the death or injury to or for the benefit of that person by, or recovered or recoverable by or for the benefit of that person from, the carrier, an employee or agent of the carrier or any other person other than the Commonwealth or the Commonwealth authority, as the case may be; and
(b) any amount received or receivable by that person in consequence of the death or injury by reason of:
(i) insurance effected for the benefit of the deceased or injured person or his or her estate by the carrier or by the Commonwealth or the Commonwealth authority; or
(ii) insurance effected by the deceased or injured person that is referable to an allowance granted by the Commonwealth or the Commonwealth authority for the purpose of enabling him or her to effect such insurance.
15 Liability of Commonwealth etc. independently of this Part
(1) Where, apart from this section, damages in respect of any death or injury are recoverable from the Commonwealth or a Commonwealth authority by or for the benefit of a person under this Part and such damages are also recoverable from the Commonwealth or a Commonwealth authority by or for the benefit of that person otherwise than under this Part:
(a) if damages are recovered otherwise than under this Part, damages are not recoverable under this Part; and
(b) if damages are recovered under this Part, the amount of damages recoverable otherwise than under this Part shall be reduced by the amount of the damages so recovered.
(2) In subsection (1), damages does not include:
(a) compensation under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 or the Seamen’s Compensation Act 1911; or
(b) a pension under the Veterans’ Entitlements Act 1986.
(3) Nothing in this section prevents the application of:
(a) Part IV of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 or section 10A of the Seamen’s Compensation Act 1911; or
(b) section 74 of the Veterans’ Entitlements Act 1986;
in relation to damages recovered or recoverable under this Part.
16 Damages not recoverable under this Part in certain circumstances
(1) Damages under this Part in respect of a death or injury are not recoverable from the Commonwealth or a Commonwealth authority by or for the benefit of a person where that person, or a person lawfully acting or entitled to act on behalf of that person:
(a) has failed to take any action that he or she could reasonably have been expected to take, if this Part had not been enacted, to recover damages in respect of the death or injury from any other person who was, or may have been, liable to pay damages in respect of the death or injury;
(b) has, without the consent in writing of the Commonwealth or the Commonwealth authority, as the case may be, entered into a compromise, settlement or agreement whereby a person other than the Commonwealth or the Commonwealth authority has been discharged in whole or in part from liability in respect of the death or injury to which he or she was, or might have been, subject; or
(c) has refused to comply with a request under subsection (2).
(2) The Commonwealth or a Commonwealth authority may, in writing, request a person who appears to be entitled to recover damages in respect of a death or injury to which this Part applies against a person other than the Commonwealth or the Commonwealth authority, or a person lawfully acting or entitled to act on behalf of such a person, to take or continue proceedings (whether in the Commonwealth or elsewhere) to recover those damages and, where proceedings are so taken or continued, the proceedings shall be conducted on behalf of the first‑mentioned person at the expense of the Commonwealth or the Commonwealth authority.
(3) The Commonwealth or a Commonwealth authority may, at any time, by notice in writing, revoke a request made under subsection (2), and, in that event, is not liable for any costs or expenses incurred in respect of the continuance of the proceedings after the revocation.
17 Action against Commonwealth etc. under this Part not to be heard if other proceedings pending
An action against the Commonwealth or a Commonwealth authority for damages under this Part in respect of a death or injury shall not be heard or determined if an action against a person other than the Commonwealth or the Commonwealth authority for damages in respect of that death or injury is pending in any court, whether in the Commonwealth or elsewhere.
Part IV—Regulations
18 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
