Heli-Aust Pty Ltd v Cahill

Case [2011] FCAFC 62


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, 10

Civil 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…

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AGLC
Heli-Aust Pty Ltd v Cahill [2011] FCAFC 62
Case
[2011] FCAFC 62
Decision Date

CaseChat Overview and Summary

In the case of Heli-Aust Pty Ltd v Cahill, the dispute arose between Heli-Aust, an aviation company, and Cahill, the prosecutor, concerning charges laid against Heli-Aust under the State Occupational Health and Safety Act. Heli-Aust sought to challenge the validity of these charges on the basis that they conflicted with Commonwealth laws governing aviation safety. The Federal Court of Australia was tasked with determining whether the state legislation could coexist with the Commonwealth's regulatory framework.

The primary legal issue before the court was whether sections 8 and 10 of the State Occupational Health and Safety Act, which authorized certain charges against Heli-Aust, were inconsistent with Commonwealth laws, specifically the Air Navigation Act, Civil Aviation Act, Civil Aviation Regulations, and Civil Aviation Safety Regulations. The court needed to decide if the state legislation could operate concurrently with the Commonwealth's comprehensive regulatory scheme for aviation safety, given the protection afforded by section 109 of the Constitution. Section 109 stipulates that when a State law is inconsistent with a Commonwealth law, the latter prevails.

The court reasoned that sections 8 and 10 of the State Occupational Health and Safety Act were indeed inconsistent with the Commonwealth's aviation safety laws. The Commonwealth's regulatory framework, including the Civil Aviation Regulations, was deemed to cover the field of aviation safety comprehensively, leaving no room for concurrent state regulation. The court concluded that an injunction should be granted to prevent the prosecutor from proceeding with the charges in the State Industrial Court, while the issue of quashing the charges or issuing a writ of prohibition remained unresolved. The court opted to limit its declaration to the invalidity of sections 8 and 10 of the State Occupational Health and Safety Act, avoiding broader declarations or the issuance of writs of certiorari or prohibition.

Orders

Orders of the court

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:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.