Heli-Aust Pty Ltd v Cahill
[2011] FCAFC 62
•11 May 2011
FEDERAL COURT OF AUSTRALIA
Heli-Aust Pty Limited v Cahill [2011] FCAFC 62
Citation: Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62 Parties: HELI-AUST PTY LTD v JOSEPH JOHN CAHILL, GENERAL SECRETARY OF THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION OF NEW SOUTH WALES and INDUSTRIAL COURT OF NEW SOUTH WALES File number: NSD 576 of 2010 Judges: MOORE, STONE AND FLICK JJ Date of judgment: 11 May 2011 Catchwords: CONSTITUTIONAL LAW – inconsistency of State and Commonwealth laws – "laws of the Commonwealth" – covering the field
PRACTICE AND PROCEDURE – writs of certiorari and prohibition sought – a State court – an injunction
Legislation: Air Navigation Act 1920 (Cth) ss 15B, 15D
Civil Aviation Act1988 (Cth) ss 3A, 5, 9, 9A, 11, 18, 20A, 20AB, 27, 27AB, 28, 28BA, 28BB, 28BC, 28BD, 28BE, 28BF, 28BG, 28BH, 28BI, 29, 30DC, 30DE, 32, 98
Constitution cl 5, ss 51(i), 51(xxix), 51(xxxix), 109
Federal Court of Australia Act 1976 (Cth) ss 20(1A), 22, 23
Judiciary Act 1903 (Cth) ss 39B(1A)(b), 39B(1A)(c), 78B
Occupational Health and Safety Act 2000 (NSW) ss 3, 4, 8, 10Civil Aviation Regulations1988 (Cth) regs 98, 138, 157, 207, 215, 219, 223, 233, 239, 251
Civil Aviation Safety Regulations1998 (Cth)Cases cited: Airlines of New South Wales Pty Limited v New South Wales (No 1) (1964) 113 CLR 1
Airlines of New South Wales Pty Limited v New South Wales (No 2) (1965) 113 CLR 54
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237
Ansett Transport Industries Pty Ltd v Morris (1986) 18 FCR 527
Australian Mutual Provident Society v Goulden (1986) 160 CLR 330
Bayside City Council v Telstra Corporation Limited [2004] HCA 19, 216 CLR 595
Clyde Engineering Company Limited v Cowburn (1926) 37 CLR 466
Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151
Commonwealth v Grunseit (1943) 67 CLR 58
Commonwealth of Australia v Mewett (1997) 191 CLR 471
Dickson v The Queen (2010) 270 ALR 1
Felton v Mulligan (1971) 124 CLR 367
Hevi Lift (PNG) Pty Ltd v Civil Aviation Safety Authority (1997) 79 FCR 19
Inspector David Davies for the WorkCover Authority of New South Wales v Agair Development Pty Limited [1997] NSWIRComm 1 (7 July 1997)
Inspector David Davies for the WorkCover Authority of New South Wales v Agair Development Pty Limited [1997] NSWIRComm 82 (7 July 1997)
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
John Pfeiffer Pty Limited v Rogerson [2000] HCA 36, 203 CLR 503
Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531
Lamb v Cockatoo Docks & Engineering Co Pty Ltd (1960) SR (NSW) 459
Lipohar v The Queen [1999] HCA 65, 200 CLR 485
Master Education Services Pty Ltd v Ketchell [2008] HCA 38, 236 CLR 101
Merrell Associates Ltd v HL (Qld) Nominees Pty Ltd [2010] SASC 155
New South Wales v Commonwealth [2006] HCA 52, 229 CLR 1
Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476
R v Burgess: Ex parte Henry (1936) 55 CLR 608
R v Baldock [2010] WASCA 170, 269 ALR 674
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
R v Morris [2004] QCA 408
R v Poole; Ex parte Henry (1936) 61 CLR 634
R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634
R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, 206 CLR 57
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57, 204 CLR 82
Re Stanbridge's Application (1996) 70 ALJR 640
Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2009] FCA 1487
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, 235 ALR 609
T.A. Robinson and Sons Pty Limited v Haylor (1957) 97 CLR 177
Telstra Corporation Ltd v Worthing (1999) 197 CLR 61
University of Wollongong v Metwally (1984) 158 CLR 447
Victoria v Commonwealth (1937) 58 CLR 618
Viskauskas v Niland (1983) 153 CLR 280
Wenn v Attorney-General (Victoria) (1948) 77 CLR 84
Western Australia v Commonwealth (1995) 183 CLR 373Detmold, M J 'The New Constitutional Law' (1994) 16 Sydney Law Review 228
Pearce DC and Geddes RS, Statutory Interpretation in Australia (6th ed, LexisNexis Butterworths, 2006)Date of hearing: 16 and 17 November 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 197 Counsel for the Applicant: Mr M J Leeming SC and Mr R Bhalla Solicitor for the Applicant: Norton White Counsel for the Respondents: Mr R P L Lancaster SC and Mr M A Izzo Solicitor for the Respondents: W G McNally Jones Staff Counsel for the Intervener: Mr J Hatzistergos and Mr I Taylor Solicitor for the Intervener: New South Wales Crown Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 576 of 2010
BETWEEN: HELI-AUST PTY LTD
ApplicantAND: JOSEPH JOHN CAHILL, GENERAL SECRETARY OF THE PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION OF NEW SOUTH WALES
First RespondentINDUSTRIAL COURT OF NEW SOUTH WALES
Second Respondent
JUDGES:
MOORE, STONE AND FLICK JJ
DATE OF ORDER:
11 MAY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The parties confer and thereafter by 4.00 pm on 23 May 2011 file minutes of orders (including as to costs), and in the event of disagreement, file and serve written submissions by then as to the contentions of the parties.
2.The matter be stood over until 9.00 am on 27 May 2011.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court's website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 576 of 2010
BETWEEN: HELI-AUST PTY LTD
ApplicantAND: JOSEPH JOHN CAHILL
First RespondentINDUSTRIAL COURT OF NEW SOUTH WALES
Second Respondent
JUDGES:
MOORE, STONE AND FLICK JJ
DATE:
11 MAY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
MOORE AND STONE JJ:
Background
On 22 November 2004 a Bell 206B JetRanger helicopter, registration number VH-CSH, was being used for aerial locust detection for the New South Wales Department of Primary Industries at a property, "Langdene" via Dunedoo in New South Wales. The helicopter struck an electrical power line and crashed. Heli-Aust Pty Ltd, the applicant, was the operator and holder of an Air Operator's Certificate (AOC) which authorised aerial work operations, in particular aerial locust detection on 22 November 2004. The pilot of the helicopter, Ross Kenneth Mill who held an Australian Commercial Helicopter Pilot Licence No 419185, issued on 14 February 1995, died in the accident. Benjamin McDonnell, a passenger in the helicopter and an employee of Gundagai Rural Lands Protection Board (now the Southern Slopes and Plains Livestock Health and Pest Authority) also died. The other passenger, Lucinda Jane Vandermaal, a ranger employed by the Dubbo RLPB (now the Central Slopes and Plains Livestock Health and Pest Authority) was injured.
Heli-Aust is being prosecuted under a New South Wales law, the Occupational Health and Safety Act 2000 (NSW) (OHS Act). It argues that applicable provisions of this law are invalid having regard to s 109 of the Constitution and also having regard to Commonwealth law, namely, the Civil Aviation Act 1988 (Cth) (CA Act) together with the Civil Aviation Regulations 1988 (the "CA Regulations") and the Civil Aviation Safety Regulations 1998 (the "CAS Regulations") (collectively "the Regulations"). Whether this is correct is the central issue in these proceedings.
Charges laid against the applicant under State law
The prosecution arose this way. The first respondent, Joseph John Cahill, General Secretary of the Public Service Association and Professional Officers' Association of New South Wales, commenced a prosecution alleging contravention of ss 8 and 10 of the OHS Act by filing an application for an order (directed to Heli-Aust to appear and answer the offence charged) in the Industrial Court of New South Wales on 8 December 2009. The order was issued on 9 December 2009. It is desirable to set out the way the charges were framed. The charges read:
First charge
On 22 November 2004, at the property known as "Langdene" via Dunedoo in the State of New South Wales, the defendant, a person who controlled premises, namely an aircraft Bell Helicopter 206B JetRanger, registered number VH-CSH, a place not occupied only as a private dwelling, and controlled in the course of a business or undertaking, and used by people as a place of work, namely, Benjamin McDonnell, Lucinda Jane Vandermaal (nee Mordue) and Ross Kenneth Mill, failed to ensure that the premises were safe and without risks to health, in contravention of section 10(1) of the Occupational Health and Safety Act2000.
The further particulars of the charges are:
1. Whilst performing low level flying work in a helicopter, such as locust control work, there was an actual risk of occupants of the helicopter being killed or sustaining injuries due to:
(a)A helicopter striking a wire hazard consisting of power lines; and/or
(b)The consequences or outcomes after a helicopter striking power lines being:
(i)The helicopter crashing to the ground with impact forces and/or
(ii)The helicopter suffering post-impact fire.
2. Aspects of the defendant's control over the premises that were unsafe and had the risks to health were any combination of the following:
(a)Failure to ensure that there existed or was undertaken, or both, an adequate risk assessment of the risk of wire strike.
(b)Failure to ensure that when undertaking low level flying work, such as locust control work, there was a standard crew number of no more than one pilot and one passenger.
(c)Failure to ensure that when undertaking low level flying work, such as locust control work, there should be pre-flight planning in the form of gathering intelligence from landholders on the placement of wires.
(d)Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with and had reinforced adequate safety information, instruction and training about the risk of wire strike and strategies to prevent or reduce that risk.
(e)Failure to ensure that a helicopter involved in low level flying work, such as locust spotting work, ascended to a height that ensured safety before transiting or traversing to another area or paddock.
(f)Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with a wire strike prevention system.
(g)Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with four point harnesses to each seat.
(h)Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with personal protective equipment in the form of a suitable flight helmet and a nomex or equivalent flight suit.
3. Manifestations of the risks were that Mr McDonnell, the rear seat passenger, died from multiple injuries consistent with having been caused by an impact with the ground, and there were chemical burns on the surface of the body, consistent with leakage of aircraft fuel.
4. Manifestations of the risks were that Ms Vandermaal (nee Mordue), the front seat passenger, received multiple serious injuries, namely, 5-6 shattered teeth, a punctured lung, broken left elbow, fractured metacarpal, two broken femurs and a compound fracture of the left leg and a fair bit of internal bruising, and some cuts and bruises.
5. Manifestations of the risks were that Mr Mill, the pilot, died from multiple injuries consistent with having been caused by an impact with the ground, and there were chemical burns on the surface of the body, consistent with leakage of aircraft fuel.
Second charge
On 22 November 2004, at the property known as "Langdene" via Dunedoo in the State of New South Wales, the defendant, an employer, failed to ensure that people (other than the employees of the employer), namely, Benjamin McDonnell and Lucinda Jane Vandermaal (nee Mordue), were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work, in contravention of section 8(2) of the Occupational Health and Safety Act 2000.
The further particulars of the charge are:
1. Whilst performing low level flying work in a helicopter, such as locust control work, there was an actual risk of occupants of the helicopter being killed or sustaining injuries due to:
(a)A helicopter striking a wire hazard consisting of power lines; and/or
(b)The consequences or outcomes after a helicopter striking power lines being:
(i) The helicopter crashing to the ground with impact forces and/or
(ii) The helicopter suffering post-impact fire.
2. Aspects of the defendant's failure to ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety were any combination of the following:
(a)Failure to ensure that there existed or was undertaken, or both, an adequate risk assessment of the risk of wire strike.
(b)Failure to ensure that when undertaking low level flying work, such as locust control work, there was a standard crew number of no more than one pilot and one passenger.
(c)Failure to ensure that when undertaking low level flying work, such as locust control work, there should be pre-flight planning in the form of gathering intelligence from landholders on the placement of wires.
(d)Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with and had reinforced adequate safety information, instruction and training about the risk of wire strike and strategies to prevent or reduce that risk.
(e)Failure to ensure that a helicopter involved in low level flying work, such as locust spotting work, ascended to a height that ensured safety before transiting or traversing to another area or paddock.
(f)Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with a wire strike prevention system.
(g)Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with four point harnesses to each seat.
(h)Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with personal protective equipment in the form of a suitable flight helmet and a nomex or equivalent flight suit.
3. Manifestations of the risks were that Mr McDonnell, the rear seat passenger of an aircraft Bell Helicopter 206B JetRanger, registered number VH-CSH, died from multiple injuries consistent with having been caused by an impact with the ground, and there were chemical burns on the surface of the body, consistent with leakage of aircraft fuel.
4. Manifestations of the risks were that Ms Vandermaal ( nee Mordue), the front seat passenger, received multiple serious injuries, namely 5–6 shattered teeth, a punctured lung, broken left elbow, fractured metacarpal, two broken femurs and a compound fracture of the left leg and a fair bit of internal bruising, and some cuts and bruises.
On 24 February 2010 the proceeding came before Haylen J and was stood over for further mention on 25 May 2010. The matter was relisted for 31 January 2011.
This application
The present application was filed in the Federal Court on 24 May 2010 in its original jurisdiction. Having regard to the importance of the issues raised, the Chief Justice determined that the original jurisdiction of the Court be exercised by a Full Court and so directed pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth). The importance of the proceeding derives not only from the fact that it involves a matter arising under the Constitution and the pending criminal proceedings but also because of its implications for the regulation of civil aviation. Sufficient relevant facts were agreed to enable the central legal issue concerning the validity of the OHS Act to be determined. The parties agreed prior to the hearing that the Full Court should not determine a discrete element of Heli-Aust's case arising from paragraphs 18 and 19 of the statement of claim. Those paragraphs raise for consideration the form of the charges. We have been told that proceedings in the New South Wales Court of Appeal (now the subject of a reserved judgment) may resolve that issue. This leaves for decision only the question raised in relation to s 109 of the Constitution.
The application in this Court seeks declarations and writs of prohibition and certiorari under s 39B(1A)(b) and (c) of the Judiciary Act 1903 (Cth). Ultimately Heli-Aust appeared to adopt the position that it would be sufficient if an injunction was granted and declaratory orders were made together with a writ of certiorari quashing the order of the Industrial Court of NSW of 9 December 2009.
In order to provide a context for what follows in these reasons, Heli-Aust's case should be described in overview. Firstly it says that, by virtue of s 109, the provisions of the OHS Act do not apply to the events surrounding the accident because that Act operates in a field that the CA Act and the Regulations are intended to regulate to the exclusion of State law. That field is, as finally formulated, the safety of air navigation or the safety of air operations in Australia. Secondly, it says that even if this is not so, invalidity arises because there is direct inconsistency between certain provisions of the CA Act and Regulations and the provisions of the OHS Act which are said to be engaged having regard to the charges as particularised.
Commonwealth legislative and regulatory framework
The CA Act and Regulations together create a regulatory framework to ensure the safety of civil aviation. The Act "binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island" (s 5) and extends to foreign aircraft flying in Australian territory (s 7). It establishes the Civil Aviation Safety Authority (CASA). The role of CASA in maintaining air safety is addressed in detail in ss 9, 9A and 11.
Civil Aviation Act – relevant provisions
It is convenient to set out the terms of some of the material provisions of the CA Act. Section 3A identifies the main object of the Act. It declares:
The main object of this Act is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents.
The pre-eminence of aviation safety as the focus of this statutory scheme is revealed by s 9A which provides:
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
(2)Subject to subsection (1), CASA must exercise its powers and perform its functions in a manner that ensures that, as far as is practicable, the environment is protected from:
(a) the effects of the operation and use of aircraft; and
(b) the effects associated with the operation and use of aircraft.
The functions of CASA
In addition CASA is directed by s 11 to perform its functions in a manner consistent with the obligations of Australia under the Convention on International Civil Aviation concluded at Chicago on 7 December 1944 (Chicago Convention) and any other agreement between Australia and any other country or countries relating to the safety of aircraft. The functions of CASA are addressed in s 9 which provides:
(1)CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a)civil air operations in Australian territory;
(b)the operation of Australian aircraft outside Australian territory;
by means that include the following:
(c)developing and promulgating appropriate, clear and concise aviation safety standards;
(d)developing effective enforcement strategies to secure compliance with aviation safety standards;
(e)issuing certificates, licences, registrations and permits;
(f)conducting comprehensive aviation industry surveillance, including assessment of safety-related decisions taken by industry management at all levels for their impact on aviation safety;
(g)conducting regular reviews of the system of civil aviation safety in order to monitor the safety performance of the aviation industry, to identify safety-related trends and risk factors and to promote the development and improvement of the system;
(h)conducting regular and timely assessment of international safety developments.
(2) CASA also has the following safety-related functions:
(a)encouraging a greater acceptance by the aviation industry of its obligation to maintain high standards of aviation safety, through:
(i)comprehensive safety education and training programs; and
(ii)accurate and timely aviation safety advice; and
(iii)fostering an awareness in industry management, and within the community generally, of the importance of aviation safety and compliance with relevant legislation;
(b)promoting full and effective consultation and communication with all interested parties on aviation safety issues.
(3)CASA also has the following functions:
(a)co-operating with the Executive Director of Transport Safety Investigation in relation to investigations under the Transport Safety Investigations Act 2003 that relate to aircraft;
(b)any functions conferred on CASA under the Civil Aviation (Carriers' Liability) Act 1959, or under a corresponding law of a State or Territory;
(c)any functions conferred on CASA under the Air Navigation Act 1920;
(ca) entering in to 83 bis agreements on behalf of Australia;
(d)any other functions prescribed by the regulations, being functions relating to any matters referred to in this section;
(e)promoting the development of Australia's civil aviation safety capabilities, skills and services, for the benefit of the Australian community and for export;
(f)providing consultancy and management services relating to any of the matters referred to in this section, both within and outside Australian territory;
(g)any functions incidental to any of the functions specified in this section.
(4)In performing the function under paragraph (3)(f), CASA may, under a contract with a foreign country or with an agency of a foreign country, provide services for that country or agency in relation to the regulation of the safety of air navigation or any other matter in which CASA has expertise. Those services may include conducting safety regulation in relation to foreign aircraft under the law of a foreign country.
…
Several features of this section should be noted. CASA is entrusted with the role of developing aviation safety standards and enforcing them; it is not responsible for aviation security. It is empowered to issue certificates, licences, registrations and permits. This includes licences to fly aircraft and the registration of aircraft. Section 9(3)(b) contemplates that CASA might be conferred with functions under State law. The first respondent points to this as indicating that the CA Act is not intended to cover the field. This is discussed later.
Central to the scheme enabling CASA to secure safety in civil aviation are AOCs. Save for particular permissions issued under s 27A to foreign registered aircraft, an aircraft cannot fly into or out of Australian territory or within Australian territory unless authorised by an AOC issued by CASA: see s 27(2). AOCs are issued on the following basis:
28 CASA must issue AOC if satisfied about certain matters
(1)If a person applies to CASA for an AOC, CASA must issue the AOC if, and only if:
(a)CASA is satisfied that the applicant has complied with, or is capable of complying with, the provisions of this Act, the regulations and the Civil Aviation Orders, that relate to safety, including provisions about the competence of persons to do anything that would be covered by the AOC; and
(b)CASA is satisfied about the following matters in relation to the applicant's organisation:
(i)the organisation is suitable to ensure that the AOC operations can be conducted or carried out safely, having regard to the nature of the AOC operations;
(ii)the organisation's chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely;
(iii)the organisation has a sufficient number of suitably qualified and competent employees to conduct or carry out the AOC operations safely;
(iv)key personnel in the organisation have appropriate experience in air operations to conduct or to carry out the AOC operations safely;
(v)the facilities of the organisation are sufficient to enable the AOC operations to be conducted or carried out safely;
(vi)the organisation has suitable procedures and practices to control the organisation and ensure that the AOC operations can be conducted or carried out safely;
(vii)if CASA requires particulars of licences held by flight crew members of the organisation -- the authorisations conferred by the licences are appropriate, having regard to the nature of the AOC operations; and
(c)if the AOC sought would authorise the operations of a foreign registered aircraft on regulated domestic flights—CASA is also satisfied that the additional conditions in section 28A have been met.
(2)The financial position of the applicant is one of the matters that CASA may take into account in forming a view for the purposes of paragraph (1)(a).
(3) In this section:
AOC operations means the operations covered by the application.
applicant's organisation means the organisation established, or proposed to be established, by the applicant to conduct or carry out the operations covered by the application.
key personnel means the people (however they are described) that hold, or carry out the duties of, the following positions in the applicant's organisation:
(a) the chief executive officer;
(b) the head of the flying operations part of the organisation;
(c)the head of the aircraft airworthiness and maintenance control part (if any) of the organisation;
(d)the head of the training and checking part (if any) of the organisation;
(e) any other position prescribed by the regulations.
The effectiveness of an AOC is conditional. Section 28BA provides:
28BA General conditions
(1) An AOC has effect subject to the following conditions:
(a)the condition that sections 28BD, 28BE, 28BF, 28BG, 28BH and 28BI are complied with;
(b)any conditions specified in the regulations or Civil Aviation Orders;
(c)any conditions imposed by CASA under section 28BB.
(2)If a condition of an AOC referred to in paragraph (1)(a) is breached, the AOC continues, despite the breach, to authorise flights or operations to which the condition relates.
(2A) If a condition of an AOC referred to in paragraph (1)(b) or (1)(c) is breached, the AOC does not authorise any flight or operation to which the condition relates while the breach continues.
(3)If a condition of an AOC is breached, CASA may, by written notice given to its holder, suspend or cancel:
(a)the AOC; or
(b)any specified authorisation continued in the AOC;
whether or not the breach is continuing.
(4) Before making a decision under subsection (3), CASA must:
(a)give the holder of the AOC a notice setting out the reasons why CASA is considering making the decision; and
(b)allow the holder of the AOC to show cause, within such reasonable time as CASA specifies in the notice, why CASA should not make the decision.
(5)If CASA makes a decision under subsection (3), the notice of its decision must include a summary of section 31A. However, a failure to include such a summary does not affect the validity of the notice.
A central plank of the first respondent's argument is s 28BE which provides:
28BE Duty to exercise care and diligence
(1)The holder of an AOC must at all times 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.
(2)If the holder is a body having legal personality, each of its directors must also take the steps specified in subsection (1).
(3)It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of:
(a)inadequate corporate management, control or supervision of the conduct of any of the body's directors, servants or agents; or
(b)failure to provide adequate systems for communicating relevant information to relevant people in the body.
(4)No action lies, for damages or compensation, in respect of a contravention of this section.
(5)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.
[Emphasis added]
The first respondent points to s 28BE(5) as making clear that the CA Act is not intended to cover the field. The subsection, it is argued, recognises the continued operation of State law in the field in which the CA Act and the Regulations operate. We deal with this argument later in these reasons. Another provision relied on by the respondents is s 32 which provides:
32 Powers and functions under State and Territory laws
CASA or the Director, or an officer, authority or person having powers and functions under this Act or the regulations, may also have similar powers and functions conferred by the law of a State or Territory relating to air navigation.
Section 20A creates norms of conduct in relation to the operation of an aircraft in the sense that it prohibits a person operating an aircraft recklessly. The section provides:
20A Reckless operation of aircraft
(1)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2)A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
Contravention of s 20A(1) is an offence created by s 29(3) which provides:
29 Offences in relation to aircraft
…
(3)The owner, operator, hirer (not being the Crown) or pilot of an aircraft commits an offence if he or she:
(a)operates the aircraft or permits the aircraft to be operated; and
(b)the operation of the aircraft results in a contravention of subsection 20A(1).
Penalty: Imprisonment for 5 years.
…
Commonwealth Civil Aviation Regulations
The regulation making power is found in s 98 of the CA Act, which is in the following terms:
98 Regulations etc
(1)The Governor-General may make regulations, not inconsistent with this Act:
(a)prescribing matters required or permitted by this Act to be prescribed;
(b)prescribing matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(c)for the purpose of carrying out and giving effect to the provisions of the Chicago Convention relating to safety;
(d)in relation to safety of air navigation within a Territory or to or from a Territory;
(e)in relation to safety of air navigation, being regulations with respect to trade and commerce with other countries and among the States; and
(f)in relation to safety of air navigation, being regulations with respect to any other matter with respect to which the Parliament has power to make laws.
(2)The regulations may apply in relation to state aircraft.
…
Subsections (3) to (7) of s 98 provide more specific regulatory powers "without limiting the generality of subsections (1) and (2)". For present purposes it is important to understand exactly how comprehensive is the scheme set up by the CA Regulations for the regulation of air safety in Australia. The subject matter addressed by the CA Regulations is wide ranging and is broadly described in the following paragraphs.
The CA Regulations (as in force on 22 November 2004, amended 15 November 2004) are comprised of five volumes. Volume 1 deals with the administration and organisation, airworthiness and maintenance directions and defect reporting by CASA. The provisions in Volume 2 concern the qualifications of flight crew. Volume 3 contains wide ranging regulations concerning navigation logs, radio systems, aerodromes, air traffic services, conditions of flight, rules of the air, signals for the control of air traffic, air service operations, the refusal to grant, suspension and cancellation of licences, certificates and authorities as well as penal and prosecution provisions. Volume 4 addresses aircraft maintenance schedules and the CASA system of certification. Volume 5 contains notes and tables of amendments.
Volume 1, Part 1 reg 2 is a wide ranging interpretation section with definitions of terms such as "maintenance", as it relates to aircraft, "self-contained navigation system", "agricultural operations" and "unlawful interference with aviation" which has the same meaning as s 3AE of the Air Navigation Act 1920 (Cth ) (Air Navigation Act). There are definitions of a variety of aircraft, including "aerodyne", "aeroplane", "airship", "balloon", "glider", "gyroplane", "helicopter", "power-assisted sailplane" and "rotorcraft" and detailed regulations regarding maintenance and airworthiness requirements. Part 4 specifies design standards for aircraft and aircraft components, provides for certificates of approval, aircraft maintenance engineer licences, airworthiness authorities and aircraft welding authorities. Part 4A provides for approved systems of maintenance, details of how maintenance is to be carried out, who can carry out the maintenance and a certification process on completion of maintenance. Part 4B specifies a defect reporting system. Part 4C explains the meaning of "flight manual" and provides for changes to flight manuals. Part 4D specifies how data plates and registration identification plates are to be removed or transferred.
Volume 2 consists of Part 5 of the regulations and has 18 divisions which all refer to flight crew qualifications. The regulations detail what the licence authorises the person to do, the type of aircraft that can be flown, how and when the test can be attempted, the experience required, additional requirements if the pilot is over 60 years of age, provisions for regular flight reviews and training. The various divisions refer to private pilot licences on different types of aircraft, such as helicopters, gyroplanes and aeroplanes as well as commercial pilot licences. There are also divisions which specify training and licences for students and flight engineers.
The regulations in Volume 3 are contained in Parts 7 to 20 and specify the form and retention requirements relating to navigation logs, equipment of Australian aircraft with radio communication systems and use of radio communication systems on Australian and foreign aircraft and air service operations. Part 9 deals with the use of aerodromes, the removal or marking of obstructions and hazards, and the access to aerodromes for regular public transport operations as well as use by "Contracting States" – a term defined by s 3 of the Air Navigation Act to mean "a country, other than Australia, that is a party to the Chicago Convention." The air traffic services referred to in Part 10 include compliance with air traffic control clearances and instructions, medical unfitness of the holder of a licence, meteorological services and statistical returns. Part 11 specifies conditions to be met before Australian aircraft may fly, the obligations of the pilot to comply with the requirements of the aircraft's flight manual, documents to be carried in Australian aircraft, prohibited, restricted and danger areas, low flying, carriage of firearms and the liability as to neglect of rules regarding lights. Also included are flight rules relating to towing, dropping articles, picking up persons or objects, parachute descents, flight under simulated instrument flying conditions, acrobatic flight, flying over public gatherings and procedures on radio failure. The rules of the air are covered by Part 12. These include rules for the prevention of collision, operating near other aircraft, formation flying, the responsibility of flight crew to see and avoid aircraft, the operation on and in the vicinity of aerodromes, visual flight rules as well as the appropriate cruising level, equipment of aircraft, flights at night, qualification of the pilot in command and special provisions for RVSM (reduced vertical separation minimum) airworthiness and operations approvals. The regulations regarding signals for the control of air traffic are dealt with in Part 13 and include details about the transmission of safety, distress and urgency signals. Division 4 of Part 13 details the lights to be displayed by aircraft and lights and markings to be displayed on mooring cables. Part 14 contains detailed provisions regarding air service operations for commercial and private purposes. Part 16 deals with conditions under which licences, certificates and authorities will be refused, suspended, cancelled or varied. Part 17 details the penal provisions for offences relating to licences, certificates and authorities, the detention of aircraft, stowaways and firearm control as well as prosecutions and infringement notices. Parts 18 – 20 contain provisions for certification of CASA documents, as well as various miscellaneous and transitional provisions.
Volume 4 which contains Schedules 5 to 9 refers to CASA's provision for daily and periodic inspections of aircraft as well as post inspection checks and further certification on completion of maintenance. Volume 5 details the amendments to the regulations and contains some explanatory notes.
The CA Regulations are being progressively replaced by the CAS Regulations and will harmonise certain parts of Australia's aviation safety law with the United States Federal Aviation Administration Regulations.
Relation between conduct subject to charge and Commonwealth regulations
It is convenient to illustrate the detailed subject matter of the comprehensive scheme by reference to regulations which concern at least similar subject matter to the subject matter on which the charges are founded. These provisions were central to Heli-Aust's case that there was direct inconsistency between the relevant State laws and Commonwealth laws. These illustrative regulations are found in Volume 3, Part 11 – Conditions of flight (reg 157 – low flying) and Volume 3 Part 14 – Air service operations (reg 215 – operations manual and 251 – seat belts and safety harness).
Low-flying
Regulation 157 prohibits low flying subject to a qualification that low flying can be authorised by CASA. The Regulation states:
(1) The pilot in command of an aircraft must not fly the aircraft over:
(a)any city, town or populous area at a height lower than 1,000 feet; or
(b)any other area at a height lower than 500 feet.
…
(4) Subregulation (1) does not apply if:
…(b)the aircraft is engaged in private operations or aerial work operations, being operations that require low flying, and the owner or operator of the aircraft has received from CASA either a general permit for all flights or a specific permit for the particular flight to be made at a lower height while engaged in such operations; …
The charges set out earlier contended, in part, that the manner in which the helicopter was flown at a low height constituted a breach of ss 10(1) and 8(2) of the OHS Act. As a matter of fact, permission was granted to Heli-Aust (Instrument No SBAO/352/2002) to fly at a height lower than 500 feet by CASA under reg 157 on 17 October 2002.
Operations manual
Regulation 215 of the CA Regulations provides:
(1)An operator shall provide an operations manual for the use and guidance of the operations personnel of the operator.
Penalty: 25 penalty units.
(2)The operator must ensure that the operations manual contains such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations (other than information, procedures or instructions that are set out in other documents required to be carried in the aircraft in pursuance of these regulations).
Penalty: 25 penalty units.
(3)CASA may give a direction:
(a)requiring the operator to include particular information, procedures and instructions in the operations manual; or
(b)requiring the operator to revise or vary the information, procedures and instructions contained in the operations manual.
…
(7)The operator shall ensure that a copy of the manual is kept in a convenient and accessible place for use by all members of the operations personnel of the operator who have not been furnished with a copy in pursuance of subregulation (6).
Penalty: 10 penalty units.
…
(9)Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
Penalty: 25 penalty units.
…
The operations manual must be provided by the operator of an aircraft for the use and guidance of the operations personnel (reg 215). It must contain information, procedures and instructions relating to the flight operations necessary to ensure safe conduct of the flights. CASA may give a direction requiring the inclusion of particular information in the operations manual. The operator must ensure that the manual is kept in a convenient and accessible place for use of operations personnel (reg 215(7)) and all personnel must comply with all the instructions, relating to his or her duties or activities, in the operations manual (reg 215(9)). It is an offence of strict liability not to comply with these subregulations.
As a matter of fact, section D16 of the operations manual provided by Heli-Aust contains detailed instructions for locust spotting operations including authorisation and pilot qualifications, how the operations are to be conducted and the operational requirements. Only people whose duties are directly related to the operation are to be carried in the aircraft (16.2.1), although new field officers may be given on the job training accompanied by an experienced officer. The pilot and crew are instructed to regard the detection of wires as their primary observation function and the detection of locusts as secondary to minimise the risk of a wire strike.
The permission referred to in [26] was conditional on the flights being conducted in accordance with section D16, that the operator ensured the pilot in command conducts a safety briefing, including all the relevant safety information for the proposed flight, that only persons essential to the conduct of the aerial work were to be carried in the helicopter and that the operator advised, and where necessary or relevant obtained specific permission from Commonwealth, State and local government authorities to conduct the operations.
The charges set out at [3] above, allege that various aspects of the way in which the helicopter had been flown constituted a breach of ss 10(1) and 8(2) of the OHS Act.
Seat belts and safety harness
Regulation 251 provides:
(1)Subject to this regulation, seat belts shall be worn by all crew members and passengers;
(a)during take-off and landing;
(b)during an instrument approach;
(c)when the aircraft is flying at a height of less than 1,000 feet above the terrain; …
…
(3)CASA may direct that a type of safety harness specified in the direction shall be worn in place of a seat belt in the circumstances set out in the direction.
…
As a matter of fact, a permission (Instrument No SBAO/272/2002) had been issued to Heli-Aust by CASA on 3 September 2002 relating to the use of approved safety harnesses in lieu of seat belts during take-off and landing. It provided detailed instructions about when and how the safety harnesses were to be used and the requirements of this equipment, particularly the attachment points, load limit and release. Again the charges allege a breach of ss 10(1) and 8(2) of the OHS Act because, amongst other things, there had been a failure to ensure the helicopter was fitted with four-point harnesses to each seat.
The evolution of Commonwealth regulation and the international context
It is desirable to say something about the evolving regulation of air navigation, and the safety of air navigation in particular, by Commonwealth law. The first Commonwealth Act regulating air navigation was the Air Navigation Act passed by the Commonwealth Parliament to carry into effect the Convention Relating to the Regulation of Air Navigation, signed in Paris on 13 October 1919. The Convention recognised that the establishment of regulations of universal application would be of interest to all countries. Article 19 made provision for rules for the registration and airworthiness of aircraft and for the certification and licensing of officers, pilots and crew. The International Commission for Air Navigation was established by Article 34 as an institution under the direction of the League of Nations which would ensure compliance with the Convention. The International Air Traffic Association (IATA) was also established in 1919 in The Hague.
In 1920 and 1921 Victoria, Queensland, South Australia and Tasmania passed legislation which referred power to legislate with respect to air navigation to the Parliament of the Commonwealth, however as Taylor J noted in Airlines of New South Wales Pty Limited v New South Wales (No 1) (1964) 113 CLR 1 (Airlines No 1) at 35:
[W]ith the exception of the Tasmanian statute, none of the Acts came into operation and all were repealed in 1937.
The power of the Commonwealth to legislate with respect to civil aviation was put in issue in R v Burgess: Ex parte Henry (1936) 55 CLR 608. The appellant did not possess a current licence as required by the Air Navigation Regulations 1920 when he flew at Mascot on 30 September 1934 in New South Wales and was convicted of an offence against reg 6(c) of these regulations. The appeal in the High Court (by way of prohibition) was allowed and the conviction quashed. The majority of the High Court held that Parliament could authorise the making of regulations to give effect to the Paris Convention under the external affairs power. However as the regulations entailed substantial deviations from the provisions of the Paris Convention, they were invalid. The Commonwealth did not have power to exercise general control over all classes of air navigation, particularly in relation to intrastate air navigation. Following amendments made in 1936, the Air Navigation Act authorised regulations for the purpose of giving effect to the Paris Convention, however the regulations did not purport to extend to intrastate air navigation. The validity of a regulation concerning low flying over an aerodrome was subsequently upheld in R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634.
An attempt by the Commonwealth in 1937 to achieve a constitutional amendment to give the Parliament power to make laws with respect to air navigation and aircraft was unsuccessful. Commonwealth and State Ministers attended an aviation conference in April 1937 and as a result all States agreed to enact State air navigation acts in uniform terms to enable the Air Navigation Regulations to be adopted as State law. The uniform State legislation was passed by the end of 1937. The State Acts provided that the administration of the regulations in their application to intrastate air navigation vested exclusively in the Commonwealth aviation authority. These matters were discussed by Taylor J in Airlines No 1 at 35:
Following further conferences between State and Federal authorities all six States in 1937 and 1938 passed Acts in a further attempt to achieve uniformity. The New South Wales Act (No 9 of 1938) recited that at a conference of representatives of the Governments of the Commonwealth and of the States, held in 1937, it was resolved that there should be uniform rules throughout the Commonwealth applying to air navigation and aircraft, the licensing and competence of pilots, air traffic rules, and the regulation of aerodromes and that it was agreed that legislation should be introduced in the Parliament of each State to make provision for the application of the Commonwealth Air Navigation Regulations, as in force from time to time, to air navigation and aircraft within the jurisdiction of the State. Thereupon s 4 of the Act provided that the Air Navigation Regulations made, and as in force from time to time, under the Commonwealth Act and applicable to and in relation to air navigation within the Territories, should (except so far as those Regulations were by virtue of the Commonwealth Act and the Regulations applicable to and in relation to air navigation within New South Wales) apply, mutatis mutandis, to and in relation to air navigation within New South Wales as if those Regulations as so applied were incorporated in the Act.
Justice Taylor noted (at 39) that the regulations were "a studied and careful attempt to devise general and comprehensive rules for securing safety in and in relation to the operation of aircraft within the limits of the regulation-making power conferred by s 26 of the Commonwealth Act." Regulation 6 identified the field of operation of the regulations. It made no reference to air navigation solely within the limits of any one State because when the regulations were framed the Air Navigation Act 1938 (NSW) was in full force and effect and, as his Honour noted (at 40) "the effect of this Act was to give to the Air Navigation Regulations made under the Commonwealth Act the force of State law in so far as it was thought to be necessary for achieving uniformity in the control of aerial navigation." His Honour also noted (at 40):
To this end [the scheme of State law adopting Commonwealth regulations to create uniformity] s 5 of the State Act provided that where, by or under the Regulations, any power or function is vested in or exercisable by any person or authority for the purposes of the regulations or any part thereof, the like power or function under the regulations in their application by virtue of the Act should be vested in or exercisable by that person or authority for the purposes of the regulations in such application. It may safely be assumed that this Act of the Parliament of New South Wales and similar Acts of the Parliaments of the other States was accepted by the Commonwealth as a practical basis for securing uniformity in the control of aerial navigation throughout the Commonwealth generally and that the provisions of reg 6 were framed in accordance with this notion. Accordingly, so far as New South Wales is concerned, I see the Commonwealth Regulations and the State legislation on the subject-matter as complementary to one another, the Commonwealth Regulations operating in the various fields denoted by reg 6 and the State legislation adopting the same rules in relation to aerial navigation not falling within the ambit of that regulation.
A conference on International Civil Aviation, to which 54 nations were invited was held in Chicago in November and December 1944. The Chicago Convention was signed on 7 December 1944. By signing the Convention the nations agreed on "certain principles and arrangements in order that international civil aviation may be developed in a safe and orderly manner". The Provisional International Civil Aviation Organisation was established in 1945 and functioned until 1947 when the International Civil Aviation Organisation (ICAO) came into being following ratification of the Convention by 26 States. In October 1947 ICAO became a Specialised Agency of the United Nations. The purpose of ICAO is outlined in Article 44 of the Chicago Convention:
… [T]o develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to:
(a) insure the safe and orderly growth of international civil aviation throughout the world;
…In signing the Chicago Convention, Australia and the nations which had previously ratified the Paris Convention agreed to denounce it. The ratification of the Chicago Convention on behalf of Australia was approved by Parliament by Act No 6 of 1947. The Chicago Convention is incorporated into the Air Navigation Act by Schedule 1. The International Air Services Transit Agreement and subsequent amendments to the Convention have been ratified by the Navigation Act (see Schedules 2 – 12).
Article 1 of the Convention provides that the contracting States recognise that every State has complete and exclusive sovereignty over the airspace above it. Each contracting State undertakes by Article 12 to adopt measures to ensure that every aircraft flying over or manoeuvring within its territory and every aircraft carrying its nationality mark shall comply with the rules and regulations relating to the flight and manoeuvring of aircraft wherever the aircraft may be. The regulations of each contracting State are to be kept uniform, to the greatest possible extent, with those established under the Convention and provision is to be made to insure the prosecution of all persons violating the applicable regulations. The rules in force over the high seas are those established under the Convention.
Article 37 of the Convention concerns international standards and procedures and provides:
Each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.
To this end the International Civil Aviation Organization shall adopt and amend from time to time as may be necessary, international standards and recommended practices and procedures dealing with:
(a) Communications systems and air navigation aids, including ground marking;
(b) Characteristics of airports and landing areas;
(c) Rules of the air and air traffic control practices;
(d) Licensing of operating and mechanical personnel;
(e) Airworthiness of aircraft;
(f) Registration and identification of aircraft;
(g) Collection and exchange of meteorological information;
(h) Log Books;
(i) Aeronautical maps and charts;
(j) Customs and immigration procedures;
(k) Aircraft in distress and investigation of accidents;
and such other matters concerned with the safety, regularity, and efficiency of air navigation as may from time to time appear appropriate.[Emphasis added]
In Ansett Transport Industries Ltd v Morris (1986) 18 FCR 527 at pages 561-562, Lockhart J discussed the significance of the phrase "safety, regularity and efficiency of air navigation" in Australian laws regulating air navigation:
The expression "safety, regularity and efficiency of air navigation" has its genesis in the Convention on International Civil Aviation concluded at Chicago in December 1944 and ratified by the Commonwealth Parliament in 1947 (the Chicago Convention). The expression "safety, regularity and efficiency of air navigation" was inserted into the Air Navigation Regulations in 1964. The expression has been considered by the High Court on more than one occasion, but particularly in Airlines of New South Wales Pty Ltd v New South Wales (1964) 113 CLR 1 (Airlines case No 1) and Airlines of New South Wales Pty Ltd v New South Wales(No 2) (1965) 113 CLR 54 (Airlines case No 2). The language of the regulations, in particular reg 199, reflects the constitutional limitations upon the power of the Commonwealth Parliament to legislate in this field. The Constitution includes no reference to aviation, so the Commonwealth's powers in relation to civil aviation are derived from its powers to make laws with respect to other matters, including the defence power (s 51(vi)); the external affairs power (s 51(xxix)); the trade and commerce power (s 51(i)); the corporations power (s 51(xx)); the post and telegraphs power (s 51(v)); the territories power (s 122); the power to legislate with respect to places acquired by the Commonwealth for public purposes (s 52(i)) and the power of the Commonwealth to make laws with respect to matters referred to the Commonwealth by any State (s 51(xxxvii)). The enactment of federal legislation in the field of civil aviation has occurred, of course, within a constitutional framework that includes s 92, thus placing significant constraints upon the power of the Commonwealth to apply controls, especially economic regulatory controls, over interstate aviation. Constitutional restraints upon the exercise of Commonwealth power with respect to civil aviation are reflected in the construction which the High Court has given to the words "safety, regularity and efficiency of air navigation" in reg 199(4).
Those words in that regulation refer "not to the efficiency and regularity with which an airline operator conducts the commercial aspects of his business generally .... But the manner in which the applicant carries out these business operations will in some respects closely affect the efficiency and regularity of air navigation, a word which is not defined but clearly includes commercial air transport. The word 'regularity' has, it seems to me, in this context the sense of 'propriety' - conforming to standards, regular because conforming: such standards including punctuality of operation and the meeting of schedules, an aspect of its meaning which is clearly significant in relation to the safety of air navigation ....": per Barwick CJ in the Airlines case No 2 (at p 90).
Although the judgments of the High Court, in particular in the Airlines case No 2, give a wide meaning to the expression "safety, regularity and efficiency of air navigation" the power is nevertheless circumscribed in that it must fall within the concept of air navigation and not, for example, the air transport industry generally in all its aspects and with its many ramifications. It is important to remember that the Secretary's powers under reg 199 require him to have regard to matters concerned with the safety, regularity and efficiency of air navigation and to no other matters. Air navigation is central to and is the subject matter of the exercise of the Secretary's powers.
Significant and extensive changes were made to air navigation legislation in the 1960s and were incorporated into the Air Navigation Act and the Air Navigation Regulations. The reasons for the changes and details relating to the development of air navigation legislation can be found in the Second Reading Speech to the Air Navigation Bill 1960, 17 May 1960, Hansard at pages 1763 – 1771:
The present Air Navigation Act 1920-1950, which is less than two printed pages, authorizes the Governor-General to make regulations to carry out the Chicago Convention of 1944 and to make other regulations in the field of air navigation. In pursuance of the power contained in section 5 of the Act, more than 300 regulations have been promulgated covering a wide and complex range of safety and technical matters affecting almost every phase of civil aviation.
The Joint Committee of Public Accounts, in its 24th report to Parliament, invited attention to the wide powers over civil aviation which the Act vests in the Executive and went on to say-
We consider it undesirable to continue to vest such wide regulation making powers in the Executive Council and recommend that the basic principles should be incorporated in legislation enacted by the Parliament.
The primary purpose of this bill is to amend the existing Air Navigation Act in a manner which will carry out this recommendation as far as is practicable by defining in detail for the first time the powers of the Executive to control and regulate civil air navigation.
…Shortly after the Goya Henry decision the Commonwealth amended the Air Navigation Act 1920 by the Air Navigation Act 1936. The amendment authorized regulations for the purpose of giving effect to the Paris convention and for the purpose of providing for the control of air navigation –
(a)in relation to trade and commerce with other countries and among the States; and
(b)within any Territory of the Commonwealth.
The practical result was that the Commonwealth regulations no longer purported to extend to intra-state air navigation, except to the limited extent necessary to give effect to the Paris convention. The validity of the act as amended, and the new regulations, was subsequently upheld in the second Goya Henry case – 61 C.L.R. 634 (1939).
…
As a result of the conference [in 1937 referred to earlier], all States agreed to enact in uniform terms State air navigation acts, which would in effect adopt certain Commonwealth Air Navigation Regulations as State law.
Before the end of 1937 all States had enacted uniform legislation providing in substance that-
The regulations from time to time in force applicable to and in relation to air navigation within the territories apply (mutatis mutandis), to and in relation to air navigation within the State;
The administration of the regulations in their application to intra-state air navigation by virtue of the State act vests in the Commonwealth authority responsible for administration of the regulations in their application as Federal law; and
…
The practical result is that for almost a quarter of a century the Commonwealth Air Navigation Regulations have applied uniformly to all classes of air navigation and their administration, whether as Federal or State law, is vested exclusively in the Federal aviation authority.
There are two most important considerations which must be taken into account in determining the extent to which air navigation can be controlled by substantive provisions in the act. Because the uniform State air navigation acts attract only Commonwealth regulations it is necessary in order to carry out our part of the long standing and highly successful arrangements with State governments, and to act on the delegation by State governments of their responsibility for the safety of intra-state air navigation, that many technical and safety rules which might otherwise be included in the act should be prescribed by regulation. The second consideration is that many of the regulations relate to detailed safety standards which by their very nature clearly are, by any test, appropriate subject-matters for inclusion in regulation.
…
Secondly, the regulations have been carefully scrutinized and where they deal with subject-matters of sufficient importance, which do not have intra-state implications or can be applied by virtue of Commonwealth powers to intra-state air navigation — for example, under the external affairs power — the subject-matter by virtue of the bill will be transferred from the regulations to the act.
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As I indicated earlier, there are a number of regulations which are not intended to apply to intra-state air navigation and others which can be expressed to apply to intra-state navigation in reliance on federal powers such as the external affairs power.
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The proposed new section 26 of the act contains the power to make regulations. The form of this section, which to some extent follows the existing act, is dictated by a number of important legal considerations. Although the Commonwealth Constitution contains no express powers relating to aviation, there are quite a number of matters of federal competence which include power to make laws with respect to certain aspects of air navigation. I have already referred in some detail to the external affairs power which enables this Parliament to make laws giving effect to international conventions and other bona fide international obligations. In addition, it has been held by the courts that interstate air transport is a necessary part of interstate trade and commerce so that the Commonwealth can, subject to section 92 of the Constitution, regulate interstate air navigation and transport. It has, of course, very wide power with respect to the territories and it was, no doubt, for this reason that the uniform State Air Navigation Acts were settled on the basis of adopting federal regulations applying with respect to air navigation in the territories. Other sources of federal competence arise from the incidental power, the power to make laws with respect to places acquired by the Commonwealth for public purposes and with respect to any matter referred by a State parliament. The regulation-making power has been drafted to take advantage of all these sources of power and in a matter of such vital importance as the safety and development of air transport — provided that there are proper safeguards—there can be no valid objection to defining these powers in the manner proposed. Such safeguards have been carefully considered and provided for.
The Second Reading Speech concludes:
In the past 40 years, civil aviation has grown from an infant undertaking into an industry of great and growing importance to Australia. To-day, aviation plays a major role in the business and social life of millions of Australians. This bill is a milestone in the history of the industry. It presents for the approval of this Parliament for the first time a large number of important matters affecting the safe and efficient operation of every facet of civil aviation activity in Australia.
…In 1964 two matters in the High Court raised for consideration the Commonwealth's power to legislate with respect to civil aviation: Airlines No 1 and Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1964) 113 CLR 54 (Airlines No 2).
In Airlines No 1, the NSW Commissioner for Motor Transport informed Airlines of NSW that the government had decided to make a re-allocation of intrastate air routes between Airlines of NSW, the plaintiff company, and East-West Airlines Ltd and a variation in aircraft licences. The plaintiff alleged that the relevant provisions of the State Transport (Co-ordination) Act, 1931–1956 (NSW) which authorised this action were invalid because they were inconsistent with the provisions of the Air Navigation Act and the Regulations by reason of s 109 of the Constitution. The plaintiff held licences issued by the Director-General of Civil Aviation under Commonwealth law permitting its aircraft to be used in regular public transport operations on the same routes as those for which it held licences under the State Transport (Co-ordination) Act, 1931 - 1956 (NSW). The issue raised was, in substance, whether the State licensing regime, as it applied to intrastate aviation, was inconsistent with the Federal licensing regime. The Court concluded it was not. It is unnecessary to dwell on the reasons because the Commonwealth subsequently amended the Regulations to remove a plank upon which much of the reasoning of the various Justices was based. Simply put, the plank concerned a regulation (reg 6) identifying the field to which the regulations would apply did not, in terms, include intrastate aviation.
On 2 October 1964, following the judgment in Airlines No 1, the Air Navigation Regulations were amended to extend the Regulations to all classes of air navigation, international, interstate and intrastate. A Commonwealth licensing system for intrastate air transport services was also established. The validity of the changes and the extent of Commonwealth power to control intrastate air transport operations was challenged in Airlines No 2.
The plaintiff in Airlines No 2, challenged, amongst others, regs 199 and 200B. Regulation 198 prohibited the use of an aircraft in regular public transport operations unless under the authority of and in accordance with an airline licence issued by the Director-General of Civil Aviation. The validity of this regulation in its application to regular public transport operations solely within the limits of one State was upheld by Barwick CJ, McTiernan, Kitto, Menzies, Windeyer and Owen JJ, with Taylor J dissenting. Regulation 200B was found to be invalid by the whole Court. This regulation provided that "an airline licence authorizes the conduct of operations in accordance with the provisions of the licence subject to the Act and these Regulations and to the other laws of the Commonwealth".
Of some assistance, for present purposes, were some of the observations of Owen J about the statutory scheme as a whole. His Honour said (at 164):
At the time when the case of Airlines of New South Wales Pty Ltd v New South Wales was decided, the Regulations did not include regs 6(1)(f) and 200B. In the absence of reg 6(1)(f) it was held that the Commonwealth had not intended to cover the whole field of air navigation in Australia, the general body of the Regulations had not been applied to intra-State air navigation and there was therefore no inconsistency between the Commonwealth law and the then State law providing for the licensing by a State authority of intra-State services. Reg 6(1)(f) was introduced as a result of that decision and I have no doubt that it is valid. (See, for example, what was said by Dixon CJ (1964) 113 CLR, at pp 27-29, and by Windeyer J (1964) 113 CLR, at pp 50, 51).
…
Air navigation" is not one of the subjects with respect to which the Constitution expressly confers upon the Commonwealth power to legislate. …. No one denies the right of the Commonwealth under the first of these heads to make laws for the purpose of giving effect to obligations undertaken by it under an international treaty to which it is a party, and to make laws incidental to the execution of that purpose subject, of course, to limitations such as s 92 which may be found in the Constitution.I have not found, nor would I expect to find, in the Chicago Convention or in the annexes issued pursuant to it an express obligation imposed upon the contracting States to set up a system whereby those who wish to conduct air services within their territories must obtain licences to do so but they impose a wide range of obligations designed, amongst other things, to facilitate and improve international air navigation and ensure its safety, regularity and efficiency. To that must be added that under the trade and commerce power the Commonwealth may make laws directed to ensuring the safety, regularity and efficiency of air navigation between the States and with other countries.
…… [T]he development of air navigation in Australia has reached a stage at which it can properly be said that in order to ensure the safety, regularity and efficiency of inter-State and overseas air navigation it is necessary that the Commonwealth should exercise a wide measure of control over intra-State air navigation. The question is, however, the extent to which that control may lawfully go. I have no doubt that it is within the power of the Commonwealth to insist that no intra-State air transport operations shall be conducted without its permission. Equally I have no doubt that in considering whether it will give permission for the conduct of an intra-State airline service, it must have regard to the suitability of the applicant for permission to conduct that service. The licensing system set up by regs 198, 199 and 200A and applied to intra-State air navigation by reg 6(1)(f) is, I think, within power whether the matter be looked at from the point of view of the external affairs power or the trade and commerce power. It provides a means of ensuring that permitted air transport operations shall be conducted in accordance with the conditions laid down for their conduct and it enables the licensing authority to consider whether an applicant for permission to conduct such a service is qualified to provide and maintain the necessary aircraft, equipment, ancillary services and skilled personnel. So too the Commonwealth may insist, as it has, that no aircraft shall fly in controlled airspace or use its aerodromes without its permission.
[Footnotes omitted]Major changes to the administration of air navigation legislation in Australia were made with the enactment of the Civil Aviation Act 1988 (Cth) and the establishment of the Civil Aviation Authority. In 1995 further changes were made to the administration of air navigation legislation by legislative amendment which abolished the CAA and established two new statutory authorities, Airservices Australia (AA) and the Civil Aviation Safety Authority (CASA). The administration of commercial and operational aspects of civil aviation was given to AA and the safety regulatory aspects were given to CASA by the Air Services Act 1995 (Cth).
Currently the Commonwealth legislative air safety scheme in Australia is to be found in the Air Navigation Act 1920 (Cth), the Air Navigation Regulations 1947 (Cth), the Civil Aviation Act 1988 (Cth), the Civil Aviation Regulations 1988 (Cth) and the Civil Aviation Safety Regulations 1998 (Cth).
The operation of the State legislation
As noted earlier, the prosecution in the Industrial Court of New South Wales alleges Heli-Aust contravened ss 8(2) and 10(1) of the OHS Act. These sections provide:
Section 8(2)
… An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
…
[Emphasis added]Section 10(1)
A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.
The word "premises" is defined in s 4 of the OHS Act to include any place and in particular:
(a)any land, building or part of any building, or
(b)any vehicle, vessel or aircraft, or
(c)any installation on land, on the bed of any waters or floating on any waters, or
(d)any tent or movable structure.
[Emphasis added]
The alleged contraventions must be considered in the context of the objects of the OHS Act which are expressed in s 3 as follows:
(a)to secure and promote the health, safety and welfare of people at work,
(b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work,
(c)to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs,
(d)to provide for consultation and co-operation between employers and employees in achieving the objects of this Act,
(e)to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled,
(f)to develop and promote community awareness of occupational health and safety issues,
(g)to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices,
(h)to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety.
The principles
Section 109 of the Constitution provides that when a State law is inconsistent with a law of the Commonwealth, the Commonwealth law will prevail and the State law will be invalid "to the extent of the inconsistency". In their Annotated Constitution of the Australian Commonwealth (1901) Quick and Garran referred to s 109 as "practically a corollary" to ss 106-108. Sections 106-108 are concerned with the saving, respectively, of State Constitutions, State Parliaments and State laws. It is therefore not surprising that, although s 109 uses the term "invalid", the authorities make clear that the position is not irreversible; it "is not the equivalent of null, or void, or nugatory": Lamb v Cockatoo Docks & Engineering Co Pty Ltd (1960) 61 SR (NSW) 459 at 468. The operation of the invalid State law is rendered inoperative only to the extent of the inconsistency and only for as long as the inconsistency continues. Nevertheless the paramountcy of Commonwealth law is undoubted. Both these points are clearly stated in the following observations of per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ, in Western Australia v Commonwealth (1995) 183 CLR 373 at 465:
[T]he effect of s 109 on a State law that is inconsistent with a law of the Commonwealth is not to impose an absolute invalidity. On the contrary, the State law remains valid though it is rendered inoperative to the extent of the inconsistency, but only for so long as the inconsistency remains. The extent of the inconsistency depends on the text and operation of the respective laws.
Neither the operation of s 109 nor the existence of a State law inconsistent with a proposed law of the Commonwealth affects the extent of a legislative power of the Commonwealth. Given power to make laws with respect to prescribed subjects, the Commonwealth may, if it chooses, make a law with respect to a prescribed subject that is exclusive and exhaustive. Then, if any State law has been or is enacted to apply to that subject, an inconsistency arises and the State law becomes inoperative so long as both laws are on the statute books.
[footnotes omitted]
The term "law of the Commonwealth" in s 109 of the Constitution means "all laws made by the Parliament of the Commonwealth under the Constitution": Commonwealth of Australia Constitution Act 1900 s 5. It is, we think, uncontroversial to say that "law" can be taken to include all kinds of subordinate legislation authorised by Acts of the Commonwealth Parliament. Regulations, as subordinate legislation, are "laws of the Commonwealth".
There is older authority including observations of several Justices in Airlines No 1 that administrative orders, directions and other instruments authorised by legislation or delegated legislation (including such instruments authorised by the Air Navigation Act or the Air Navigation Regulations) do not constitute laws of the Commonwealth for the purpose of s 109, despite "the fact that non-compliance with instructions or directions so given may constitute an offence under the Regulations": see Taylor J Airlines No 1 at 31. It is unnecessary for us, and probably inappropriate, to explore the question of whether the expression "the laws of the Commonwealth" might comprehend, perhaps in some tangential way, instruments which are not directly legislative in character. It is an area already chartered in relation to industrial awards made under Commonwealth industrial law and orders authorised by a Commonwealth law of a federal court established by a Commonwealth law.
A convenient starting point in identifying the principles to be applied when commencing an analysis of whether the OHS Act is invalid pursuant to s 109 is to be found in the reasons of the High Court in Dickson v The Queen (2010) 270 ALR 1 at [13] and following:
[13] The statement of principle respecting s 109 of the Constitution which had been made by Dixon J in Victoria v The Commonwealth was taken up in the joint reasons of the whole court in Telstra Corporation Ltd v Worthing as follows (at [28]):
[28] In Victoria v Commonwealth, (1937) 58 CLR 618, Dixon J stated two propositions which are presently material. The first was:
When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.
The second, which followed immediately in the same passage, was:
Moreover, if it appears from the terms, the nature or the subject matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.
The second proposition may apply in a given case where the first does not, yet, contrary to the approach taken in the Court of Appeal, if the first proposition applies, then s 109 of the Constitution operates even if, and without the occasion to consider whether, the second proposition applies.
[14] The first proposition is often associated with the description "direct inconsistency", and the second with the expressions "covering the field" and "indirect inconsistency". The primary submission of the appellant is that the first proposition applies to the interaction in the present case between the state and Commonwealth conspiracy laws so that this is an instance of "direct inconsistency".
The observation by Dixon J, at 630, that "the nature or the subject matter of a Federal enactment" may indicate that the enactment was intended as a complete statement of the law on a particular matter was echoed in the same case by Evatt J who, at 638, mentioned bankruptcy, trade marks and patents as examples of subject matters that, when compared with the broad realm of trade and commerce, "practically permit only one system of law and one system of administration". While the subject matter may make an intention to cover the field more likely, ultimately, whether this is so will depend upon an analysis of the particular Commonwealth regime and the context in which it was promulgated. One aspect of that context which may also indicate an intention that Commonwealth law should operate to the exclusion of State law is the existence of an international obligation to implement a treaty.
In this regard, one earlier High Court authority, Viskauskas v Niland (1983) 153 CLR 280, should be mentioned. There are two aspects of that matter relevant to the present case. The first was that the Commonwealth law was made against a background of Australia having been a signatory to an international Convention and enacting the Commonwealth law to give effect to that Convention. The second was that particular provisions in the Commonwealth law were said to reveal that there was no intention on the part of the Commonwealth to cover the field of racial discrimination which was the subject matter of the Commonwealth law. The central issue was the validity of section 19 of the Anti-Discrimination Act 1977 (NSW). The plaintiffs were subject to an inquiry under that Act involving an allegation that s 19 had been contravened. The section rendered it unlawful to discriminate against another person on the grounds of race and the plaintiffs were alleged to have done so.
On the question of whether the Commonwealth law evinced an intention to cover the field, the High Court said, at 292:
Sometimes it may be difficult to ascertain the precise limits of the field which the Commonwealth legislation reveals an intention to cover, but that is not so in the present case. The Commonwealth Act deals with the subject of racial discrimination. It is true that it does so for the purpose of giving effect to the Convention, but the parties to the Convention "undertake to prohibit and to eliminate racial discrimination in all its forms": Art 5; see also Art 2. Parties to the Convention are to "assure to everyone within their jurisdiction effective protection and remedies": Art 6. The Commonwealth Parliament has chosen the course of itself legislating to prohibit racial discrimination, and having done so it can only fulfil the obligation cast upon it by the Convention if its enactment operates equally and without discrimination in all the States of the Commonwealth. It could not, for example, admit the possibility that a State law might allow exceptions to the prohibition of racial discrimination or might otherwise detract from the efficacy of the Commonwealth law. The subject matter of the Commonwealth Act suggests that it is intended to be exhaustive and exclusive, and this conclusion is supported by the fact that the provisions of Pt II (and especially those of s 9) are expressed with complete generality, and by the further fact that s 6 reveals an intention to bind the Crown in right of each State as well as the Crown in right of the Commonwealth. It appears from both the terms and the subject matter of the Commonwealth Act that it is intended as a complete statement of the law for Australia relating to racial discrimination.
In the course of their reasons, at 293, the Court discussed a submission put by the first respondent that various provisions of the Commonwealth law, which were said to recognise that State laws on racial discrimination should remain effective "and that the Commonwealth Act should be supplementary to or cumulative upon the State law". This intention, it was submitted, was inconsistent with an intention to cover the field. As to one of these sections the Court said, at 294:
Another provision on which reliance was placed was s 21(2)(c)(iii), under which the Commissioner may decide not to continue with an inquiry when there is some other remedy that is reasonably available to the complainant. It is obvious enough that in some cases a person who complains of an act of racial discrimination may have a remedy in contract or in tort or under the provisions of a statute which validly deals with the act in question in some aspect other than its discriminatory quality. The fact that the Commissioner is given power to discontinue his inquiry where another remedy is available does not indicate that the Parliament contemplated that State law might validly enact remedies for persons affected by acts of racial discrimination as such.
The field of operation of the Commonwealth laws
No legislative intention, however, can be discerned from the Civil Aviation Act standing alone that it was intended to be an exhaustive statement or code for such regulation. There is no legislative collision between the extent of the regulatory powers conferred upon CASA with the objects of the State Occupational Health and Safety Act to (for example) "secure and promote the health, safety and welfare of people at work", including work on aircraft.
Given the "main object" of the Civil Aviation Act, and the power conferred by s 98 to make regulations, it is not surprising that both the Civil Aviation Regulations and the Civil Aviation Safety Regulations contain detailed provisions regulating the safety of aircraft.
There was no suggestion that the Civil Aviation Regulations were beyond such power as was conferred by s 98 of the Civil Aviation Act. Those regulations would fall within s 98(1)(a), (b) or (c).
Any inconsistency for the purposes of the present proceeding must be found, if at all, in an identification of the Commonwealth legislative intent that may be discerned from these Acts and – in particular – from these Acts together with the Civil Aviation Regulations themselves – or the Civil Aviation Safety Regulations.
The Civil Aviation Regulations, by way only of an overview, address:
·airworthiness requirements (Part 4);
·maintenance (Part 4A);
·defect reporting (Part 4B);
·flight manuals (Part 4C);
·removal of data plates and registration identification plates (Part 4D);
·qualification of flight crew (Part 5);
·navigation logs (Part 7);
·radio systems for use in, or in connection with, aircraft (Part 8);
·aerodromes (Part 9);
·air traffic services and other services (Part 10);
·conditions of flight (Part 11);
·rules of the air (Part 12);
·signals for the control of air traffic (Part 13);
·air service operations (Part 14);
·refusal to grant, and suspension and cancellation of, licences, certificates and authorities (Part 16);
·penal provisions and prosecutions (Part 17);
·evidence (Part 18); and
·miscellaneous (Part 19).
The provisions of the Civil Aviation Regulations1988 to which Heli-Aust directed specific attention were the following:
·airworthiness requirements (Part 4);
·maintenance (Part 4A);
·defect reporting (Part 4B);
·flight manuals (Part 4C);
·qualification of flight crew (Part 5);
·navigation logs (Part 7);
·conditions of flight (Part 11); and
·rules of the air (Part 12).
Those provisions of the Civil Aviation Safety Regulations to which Heli-Aust makes specific reference are:
·the certification and airworthiness requirements for aircraft and parts (Part 21);
·airworthiness standards for rotorcraft in the normal category (Part 27);
·airworthiness standards for aircraft engines (Part 33);
·display of nationality and registration marks and aircraft registration identification plates (Part 45);
·synthetic training devices (Part 60); and
·air services licensing (Part 65).
It is within the detail of these regulatory provisions that the Commonwealth has manifested its intention to "cover the field" of all aspects of the safety of air operations in Australia. The fact that the regulations further provide for an intimate role to be played by CASA in the further pursuit of securing safety in air operations and in the administration of regulatory objectives does not detract from the intention of the Commonwealth Parliament to exclusively occupy the field of safety of air navigation and operations.
Each of the particulars of the two charges brought by the Prosecutor against Heli-Aust in the State Industrial Court intrudes into the field of safety of air operations in Australia. The State Act extends to "premises", that term including an "aircraft" such as the present JetRanger helicopter. Notwithstanding the fundamental nature of the duties imposed by ss 8 and 10 of the State Act and the importance that such provisions play in ensuring safety at places of work, those provisions are invalid to the extent that they intrude upon the Commonwealth legislative regime in respect to the safe operation of "aircraft".
For the purposes of concluding that the Commonwealth legislative regime evinces an intention to exhaustively and completely "cover the field" for all aspects of the safety of air operations in Australia, it is unnecessary to identify particular "laws of the Commonwealth" which are inconsistent with any relevant State law. That is a task more relevant to resolving a submission as to "direct" inconsistency. Moreover, where an inconsistency arises by reason of an intention to "cover the field", it matters not in the present proceeding that there may not be a Commonwealth law inconsistent with each of the particulars or aspects of the two charges. Even so, the extent of the "field" sought to be covered by the Commonwealth - and the intrusion into this field by the two charges – is immediately apparent from (for example) the more detailed provisions found within the following provisions of the Civil Aviation Regulations:
·Regulation 157 (within Part 11) dealing with low flying aircraft including aircraft engaged in "aerial work operations" (reg. 157(4)(b)); and
·Regulations 215 and 251 (within Part 14) dealing with seat belts and safety harnesses.
Regulation 157 is a provision to which specific reference is made in the particulars to the Statement of Claim. Regulation 157(4) provides in part as follows:
Subregulation (1) does not apply if:
…
(b) the aircraft is engaged in private operations or aerial work operations, being operations that require low flying, and the owner or operator of the aircraft has received from CASA either a general permit for all flights or a specific permit for the particular flight to be made at a lower height while engaged in such operations; or
…Particular (e) of the two charges intrudes into the area of operation of this Regulation.
Regulation 215(1), another provision to which reference is made in the particulars to the Statement of Claim, provides that an operator "shall provide an operations manual for the use and guidance of the operations personnel of the operator" and further provides that CASA may give a "direction" requiring information to be included in the operations manual: reg. 215(3). Regulation 215(5) provides that the operator "shall revise the operations manual from time to time …". Regulation 251 deals with seat belts and safety harnesses. Regulation 251(1) provides in part as follows:
Subject to this regulation, seat belts shall be worn by all crew members and passengers:
(a) during take-off and landing;
(b) during an instrument approach;
(c) when the aircraft is flying at a height of less than 1,000 feet above the terrain; and
(d) at all times in turbulent conditions.Regulation 251(3) provides as follows:
CASA may direct that a type of safety harness specified in the direction shall be worn in place of a seat belt in the circumstances set out in the direction.
Particular (g) of the two charges (for example) intrudes into the area of operation of Regulation 251. The legislative intent to "cover the field" of safety in air operations emerges, it may be noted, from the terms of the regulation rather than from any subsequent administrative action pursued by CASA.
Construed in their entirety, the two Commonwealth Acts and the two sets of Regulations manifest an intention to "cover the field" of safety of air operations in Australia. That intention, it is concluded is evidenced by:
·the Commonwealth ratification of an international Convention, namely the Chicago Convention;
·the commitment to harmonise regulatory control of air navigation and safety with international obligations;
·the desirability of a comprehensive and exclusive code of regulation that operates uniformly throughout Australia; and
·the extensive and comprehensive regulation of air safety as found in the Regulations.
The Commonwealth Acts, standing alone, do not necessarily evince an intention to "cover the field" as defined in the present proceeding. But the width of the functions entrusted to CASA, and the subsequent promulgation of regulations giving detailed content to the regulatory framework, make apparent the Commonwealth intent to set forth a comprehensive and exclusive regime.
To the extent that the State Occupational Health and Safety Act is to be construed as authorising the bringing of the two charges relied upon by the Prosecutor in the State Industrial Court, that Act "intrudes" upon or "alters, impairs or detracts" from the Commonwealth legislative regime. To that extent, the State Act is "invalid". That invalidity is not saved by the fact that the State Act may itself be characterised, for example, as a law with respect to "occupational health and safety" as opposed to "civil aviation".
It is unnecessary to further consider whether the "field" of exclusive Commonwealth legislative domain may also extend to the safety of air navigation.
A COMMONWEALTH RECOGNITION OF CONTINUED STATE LAWS?
The Prosecutor sought to resist the conclusion that the Commonwealth had evinced an intention to "cover the field" by reference to the terms of both the Commonwealth and State legislation and by reference to – in particular – s 28BE(5) of the Civil Aviation Act.
Section 28BE, it may be accepted, cannot of its own force preclude the operation of s 109 if there is a direct inconsistency. But the section may potentially be effective as an indication as to the intention of the Commonwealth Legislature: R v The Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia (1977) 137 CLR 545 at 563 to 564 per Mason J.
Heli-Aust denies that s 28BE evinces any such intention and contends that the section has a confined operation.
Section 28BE, according to its terms, imposes a duty to exercise care and diligence in the following terms:
Duty to exercise care and diligence
(1)The holder of an AOC must at all times 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.
(2)If the holder is a body having legal personality, each of its directors must also take the steps specified in subsection (1).
(3)It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of:
(a) inadequate corporate management, control or supervision of the conduct of any of the body's directors, servants or agents; or
(b) failure to provide adequate systems for communicating relevant information to relevant people in the body.
(4)No action lies, for damages or compensation, in respect of a contravention of this section.
(5)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.
The reference in s 28BE(5) to "the common law" is presumably a reference to the common law of Australia: cf. Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 525 per Gaudron J and 554 per Gummow and Kirby JJ. In Lipohar v The Queen [1999] HCA 65 at [50], 200 CLR 485 at [507], Gaudron, Gummow and Hayne JJ further observed that the "Court never has and never should seek to identify some common law rule that is peculiar to one or more of the States". There is, it has been said, a "single common law of Australia": John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 at [15], 203 CLR 503 at 518 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. See also: R v Baldock [2010] WASCA 170 at [102], 269 ALR 674 at 702 per Buss JA.
Of more immediate importance is the role played by s 28BE. That is a section found within Part III, Division 2, Subdivision E of the Civil Aviation Act. Part III deals with the "regulation of civil aviation" and within that Part, Division 2 deals with "Air Operators' Certificates". Subdivision E, in turn, deals with "conditions of AOC". Subdivision E sets forth ss 28BA through to 28BI. Section 28BA provides that an Air Operator's Certificate has effect subject to general conditions which are identified and s 28BB provides that CASA may impose and vary conditions. Section 28BC imposes limitations upon CASA's powers in relation to the suspension or cancellation of conditions. Section 28BD provides that the holder of an Air Operator's Certificate must comply with all requirements. Sections 28BF to 28BH make provision for the maintenance of appropriately qualified personnel, an operations headquarters and "a reference library … which must be readily available to all members of the holder's operating crews".
It is within this context that s 28BE appears and must be construed.
As is apparent from the terms of s 28BE, the concern of the section is relevantly directed to imposing upon the holder of an Air Operator's Certificate a duty to "at all times take all reasonable steps to ensure that every activity covered by the AOC … is done with a reasonable degree of care and diligence …": s 28BE(1). It is within this area of concern that s 28BE(5) operates. So much inevitably follows from the opening words of s 28BE(5), namely "This section".
The area of the continued operation of other Commonwealth laws, or State or Territory laws or the common law, it is concluded, is such other laws that are directed to activities otherwise covered by an Air Operator's Certificate. No greater preservation of the continued operation of such other laws is manifest from the terms of s 28BE(5).
Section 28BE thus provides no foundation for any more broadly expressed Commonwealth intention to preserve the continued operation of State laws.
DIFFICULTIES ENCOUNTERED
Although the conclusion has been reached that there is an inconsistency between the State and Commonwealth laws for the purposes of s 109 of the Constitution and that relief should be granted, the procedural context in which the Application was advanced for resolution was not a matter free of difficulty.
The jurisdiction of this Court to resolve the issues presented by s 109 may be accepted. The jurisdiction which Heli-Aust invoked was that conferred by s 39B(1A)(b) and (c) of the Judiciary Act1903 (Cth). Section 39B(1A) provides as follows:
The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:
(a)in which the Commonwealth is seeking an injunction or a declaration; or
(b)arising under the Constitution, or involving its interpretation; or
(c)arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.
No submission was advanced by the Prosecutor that the proceeding did not fall within s 39B(1A)(c) and it was assumed that the proceeding otherwise fell within s 39B(1A)(b). The absence of any such dispute, however, does not relieve the Court of satisfying itself that it does in fact have jurisdiction. It is considered that jurisdiction is conferred by s 39B(1A)(b). The proceeding is one "arising under the Constitution, or involving its interpretation". The "matter" to be resolved is the liability of Heli-Aust to face charges brought against it under the State Act or whether that Act is "invalid" by reason of inconsistency with a "law of the Commonwealth." An important "function" served by s 109 is the protection of individuals "from the injustice of being subjected to the requirements of valid and inconsistent laws of Commonwealth and State Parliaments on the same subject": Metwally at 477 per Deane J.
Notwithstanding the jurisdiction of the Court to resolve the Application, whether it should have proceeded to entertain that jurisdiction or whether it should have stayed the proceeding pending further action being taken in the State Industrial Court and possible appeals within the State appellate process was not self-evident or free of difficulty.
One difficulty emerged at the outset. The Prosecutor, of course, maintains that the two charges brought against Heli-Aust are validly authorised by s 8(2) and s 10(1) of the State Occupational Heath and Safety Act. The first difficulty, however, arises if attention is directed to the "particulars" or those "aspects" of the two charges that are presently relied upon. The "particulars" or "aspects" relied upon all seem to be more directed to the manner of operation of the "aircraft" involved in the accident rather than to the "health, safety and welfare of people at work". There may, perhaps, be not such a sharp distinction between the two.
It is nevertheless at least arguable that neither of the two charges brought against Heli-Aust fall within the authority granted by ss 8(2) and 10(1) of the State Act. But the proper place for the resolution of any such argument must remain the State Industrial Court and thereafter the State appellate process – not this Court. Questions also arise as to the power of this Court, or the appropriateness of this Court exercising such jurisdiction as it may have, to in effect restrain the State Industrial Court from further proceeding to hear a case before it.
If there be inconsistency, the State laws are rendered "invalid" to the extent of the inconsistency. But the very importance which warranted a direction being made that the present proceeding be heard and determined by a Court constituted by three Judges, it is respectfully considered, warrants considerable caution in the Court proceeding upon a factual or legal basis which may never arise for resolution.
A further potential difficulty arose by reason of the fact that the Statement of Claim as filed together with the Application in this Court allege that the proceeding in the State Industrial Court has been commenced "without adequately identifying the acts or omissions alleged by the Prosecutor to give rise to the offences". By agreement between the parties, that part of the case has been deferred pending the determination by the Court of Appeal of New South Wales in another proceeding.
Notwithstanding that agreement, reservation is expressed as to the prudence of this Court resolving part only of litigation.
A further potential difficulty arose by reason of a suggestion that the Prosecutor may wish to amend the "particulars" of the two charges.
A yet further difficulty arose during the course of oral submissions by Senior Counsel on behalf of Heli-Aust. That difficulty arose by what was perceived by the Prosecutor to be a significant change in the manner in which Senior Counsel identified "the field" which was said to be covered by Commonwealth law for the purposes of s 109 of the Constitution. Given that perceived reformulation, Senior Counsel for the Prosecutor sought a stay of the present proceeding in this Court. That application did not seek a stay of this Court proceeding to hear and determine the question as to whether Commonwealth law had "covered the field"; but a stay was sought in respect to this Court hearing and resolving submissions directed to whether there was a "direct inconsistency" between State and Commonwealth laws. When that application for a stay was made, the Court continued to hear all submissions on all issues and reserved its decision as to whether or not to grant a stay.
The cumulative effect of these difficulties, raises questions as to whether this Court is the most appropriate forum in which issues should be resolved.
There nevertheless remained the desirability of Heli-Aust obtaining an expeditious resolution of its challenges to the prosecutions it was facing founded upon the Constitution. But for the direction of the Chief Justice of this Court that the present proceeding be heard by three Judges and the fact that detailed submissions have now been heard as to the application of s 109 of the Constitution, it would have been concluded that this Court should stay the present proceeding. To grant any relief potentially declaring State legislation invalid is to exercise a jurisdiction and to exercise a power which, it is respectfully considered, should only be exercised where the facts are certain.
THE RELIEF WHICH IS SOUGHT
The Application as filed sought the following relief:
1.A declaration that the Occupational Health and Safety Act 2000 (NSW) is invalid insofar as it purports to extend to "aircraft".
2.A writ of certiorari quashing the charges against Heli-Aust Pty Ltd (ACN 002 452 100 & ABN 42 002 452 100) that are pending before the Industrial Court of NSW.
3.A writ of prohibition directed to the Industrial Court of NSW that it take no further steps in the proceeding 1925 of 2009 brought by the first respondent against the applicant.
4.Such further or other orders as to the Court seem fit.
5.Costs.
There was no dispute as to the jurisdiction of the Court to grant relief.
But no submission was expressly directed to the power of this Court to grant either a "writ of certiorari" or a "writ of prohibition". Notwithstanding the reference in s 75(v) of the Constitution and s 39B(1) of the Judiciary Act to "a writ of mandamus or prohibition", it is now well-recognised that this phrase is a reference to "constitutional writs" as opposed to "prerogative writs": Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 92 to 93 per Gaudron and Gummow J; and 113 to 114 per Kirby J. Indeed, in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [212], 206 CLR 57 at 123 Kirby J referred to the "repeated reference to the constitutional writs in decisions of this Court as 'prerogative'. This is an incorrect appellation which I hope will now fade away". Nor do s 75(v) or s 39B make express reference to a "writ of certiorari". But it has long been accepted that certiorari may issue as ancillary to the constitutional writs of mandamus and prohibition: eg, Plaintiff S157/2002 v Commonwealth [2003] HCA 2 at [80], 211 CLR 476 at 507 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; Re Stanbridge's Application (1996) 70 ALJR 640 at 641 per Kirby J.
Notwithstanding potential ambiguity arising from the terminology employed in the Application, the relief which is sought was nevertheless clear enough – an order was sought in the nature of prohibition, prohibiting the State Industrial Court from taking further steps in the proceeding before it. And an order was sought in the nature of certiorari quashing the charges brought in the State Industrial Court.
This Court, of course, has an express conferral of power to resolve a matter before it "completely and finally" and an express conferral of power "to make orders of such kinds … and to issue … writs of such kinds, as the Court thinks appropriate": Federal Court of Australia Act 1976 (Cth), ss 23 and 23. The conferral of such power, however, is not "at large" and "does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue": Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 620 to 621 per Brennan J. See also: 623 to 624 per Deane J.
Moreover, the granting of such relief as is sought by Heli-Aust is discretionary: cf. Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [54], 204 CLR 82 at 107 per Gaudron and Gummow JJ; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [28], 235 ALR 609 at 618 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Whether such relief as is sought in the Application should or could be granted directed to the State Industrial Court was not the subject of detailed submissions and need not now be resolved.
In the present proceeding it is concluded that a declaration should be made – but confined to the invalidity of ss 8 and 10 of the State Occupational Health and Safety Act. Nor is it considered necessary to issue the relief in the form of either of the "writs" sought in the Application. It would be sufficient to grant an injunction restraining the Prosecutor from proceeding further in the State Industrial Court with the prosecution of Heli-Aust. Left unresolved is whether there is power to "quash" the charges or a power to issue a "writ of prohibition" against the State Industrial Court.
CONCLUSIONS
Assuming the charges as framed by the Prosecutor are within the power conferred by ss 8(2) and 10(1) of the State Occupational Health and Safety Act, it is considered that there is an inconsistency between that State legislation authorising such charges and the Air Navigation Act, Civil Aviation Act, the Civil Aviation Regulations and the Civil Aviation Safety Regulations.
The protection afforded by s 109 of the Constitution not only operates as an adjustment of the relations between the Commonwealth and the States – it also assumes importance to "the citizen upon whom concurrent and cumulative duties and liabilities may be imposed by laws made by those bodies": Dickson v The Queen (2010) 270 ALR 1 at 7.
Concurrence is expressed with the proposal of Moore and Stone JJ. The parties to be given an opportunity to bring in short minutes of order.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 11 May 2011
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