Bills Digest no. 99 2007–08
Civil Aviation Legislation Amendment (1999 Montreal
Convention and Other Measures) Bill 2008
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
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Civil Aviation Legislation Amendment
(1999 Montreal Convention and Other Measures) Bill
House: House of Representatives
Portfolio: Infrastructure, Transport, Regional
Development and Local Government
Sections 1 to 3 commence
on Royal Assent. Schedules 1 and 2 commence on a date to be fixed
by proclamation. However, they cannot commence before the Montreal
Convention itself comes into force.
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
The main purpose of the Civil
Aviation Legislation Amendment (1999 Montreal Convention and Other
Measures) Bill 2008 ( the Bill ) is to amend various pieces of
Commonwealth legislation to implement the 1999 Montreal Convention
for the Unification of Certain Rules for International Carriage by
Air. Along with other provisions in the Bill, this creates a
two-tier system of liability designed to ensure that more equitable
compensation is available to injured passengers.
Currently, the liability regime that applies to international
air carriers is based on the Warsaw Convention , as amended. The
compensation cap applied under the Warsaw system is outdated:
The cap has not been adjusted for inflation, and is set in a
currency that no longer exists that being the franc poincare,
consisting of 65.5 milligrams of gold of millesimal fineness
The Montreal Convention revises the arrangements applying to the
air carrier s liability during international carriage of passengers
and cargo in several ways.
First, the Montreal Convention introduces a two-tier system of
insurance liability for international air carriers. Eligible
applicants will be able to claim up to 100,000 special drawing
rights, equivalent to around $A172,000, as at 25 February 2008, on
a strict liability basis. This means, in respect of the strict
liability cap, the applicant will not need to prove that the
carrier was at fault. Damages greater than 100,000 special drawing rights
would be available to eligible applicants unless the air carrier
proves that the damage was not caused by the negligence or other
wrongful act or omission of the carrier, its servants or
Second, the Montreal Convention also provides consumers with the
advantage of a fifth jurisdiction to hear claims for damages, thus
potentially providing potentially Australians with the choice and
convenience of enforcing their legal rights in Australia. This is
because consumers will be able to bring an action for damages in
the country that they resided in at the time of the accident, so
long as it is a country that is serviced by the carrier, and the
carrier has a premises in that country.
This Bill implements the Montreal Convention s requirements in
respect of liability arrangements for:
- the death or injury of a passenger;
- the loss or damage to a passenger s baggage;
- the loss or damage to a freight shipment; as well as
- delays to the scheduled arrival of a passenger, baggage or
In addition, the updated definition of family will have the
effect of expanding the list of persons who are eligible to enforce
Businesses may also benefit from the changes to the current
regime through streamlining of the paperwork associated with the
transportation of passengers and cargo. The Bill also allows
simplified electronic records to be used for both freight and
passenger air transport.
Note, however, that the Bill does not propose amendments to
implement those provisions of the Montreal Convention which apply
to domestic carriage within Australia. Domestic carriers will
continue to be governed by Part IV of the Carriers Liability
Act. This provides
for liability limits of AUS$500,000.
The Explanatory Memorandum states that minimal financial
implications are expected to flow for the Australian Government
from the proposed amendments in the Bill. However, where the
Commonwealth is the operator of an aircraft, liability arising out
of an accident or death of a passenger may be higher under the
Montreal Convention than it would be under current international
The Joint Standing Committee on Treaties (the Committee)
supported accession to the Montreal Convention and recommended
binding treaty action be taken in its
report No. 65, tabled on 20 June 2005. The implementation of the provisions of
the Montreal Convention by this Bill is a step towards this.
The Committee also took the view that there will be no financial
implications for the Commonwealth or State and Territory
Governments as a result of accession to the Montreal
Item 1 of Schedule 1 of the Bill proposes to
amend subsection 5(1) of the Carriers Liability
Act by inserting the definition of the 1999 Montreal
Item 3 of Schedule 1 of the Bill proposes to
insert a new Part IA into the Carriers Liability
Act, which would contain provisions implementing the Montreal
Convention. Some of the key provisions are as follows.
Clause 9D imposes liability in respect of death
on an international air carrier in the following way. Liability for
death occurs in respect of the death of a passenger or in respect
of an injury that results in the death of a passenger.
Liability under the Convention is in substitution for any civil
liability of the carrier under any other law in respect of a
passenger s death or injury resulting in death.
Liability is enforceable for the benefit of any of the passenger
s family members who sustained damage because of the passenger s
Liability is also enforceable for the benefit of the passenger s
personal representative to the extent that damages recoverable
- loss of earnings or profits up to the date of death of the
- funeral, medical or hospital expenses paid or incurred by the
passenger prior to death or by the passenger s personal
In general, damages recoverable in a claim include:
- loss of earnings or profits up to the date of the passenger s
- reasonable funeral expenses, and
- reasonable medical or hospital expenses incurred that relates
to the injury resulting in the passenger s death.
Notwithstanding that certain types of damages may not be
recoverable under Article 29 of the Montreal Convention, in awarding damages,
the court is not limited to the financial loss resulting from the
death of a passenger.
Clause 9E provides that a carrier s liability
under the Montreal Convention for personal injury to a passenger is
in substitution of any civil liability under any other law in
respect of the injury, subject to the exclusion stated in
Clause 9F affirms that the Montreal Convention
and this Bill do not exclude a carrier s liability to indemnify an
employer of a passenger in respect of workers compensation
payments, or to pay contributions to a tortfeasor who is liable in respect of the
death of, or injury to, the passenger.
Clause 9G states that in assessing liability,
the items that cannot be taken into account to reduce damages are
the claimant s receipt or possible receipt of money from other
- inheritance, and
- social security benefits.
Clause 9H provides that damages payable to a
claimant are to be reduced in cases of contributory negligence.
Item 8 of Schedule 1 of the Bill proposes to
insert a new paragraph 41C(3)(aa) into the
Carriers Liability Act. The amendment proposes that insurance
liability levels for Australian international carriers can be
increased by regulation. Note that Article 24 of the
provides for five-yearly reviews of liability limits to account for
The proposed regulation changes can be disallowed, ensuring that
Parliament retains oversight of such amendments.
Item 3 of Schedule 2 of the Bill proposes to
amend section 5 of the Carriers Liability Act by
inserting a definition of family member , which includes a
spouse, de facto spouse; parent, step-parent, grandparent;
child, step-child, ward, grandchild; sibling, step-brother or
step-sister, half brother or half-sister; or a person who is wholly
or partly dependent on the passenger for financial support and is a
foster-sibling, foster-child or guardian.
Note that the proposed definition allows for ex-nuptial and
adoption relationships. However, the Bill is silent on the issues
of same sex relationships.
Also, additional classes of persons may be prescribed by
Item 7 of Schedule 2 of the Bill proposes to
substitute paragraph 15(d) of the Carriers
Liability Act. The proposed provision provides that all of a
deceased passenger s family members benefit from provisions of the
Carrier s Liability Act, and that the amount of damages payable in
respect of death are not reduced by considerations of interest
gained in a home or a contents of a home because of a passenger s
item 10 of Schedule 1 of the Bill. Article 29 of
the Montreal Convention states that:
12 May 2008
Bills Digest Service
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