Australia: Application of work health and safety laws in the aviation sector - The High Court decides

Last Updated: 6 March 2019
Article by Andrew Tulloch

In brief - Aircraft operators should consider impact of High Court's decision in fatal hot air balloon accident case

In a significant decision of the High Court of Australia delivered on 6 February 2019 in Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2, the majority has held that aircraft operators can be subject to not only the Commonwealth's civil aviation regime but also state and territory occupational health and safety laws.

NT Work Health Authority appeals Court's conclusion that Territory work health and safety law was inconsistent with Commonwealth aviation law

In a tragic accident in mid 2013, a hot air balloon passenger died after a scarf she was wearing was sucked into the inflation fan in the course of boarding the basket. The balloon operator was prosecuted by the Northern Territory Work Health Authority under section 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (NT WHS Act) for breach of the obligation under section 19(2), which requires that a person conducting a business must ensure, so far as reasonably practicable, that the health and safety of persons "is not put at risk from work carried out as part of the conduct of the business ...".

The breach of duty relied upon was identified as a failure to eliminate or minimise risks to embarking passengers arising from the use of a balloon's inflation fan.

The matter reached the High Court after the Court of Appeal of the Northern Territory had concluded that the Commonwealth aviation law was a complete statement of the relevant law and that there was indirect inconsistency between the Commonwealth and the Northern Territory law such that the Commonwealth law prevailed. That decision was appealed by the Work Health Authority.

Majority of High Court upholds the appeal, noting that section 28BE(5) of Civil Aviation Act recognises continuing operation of other laws

The majority in the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) upheld the appeal and found that the NT WHS Act was not inconsistent with the Commonwealth aviation law. In a joint decision, which was supported in part by Gageler J in a separate judgment, the majority were careful to recognise that "there is no dispute that there are aspects of matters preparatory to and subsequent to an aircraft flying, including embarkation and disembarkation of passengers, that are completely, exhaustively or exclusively dealt with by the Commonwealth aviation law."

However, while the majority noted that section 28BE(1) of the Civil Aviation Act 1988 requires the holder of an air operator's certificate (AOC) to "take all reasonable steps to ensure that every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence", section 28BE(5) also noted that "this section does not affect any duty imposed by, or under, any other law of the Commonwealth, or of a State or Territory, or under the common law."

It was argued on behalf of the AOC holder, Outback Ballooning, that the Commonwealth aviation law was intended to exhaustively and exclusively deal with safety in the conduct of air operations and that there were direct inconsistencies between the Commonwealth aviation law and the NT WHS Act.

The majority noted that section 28BE(5) recognised the continuing operation of other laws. While the Full Court of the Federal Court in Heli Aust Pty Ltd v Cahill (2011) 194 FCR had read that section as having a narrow operation, the High Court considered that that Court had misapprehended the scope of operation of section 28BE(1). Accordingly, the majority found the Commonwealth laws were designed to operate alongside the Commonwealth and state and territory laws.

Justice Gageler accepted the view of the Full Court of the Federal Court in Heli Aust Pty Ltd v Cahill that in many areas the Commonwealth law operates to the exclusion of state and territory laws, but he disagreed with that Court's conclusion that the exercise of reasonable care and diligence in the operation of aircraft falls within the exclusive operation of the Commonwealth law. He also noted section 28BE(5) made that clear. He found no inconsistency in the laws existed in this instance and agreed that the appeal should be allowed.

Need for uniform aviation legislation raised in minority decision of Justice Edelman  

The newest judge of the High Court dissented.

Justice Edelman expressed concern about the potential for different safety regimes to apply depending on the place of operation of the aircraft. In a careful and well reasoned judgment, he considered that, in order to avoid jeopardy to safety, since aircraft cross state and territory boundaries, there must be uniform standards. He was of the view that section 28BE(5), which he noted was not added until 1995, was a precautionary clause to ensure protection of tortious rights, rather than to ensure the regulation of safety. He also considered that there was inconsistency between section 19(2) of the NT WHS Act and the Commonwealth civil aviation laws.

Aircraft operators should aim for compliance with both Commonwealth and state and territory laws

Although it seems there will remain scope for arguments about whether particular matters fall within the exclusivity of the Commonwealth aviation law, the High Court decision now makes it important for aircraft operators to look beyond the Commonwealth law and to aim for compliance also with state and territory laws.

It remains to be seen whether the Commonwealth, armed with the concerns expressed in the minority decision of Justice Edelman, considers legislative reform should be implemented to ensure primacy and exclusivity for the Commonwealth regime.

Andrew Tulloch
Aviation
Colin Biggers & Paisley

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