June 17th 2017

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Articles from this issue:

COVER STORY The Great Barrier Reef is dying? ... Again?

CANBERRA OBSERVED McCain, Keating wade into South China Sea

EDITORIAL No heads roll despite quarantine foul-ups

EDUCATION FUNDING With Gonski reboot, Turnbull taps in to way to lose Catholic vote

INDIGENOUS AFFAIRS Aboriginal recognition in the constitution?

NATIONAL AFFAIRS Low job prospects keep a generation at home

INTERNATIONAL AFFAIRS Donald Trump has the world in a spin

EDUCATION FUNDING Gonski numbers shrink in the light of day

SAME-SEX MARRIAGE Qantas bans pensioner: an abuse of process

MUSIC Jim Black: accent on rhythm

CINEMA King Arthur: Legend of the Sword: The East End treatment

BOOK REVIEW Apocalypse and redemption

BOOK REVIEW Poems exhibit delicate strength


ELECTRICITY Bad science + bad economics = bad policy

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Qantas bans pensioner: an abuse of process

by Robin Speed

News Weekly, June 17, 2017

Has Qantas gone too far by imposing a lifetime flying ban on a pensioner for an incident unrelated to the safety of passengers and crew? It is considered that it has, and that the ban is unwarranted and unlawful.

Incoming! Pies over Perth.

The ban arose as a result of chief executive of Qantas Alan Joyce attending a business function in Perth and having a cream pie pushed in his face in protest against Qantas’ active involvement in promoting a change to the legal definition of marriage. Qantas immediately hit back, demanding that the pensioner who threw the pie be charged with criminal assault and imposing on him a lifetime ban from flying Qantas and Jetstar flights worldwide.

The pensioner has now been charged in accordance with the law and faces a jail term. That is in accordance with the rule of law. But does the lifetime ban accord with the rule of law, which involves a fair hearing, an unbiased judge and a sentence if guilty that is proportionate to the crime? The pensioner, no doubt, thinks not, as the ban was issued without any hearing or any opportunity for him to present his case.

Qantas and Jetstar account for over 60 per cent of all domestic flights in Australia, including in and out of Western Australia. Put simply, it dominates the market. Over 50 million passengers fly Qantas each year.

Whether flying for business, pleasure, family or health reasons, flying has become an everyday event for many Australians. To prevent anyone flying is a serious matter and with serious consequences. Qantas is not simply a supplier of a particular service that it can refuse to provide to anyone it chooses. It is our national carrier, with a major share of a critical market, which carries serious obligations.

Imagine what would happen if the CEO of a public hospital in regional Australia was pied in similar circumstances. Would the hospital be free to ban the alleged perpetrator from medical treatment at the hospital? Of course not.

The ban is considered to be unwarranted for the following reasons. First, the pie incident did not occur on an airplane or within the vicinity of an airplane, or within an airport or within the vicinity of an airport. The incident occurred at a business event in Perth far removed from any aircraft or airport.

Second, the pie incident was wrong but it did not occur as part of an announced campaign to endanger the safety of passengers or crew or airplanes. The pensioner made it clear that the incident occurred by way of protest against Qantas’ policy of advocating for change to the definition of marriage; so far removed from safety as to render any danger non-existent. There is simply no relevant connection between the incident and the safety of passengers or crews.

Third, the pensioner did not threaten that he would repeat the incident. He immediately apologised for what he had done. He was not like the suicide bombers of ISIS who daily proclaim that the bombings of innocent children are part of ISIS policy to threaten everyone’s life and safety.

It is considered that the ban is also unlawful. Qantas has an obligation not to act unconscionably, according to sections 20 and 21 of Australian Consumer Law. A court must have regard to a series of matter in determining whether a person has contravened section 21. The first and most important matter is the relative strengths of the bargaining position of the supplier and consumer, 22(1).

In Qantas v Cameron, Justice Davies said: “It is sufficient for present purposes that the term carries the meaning given by the Shorter Oxford English Dictionary: ‘2. Of actions, etc: Showing no regard for conscience; irreconcilable with what is right or reasonable’.”

Here Qantas has abused its market power by imposing a ban in the circumstances outlined above. It is no defence for Qantas to claim that the reason for the ban was because of Qantas policy on changing the definition of marriage. If it were otherwise, Qantas could require, before entering a plane, each passenger to declare their support for the change in the law and if they did not, they would be banned from flying.

Qantas can hardly complain that the pensioner was mentally deranged by reason of having a contrary view on the definition of marriage. Because there is simply no evidence of derangement, and the result would be that all of those who have the opposite view to Qantas would be liable to be banned.

Whether the public will react to the ban by choosing to boycott Qantas wherever possible, or whether the ACCC will prosecute, is unknown.

But what is known is that Qantas cannot be allowed to place itself above the law in pursuit of its social agenda.

Robin Speed is president of the Rule of Law Institute of Australia.

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