Provisions in the Constitution Affected the Land and Air Transport in Australia - Assignment Example

Running header: Provisions in the constitution that have affected the land and air transport in Australia Student’s name: Instructor’s name: Subject code: Date of submission: 1. Introduction The modern legislation of transport of Australia has been achieved after long deliberations of all the stakeholders in the transport sector. The difference between air and land transport has contributed to most of the changes in the laws that directly affect the sector. In addition to this, the contracts between the private and common carriers have seen to it that the legislation is regulated not to mention the role of the international conventions and the Federal legislation (Kahn-Freund, 1965,p. 194). It has taken sometime for the three forces to come together and work as one unit. This notwithstanding, the uniqueness of the role played by each of them has seen the much needed stability and milestones achieved in the long run. Back in 1929, the Air carriage though at the infancy technologically, was subjected by Warsaw Convention, to conform to the international laws (Goldhirsch, 1988). The standard form contracts have come to be used in courts for they have provided contract rules and legislation of carriage with detailed framework. When the courts have accepted the documents labeled as a contract and clearly stated terms that a carrier has been protected from wide range of risks, it is then the duty of the consigner to bear the liabilities of the carriage. This kind of arrangement has not stopped stature to poke holes to the principle especially when consumer protection is at risk of being compromised and this is done through the Trade Practice Act 1974 (Cth) (249). Road transport has been heavily legislated by the Commonwealth government. The National Road Transport Commission was created by the government in conjunction with the Territories and States. The commission has been at the forefront of bringing uniformity in the legislation of the road transport. National Rail Corporation was also established so as to make sure that the national rail system achieved a co-ordinated development. The role of allocating international aviation route and capacity has been given to the International Air Services Commission. 2. Road Transport 2.1.Road Transport Law According to Gilles and Moens (1998, P. 247) road transport has seen a lot of significant changes of late through different Federal legislations especially the Interstate Road Transport Charge Act 1985 (Cth), the Interroad Road Transport Act 1985 (Cth), the National Road Transport Commission Act 1991(Cth), Road Transport Reform (Vehicle and Traffic) Act 1993 and the Road Transport (Australia Capital Territory) Act 1993. These legislations have strengthened Road Transport Law which has been reached as a result of the cooperation among the key road transport players such as the Territory, State and Federal governments. Historical foundations have contributed greatly in making the operation of the road transport smooth. The work of the common carrier of carrying and delivering goods safely to their final destination, and to be in a position of answering any question regarding the damage and loss of the goods in transit came as a result of the bailment law. The work of the carrier to make sure that the goods he is transporting are safeguarded is put in consideration in common law as existing divorce of the contract. Practically the common carrier is nonexistent but for the current law to be understood better then there is need of understanding the difference between the private carrier and common carrier. 2.2. Carrier’s Act 1830 (UK) Common carrier is anyone who charges a fee if he happens to transport good and passengers from one point to another. The carrier determines the kind and capacity of the goods to be carried and he also goes on to determine the fee to charge. One remain to be a common carrier even if he allows himself to transact the kind of a business which entails transporting goods from one fixed terminal to another over a long period f time or carrying them from one variable terminal to another (Gilles & Moens 1998, p. 250). The common carrier here is regulated by the Carrier’s Act 1830 (UK) (Gilles & Moens 1998, p. 250). On the other hand private carriers form the bulk of the carriers who uses the road. He is never obligated to carry any goods presented for transport. This he can opt to carry them or not to carry them. When the private carrier carries the consignment he is only supposed to incur a loss in case he or his servant was negligent in case the goods on transit got damaged or lost. Any carrier who does not comply with the statutory provisions which relate to suitability of the vehicle used has a strong case against him in case of any damage or loss of the goods in transit. The owner of the vehicle used to transport goods may finds himself answerable to the relevant authority if his servants cause even the slightest of the damage to the goods or steal much to the advantage of their employer or for their own benefit. Moreover, the carriers or their employers must make sure that they salvage all the goods entrusted to them in the event of a fire breakout, theft or breakage which the carrier or the servants are directly responsible of or not. When it is established beyond any reasonable doubt that the carrier or his servants did not take the appropriate action to mitigate the damage to the goods then the carrier will have no other option but to compensate for any damage caused. The standard form agreement comes into play for it can modify, abrogated or vary the above obligations. In many cases the private carriers are exempted from their only liability, which is that of negligence. But this has to be expressly stated. The liability of negligence cannot be excluded if it is established that the agents or servants of the carrier willfully did so not unless it is expressly included. The Victoria Supreme Court ruled in favor of the private carrier in the case of Metrotex Pty Ltd v Freight Investment. The defendant was to transport goods to Melbourne from Sydney but he did not deliver them to the agreed destination and so the plaintiff was demanding to be fully compensated for his goods only for the Supreme Court to use the exemption clause in the contract of carriage which exempted the carrier from any damage, delay, injury or loss of the goods in transit. The High Court has also ruled against the carrier if an implied term, has been breached, in the contract of carriage. In Baker and May (Australia) Pty Ltd v TNT Pty Ltd, the defendant had in many occasions employed drivers who took goods to the main depot from Melbourne and he had allowed the drivers to go with the goods to their residence in case they got to their destination late only to find the depot closed. The goods of the respondent were to be taken to the depot but the driver was late hence finding the depot closed and so he went with the track load of goods to his resident. In the night the fire broke out consuming the entire load. The exemption clause was included in the contract but this did not play to the advantage of the carrier since the High Court ruled that the carrier had breached the implied term in that the contract did not allow the good ,to be taken the residence of the driver but to the deport. Common carriers are allowed by the common law to keep the goods until the payment agreed upon is made. The above does not apply to the private carrier or any other carrier apart from the common carrier unless the parties involved have struck that agreement in advance. A carrier cannot hold the goods of the clients unless the goods have been taken to their destination or the seller has stopped them while still on transit over unpaid debts (Gilles & Moens 1998, p. 255). Once the carrier agrees to compensate for the damage caused to the goods at his possession, what determines the amount to be paid is the prevailing price of the goods at the market where they were to be taken. The private carrier who would be paid for transporting passengers is supposed to take ultimate care to see to it that they arrive safely and this he should do without being forced to do it by any contract though the duty of doing so may be altered by terms of any reached contract. More to this, the carrier should make sure that his vehicle is in good condition guaranteeing comfortable transit of the passengers but the carrier is under no obligation of warranting his vehicle is sound for the purpose of transporting the passengers and therefore the passengers are not in any way able to demand compensation for losses only because the vehicle failed the statutory duty of being roadworthy. Liabilities and duties of rail and road carriers to passengers entering or alighting from the carrying vessel is that the driver should never move the vehicle while the passengers are still moving out or entering the vehicle. A notice in the vehicle warning the passengers not to stick out their heads remove their hand out through the window cannot be taken as a contract. Any harm caused to the passenger here is taken to mean that the carrier or his employee was negligent hence compensation to the passenger in question is given out. It has been put across that when passengers are entering the vehicle, they should have enough room for which any injury or loss caused directly through overcrowding is claimable. Negligent ma also be attributable to the carrier when a passenger is injured by a tool found in the vehicle as a result of that passenger or another one enter with it to the vehicle. This is because the carrier should never allow a passenger to enter his vehicle with anything that can cause harm to any of the passengers in the vehicle including the own of the object. If it is not stated in the contract then the carrier is not supposed to allow any passenger to enter with his luggage for adequate facilities for carrying the luggage of the passengers (Gilles & Moens 1998, p. 256). 2.3. National Road Transport Act 1991 The role of regulating the road transport of interstate is the mandate of Federal legislation. The government is well represented in the Act of the National Road Transport of 1991 and the legislation meant to structure Uniform Road Transport Law. Before this, the country had legislative organizations for each Territory and State that governed motor vehicles and traffic. When the States went on to expand and develop there was also the rise of more separate regulations and Acts controlling road transport of but in the same country. As one went from one state to another the more he found different regulations and this resulted to economic disadvantage. This forced the Territory, State and Federal government to come up with uniform road transport law. On July 30th 1991, National Road Transport Commission Act was enacted and it sensitized all the three parties on transport efficiency, road safety not to mention seeing to it that road administration cost came down. 3. Railway transport The inconsistence between territory and state regulation has negatively impacted the rail industry of Australia. More emphasis have been accorded the road subsector and in the process the rail transport has for a long time being paid lip service considering it is one of the safest mode of transport in Australia report much lower cases of accident compared to air and road transport. The National Transport Commission (NTC) got the task of seeing to it that a framework which was to strengthen and improve rail system safety was developed (NTC, 2009). Moreover, the framework was to improve the consistency and effectiveness of rail safety and risk management processes. Regulatory environment institutional arrangements between and within jurisdictions was to be improved so as to bring maximum gains and lastly the taskforce was to develop proposals and examine issues of managing factors of safety risk such as alcohol drugs and fatigue in addition to the general fitness of those working on the safety of the rail. 3.1. The Australian National Railways Commission Act 1983–88 Railway transport falls under the National Rail Corporation but previously it was under Australian National Railways Commission. The Australian National Railways Commission Act 1983–88 governed the operation of the responsibilities of the Federal interstate rail network. The Australia government does not have direct constitutional authority over railways not unless it involve military purposes, but can to construct or acquire railways in a given state after striking an agreement with the state in question. South Australia and Tasmania have given the Commonwealth the power to control their railway (Joy, 1988). 3.2. Australian National Railways Commission Act 1983 The Australian National Railways Commission Act 1983 (Cth) provided railway services for transportation of the goods and passengers over railways constructed or acquired in States under constitutional powers. Further the commission was given power to offer transportation of the goods and passengers through other means apart from the railway. It was to do this safely and efficiently. Common wealth is given powers by section 51(i) to legislate commerce and trade transacted among States. The limit to which this power can be legislated is by observing section 92 which has it that commerce and trade among States should not incur any charge. Trade and commerce also entails the transportation of goods and passengers and to this effect the Commonwealth has been limited in matters concerning restricting and preventing the interstate transport though it can regulate it. 3.3. Trade Practices Act 1974 section 4 (1) Trade Practices Act 1974 section 4 (1) covers the storage transportation and warehousing of goods where the whole process of carrying goods on contractual bases must be done with at most skills and care though this does not cover transportation and storage of goods meant for commerce. 4. Air transport 4.1. State Transport Act 1931 The Commonwealth took control of civil air carriage after the Airlines of New South Wales Pty limited challenged the cogency of the State Transport Act 1931. This was in connection to the provision governing State licensing of aircraft in interstate air flights. The High Court clearly established the right of the Commonwealth to make laws governing all flying operations in Australia in Airlines of New South Wales Pty Limited in 1964 to 1965 (Richardson, 1965). . The State Air Navigation Act makes provisions for Federal licensing of interstate commercial services. The Federal licenses advocates for State issued licenses to conduct intrastate air operations. However, there is no State administered licensing system that exist in South Australia (Goldhirsch, 1988). 4.2. The Air Navigation Act of 1920 The Air Navigation Act of 1920 was the first Commonwealth aviation statute that authorized the Governor General to make regulations that would impact on Paris Convention of 1919. The governor General was further authorized to make regulations that would control air navigation in the whole Commonwealth and Territories. This Act was passed under the assumptions the Commonwealth Parliament was in control of three main primary powers. These powers were a) interstate and oversea trade and commerce power under section 51(1) of the constitution b) the power to make regulations to give effect to the Paris Convention and c) the external affairs powers in section 51(xxix). 4.3. Airport Act 1959 The Airport Act 1959 (Business Concessions) gives powers to lease and issue licenses for business sake in line with land that is within the airport to the Minister of Civil Aviation. This is done through evaluation of terms and conditions that are appropriate. Nobody can trade within an airport without authority from the minister. This is provided in section 6 and subsection 7-8. 4.4. Federal Airports Corporation Act 1986 Federal airports are operated by the Federal Airports Corporation. This corporation is given the mandate to operate by the Federal Airports Corporation Act 1986 section 6. The corporate provide consultancy and management services to Commonwealth, governments, local government bodies and others who operate the airport. It is also responsible in deregulation of domestic and international airlines (Gilles & Moens 1998, p. 300). 4.5. Provision on Carriage of dangerous goods Part 33.1 of the Air Navigation Regulations stipulates on the requirements for any consignment containing dangerous goods designated for transportation by air. Section 18 of the Crimes (Aircraft) Act 1963 points out that it is an offence to transport dangerous goods in international or interstate flight. Such dangerous goods include firearms and munitions. Section 23(3) of Australian Civil Aviation Act 1988 defines dangerous goods to include explosive substances, anything that can damage the aircraft of persons on board and items issued in the Act as dangerous. These goods ought to be cleared by the Commonwealth government before being carried. With all these legislation at the disposal of the parliament, it is extremely important to make necessary amendments to see to it that the transport sector operate to the maximum benefit of all and sundry. It has not escaped the attention of the parliament in seeing to it that the much contradictory legislation of each States, Territories and the Commonwealth have been proposed to undergo major changes so as to bring the much sought after sanity. The Parliament has successively enacted laws that are logically interpreted by the Courts in that the grey areas of transport legislations that used to exist and that the major players in the sector used to manipulate much to the mortification of the affected parties is no longer there. For example when the carriers went scot free after goods that they had been contracted to transit went missing or got damages. The carriers used to rely on the contract laws that used to exempt them from any liability coming from negligence. This was one of much legislation that used to cause not only great loss to the owners of the goods but also to the passengers. When it became obvious that the problem emanated from the legislation the Parliament moved with speed and acted accordingly by making necessary changes to bring order to the sector. All the dangerous goods transported by air are supposed to be cleared by the government. Some of the dangerous goods includes ammunitions and fire arms which if not effectively managed they can find themselves in the wrong hands of the criminals who can cause harm to the general populace or even bring to stand still the normal day to day activities or worse still sabotage the operations of the government. The action taken by the Parliament to see to it that the movement of dangerous goods is put in strict control has made instances of things going awry minimal. Being the arm of the government with the mandate of enacting laws, the Parliament has been able to act and rail transport which has been lagging behind in terms of the necessary laws, has so far come to be deemed as the safest mode of transport not to mention being a part of a sub- sector that has the best managed resources and by far self regulatory. Under the watchful eye of the National Transport Commission (NTC), rail transport has covered a lot of ground to see to it that it is considered one of the best areas for investment both for the public and the private sector (NTC, 2009). The reasons for this are because of the open space in terms of legislation that the sub-sector kind of enjoys. It is free from the influence of the State government with the only areas that it directly controls are the transportation of the military goods and personnel. 5. Conclusion In conclusion, both the land and air transport in Australia has come a long way in regards to the clear cut legislations that regulate them. Before that the sector was marred by confusion for each State and Territory had its own legislations that were inconsistent with the next door state or territory much to the stagnation of the business and more so the free flow of labor and capital, the necessary ingredients of the business. References List Gillies, P. & Moens, G. (1998) International trade and business: Law, policy, and ethic Cavendish Publication, Sydney, NSW. Goldhirsch, L. (1988). The Warsaw Convention Annotated: A Legal Handbook. The Hague: Martinus Nijhoff. Kahn-Freund, O. (1965).The law of contract by inland transport, Stevens, London Joy, S. (1988). Review of Tasmania’s Public Vehicle Licensing System, Transport Tasmania. Hobart. NTC (2009). National transport policy framework, Viewed 3 September 2011, < http://www.ntc.gov.au/viewpage.aspx?documentid=1750> Richardson, E. (1965). Aviation Law in Australia. Viewed 3 September 2011, < http://www.austlii.edu.au/au/journals/FedLRev/1965/13.pdf > Read More