Work Health Authority v Outback Ballooning Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Nettle,Gordon JJ.,Gageler J.,Edelman J.
• Judgment Date: 06 February 2019
• Neutral Citation: [2019] HCA 2
• Docket Number: D4/2018
• Court: High Court
• Date: 06 February 2019

Work Health Authority

Appellant

and

Outback Ballooning Pty Ltd & Anor

Respondents

[2019] HCA 2

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

D4/2018

HIGH COURT OF AUSTRALIA

Constitutional law (Cth) — Powers of Commonwealth Parliament — Territories — Inconsistency between Commonwealth and Territory laws — Where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers — Where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation — Where Territory law regulates work health and safety — Whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws — Whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation — Whether Territory law inconsistent with Commonwealth law.

Words and phrases — “alter, impair or detract from”, “anti-exclusivity clause”, “Chicago Convention”, “civil aviation”, “cover the field”, “embarkation”, “implicit negative proposition”, “indirect inconsistency”, “intention to deal completely, exhaustively or exclusively”, “legislative intention”, “nationally harmonised laws”, “operations associated with aircraft”, “rule of conduct”, “safety standards”, “subject matter”.

Constitution, ss 109, 122.

Air Navigation Act 1920 (Cth).

Civil Aviation Act 1988 (Cth), ss 3, 3A, 9, 11, 20A, 27, 28BA, 28BD, 28BE, 29, 98.

Civil Aviation Regulations 1988 (Cth), regs 2, 215, 235.

Crimes Act 1914 (Cth), s 4C.

Northern Territory (Self-Government) Act 1978 (Cth), s 6.

Work Health and Safety Act 2011 (Cth).

Work Health and Safety (National Uniform Legislation) Act 2011 (NT), ss 19, 27, 32.

Representation

S L Brownhill SC, Solicitor-General for the Northern Territory, and T Moses for the appellant (instructed by Solicitor for the Northern Territory)

J T Gleeson SC with T J Brennan for the first respondent (instructed by GSG Legal) Submitting appearance for the second respondent

S P Donaghue QC, Solicitor-General of the Commonwealth, with Z C Heger and T M Wood for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Queensland)

M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S Elankovan for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General — Tasmania)

K L Walker QC, Solicitor-General for the State of Victoria, with F I Gordon for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

G T W Tannin SC with J A Godfrey for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

ORDER

• 1. Appeal allowed.

• 2. Set aside the order made in paragraph 1 of the order of the Court of Appeal of the Supreme Court of the Northern Territory made on 19 October 2017 and the order made in paragraph 1 of the order made on 28 March 2018 and, in their place, order that the appeal to that Court be dismissed with costs.

• 3. The first respondent pay the appellant's costs of the appeal to this Court.

1 Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. Outback Ballooning Pty Ltd, the first respondent to this appeal, operates a business in Alice Springs which provides rides in hot air balloons to passengers. On 13 July 2013 a group of persons were taken to a location some distance from Alice Springs airport for that purpose. On their arrival the basket which would hold them was laid on its side pointing towards the balloon, which was spread out on the ground preparatory to its inflation. The intended passengers were given a short briefing during which they were told to avoid the inflation fan. The fan was a stand-alone piece of equipment driven by a motor with a metal guard around its blades. The fan was started. Three passengers boarded. The fourth, Ms Stephanie Bernoth, approached the basket and as she did so the scarf she was wearing was sucked into the inflation fan causing her to be dragged towards the metal guard. Ms Bernoth later died from the injuries she sustained.

The NT WHS Act complaint

2 Section 19(2) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (“the NT WHS Act”) requires that a person conducting a business or undertaking must ensure, so far as is 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 or undertaking”. Section 19(3) provides that, without limiting sub-ss (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, a number of things which are directed to the protection of all persons from risks to their health and safety from work carried out as part of the conduct of the business or undertaking. The NT WHS Act also creates a number of duties which apply to conduct at a “workplace”, which is defined as a place where work is carried out for a business or undertaking, and includes an aircraft 1.

3 Section 32 of the NT WHS Act provides that if a person who has a health and safety duty fails to comply with that duty, and that failure exposes an individual to a risk of death or serious injury or illness, that person commits a Category 2 offence for which substantial penalties may be imposed 2.

4 The Work Health Authority (“the WHA”), the appellant in these proceedings, filed a complaint against the first respondent under s 32 of the NT

WHS Act in which it was alleged that the first respondent failed to comply with the duty imposed by s 19(2) of that Act. The breach of duty referred to in the complaint was identified as a failure to eliminate or minimise risks 3 to embarking passengers that arose from the use of a fan to inflate the hot air balloon

The decisions below

5 The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction as invalid because the subject matter of it was within the field covered by the Commonwealth regulatory scheme with respect to aviation. That scheme, Magistrate Bamber considered, extended to pre-flight operations affecting the safety of passengers on the ground.

6 The WHA sought an order in the nature of certiorari from the Supreme Court of the Northern Territory to quash that decision. Barr J held that the Court of Summary Jurisdiction was wrong to hold that it lacked jurisdiction to hear the complaint, and made the order sought 4. In his Honour's view, the Commonwealth regime regulates aviation operations which affect the safety of aviation and passengers in flight but does not extend to all operations. His Honour did not consider that the embarkation procedure, the subject of the complaint, was so closely connected with safety in flight as to be regulated by an exclusive Commonwealth regime 5.

7 The Court of Appeal of the Northern Territory allowed the first respondent's appeal from his Honour's decision 6. Southwood J (with whom Blokland J agreed) 7 and Riley J 8 concluded that the Commonwealth aviation law

was a complete statement of the relevant law and that there was an indirect inconsistency between the Northern Territory law and the Commonwealth aviation law, which extended to the embarkation of passengers. Riley J was of the view that the Commonwealth aviation law was intended to cover the field and was not intended to operate in conjunction with any State or Territory scheme directed to the same end. In reaching these conclusions their Honours followed the decision of a Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill 9

8 Following a grant of special leave, the WHA appeals to this Court. In this Court, Outback Ballooning contends that the Commonwealth aviation law, as defined below, deals completely, exhaustively or exclusively with the “prescription and enforcement of the standards of safety in the conduct of air navigation or air operations” in Australia. For the reasons that follow, that contention should be rejected. In rejecting that contention, it is important 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.

The Commonwealth aviation law

9 The body of law referred to by the Court of Appeal as the Commonwealth civil aviation law comprises the Air Navigation Act 1920 (Cth) (“the ANA”), the Civil Aviation Act 1988 (Cth) (“the CA Act”), the Civil Aviation Regulations 1988 (Cth) (“the CARs”) and some Civil Aviation Orders (“CAOs”). These will be referred to as “the Commonwealth aviation law” in the balance of these reasons. Some reference was made in submissions to the Civil Aviation Safety Regulations 1988 (Cth), but they assume no importance in the reasons below.

10 The ANA initially provided for the making of regulations to give effect to the Paris Convention for the Regulation of Aerial Navigation (1919) for the purpose of providing for the regulation of air navigation in Australia. It later approved the ratification of the Chicago Convention on International Civil Aviation (1944) and subsequent Protocols 10. It deals with matters such as freedom of the air and the regulation of international airlines, aircraft, airports and flights. It is mentioned only in passing in the reasons of the Court of Appeal.

11 The focus of the reasons in the Court of Appeal is...