by Paul Clough , Solicitor 

In early April a number of violent airline travellers were engaged in an altercation with some equally violent observers at Sydney Airport. The occasion was marred by the death of a Comanchero bikie member. Aviation chattering classes got into full gear and ‘we’ll all be rooned’ became the catch cry.

A former principal of the National Crime Authority, a QC, opined that the fact a violent bikie was killed in a brawl between bikies indicated that Australia was unable to cope with a potential terrorist attack anywhere in the Australian aviation firmament.

Let us look at the facts. The protagonists are renowned as people who conduct their affairs outside the law. Regularly we hear of bikie gangs slugging it out in hotels and shopping centres in the western Sydney area. So what is new? The only connection with aviation is that this grouping of thugs decided to have it out on the land side of the Qantas terminal at Sydney’s airport. Had these thugs decided to conduct their punch up in Roselands shopping centre in Sydney’s inner western suburbs the local constabulary would have attended and sought to protect the public. Had the bikie group decided to do battle at the Telstra stadium on a rugby league night again the NSW police would have directed traffic and picked up the pieces.

In the Sydney airport case, Mike Kelty the AFP commissioner got into the act and claimed his AFP personnel were on the job within a minute or two. Little thought has been given to the division of power at any airport. Most major airport terminals are owned by private enterprise companies who are in for the quid. In Sydney’s case the landside of the airport is owned and run by SACL, Sydney Airport Company Limited. The airside is controlled by the Commonwealth under its safety power, Section 51 (XXIX) of the Constitution. Remember the brawl occurred in the airport concourse and did not occur on an aircraft or on an aerobridge but in the landside portion of the airport concourse. I would suggest that the proper authority to deal with what is merely criminal behaviour, grievous bodily  harm, murder or manslaughter, is the local state police. None of these offences are aviation related in any way.

Recently, I was asked to defend a driver of a hire bus who had fallen foul of Sydney’s Department of Transport. The bureaucracy was of the opinion that the driver was contravening some state regulation relating to touting for passengers in the airport landside concourse. They charged him with a criminal offence. When confronted with a plea that perhaps as the whole of the land comprising Sydney airport could be seen as Commonwealth property under Section 52 (1) of the Constitution, their counsel convinced the Court that no, the landside was purely state territory and the Commonwealth had nothing to do with it. Strange but true.

When groups of bikies engage in fisticuffs and kill one of their number, suddenly a government spokesman blames the AFP for whatever ensued. The state bureaucracies want their cake, i.e. potential revenue raising and want to eat it as well i.e. have the AFP blamed for violent behaviour at Sydney’s Qantas terminal.

The chattering classes leap in and assume that because two groups of thugs beat each other up and kill one of their number in an airport terminal it must mean that Australia cannot cope with a potential terrorist attack. On the contrary, two bikie gangs do not a terrorist attack make. The proof lies in the shooting of the murdered one’s brother at his home in Sydney’s suburbs some days later. No one assumed that this was the tail end of a terrorist attack against Australian aviation. It was simply violent people disobeying the law of the land. In the end the brawl between bikie gangs has nothing to do with aviation, terrorist threats or aircraft safety. The terrorist hysteria from the bikie brawl was a waste of newspaper space.

Finally, something of a hobby horse. Every major airport in Australia has a large open car parking  area. Exorbitant parking fees are extracted from the public for the shortest parking time. Again, most large airports have been leased by the commonwealth to the corporate entrepreneurs such as SACL. If the landside of the airport is a state function as expounded above why cannot the state extract this revenue from parking at what is, in effect, state controlled land? Why cannot the states extract rent from tenants for land at airports that are not airside but rather landside? The state are always crying poor due to lack of a funding or taxing base and yet they ignore this lucrative source of income that is assisting the various millionaire factories in Australia. I recall that one of the entrepreneur companies indicated that the rake off from parking was in the billions of dollars.

What could a destitute state treasury do with billions of dollars a year from airport parking? The comment of Evatt and McTiernan JJs in R v Burgess comes to mind: “The Commonwealth  Parliament could only lawfully regulate aircraft and personnel so far as they would engage with trade and communication inter-state or overseas.

Watch this space…