CASR 91.220 (b) and (c) are the critical bits of regulation which give the right of the PIC in this instance.
Yes (although it is a power/authority rather than ‘right’).
Was the instruction lawful?
What instruction? Did the PIC or operator give old mate an instruction? There is no contravention of CASR 91.220(3) by old mate unless he was given a direction by the PIC or operator.
Interestingly, though, the PIC and operator have power/authority to remove - with such assistance and by the use of such force as is reasonable and necessary - a person before the flight begins, even if the person has not contravened CASR 91.220(3). So on the face of CASR.220, old mate does not have to been directed by anyone to do anything and the PIC and operator still have power/authority to remove him – with assistance and by the use of reasonable force if necessary -
provided the operator or PIC believes it is necessary for the safety of the aircraft, a person on the aircraft, or a person or property on the ground or water.
There is an implied delegation to the CC under 91.220(1) which stipulates the 'operator' being the airline as I read the regulation.
Where does this delegation stuff come from? Under CASR, the PIC is the PIC, the operator is the operator and CC are neither (unless one of the CC happens to be the holder of the AOC authorising the flight in question). There is a separate provision authorising/empowering CC to give safety instructions to passengers: CASR 92.580, but only “during a flight”.
Now a curly one, - and it is not mentioned - is there an automatic delegation to any crew member for duties within their responsibility? Or is it up to the PIC only to make the request for assistance?
There’s that delegation word again. CASR 91.220 seems to me to confer power/authority only on the PIC and operator. Does anyone have any legislative provision or judicial authority to say that, under the CASR, CC have or can be delegated the power/authority of the PIC and operator under CASR 91.220?
Also, is a CC member who works for a Labour Hire company, an employee of the Airline. No they are not (applying the precedent in the mining industry and the recent High Court deliberations re contractor v employee arrangements that has the ATO in conniptions) but the operator does owe them a duty of care as if they were an employee.
For the purposes of CASR, CC are CC, and the definition is not affected by whether they are employees of the operator or ‘body shop’ supplied. Whether a person is or is not CC depends on whether they perform, in the interests of the safety of an aircraft’s passengers, duties assigned by the operator or PIC. Key point: giving someone a job to do is not the same as giving them power or authority over people. That’s presumably why, for example, CASR 92.580 is there: To give CC power/authority to issue binding directions to passengers.
But the critical issue turns on whether the command to sit in the assigned seat was a requirement - it clearly was not necessary for the 'safe' operation of the flight - which then must be translated if the command was necessary.
Well, I suspect that some will argue that the PIC could form the view that failure by a passenger to comply with a CC's direction to sit in the allocated seat meant the passenger was a risk to safety. Whether the PIC did so in this case: I don’t know. Most of the expressions of opinion in this thread appear to be this effect:
CC gave a lawful direction for old mate to return to his allocated seat.
As soon as old mate failed to comply, he committed an offence.
That justified the intervention of the AFP to remove old mate.
Parade rest.
As I’ve said, I’m dubious about whether CC have power under CASR 92.580 before the flight commences, I’m very dubious about whether CC somehow get a ‘delegation’ of the PIC’s and operator’s powers/authorities under CASR 91.220 and, therefore, I’ll be very interested to find out the PIC’s state of mind and actions throughout all this (or to be shown some provision of CASR or judicial authority that says that CC have or can be delegated the PICs/operator’s power/authority under CASR 91.220).