EK to front court over SYD curfew breaches

[knasty]

Why is this topic not on the table for public debate? I recall JB747 floating the idea of allowing landings on 34 and takeoff on 16 during a shoulder period, conditions permitting (IIRC)? Surely this is an idea worthy of consideration at least?

 

[cmon0005]

Why is this topic not on the table for public debate? I recall JB747 floating the idea of allowing landings on 34 and takeoff on 16 during a shoulder period, conditions permitting (IIRC)? Surely this is an idea worthy of consideration at least?

This is exactly my thinking, people (the public and the gov) need to look at this issue rationally and not emotionally.

 

[RooFlyer]

Nice idea but flawed, as the airport does not operate the ground handling equipment, and they are also a private organisation as are the ground agents, neither of which would be happy being placed in the role of law enforcement for a federal law. The only such agency that could do the role is the Federal Police, and as such there are no provisions to actively stop action under the law, only post action enforcement via fines/court action, rewriting the law to permit the Federal Police to intervene would invoke some interesting diplomatic responses from other countries I suspect, and put in place a precedent one might come to regret.

OK - the Fed Police decide to park their vehicles on the taxiways at 11pm (just kidding).

But the most obvious solution would be to make the up-front fines megabucks.# But of course Max the Axe would then get into the ear of the Federal Minister to say how it damages the business etc etc.

# BTW the discussion of costs earlier in this thread ignored the cost to EK of knock-on delays in Dubai if the aircraft was forced to delay departure till next morning. I think their total costs could easily exceed A$0.5m


I still am surprised that ATC simply go along with a curfew breach and wave away a late take-off - which I gather is a breach of Federal Law. I get the 'global' duties of ATC quoted by markis10, but in Australia, you obey Australian Law. Given that this matter is after curfew, when traffic by definition has stopped or almost stopped, I can't see it being a big 'distraction' for ATC.

At post curfew push-back time.
ATC: "Can you quote your Curfew Exemption number/authority?"
Pilot: "No."
ATC: "Ok, get back to me when you do."


Actually less work than directing the aircraft to take-off.

 

[markis10]

I still am surprised that ATC simply go along with a curfew breach and wave away a late take-off - which I gather is a breach of Federal Law. I get the 'global' duties of ATC quoted by markis10, but in Australia, you obey Australian Law. Given that this matter is after curfew, when traffic by definition has stopped or almost stopped, I can't see it being a big 'distraction' for ATC.

At post curfew push-back time.
ATC: "Can you quote your Curfew Exemption number/authority?"
Pilot: "No."
ATC: "Ok, get back to me when you do."


Actually less work than directing the aircraft to take-off.

ATC have no choice, they are not empowered with the right to arrest or restrain be it international law or local law, they are simply there to ensure the aircraft does not hit anything! There is a undefined duty of care to remind a pilot of the law but not authorisation to enforce it in what essentially would be vigilante action.

 

[anat0l]

ATC have no choice, they are not empowered with the right to arrest or restrain be it international law or local law, they are simply there to ensure the aircraft does not hit anything! There is a undefined duty of care to remind a pilot of the law but not authorisation to enforce it in what essentially would be vigilante action.

Would it be unconstitutional (by means of going against any agreed international convention which Australia is a signatory to) to grant Australian ATC those kinds of enforcement powers?

What laws in Australia and penalties are available for defying ATC instruction? (This has little to do with the curfew topic at hand, but it might if such a situation of enforcing the curfew were instituted)

 

[RooFlyer]

ATC have no choice, they are not empowered with the right to arrest or restrain be it international law or local law, they are simply there to ensure the aircraft does not hit anything! There is a undefined duty of care to remind a pilot of the law but not authorisation to enforce it in what essentially would be vigilante action.

I know your expertise in this area and respect that. But if an Australian law obliges ATC in Australia to do as I outlined (or similar), then it isn't 'vigilante'. ATC wouldn't be 'enforcing the law' - just not acting such that a breach of the law would occur if they did act. Of course if there were international conventions that Australia are signatories to that prevent such a scheme, I'll have to come up with another one, but I'm sure it wouldn't be difficult.

I know its not a perfect analogy, but if some-one makes a rental car booking, and the rental agency discovers beforehand that the car will be used to commit a crime, wouldn't it be reasonable for the rental agency to refuse to make the rental? Or do they just say "Hey, we aren't in the business of law enforcement, our job is just to do the paperwork, advise them of the traffic laws and wave them away." ?

 

[defurax]

I know its not a perfect analogy, but if some-one makes a rental car booking, and the rental agency discovers beforehand that the car will be used to commit a crime, wouldn't it be reasonable for the rental agency to refuse to make the rental? Or do they just say "Hey, we aren't in the business of law enforcement, our job is just to do the paperwork, advise them of the traffic laws and wave them away." ?

I might be wrong but I don't think breaking the curfew is a "crime". It is a breach or non respect of a rule and I guess will be dealt with in a civil/administrative tribunal.

Or we could bring back the death penalty only for SYD curfew offences..

 

[RooFlyer]

I might be wrong but I don't think breaking the curfew is a "crime". It is a breach or non respect of a rule and I guess will be dealt with in a civil/administrative tribunal.

Or we could bring back the death penalty only for SYD curfew offences..

Markis10 will no doubt clarify, but there is Sydney Airport Curfew Act 1995. I gather a breach of a law is a 'crime' but the remedies and penalties for crimes will vary. Speeding I'm told is a 'crime' but penalties can be rather mild.


And the penalty for breaching the Curfew Act ("Law"): Sydney Airport Curfew Act 1995 penalties.

 

[markis10]

Markis10 will no doubt clarify, but there is Sydney Airport Curfew Act 1995. I gather a breach of a law is a 'crime' but the remedies and penalties for crimes will vary. Speeding I'm told is a 'crime' but penalties can be rather mild.


And the penalty for breaching the Curfew Act ("Law"): Sydney Airport Curfew Act 1995 penalties.

"Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences created by this Act" Not a lawyer so cannot advise what that exactly means!

I know your expertise in this area and respect that. But if an Australian law obliges ATC in Australia to do as I outlined (or similar), then it isn't 'vigilante'.

Point is no Australian Law obliges ATC to act, other than in the designated responsibility to grant dispensations as required, so acting outside the law is essentially the definition of a vigilante!

 

[medhead]

ATC "preventing" a take off would be directly enforcing the curfew law. A rental car company refusing such a rental is protecting their property not directly enforcing robbery laws. The rental company might also be seen to be breaking laws around adding and abetting if they allowed the rental.

 

[anat0l]

Point is no Australian Law obliges ATC to act, other than in the designated responsibility to grant dispensations as required, so acting outside the law is essentially the definition of a vigilante!

But the point RooFlyer is making is that if ATC were empowered under the law to act as such, that would no longer be vigilante as they have legal rights to act.

That said, as I mentioned, whether it is actually possible to empower ATC as such is one thing; then whether it is desirable to do so is another thing...

ATC "preventing" a take off would be directly enforcing the curfew law. A rental car company refusing such a rental is protecting their property not directly enforcing robbery laws. The rental company might also be seen to be breaking laws around adding and abetting if they allowed the rental.

And this is where the poor analogy is slightly more than subtly off the mark.

That said, I suppose a good deal of the public may agree with RooFlyer in an indirect way, i.e. why should ATC grant to rights for passenger movement to aircraft who will be in clear breach of the curfew. That is their thought because ATC would be "ideally positioned" to be the "gatekeeper". The public is not necessarily right in this way, but their perception may be beset as such.

 

[medhead]

And this is where the poor analogy is slightly more than subtly off the mark.

That said, I suppose a good deal of the public may agree with RooFlyer in an indirect way, i.e. why should ATC grant to rights for passenger movement to aircraft who will be in clear breach of the curfew. That is their thought because ATC would be "ideally positioned" to be the "gatekeeper". The public is not necessarily right in this way, but their perception may be beset as such.

Of course, there is a general principle (sp?) of not allowing someone else to commit a crime. But I suspect that the ATC legislation provides a definition of the extent of their ability to act and provides legal protections in the performance of their duties.

 

[Sprucegoose]

Consolidated revenue is the phrase, same one used for all those lost bank accounts!

And all the cigarette and booze taxes

 

[Lucky_man]

I'd like to think I had the communication skills to hit this idea of ATC being in any way involved in enforcing curfew so hard on the head it did not come up again - but I doubt it.

Maybe the best way is to give some examples.

1. A plane is wanting to land, it has missed curfew - it is marginal on fuel to reach an alternate.
2. That plane taking off late has an organ on board for a transplant or other medical emergency.

Can you imagine the conversations in that follow enforcement of the curfew.

1. "Your father died when the plane crashed trying to get to Canberra - he gave his life so the people of Sydney could sleep tight that night."
2. "I've got some good news and some bad news. The Bad news is the surgery is off and you may die waiting. The good news is my Aunty in Sydney slept well last night"

In fact the fines should be large enough to hurt a little but not so large that a pilot lets it influence his decision on taking an alternate or not.

Plane on tarmac/inflight is not the time to have an argument about these things.

And on a minor legal point - breaking the law is not the same as committing a crime. A speeding offence in SA was a Summary Offence not a crime.

 

[Jack_OC]

1. A plane is wanting to land, it has missed curfew - it is marginal on fuel to reach an alternate.

1. 
   
   Come on, have you actually read the thread? Absolutely no one is suggesting that clearance to land should not be granted.
   
   

   [*]That plane taking off late has an organ on board for a transplant or other medical emergency.

It would be perfectly feasible to refuse clearance to take off after curfew unless there is a specific request made based on exceptional circumstances. Organs for transplant don't just end up on a plane unannounced, and they come with a lot of paperwork, so the airline would have no problem proving that such exceptional circumstances exist.

 

[anat0l]

It would be perfectly feasible to refuse clearance to take off after curfew unless there is a specific request made based on exceptional circumstances. Organs for transplant don't just end up on a plane unannounced, and they come with a lot of paperwork, so the airline would have no problem proving that such exceptional circumstances exist.

Not to mention that I think it rare that a true emergency related to organ transplants would not be commissioned for carriage on a commercial passenger aircraft.

Come on, have you actually read the thread? Absolutely no one is suggesting that clearance to land should not be granted.

I thought the whole point of Lucky_man's post was to further the point that it is not a good idea to delegate the authoritative powers of enforcing the curfew to ATC. Whilst the examples are slightly nonsensical (in that they are very unlikely scenarios), there is a good point in there.

The curfew is all about aircraft movement - you can't have it both ways and have ATC only have powers to enforce no take-offs of commercial aircraft post curfew. That just further complicates the position and culpability of ATC, which makes it more unlikely that ATC would be comfortable accepting the authoritative responsibilities of enforcing curfew.

Also, I would not be so sure about the suggestion that no one would suggest not clearing such a fictitious aircraft to land, even in violation of curfew. I'm sure the people who support the curfew strongly are only concerned about noise. If that means a few planes need to divert at the cost of lives, I don't think that is any of their (the affected communities') concern at all. (To be more precise, the compliance with the curfew with the strict regard to ensuring safety is the complete responsibility of the airlines involved and none whatsoever related to the curfew laws or those who benefit from them).

I think we can be thankful that such a critical situation has never come to pass. I believe a 747 had to divert to CBR and everyone was stuck on board due to no customs facilities at CBR, but IIRC that might have been due to weather at SYD (not curfew).

 

[Lucky_man]

I was right - I don't have the communication skills to hit it on the head.

What you suggest is exactly how the system works now.

In 'exceptional circumstances' a request is made and the ATC approves it. It goes some thing like this.
Pilot - "I'd like to take off"
ATC - "OK"

If the carrier can not justify the exceptional circumstances then it gets fined later. There is no need for a specific "I have a human organ on board form" that needs to be completed first. The reason is that you can not predict the possible reasons for legitimately breaking the curfew in advance.

Can I suggest some more forms you may need.

1. There are 100 firemen on board to help Melbourne which is in flames.
2. Adelaide needs to be evacuated after a natural disaster and every plane is needed

Now if there were only 10 firemen on board - would that constitute an exemption? - what if there were 100 but the fires were a bit better under control? - how long would it take the ATC to gather the evidence to make his finding - either he is trained in fires or needs to call some expert witnesses - and what happens to all the planes in the air meanwhile that he is meant to be managing.

An ATC is no more a substitute for a court than a court is a substitute for an ATC.

In any case I think most curfew violations have been on landing and there is no way an ATC should prevent a plane from landing forcing it to use some paddock somewhere based on a curfew.

In any case, living near an airport in Adelaide I can say our curfew is an ineffective solution to a problem that does not exist. There are so many exemptions - like cargo planes, noisy helicopters, really noisy turbo props etc. For the houses directly under the flight path - these are unlivable with or without the curfew. For those just off the flight path - probably better than living on a main road.

 

[medhead]

Come on, have you actually read the thread? Absolutely no one is suggesting that clearance to land should not be granted.

Actually suggesting that ATC enforce the curfew, which applied to landing as well as take off, is a suggestion that clearance to land not be granted. This is a perfect example of why ATC do not have a curfew enforcement role as that role creates a conflict between their role in flight safety.

Which responsibility would ATC choose:
A) the responsibility to prevent a crash, or
B) the responsibility to enforce curfew.

Such a conflict is not legally sustainable.

 

[Jack_OC]

Actually suggesting that ATC enforce the curfew, which applied to landing as well as take off, is a suggestion that clearance to land not be granted.

But when did anyone suggest "that ATC enforce the curfew" in such broad terms? The question initially posed by RooFlyer was simply this:

Question. An aircraft can't take off without ATC. Does ATC not need a waiver of the curfew, or be told there is a waiver obtained, from whichever authority can give it, before allowing a departure?

.

Myself and others subsequently expressed the view that it seems strange that ATC would grant clearance to take off (I even highlighted those words in bold) after curfew.

Anyway, I think it has been well clarified now that the curfew is simply not a factor that ATC takes into account, and the reason is "that's just the way it is", which is fair enough IMHO. I think the claims that it could be a safety risk if they didn't allow take offs after curfew are a bit spurious though.

 

[JessicaTam]

I was right - I don't have the communication skills to hit it on the head.

What you suggest is exactly how the system works now.

In 'exceptional circumstances' a request is made and the ATC approves it. It goes some thing like this.
Pilot - "I'd like to take off"
ATC - "OK"

If the carrier can not justify the exceptional circumstances then it gets fined later. There is no need for a specific "I have a human organ on board form" that needs to be completed first. The reason is that you can not predict the possible reasons for legitimately breaking the curfew in advance.

Can I suggest some more forms you may need.

1. There are 100 firemen on board to help Melbourne which is in flames.
2. Adelaide needs to be evacuated after a natural disaster and every plane is needed

Now if there were only 10 firemen on board - would that constitute an exemption? - what if there were 100 but the fires were a bit better under control? - how long would it take the ATC to gather the evidence to make his finding - either he is trained in fires or needs to call some expert witnesses - and what happens to all the planes in the air meanwhile that he is meant to be managing.

An ATC is no more a substitute for a court than a court is a substitute for an ATC.

In any case I think most curfew violations have been on landing and there is no way an ATC should prevent a plane from landing forcing it to use some paddock somewhere based on a curfew.

In any case, living near an airport in Adelaide I can say our curfew is an ineffective solution to a problem that does not exist. There are so many exemptions - like cargo planes, noisy helicopters, really noisy turbo props etc. For the houses directly under the flight path - these are unlivable with or without the curfew. For those just off the flight path - probably better than living on a main road.

It would be better if there were 100 firefighters on board.

Anyway, back on topic: The penalty for breaching curfew is 1,000 penalty units. A penalty unit is $110 in NSW, $170 Commonwealth, and $550 ACT corporation. As the fine suggested is $550,000 it follows that it is ACT corporation rate that is applied. Why would it not be the commonwealth rate as it is commonwealth law and the breach occurred outside the ACT?