Aviation Law – Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2

Aviation Law

 Case Note:  Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2

On 6 February 2019, the High Court of Australia handed down its decision in the matter of Work Health Authority v Outback Ballooning Pty Ltd[1] (‘Outback Ballooning’).  The decision affects the duties of air operators under State and Territory workplace health and safety laws, meaning that operators must now consider the general duty to provide a safe workplace under those laws even in the conduct of their flight operations.

This is not to say that there previously was no duty to provide a safe workplace.  Under s 28BE of the Civil Aviation Act 1988 (Cth) (the ‘CA Act’), the holder of an Air Operator’s Certificate (AOC) is under a duty to exercise due care and diligence in the conduct of all operations connected with the AOC.  In accordance with the decision of the Full Court of the Federal Court of Australia in Heli-Aust Pty Ltd v Cahill[2] in 2011, it was previously thought that this was the only duty of this nature that affects AOC holders.  The High Court’s decision in Outback Ballooning clarifies that it is not.

Factual Background

Outback Ballooning is an operator of hot-air balloons based in Alice Springs, conducting regular joyflights in the area just outside the town, near the airport.  The flights typically occur early in the morning.  This case arises from an incident that occurred one morning in July 2013 which caused fatal injuries to a passenger while boarding the balloon for a flight.

On that morning, the pilot conducted a briefing which informed passengers of the presence of the fan and that they should stay away from it.  However, the pilot called for passengers to board the basket while it was still lying down and while the inflation fan was still operating.  Passengers were divided into two groups, one for each side of the basket.  Two passengers boarded on the non-fan side without difficulty.  On the fan side, one passenger boarded by passing between the fan and the basket without any difficulty.  The next passenger followed the first, but was wearing a long scarf which was drawn into the fan, causing fatal injury to the passenger.

Legal Background

The Northern Territory Work Health Authority (WHA) charged Outback Ballooning under s 32 of the Work Health and Safety (National Uniform Legislation) Act (NT) (the ‘NT WHS Act’).  That section makes it an offence to fail to fulfil the duty in s 19(2) of that Act, which is a general duty to ensure, so far as is reasonably practicable, that the health and safety of persons is not put at risk by work carried out as part of a business or undertaking.  Outback Ballooning argued that the NT WHS Act should not apply because it is inconsistent with the CA Act.

Under s 109 of the Commonwealth Constitution, where a State law is inconsistent with a Commonwealth (or Federal), the Commonwealth law prevails to the extent of the inconsistency.  Inconsistency may arise in generally three type of case.[3]  First, where it is impossible to obey both laws, such as where one law says you must do something, and the other law says you must not do that thing.[4]  Secondly, where one law gives a legal right that the other takes away or diminishes – here, the first law says you can do something, but the other law says you cannot do that thing.[5]  Finally, where the Commonwealth law was intended to be all the law that exists in relation to that topic.[6]  In this case, any State law on the same topic is inconsistent with the intention that the Commonwealth law provides all the law that exists.  In these cases, the Commonwealth law is said to ‘cover the field’.

The Proceedings

This case started in the Northern Territory Court of Summary Jurisdiction, which ruled that, because the CA Act covers the field, the NT WHS Act does not apply, so complaint brought by the WHA did not disclose an offence known to law.[7]  The WHA appealed to the Supreme Court of the Northern Territory, which overturned the lower Court’s decision, saying that the ‘field’ covered by the CA Act includes ground operations, but only where those operations affect the safety of flight.[8]  Outback Ballooning then appealed to the Northern Territory Court of Appeal, which again overturned the decision, saying that the ‘field’ covered by the CA Act includes ‘the loading of balloon passengers in the circumstances of this case’.[9]  Finally, the WHA appealed to the High Court of Australia.

Appeal to the High Court of Australia

The majority of the High Court considered that there are some aspects that are ‘completely, exhaustively or exclusively’[10] dealt with by Commonwealth aviation law, suggesting that there is a ‘field’ which is ‘covered’ by that law.

Counsel for Outback Ballooning argued strongly that the current CA Act and the regulations and Civil Aviation Orders are the result of a long history of development which has led to a regulatory scheme with respect to aviation safety.  The majority, however, said that even accepting this, at least in relation to the safety of those who might be affected by aircraft operations, there are relevant aspects of that scheme which indicate that the scheme operates concurrently with State and Territory law.[11]

Importantly for this case, the relevant sections of the CA Act, being ss 20A, 28BD and 28BE, provide only for general duties to act with due care and diligence or not to act recklessly so as to endanger life.  These sections do not set out a ‘rule of conduct to be adhered to in carrying out aircraft operations of the kind here in question’.[12]  Further, their Honours said that s 98(7) says that the regulations are not to be taken to be inconsistent with a Territory law to the extent that the law is capable of operating concurrently with the regulations.  This leaves room for the operation of other laws.[13]

The majority considered that the Full Court of the Federal Court in Heli-Aust had misapprehended the scope of s 28BE(5), which provides that the duty to conduct AOC operations with all due care and diligence does not affect duties provided under other Commonwealth, State or Territory laws.  The majority considered that should be read widely so as to allow the operation of the general duty under s 19(2) of the NT WHS Act to apply to an AOC holder.[14]  In a separate judgment, Gageler J agreed with the Heli-Aust decision, but narrowed it, finding that the ‘field’ covered by the CA Act does not include the area covered by s 28BE, meaning that the two general duties to take care and provide a safe workplace can coexist.  However, Gageler J also said that, although there may be exceptions, each regulation should be read as if it is intended to be the sole rule with respect to the topic it regulates.[15]

Effect on Air Operators

WHS laws already applied to many aspects of an air operator’s ground operations, including its office operations, aircraft maintenance workshop and other areas that are not actually flying.  As a result of this decision, the scope of WHS law is now said to include aspects of flight operations that were previously considered to be governed solely by Commonwealth aviation law.

However, given the views of Gageler J, the effect may not be as far-reaching as some may consider.  Where there is a specific rule prescribing conduct, Commonwealth aviation law will apply to the exclusion of State or Territory WHS law.  Where the duties or conduct prescribed by the Commonwealth aviation law are general in nature, the WHS law may also apply, so long as they do not alter, impair or detract from the Commonwealth law.  In this case, the duties were seen to be complementary, rather than conflicting.

This decision clears the way for the WHA to continue its prosecution of Outback Ballooning from the events of that tragic morning in July 2013, exposing that operator to the stiffer penalties that apply under WHS law.  By extension, all AOC holders should now appreciate their exposure to those penalties.

For breach of the general duty of care and diligence under s 28BE of the CA Act, s 29 provides a maximum penalty of 2 years’ imprisonment, which converts[16] into a fine of $25,200 for a company.  Another offence that CASA may have charged is for breach of the procedures of the operator’s Operations Manual under reg 215(9) of the Civil Aviation Regulations 1988 (Cth), which carries a maximum penalty of $5,250.  Compare these with the maximum penalty under s 32 of the NT WHS Act, which is a fine of $150,000 for an individual, $300,000 for an officer of a company or $1,500,000 for a company.  Other State and Territory WHS laws contain similar penalties.

The exposure to these harsh penalties makes it even more important for operators to have appropriate and robust procedures for managing safety risks incorporated into their Operations Manuals, and also to ensure that those procedures are followed diligently and reaffirmed on a regular basis.

Bradley Hayward

Partner

 

The Partners of this firm acted for the family of the deceased passenger in civil proceedings against Outback Ballooning.  Those proceedings resolved a number of years ago and are not related to the High Court proceedings, but given our previous involvement, we look forward to the final resolution of this matter, given that nearly six years have passed since the passenger’s tragic death.

 

[1] [2019] HCA 2.
[2] [2011] FCAFC 62; (2011) 194 FCR 502.
[3] T. Blackshield & G. Williams, Australian Constitutional Law and Theory (5th ed, 2010, Federation Press) at 333.
[4] See, for example, R v Brisbane Licensing Court; Ex parte Daniell (1920) 28 CLR 23.
[5] See, for example, Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151.
[6] See, for example, Ex parte McLean (1930) 43 CLR 472.
[7] Work Health Authority v Outback Ballooning Pty Ltd & Anor [2017] NTSC 32 at [12].
[8] Ibid, at [37].
[9] Outback Ballooning Pty Ltd & Anor v Work Health Authority [2017] NTCA 7 at [11] per Southwood J.
[10] Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2 at [8] per Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, adopting the words used in Ex parte McLean (1930) 43 CLR 472 at 482 per Dixon J.
[11] Ibid at [39].
[12] Ibid at [47].
[13] Ibid at [48].
[14] Ibid at [52]-[55].
[15] Ibid at [82].
[16] If a penalty for an offence under Commonwealth law is a term of imprisonment, the equivalent for a company found guilty of the offence is a number of penalty units which is five times the number of months of imprisonment:  Crimes Act 1914 (Cth) s 4B.  At the time of writing, a ‘penalty unit’ is $210:  Crimes Act 1914 (Cth) s 4AA.

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