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Aviation law is an area with relatively few dedicated specialists worldwide - but its complexity and breadth has attracted three UWA law graduates who chose to follow this ‘road less travelled'.

When UWA law graduates Joseph Wheeler and Auguste Hocking enrolled at McGill University's elite Institute of Air and Space Law - a Canadian institution where Australian postgraduates are a rarity - they didn't know one another.

Each had decided not to follow the route of most law graduates. Each was fascinated by aviation law, an area that UWA graduate and aviation law specialist David Hodgkinson, an associate professor at UWA, concedes is an area of law with relatively few dedicated specialists around the world. But it fascinates all three.

David Hodgkinson, Special Counsel and aviation lawyer with Clayton Utz, says its attraction lies in its complexity. It touches on every aspect of flying - from the purchase or lease of aircraft to safety, ticketing, accident liability, landing rights and a multitude of other issues. It also deals with issues of terrorism and the heightened security regulations since 9/11, the carriage of groups such as refugees and the question of greenhouse gas emissions that the industry has made little progress in addressing.

"Aviation is one of the world's most regulated industries and my practice runs the gamut of aviation legal matters," says the UWA associate professor.

"The ability of an aircraft to fly from country to country is governed by a host of intergovernmental agreements. When you board a plane to Singapore, for example, the type of aircraft, its capacity, landing rights and a host of other elements are covered by these agreements. It's a unique area of practice and while some of my clients - such as Delta and Emirates - have legal departments of their own, they need specialist advice on aspects of aviation law, leasing, aircraft safety or jurisdictional issues."

A/Professor Hodgkinson followed his UWA Arts/Law degree with a year at the High Court and graduate studies at Columbia University in the United States, focussing on aviation law. He then worked for a national Australian law firm and, subsequently, as Director of Legal Services at the International Air Transport Association (IATA), the organisation of the world's airlines in Montreal in Canada. As well as IATA, Montreal is the home of both McGill and the United Nations' governing body for aviation, the International Civil Aviation Organization (ICAO).

"It's the capital of world aviation, so Joseph and Auguste are lucky to have studied there and they are likely to be in demand, because with air traffic and regulations increasing - particularly in Asia - there is a need for specialist knowledge in this area," he says.

In fact both Joseph and Auguste are already employed: Joseph is an Assistant Director (of South East Airports) with the Aviation and Airports Division of the Department of Infrastructure and Transport in Canberra (developing policy and regulating federally leased airports) whilst Auguste is completing an internship with IATA's Legal Department in Geneva.

The graduates met at McGill and were winning lead speakers at the Sarin-Leiden International Air Law Moot Court contest in Dubai last year. The convincing win was McGill's first and the graduates scored the highest totals for applicant and respondent submissions against nine international teams.

For most of his time at UWA Joseph avoided mooting because he was "deathly afraid of public speaking". However, in his final year during an intensive course in forensic advocacy, he discovered that fear dissipated when he donned his advocates' ‘hat' and addressed a judge.

At that time Joseph was also discovering flying, getting his restricted private pilot's licence in 2003 at Jandakot Airport. Reading widely about aviation law, he became the inaugural student coordinator of the Aviation Law Association of Australia and New Zealand (ALAANZ) and subsequently completed legal internships with the leading plaintiff and defendant aviation litigation firms in the United States.

"With an aviation application, everything in law ‘made sense' for me," says Joseph, who regularly speaks at international conferences and teaches postgraduates at the University of Canberra and the Australian National University.

"This area of law touches on many topics, but accident litigation is particularly interesting to me because it raises a multitude of issues: in which jurisdiction can legal action be commenced; which law applies - an international convention or the domestic law of a country? This is compounded by the fact that different aviation liability laws apply to passengers on differently ticketed journeys - so limits on damages differ if you are injured, say, on a domestic rather than an international flight," explains Joseph.

"A special criminal jurisdictional international law convention regime exists to tell pilots and airlines when and where an ‘air rage' incident may be dealt with - very important to the alleged assailant when the destination of the flight could be Riyadh rather than Perth.

"Aviation law also governs the primal aspects of international aviation - the ‘rights of the air'. Each country asserts its right to restrict or limit access to its airspace.

"Aviation crosses legal boundaries as well as airspace boundaries, so attempts have been made to create uniform international laws since the early 1900s. No area of law has progressed so speedily, but perfect harmony is yet to occur.

"With more aircraft in the skies, there are more problems and more legal work, so this is certainly a growing area of law."

While Joseph was new to mooting when he arrived at McGill, Auguste Hocking (originally from Albany) had honed his skills in UWA's Blackstone Society's Open Mooting Competition and the UWA Debating Union.

"The UWA Law School has a great cache of experience in mooting, particularly in the Jessup international moots. Being coached by former Jessup contestants produces a high standard and was a constant inspiration for me during my preparation in Montreal.

"Mooting is mostly hard work. At one stage we had eight or more practice moots a week leading up to the competition in Dubai. That meant back to- back 14 hour days for us, so a sense of humour is essential!"

Auguste relished the opportunity to study at McGill. "The Institute lived up to its reputation as a wonderful intellectual environment. It works hard to ensure students get access to key figures from airlines, regulators and law firms. Ours was a small and collegial cohort of 15 LLM students and almost all were international."

David Hodgkinson (who is UWA's Warden of Convocation) is now a principal of The Hodgkinson Group and executive director of EcoCarbon, an industry partnership building capacity in market based mechanisms to reduce greenhouse gas emissions. He also leads an international project team drafting a treaty which deals with climate change displacement.

A/Professor Hodgkinson says that the issue of greenhouse gases emitted by airlines is a significant one.

"Aviation and shipping are not covered by the Kyoto Protocol because of their nature and complex regulatory issues. For instance, you could have aircraft owned by one company, leased by another company (in another country) and operated by a company in a third country - and possibly emitting over all three.

"At present airlines don't have general emissions reduction obligations but the clock is ticking. Europe has an emissions trading scheme that now includes aviation. Non-European airlines, including Qantas, flying into and out of Europe are caught by the scheme. Many airlines are opposing it.

"The Intergovernmental Panel on Climate Change estimated that airlines contribute about three per cent of the world's emissions, and aviation emissions are on track to quadruple by 2050. Also, the thing about aviation emissions is that emissions at cruise altitudes may be three times as great as emissions at ground level."

The UWA graduate is the general editor of the loose-leaf service Climate Change Law and Policy in Australia which is available online and in hard copy and is updated every two months. It brings together 32 authors from around the world and offers country-specific climate change information and analysis. It is the only dedicated book on international climate change law and policy in this subject area in Australia, and one of very few in the world.

Published in Uniview Vol. 31 No. 2 Winter 2012