Missed your cruise because of a delayed or cancelled flight? The government is about to make things better with a pay for delay bill

• The Senate is considering a bill which will improve airline passengers’ rights.
• Unlike many countries, Australia has no specific consumer protection framework for airline passengers.
• But experts say the bill still doesn’t got far enough.

With data from last year revealing that in one in four Australian flights run late or was cancelled, it’s no surprise that passengers are fed up. Australia has no specific laws that protect and compensate passengers for flight delays and cancellations. Now a pay for delay bill will change that.

Far too many Aussies are familiar with the frustration of having their travel plans thrown into disarray when an airline pulls the rug out from under their feet at the last minute. A many as 25 per cent of us, including many cruise passengers, suffer once a flight is delayed or scratched from the schedules.

The Australian Senate recently headed a proposal for the Pay For Delay bill, that would begin to establish more specific consumer protections for Australian air passengers.

Key organisations such as the Australia Travel Industry Association were present in the hearing, advocating so Australians can have enhanced consumer rights.

If laws more specific to flight delays and cancellations are introduced, Aussies can feel more at peace when they’re travelling. For example, in the European Union there are compensation schemes that ensure travellers are fairly compensated if airlines fail to fulfil their duty.

Why do we need these laws?

Victoria Roy is an Australian Lawyers Alliance (ALA) volunteer and Chair of the ALA’s Travel Law Special Interest Group, she also specialised in cruise and travel law in her personal law firm, Victory Travel Cruise Lawyers.

She explains why we need these new laws, as current legislation relies solely on Australian Consumer Law, which is vague and makes no references to specific air travel situations.

“Airlines’ conditions of carriage aim to limit their liability for any inconvenience or costs resulting from delays and cancellations and the Australian Consumer Law doesn’t go far enough to protect passengers.

“Existing consumer protection mechanisms for air passengers are complex and limited.  Currently passengers’ rights are found in a complex web of legislation which is hard for consumers to understand. Some Australian passengers flying internationally fall under foreign schemes, others do not. The Australian Consumer Law is vague and complex to navigate. As a result, it is hard for air passengers to understand what rights they have, if any, and many situations fall through the gaps.”

Roy says under the current system, it’s simply too difficult to seek compensation.

“Another problem is that there is no simple, affordable and accessible way for air passengers to enforce the few rights they do have. The barriers to justice are too high.

“Australia needs mandatory compensation that is straight-forward and easy for consumers to understand and access.  Rather than Australian passengers having to jump through legal loopholes to get flight delay compensation in the rare instances where it is available, Australia needs its own simple and straightforward compensation regime.”

What could these consumer protections look like?

Roy says a new bill of rights for airline passengers can include compensation for passengers, and incentivise airlines to tighten up their operations.

“A new Australian Passenger Bill of Rights, including a flight delay compensation scheme, should be simple enough for individual consumers to navigate themselves without enlisting the help of a lawyer and include rules around timeframes for airlines to respond to complaints and compensation claims.  If a claim is rejected by the airline, there needs to be an easy and affordable way for passengers to get justice, such as through an Ombuds Scheme.

How this affects cruise passengers

Sadly, it won’t compensate you for the missed cruise. But it will give you a remedy for the flight delay or cancellations.

“A straightforward compensation scheme in Australia would incentivise airlines to run on time and help hold them to account for delays that are within their control.  Australia is the only country that covers an entire continent making air travel essential, and yet on time performance continues to be poor.”

Roy mentions how flight delays affect cruise passengers and how new laws could help to alleviate these concerns.

“When it comes to cruising, cruise passengers would be brave to risk flying to their departure port on the day of the cruise in case their flight was delayed or cancelled.  A compensation scheme that incentivises airlines to run on time will bring more consumer confidence and give passengers an unambiguous right to compensation when the delay is within the airline’s control.

“Compensation schemes work to ensure all passengers are protected and treated fairly. It also removes uncertainty about what type of assistance and compensation passengers are entitled to when flights are cancelled or significantly delayed.”

Roy says that while cruises aren’t completely similar to flights, improved consumer laws would have a knock-on effect for cruise.

“For cruise passengers, missed ports is very frustrating and disappointing.  However, I would distinguish that slightly from delayed and cancelled flights because the purpose of a flight ticket is to simply get from A to B within a reasonable time.  The purpose of a cruise contract goes beyond transportation to a particular destination but includes everything else we love about cruising, which hopefully the passengers get despite missing a particular port. 

“The criticism of airlines is that too often delays are due to operational reasons or other causes like crew shortages that are within their control.  Missed ports are generally caused by weather which is not within the cruise line’s control.  Nevertheless, cruise lines should still notify their passengers as soon as possible, particularly when there will be a significant change to the itinerary.  These significant changes are often a source of conflict between cruise lines and passengers.  Beyond the Aviation White Paper, the government is considering enhancing rights under the Australian Consumer Law generally, which would assist cruise passengers along with all consumers.

“Until Australian consumer laws better protect passengers, whether flying or cruising, Australians should always remember to take out appropriate travel insurance.”

Other countries with better laws than Australia

Many other countries already have existing consumer laws for airline passengers, leaving Australia lagging behind.

“The EU is a pro-consumer jurisdiction and has its own compensation scheme commonly referred to as EU261.  It just one example of highly consumer protective measures in EU law.  It gives a clear right to a refund if a flight is cancelled no matter what the reason, and a right to scaled compensation starting at 250 Euro (around $400 AUD) for delays of 3 hours on short haul fights that are withing an airline’s control. It is a stark contrast to the vague and limited rights in Australia under the Australian Consumer Law.

“It is not just the EU that offers protections to air passengers. Many other jurisdictions have identified the need for airline refund and compensation schemes and have unambiguous protections in place for air passengers including Canada, the United States, the United Kingdom, New Zealand, India, Brazil, Thailand, Ukraine, Turkey and Malaysia. Despite Australia’s geography making air travel a necessity, Australian air passenger rights are lagging behind countless other countries.”

While the proposed legislation doesn’t go far enough

While the Senate is considering currently proposed bills, Roy says they don’t go far enough to protect consumers.

“There is an urgent need for Australia to step up and develop a compensation regime that is, at least, equal to the protections offered in so many other jurisdictions.  Whilst the private members’ Pay on Delay bill and the Federal government’s proposed Charter of Rights and Aviation Industry Ombuds Scheme outlined in the Aviation White Paper are an improvement on the current situation, they do not go far enough.

“The Aviation White Paper in particular is disappointing for consumers and a missed opportunity.  It sets the plan to achieve the government’s vision for aviation until 2050. By failing to introduce a simple flight delay compensation scheme, the government has committed to keep Australian passenger rights behind the EU, UK, Canada, Malaysia, Brazil, India, Turkey and countless other jurisdictions for the next 25 years.”