Work Health Authority v Outback Ballooning Pty Ltd
[2019] HCA 2
•6 February 2019
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJWORK HEALTH AUTHORITY APPELLANT
AND
OUTBACK BALLOONING PTY LTD & ANOR RESPONDENTS
Work Health Authority v Outback Ballooning Pty Ltd
[2019] HCA 2
6 February 2019
D4/2018
ORDER
1.Appeal allowed.
2. Set aside the order made in paragraph 1 of the order of the Court of Appeal of the Supreme Court of the Northern Territory made on 19 October 2017 and the order made in paragraph 1 of the order made on 28 March 2018 and, in their place, order that the appeal to that Court be dismissed with costs.
3. The first respondent pay the appellant's costs of the appeal to this Court.
On appeal from the Supreme Court of the Northern Territory
Representation
S L Brownhill SC, Solicitor-General for the Northern Territory, and T Moses for the appellant (instructed by Solicitor for the Northern Territory)
J T Gleeson SC with T J Brennan for the first respondent (instructed by GSG Legal)
Submitting appearance for the second respondent
S P Donaghue QC, Solicitor-General of the Commonwealth, with Z C Heger and T M Wood for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Queensland)
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S Elankovan for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General – Tasmania)
K L Walker QC, Solicitor-General for the State of Victoria, with F I Gordon for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G T W Tannin SC with J A Godfrey for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Work Health Authority v Outback Ballooning Pty Ltd
Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers – Where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation – Where Territory law regulates work health and safety – Whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws – Whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation – Whether Territory law inconsistent with Commonwealth law.
Words and phrases – "alter, impair or detract from", "anti-exclusivity clause", "Chicago Convention", "civil aviation", "cover the field", "embarkation", "implicit negative proposition", "indirect inconsistency", "intention to deal completely, exhaustively or exclusively", "legislative intention", "nationally harmonised laws", "operations associated with aircraft", "rule of conduct", "safety standards", "subject matter".
Constitution, ss 109, 122.
Air Navigation Act 1920 (Cth).
Civil Aviation Act 1988 (Cth), ss 3, 3A, 9, 11, 20A, 27, 28BA, 28BD, 28BE, 29, 98.
Civil Aviation Regulations 1988 (Cth), regs 2, 215, 235.
Crimes Act 1914 (Cth), s 4C.
Northern Territory (Self-Government) Act 1978 (Cth), s 6.
Work Health and Safety Act 2011 (Cth).
Work Health and Safety (National Uniform Legislation) Act 2011 (NT), ss 19, 27, 32.
KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. Outback Ballooning Pty Ltd, the first respondent to this appeal, operates a business in Alice Springs which provides rides in hot air balloons to passengers. On 13 July 2013 a group of persons were taken to a location some distance from Alice Springs airport for that purpose. On their arrival the basket which would hold them was laid on its side pointing towards the balloon, which was spread out on the ground preparatory to its inflation. The intended passengers were given a short briefing during which they were told to avoid the inflation fan. The fan was a stand-alone piece of equipment driven by a motor with a metal guard around its blades. The fan was started. Three passengers boarded. The fourth, Ms Stephanie Bernoth, approached the basket and as she did so the scarf she was wearing was sucked into the inflation fan causing her to be dragged towards the metal guard. Ms Bernoth later died from the injuries she sustained.
The NT WHS Act complaint
Section 19(2) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ("the NT WHS Act") requires that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of persons "is not put at risk from work carried out as part of the conduct of the business or undertaking". Section 19(3) provides that, without limiting sub-ss (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, a number of things which are directed to the protection of all persons from risks to their health and safety from work carried out as part of the conduct of the business or undertaking. The NT WHS Act also creates a number of duties which apply to conduct at a "workplace", which is defined as a place where work is carried out for a business or undertaking, and includes an aircraft[1].
[1]NT WHS Act, ss 4, 8.
Section 32 of the NT WHS Act provides that if a person who has a health and safety duty fails to comply with that duty, and that failure exposes an individual to a risk of death or serious injury or illness, that person commits a Category 2 offence for which substantial penalties may be imposed[2].
[2]$150,000 for an individual, $300,000 for the person conducting the business or undertaking or that person's officer and $1,500,000 in the case of a body corporate.
The Work Health Authority ("the WHA"), the appellant in these proceedings, filed a complaint against the first respondent under s 32 of the NT WHS Act in which it was alleged that the first respondent failed to comply with the duty imposed by s 19(2) of that Act. The breach of duty referred to in the complaint was identified as a failure to eliminate or minimise risks[3] to embarking passengers that arose from the use of a fan to inflate the hot air balloon.
[3]NT WHS Act, s 27(1).
The decisions below
The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction as invalid because the subject matter of it was within the field covered by the Commonwealth regulatory scheme with respect to aviation. That scheme, Magistrate Bamber considered, extended to pre-flight operations affecting the safety of passengers on the ground.
The WHA sought an order in the nature of certiorari from the Supreme Court of the Northern Territory to quash that decision. Barr J held that the Court of Summary Jurisdiction was wrong to hold that it lacked jurisdiction to hear the complaint, and made the order sought[4]. In his Honour's view, the Commonwealth regime regulates aviation operations which affect the safety of aviation and passengers in flight but does not extend to all operations. His Honour did not consider that the embarkation procedure, the subject of the complaint, was so closely connected with safety in flight as to be regulated by an exclusive Commonwealth regime[5].
[4]Work Health Authority v Outback Ballooning Pty Ltd (2017) 318 FLR 294 at 306 [38].
[5]Work Health Authority v Outback Ballooning Pty Ltd (2017) 318 FLR 294 at 301 [21], 305-306 [37].
The Court of Appeal of the Northern Territory allowed the first respondent's appeal from his Honour's decision[6]. Southwood J (with whom Blokland J agreed)[7] and Riley J[8] concluded that the Commonwealth aviation law was a complete statement of the relevant law and that there was an indirect inconsistency between the Northern Territory law and the Commonwealth aviation law, which extended to the embarkation of passengers. Riley J was of the view that the Commonwealth aviation law was intended to cover the field and was not intended to operate in conjunction with any State or Territory scheme directed to the same end. In reaching these conclusions their Honours followed the decision of a Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill[9].
[6]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1.
[7]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1 at 11-12 [59], [61].
[8]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1 at 19 [99].
[9](2011) 194 FCR 502.
Following a grant of special leave, the WHA appeals to this Court. In this Court, Outback Ballooning contends that the Commonwealth aviation law, as defined below, deals completely, exhaustively or exclusively with the "prescription and enforcement of the standards of safety in the conduct of air navigation or air operations" in Australia. For the reasons that follow, that contention should be rejected. In rejecting that contention, it is important to recognise that there is no dispute that there are aspects of matters preparatory to and subsequent to an aircraft flying, including embarkation and disembarkation of passengers, that are completely, exhaustively or exclusively dealt with by the Commonwealth aviation law.
The Commonwealth aviation law
The body of law referred to by the Court of Appeal as the Commonwealth civil aviation law comprises the Air Navigation Act 1920 (Cth) ("the ANA"), the Civil Aviation Act 1988 (Cth) ("the CA Act"), the Civil Aviation Regulations 1988 (Cth) ("the CARs") and some Civil Aviation Orders ("CAOs"). These will be referred to as "the Commonwealth aviation law" in the balance of these reasons. Some reference was made in submissions to the Civil Aviation Safety Regulations 1988 (Cth), but they assume no importance in the reasons below.
The ANA initially provided for the making of regulations to give effect to the Paris Convention for the Regulation of Aerial Navigation (1919) for the purpose of providing for the regulation of air navigation in Australia. It later approved the ratification of the Chicago Convention on International Civil Aviation (1944) and subsequent Protocols[10]. It deals with matters such as freedom of the air and the regulation of international airlines, aircraft, airports and flights. It is mentioned only in passing in the reasons of the Court of Appeal.
[10]ANA, s 3A.
The focus of the reasons in the Court of Appeal is the CA Act and the CARs and CAOs made under it. The CA Act has as its main object the establishment of a "regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents"[11]. Subject to certain provisions concerning its extra-territorial application[12] and mutual recognition[13], the CA Act applies to civil aviation in Australian territory.
[11]CA Act, s 3A.
[12]CA Act, s 7.
[13]CA Act, s 26A.
The CA Act establishes the Civil Aviation Safety Authority ("CASA")[14]. Its function is the conduct of safety regulation including that of civil air operations in Australia[15]. The means by which it is to do so include developing and promulgating aviation safety standards, developing strategies to secure compliance with them and issuing certificates, licences, registrations and permits[16]. The definition of "aviation safety standards" includes standards relating to flight crews engaged in operations of aircraft, the design, construction, maintenance, operation and use of aircraft and related equipment, similar activities in relation to aerodromes, and personnel involved in these activities[17].
[14]CA Act, s 8.
[15]CA Act, s 9.
[16]CA Act, s 9(1).
[17]CA Act, s 3.
CASA also has what are termed "safety-related functions", such as encouraging acceptance by the aviation industry of obligations to maintain high standards of aviation safety through safety education and training programmes, aviation safety advice and fostering an awareness of the importance of aviation safety, amongst other things[18]. CASA is required to promote the development of Australia's civil aviation safety capabilities, skills and services[19].
[18]CA Act, s 9(2).
[19]CA Act, s 9(3)(e).
In the exercise of its powers, CASA is required to regard the safety of air navigation as the most important consideration[20]. Its functions are to be performed in a manner consistent with Australia's obligations under the Chicago Convention and any other international agreements entered into by Australia relating to the safety of air navigation[21].
[20]CA Act, s 9A(1).
[21]CA Act, s 11.
Section 27(2) prohibits the flying of an aircraft into or out of Australia, and the operation of an aircraft in Australia, except as authorised by an Air Operator's Certificate ("an AOC") issued by CASA. "Flight" is defined, in the case of lighter-than-air aircraft[22], to refer to the operation of an aircraft when it is detached from the earth's surface or a fixed object on it. The first respondent's AOC authorised it to operate four classes of balloon for passenger charters in Australia.
[22]See CARs, reg 2(1), which so defines a balloon.
It is necessary for an applicant for an AOC to lodge manuals, including an operations manual, for which the CARs provide[23], with CASA[24]. CASA may require information and inspections in connection with an application for an AOC[25] and may issue an AOC only if it is satisfied about certain matters[26].
[23]CARs, reg 215.
[24]CA Act, s 27AB(2).
[25]CA Act, s 27AC.
[26]CA Act, s 28.
An AOC has effect subject to certain general conditions which are set out in s 28BA of the CA Act. Those conditions include compliance with ss 28BD and 28BE. An AOC is also subject to conditions imposed by CASA and conditions specified in the CARs or CAOs[27]. CASA may suspend or cancel an AOC for breach of a condition[28].
[27]CA Act, s 28BA(1).
[28]CA Act, s 28BA(3).
Section 28BD requires the holder of an AOC to comply with all the requirements of the CA Act and the CARs and CAOs that apply to the holder of the AOC.
Section 28BE is in the following terms:
"(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 effect of s 28BA, which is referred to above, is that in the event of a breach of s 28BE, an AOC may be suspended or cancelled.
Section 29(1) provides that an offence is committed if an owner, operator or hirer operates an aircraft or permits an aircraft to be operated in contravention of a provision of Pt III, or of a direction given or condition imposed under such a provision. Each of ss 28BA, 28BD and 28BE appears in Pt III. The offence is punishable by imprisonment for two years.
Section 29(3) provides for an offence, punishable by imprisonment for five years, where an owner, operator or hirer operates an aircraft or permits it to be operated in contravention of s 20A(1). Section 20A(1) provides that a person must not be reckless as to whether the manner of operation of an aircraft could endanger the life of another person.
Other provisions of Pt III create offences, punishable by imprisonment, of flying without satisfying safety requirements in relation to an aircraft[29], or where provisions respecting the carriage of dangerous goods are not complied with[30].
[29]CA Act, s 20AA(4).
[30]CA Act, ss 23, 29(5).
Section 98 contains the regulation-making powers of the CA Act. Section 98(7) provides that a law of a Territory shall not be taken to be inconsistent with a provision of the regulations having effect in the Territory to the extent that it is capable of operating concurrently with those regulations.
Regulation 215 of the CARs provides that a commercial aircraft operator is to provide an operations manual for the use and guidance of the operations personnel of the operator[31]. The manual is to contain 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"[32]. CASA may give a direction requiring particular information, procedures and instructions to be included in the manual or for it to be revised or varied[33]. An operator is to revise the operations manual from time to time as a result of changes in operations, aircraft or equipment, or in the light of experience[34]. All personnel are required to comply with instructions in the operations manual[35]. A breach of reg 215 may result in the imposition of a penalty.
[31]CARs, reg 215(1).
[32]CARs, reg 215(2).
[33]CARs, reg 215(3).
[34]CARs, reg 215(5).
[35]CARs, reg 215(9).
Regulation 235(7) provides CASA with the power to give "directions with respect to the method of loading of persons and goods (including fuel) on aircraft" for the purpose of ensuring the safety of air navigation. The regulations make it clear that a balloon is a lighter-than-air aircraft[36]. A contravention of a direction under reg 235(7) exposes a person to a penalty[37]. No such directions were given.
[36]CARs, reg 2(1); see also CA Act, s 3.
[37]CARs, reg 235(7A).
CAOs are made under s 98(4A) or under the regulations[38] and have the status of legislative instruments[39]. CASA has made CAO 20.16.3, which identifies, in relation to "manned balloons", the number of ground crew members required for "passenger loading and launching operations". CAO 20.9 directs that refuelling not take place while "passengers are on board, or entering or leaving, the aircraft". It gives further directions with respect to the safety of embarking or disembarking of passengers whilst an aircraft's engine is operating.
[38]CA Act, s 98(5).
[39]CA Act, ss 98(4B), 98(5AAA).
The first respondent's operations manual contained requirements with respect to passengers in connection with the operation of the inflation fan. It is accepted by the first respondent that the content of the manual is not a Commonwealth law although the Court of Appeal appears to have considered that federal law operates upon it "to create a norm"[40].
[40]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1 at 17 [90].
Approaches to inconsistency
When a law of a State is inconsistent with a law of the Commonwealth, s 109 of the Constitution resolves the conflict by giving the Commonwealth law paramountcy and rendering the State law invalid[41] to the extent of the inconsistency.
[41]Or "inoperative": see Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557; [1942] HCA 30.
The NT WHS Act is a law of the Northern Territory Legislative Assembly. The Legislative Assembly derives its legislative power from s 6 of the Northern Territory (Self-Government) Act 1978 (Cth), which is enacted under s 122 of the Constitution. The terms of s 109 of the Constitution are not addressed to the relationship between laws of the Commonwealth and those enacted by the legislatures of the Territories[42]. The subordinate status of a Territory law has the result that where it is inconsistent with a Commonwealth law the Commonwealth law will prevail. It is not necessary in this case to further consider the effect of the inconsistency on a Territory law. There is no dispute that cases concerning s 109 inconsistency may be applied by analogy to a case involving a Territory law.
[42]Northern Territory v GPAO (1999) 196 CLR 553 at 580 [53]; [1999] HCA 8.
In Victoria v The Commonwealth ("The Kakariki")[43], Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing[44], Dickson v The Queen[45] and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd[46].
[43](1937) 58 CLR 618 at 630; [1937] HCA 82.
[44](1999) 197 CLR 61 at 76-77 [28]; [1999] HCA 12.
[45](2010) 241 CLR 491 at 502 [13]-[14]; [2010] HCA 30.
[46](2011) 244 CLR 508 at 524 [39]; [2011] HCA 33.
The first approach has regard to when a State law would "alter, impair or detract from" the operation of the Commonwealth law. This effect is often referred to as a "direct inconsistency"[47]. Notions of "altering", "impairing" or "detracting from" the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law[48].
[47]Dickson v The Queen (2010) 241 CLR 491 at 504 [22]; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [39].
[48]Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 525 [41].
The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say "completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed"[49]. This is usually referred to as an "indirect inconsistency". A Commonwealth law which expresses an intention of this kind is said to "cover the field" or, perhaps more accurately, to "cover the subject matter" with which it deals[50]. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law[51].
[49] Ex parte McLean (1930) 43 CLR 472 at 483; [1930] HCA 12.
[50]Ex parte McLean (1930) 43 CLR 472 at 483; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 524 [40]; see also The Commonwealth v Australian Capital Territory (2013) 250 CLR 441; [2013] HCA 55.
[51]The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 467 [56].
The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter.
It is not to be expected that a Commonwealth law will usually declare that it has this effect. In some cases the detailed nature or scheme of the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter[52]. It may state a rule of conduct to be observed, from which the relevant intention may be discerned[53]. Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered[54]. A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended[55]. The essential notion of indirect inconsistency is that the Commonwealth law contains an implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject of legislation[56].
[52]Momcilovic v The Queen (2011) 245 CLR 1 at 116 [261]; [2011] HCA 34.
[53]Ex parte McLean (1930) 43 CLR 472 at 483-484.
[54]Rv Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563-564; [1977] HCA 34.
[55]See for example Rv Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; New South Wales v The Commonwealth and Carlton ("the Hospital Benefits Case") (1983) 151 CLR 302; [1983] HCA 8.
[56]Momcilovic v The Queen (2011) 245 CLR 1 at 111 [244] per Gummow J.
Whether the laws are inconsistent
The first respondent submits that, properly construed, the Commonwealth aviation law discloses an intention exhaustively and exclusively to deal with the subject matter which it describes as "the prescription and enforcement of the standards of safety in the conduct of air navigation or air operations" in Australia. These are very broad descriptions. Nonetheless it is common ground that the aircraft operations regulated by the Commonwealth law in question encompass all matters preparatory to and subsequent to an aircraft flying and include the embarkation and disembarkation of passengers.
The first respondent had contended before the Court of Appeal that there were direct inconsistencies in the operation of the Commonwealth aviation law and the NT WHS Act. The Court of Appeal did not consider it necessary to address that argument in view of the conclusion it reached that the Commonwealth aviation law covered the field. In this Court the first respondent, by Notice of Contention, sought to contend that the Court of Appeal should also have found that the NT WHS Act alters, impairs or detracts from the operation of ss 28BD and 29(1) of the CA Act, reg 215 of the CARs and CAO 82.7. During the course of argument on the hearing of this appeal that course was abandoned. The only questions which remain are whether the Commonwealth aviation law can be construed as dealing exclusively with the subject matter identified, or whether it is to be read as permitting other laws including the NT WHS Act to operate, as the WHA contends. It is not contended that the Commonwealth aviation law should be construed as dealing exclusively with some more limited aspect of the embarkation and disembarkation of passengers so as impliedly to exclude the operation of the NT WHS Act in relation to that particular aspect of air navigation.
In argument on the appeal the first respondent went to some lengths to chart the historical development of Commonwealth aviation law in its implementation of the Chicago Convention and its later Protocols. No doubt what was sought to be conveyed is that Commonwealth aviation law expanded to become a regulatory scheme with respect to the safety of aviation. But even accepting that there may be aspects of the CA Act which could be so described, it could hardly be said that it purports to lay down an entire legislative framework covering all aspects of the safety of persons who might be affected by operations associated with aircraft, including on-ground operations.
In many areas the CA Act must operate within the setting of other laws with which aircraft operators and their staff are obliged to comply[57]. Adapting what Dixon J said in Ex parte McLean[58], the CA Act was intended to be "supplementary to or cumulative upon" State or Territory law. The example his Honour gave in that case[59] was of a Commonwealth award which expressly prohibited shearers from injuring sheep whilst shearing. It would not reasonably follow, his Honour said, that a shearer who unlawfully and maliciously wounded a sheep that he was shearing could not be prosecuted under the State criminal law.
[57]Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 57-58; [1986] HCA 42.
[58](1930) 43 CLR 472 at 483.
[59]Ex parte McLean (1930) 43 CLR 472 at 485-486.
The fact that a Commonwealth statute makes certain conduct an offence is not conclusive of exclusivity. There is no presumption that a Commonwealth offence excludes the operation of other laws[60]. The Crimes Act 1914 (Cth)[61], in providing that a person cannot be punished twice, recognises this. If there were a rule or standard of conduct imposed by the CA Act directed at the safety of persons affected by aircraft operations, gross breach of it could result in a conviction for manslaughter. The first respondent concedes as much and accepts that offences of this kind cannot be said to be within the exclusive preserve of the CA Act.
[60]R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 224; [1982] HCA 77; McWaters v Day (1989) 168 CLR 289 at 296; [1989] HCA 59.
[61]Section 4C.
The first respondent suggests that the CA Act might be seen to leave the proscription and punishment of conduct which negligently and intentionally endangers life as a separate matter for the operation of other Commonwealth, State and Territory laws. It points to the Crimes (Aviation) Act 1991 (Cth), which creates offences relating to aviation terrorism or security, as indicative of this. But the submission simply confirms what is otherwise evident, namely that the CA Act is intended to operate within the setting of other laws.
One such law is the Work Health and Safety Act 2011 (Cth), which was enacted to promote the system of nationally harmonised laws of which the NT WHS Act is a part. It imposes the same duty as the NT WHS Act with respect to the risk to persons from the conduct of businesses or undertakings, albeit those conducted by a public authority, and creates an offence for breach of that duty. The place where a business or undertaking is conducted includes an aircraft[62]. It could hardly be suggested that when this statute was enacted the legislature intended that it would be read down to accommodate the CA Act.
[62]Work Health and Safety Act 2011 (Cth), s 8.
The first respondent also accepts that the CA Act is not concerned with civil liability for death, personal injury or damage to cargo arising out of air operations associated with aircraft. These are the subject of the Civil Aviation (Carriers' Liability) Act 1959 (Cth).
The first respondent points to ss 28BD and 29 of the CA Act as the key provisions which would be attracted if there were to be a Commonwealth prosecution arising out of the events in question. Section 28BD, it will be recalled, requires the holder of an AOC to comply with all the requirements of the CA Act, the CARs and any CAOs which are applicable.
In Ex parte McLean[63], Dixon J explained that when the Commonwealth and State Parliaments each legislate on the same subject matter "and prescribe what the rule of conduct shall be", they make laws which are inconsistent and s 109 applies. That is so because, by providing a rule to be observed, the Commonwealth statute evinces an intention to cover the subject matter and provide exclusively what the law upon that subject matter should be. When a Commonwealth law discloses such an intention, it is inconsistent with that law for the State law to govern the same subject matter.
[63](1930) 43 CLR 472 at 483.
In Ex parte McLean an award made by the Commonwealth Court of Conciliation and Arbitration required the applicant, a shearer, to abide by the terms and conditions of an employment agreement between him and his employer. Non-fulfilment of the terms of the agreement would result in a penalty under the Commonwealth Conciliation and Arbitration Act1904 (Cth) for breach of the award. A State Act contained somewhat different penal sanctions for the same conduct. An information was brought under it alleging that the applicant neglected to fulfil the contract in the manner of his shearing. The Commonwealth Parliament was held to have given awards made by the arbitrator under the Commonwealth Act exclusive authority. That Act gave the arbitrator power by the award to prescribe completely and exclusively what are the industrial relations between employer and employee. It commanded performance of the contract as an industrial duty according to the sanctions it imposed[64].
[64]Ex parte McLean (1930) 43 CLR 472 at 484, 486-487.
The difficulty with the first respondent's argument is that neither s 28BD nor any other section of the CA Act referred to above prescribes a rule of conduct to be adhered to in carrying out aircraft operations of the kind here in question. Section 20A(1) imposes only a general duty on a person not to be reckless so as not to endanger the life of another person and that duty arises only in the context of operating an aircraft. Section 28BE(1) also imposes a general duty on a person to carry out activities with a reasonable degree of care and diligence.
The scheme of the CA Act permits CASA to set standards or give directions through the CARs and CAOs with respect to matters of safety. But even when it does so, s 98(7) states that the CARs are not to be taken to be inconsistent with a Territory law to the extent that that law is capable of operating concurrently with the regulations. A provision of this kind is effective to avoid inconsistency by making it clear that the law which is the source of the standards or directions is not intended to be exhaustive or exclusive of State or Territory laws. It makes clear that it is not intended to cover subjects dealt with by the regulations and that it leaves room for the operation of other laws[65]. The only qualification is that the other laws do not operate so as to conflict directly with the Commonwealth law.
[65]R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563-564.
The foregoing may be sufficient for a conclusion that, properly construed, the CA Act does not contain the negative proposition that it alone is intended to state the law relating to the conduct of aircraft operations which may put the health and safety of persons at risk, for which the NT WHS Act also provides. In particular, the CA Act does not convey an intention to state exhaustively the extent of care to be taken by the holder of an AOC, for the health and safety of those who are at risk by reason of the conduct of aviation operations. Section 28BE(5) puts this beyond doubt.
It will be recalled that s 28BE(1) requires the holder of an AOC to take all reasonable steps to ensure that "every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence". Sub-section (2) extends that duty to company directors and sub-s (3) provides for what evidence may amount to non-compliance by directors with that duty. Sub-section (4) says that no action for damages or compensation lies for contravention of the section. Section 28BE(5) provides that the section does not affect any duty imposed by, or under, any other Commonwealth, State or Territory law, or under the common law. It operates in a way similar to s 98(7), which has been discussed above. In its terms s 28BE(5) recognises the continuing operation of other laws concerned with the taking of care in the conduct of activities by the holder of an AOC[66]. The recognition is subject to the necessary qualification that a Commonwealth law might be paramount in cases of direct inconsistency in the operation of the respective laws.
[66]Hospital Benefits Case (1983) 151 CLR 302; Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47.
The first respondent substantially adopts the approach taken by the Full Court of the Federal Court (Moore, Stone and Flick JJ) in Heli-Aust, which was to read s 28BE(5) as having a narrow operation. Section 28BE(1) was seen to apply only to AOC holders and in that capacity. Moore and Stone JJ considered that s 28BE(5) is therefore to be understood to recognise that an AOC holder may have a duty when acting in some other capacity, such as when driving a car[67]. An AOC holder might come under a common law duty of care in that capacity just as she or he might be subject to statutory regulation as a director. Their Honours said that "[t]he subsection clearly has work to do in fields removed, and potentially far removed, from the maintenance of safety in civil aviation"[68].
[67]Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 at 531 [72].
[68]Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 at 531 [72].
The joint judgment in Heli-Aust misapprehended the scope of s 28BE(1)'s operation. An AOC permits aircraft flights with passengers. The duty imposed by the sub-section is expressed to apply to every activity covered by the AOC and anything done in connection with it. It would extend to conduct in carrying out almost every task associated with aircraft operations including what is undertaken pre- and post-flight. It imposes on a holder of an AOC a duty additional to what is otherwise required by the CA Act, the CARs and CAOs. But s 28BE(5) makes plain that that further duty does not exclude other laws concerned to require the taking of care by the holder of an AOC in the conduct of air operations.
The Court in Heli-Aust regarded it as significant that s 28BE does not purport to confine the operation of any other aspect of the CA Act[69]. The first respondent likewise submits that whilst s 28BE(5) is a statutory indication that s 28BE(1) is not to be construed as exclusive, it says nothing about the scheme of the CA Act. The opening words of sub-s (5) refer only to what "[t]his section" does not affect. On the first respondent's case, it cannot be inferred from sub‑s (5) that the balance of the statutory scheme is intended to operate exclusively of other laws.
[69]Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 at 531 [71], 557 [174].
The Court in Heli-Aust and the first respondent approach s 28BE(5) on the basis of an assumption – that the CA Act can otherwise be read as exhaustive or exclusive on the topic of the safety of aircraft operations. The joint judgment expressed the view that not only is the regulatory regime of the CA Act a comprehensive one, but "the safety of civil aviation is, by its very nature one that would seem to cry out for one comprehensive regulatory regime"[70]. The first respondent points to what s 28BE(5) does not say, namely that "the entirety of what otherwise appears to be the most comprehensive exclusive scheme is simply to operate [supplementarily] upon State or Territory law". But in relevant respects, that is how the CA Act operates. For the reasons given above, the CA Act does not evince an intention to operate exclusively of other laws.
[70]Heli-Aust Pty Ltd v Cahill (2011) 194 FCR 502 at 530-531 [68].
True it is that s 28BE(1) provides the occasion for what appears in s 28BE(5). Without the imposition of the additional duty by s 28BE(1), no question would arise about the operation of other laws imposing similar duties. Having added that duty it was necessary to confirm, consistently with the balance of the CA Act, that other State and Territory laws and the common law were to continue to operate. The drafting technique employed in s 28BE(5) has an effect similar to that of s 98(7).
The breadth of operation of s 28BE(5) is confirmed by the Explanatory Memorandum to the Bill which introduced s 28BE[71]. Relevantly it explains that whilst the section does not create a new cause of action, it does not affect any common law duty of care or any other statutory duty "under which a person may be able to bring an action in negligence or other legal proceedings against the AOC holder". As the Explanatory Memorandum shows, s 28BE(5) reflects the fact that the CA Act is intended to operate within the framework of other laws, including the common law of negligence.
[71]Australia, House of Representatives, Civil Aviation Legislation Amendment Bill 1995, Explanatory Memorandum at 26-27.
Conclusion and orders
The CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT WHS Act is one such law. And it has not been suggested that the CA Act contains an implicit negative proposition that it is to be the only law with respect to some particular aspect or aspects of the embarkation of passengers. It cannot be said that the CA Act contains an implicit negative proposition that it is to be the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including the embarkation of passengers. The appeal should be allowed with costs, the orders of the Court of Appeal of the Supreme Court of the Northern Territory set aside and in lieu thereof it be ordered that the appeal to that Court be dismissed with costs.
GAGELER J. The legislative power conferred on the Legislative Assembly of the Northern Territory by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth), which "gives life to and sustains"[72] laws enacted for the peace, order and good government of the Territory, is insufficient to sustain the operation of a Northern Territory law to the extent that the law is inconsistent with or repugnant to a Commonwealth law. The test of inconsistency or repugnancy for the purpose of that implicit limitation is the same as the test of inconsistency between a State law and a Commonwealth law for the purpose of s 109 of the Constitution[73].
[72]Northern Territory v GPAO (1999) 196 CLR 553 at 580 [54]; [1999] HCA 8.
[73]University of Wollongong v Metwally (1984) 158 CLR 447 at 464; [1984] HCA 74, citing Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588; [1929] HCA 36, Webster v McIntosh (1980) 32 ALR 603 at 605-606, and R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at 418-419; [1984] HCA 13. See also P v P (1994) 181 CLR 583 at 602-603; [1994] HCA 20.
Of little more than historical interest in light of the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986 (Cth), and unnecessary to consider for present purposes, is the unresolved question of whether the same test of inconsistency or repugnancy applied to the determination of repugnancy between a colonial law and an imperial law for the purpose of ss 2 and 3 of the Colonial Laws Validity Act 1865 (Imp) (28 & 29 Vict c 63)[74]. Of potential contemporary significance, but likewise unnecessary to consider for present purposes, is the unresolved question of whether the consequence of inconsistency or repugnancy between a Northern Territory law and a Commonwealth law is that the Territory law is beyond the legislative power of the Legislative Assembly of the Northern Territory, or, as with the consequence of inconsistency for a State law under s 109 of the Constitution[75], that the Territory law is rendered inoperative to the extent of the inconsistency[76].
[74]cf Yougarla v Western Australia (2001) 207 CLR 344 at 354-355 [17]; [2001] HCA 47, referring to Ffrost v Stevenson (1937) 58 CLR 528 at 572; [1937] HCA 41; Union Steamship Co of New Zealand Ltd v The Commonwealth (1925) 36 CLR 130 at 148; [1925] HCA 23, referring to Attorney-General (Qld) v Attorney-General (Cth) (1915) 20 CLR 148 at 166-168; [1915] HCA 39.
[75]Butler v Attorney-General (Vict) (1961) 106 CLR 268 at 285-286; [1961] HCA 32; Western Australia v The Commonwealth(Native Title Act Case) (1995) 183 CLR 373 at 464-465; [1995] HCA 47.
[76]Webster v McIntosh (1980) 32 ALR 603 at 605-606. Cf Attorney-General (NT) v Hand (1989) 25 FCR 345 at 366-367, 402-403.
Together with Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, I conclude that there is no inconsistency or repugnancy between ss 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ("the NT WHS Act") and the Civil Aviation Act 1988 (Cth) ("the CA Act") insofar as those sections of the NT WHS Act operate to impose on, and to enforce against, the holder of an air operator's certificate ("AOC") issued under the CA Act an obligation to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk in the course of air operations covered by the AOC. The path of reasoning by which I reach that conclusion is in summary as follows.
My reasoning proceeds on an acceptance of the view taken by the Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill[77], which was followed by the Court of Appeal of the Northern Territory in the decision under appeal[78], that there is a large area within which the CA Act operates to the exclusion of State and Territory laws. The area of exclusive operation of the CA Act can be sufficiently described as encompassing the prescription and enforcement of standards for the safe operation of aircraft.
[77](2011) 194 FCR 502.
[78]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1.
My principal disagreement with the Full Court in Heli-Aust, and consequently with the conclusion reached in the Court of Appeal, is with the Full Court's view that the subject-matter of the exercise of reasonable care and diligence in the operation of an aircraft falls within the area of exclusive operation of the CA Act. My own view is that s 28BE(5) of the CA Act makes plain that this subject-matter does not fall within that area of exclusive operation.
The more detailed reasons set out below need to be read with the description of the CA Act and the Civil Aviation Regulations 1988 (Cth) ("the CA Regulations") in the reasons for judgment of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. They also need to be read with the description of the legislative history of the CA Act and the history of the Convention on International Civil Aviation (1944) ("the Chicago Convention") in the reasons for judgment of Edelman J. I am grateful to their Honours for not having to repeat those descriptions or to recite the facts and procedural history of this matter.
The test of inconsistency
Matters involving s 109 of the Constitution have been described as the "running-down jurisdiction of the High Court"[79]. The suggestion implicit in that description is that issues raised in determining whether a State law, or by analogy a Territory law, is inconsistent with a Commonwealth law are easily resolved in the application of well-understood principles.
[79]See Gummow, "Foreword" (2010) 38 Federal Law Review 311 at 315.
There is an element of truth in that suggestion. The basic test of inconsistency has been repeated and applied too often to be doubted. The canonical exposition is that "inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience" but "depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed"[80]. A State or Territory law is inconsistent with a Commonwealth law to the extent that the State or Territory law, if operative, would "alter, impair or detract from the operation" of the Commonwealth law. If the Commonwealth law "was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State [or Territory] 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"[81].
[80]Ex parte McLean (1930) 43 CLR 472 at 483; [1930] HCA 12.
[81]Victoria v The Commonwealth ("The Kakariki") (1937) 58 CLR 618 at 630; [1937] HCA 82, echoing Stock Motor Ploughs Ltd v Forsyth (1932) 48 CLR 128 at 136; [1932] HCA 40.
However, as illustrated by the difficulties encountered in decisions on fairly straightforward questions of whether a State law creating one criminal offence is inconsistent with a Commonwealth law creating another criminal offence[82], the suggestion that questions of inconsistency are easily resolved has not been borne out by experience.
[82]Hume v Palmer (1926) 38 CLR 441; [1926] HCA 50; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338; [1974] HCA 36; R v Winneke; Ex parte Gallagher (1982) 152 CLR 211; [1982] HCA 77; Dickson v The Queen (2010) 241 CLR 491; [2010] HCA 30; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34.
A recurring source of difficulty has been a conceptually problematic but stubbornly persistent perception of the need to classify some State or Territory law detractions from, or impairments of, a Commonwealth law as "direct" inconsistency, and to classify other State or Territory law detractions from, or impairments of, a Commonwealth law as "indirect" inconsistency. That perception has been accompanied at times by a corresponding perception of the need to classify a Commonwealth law either as operating "cumulatively" upon the corpus of State and Territory laws (so as to admit of only "direct" inconsistency) or as "covering a field" (so as to admit also of "indirect" inconsistency). At times, where a particular Commonwealth law could not be fitted neatly into either classification, an obviously conflicting State law has been said to be inconsistent with the Commonwealth law "on both grounds"[83].
[83]eg, Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 47 at 56; [1986] HCA 42, quoting Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260; [1980] HCA 8.
The reality of Commonwealth legislation is more complex than this conceptual dichotomy admits. Few Commonwealth laws are framed to operate cumulatively upon the entire corpus of State and Territory laws. Most Commonwealth laws will have a definite area of affirmative operation which will admit of the concurrent operation of some, but not all, State and Territory laws. The analysis of Dixon J (albeit in dissent) in Stock Motor Ploughs Ltdv Forsyth[84] provides a useful illustration. Having reiterated the basic test of inconsistency, Dixon J there stated a consequence of that basic test to be that "except in so far as the law of the Commonwealth appears otherwise to intend, enjoyment of a right arising under it may not be directly impaired by State law"[85]. Applying that approach to hold the Moratorium Act 1930 (NSW) inconsistent with the Bills of Exchange Act 1909 (Cth), Dixon J first identified the intention informing the enactment of the Bills of Exchange Act. The identified intention was to undertake:
"the definition of what shall be bills of exchange, promissory notes and cheques, the statement of what special properties they shall possess, and the description of some of the consequences which ensue from their use, yet [to leave] generally to State law authority to prescribe when and under what conditions, by what persons and subject to what qualifications they may be employed"[86].
Despite the extensive room which it left for the operation of State laws, his Honour's opinion was that the Bills of Exchange Act "does not contemplate the legislative extinguishment [or] suspension of a right to enforce payment which has been obtained under [it]"[87]. The Moratorium Act, if operative, would have done just that.
[84](1932) 48 CLR 128.
[85](1932) 48 CLR 128 at 137.
[86](1932) 48 CLR 128 at 139.
[87](1932) 48 CLR 128 at 141.
Australian Mutual Provident Society v Goulden[88] provides another illustration. There the Court held that the Life Insurance Act 1945 (Cth), although "framed on the basis that it will operate in the context of local laws of the various States and Territories of the Commonwealth"[89], "should be understood as giving expression to a legislative policy that the protection of the interests of policy holders is to be achieved by allowing a registered life insurance company to classify risks and fix rates of premium in its life insurance business in accordance with its own judgment founded upon the advice of actuaries and the practice of prudent insurers"[90]. In its application to regulate the life insurance business of a registered life insurance company, the prohibition in the Anti-Discrimination Act 1977 (NSW) of "discrimination against a physically handicapped person on the ground of his physical impairment in the terms or conditions appertaining to a superannuation or provident fund or scheme" was held to be inconsistent with the Life Insurance Act because the prohibition would "effectively preclude such companies from taking account of physical impairment in classifying risks and rates of premium and other terms and conditions of insurance in the course of their life insurance business in New South Wales" and would thereby "qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act for ensuring the financial stability of registered life insurance companies and their statutory funds and the financial viability of the rates of premium and other terms and conditions of the policies of insurance which they write in the course of their life insurance business"[91].
[88](1986) 160 CLR 330; [1986] HCA 24.
[89](1986) 160 CLR 330 at 335.
[90](1986) 160 CLR 330 at 337.
[91](1986) 160 CLR 330 at 339.
References to "direct" and "indirect" inconsistency have been described as "tests for discerning whether a 'real conflict' exists between a Commonwealth law and a State law"[92]. Notably, however, "direct" inconsistency and "indirect" inconsistency do not appear as distinct concepts in the canonical formulation of the basic test. Rather, on the premise that a State or Territory law is inconsistent with a Commonwealth law if it would "alter, impair or detract from the operation" of the Commonwealth law, the case of a State law which would regulate or apply to a matter on which a Commonwealth law was "intended as a complete statement" is an instance of a State or Territory law that is "regarded as a detraction from the full operation of the Commonwealth law".
[92]Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 at 525 [42]; [2011] HCA 33, quoting Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 553; [1955] HCA 44.
The more complete explanation[93] is that offered by Aickin J in Ansett Transport Industries (Operations) Pty Ltd v Wardley[94]:
"The two different aspects of inconsistency [ie direct and indirect inconsistency] are no more than a reflection of different ways in which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct. Whether it be right or not to say that there are two kinds of inconsistency, the central question is the intention of a particular federal law."
[93]See Rumble, "The Nature of Inconsistency under Section 109 of the Constitution" (1980) 11 Federal Law Review 40 at 72-77, 81-83.
[94](1980) 142 CLR 237 at 280.
To adopt the language of Mason J in New South Wales v The Commonwealth and Carlton[95], no matter how wide or narrow the operation of the Commonwealth law, "the more general test" of inconsistency is: "Does the State [or Territory] law alter, impair or detract from the operation of the Commonwealth law?" Using "object" or "purpose" in the commonly employed sense explained in subsequent cases to refer to the intended practical operation of the law or to what the law is designed to achieve in fact[96], his Honour went on in that case to explain[97]:
"That test may be applied so as to produce inconsistency in two ways. It may appear that the legal operation of the two laws is such that the State law alters, impairs or detracts from rights and obligations created by the Commonwealth law. Or it may appear that the State law alters, impairs or detracts from the object or purpose sought to be achieved by the Commonwealth law. In each situation there is a case for saying that the intention underlying the Commonwealth law was that it should operate to the exclusion of any State law having that effect."
[95](1983) 151 CLR 302 at 330; [1983] HCA 8.
[96]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 394 [178]; [2005] HCA 44; McCloy v New South Wales (2015) 257 CLR 178 at 232 [132]; [2015] HCA 34.
[97](1983) 151 CLR 302 at 330.
Associated with the persistent perception of some distinction between "direct" and "indirect" inconsistency, another longstanding source of difficulty in determining whether a State or Territory law is inconsistent with a Commonwealth law has been a tendency to overlook the need to determine at the first stage of analysis the extent, if any, to which the Commonwealth law is intended to operate as a complete or exhaustive statement of the law on a subject-matter. Only once the intended legal and practical operation of the Commonwealth law is determined can the extent, if any, to which the other law, if operative, would alter, impair or detract from that operation be determined. That point was made strongly by Gummow J in APLA Ltd v Legal Services Commissioner (NSW)[98] and in Momcilovic v The Queen[99].
[98](2005) 224 CLR 322 at 400-401 [204]-[208].
[99](2011) 245 CLR 1 at 115-116 [258]-[261].
Contributing to the overall difficulty in more recent times has been a tendency to downplay the centrality of legislative intention to the determination of the operation of the Commonwealth law[100]. The tendency can be seen to have been the outworking of emergent scepticism about the very existence of legislative intention[101]. That scepticism cannot be allowed to distort the understanding or application of established constitutional doctrine. "Those who regard the search for 'intention' as fictitious must content themselves with an acceptance that it is the function of the courts, ultimately this Court, to specify what the purpose and effect (and hence the imputed intention) of the competing legislation is."[102]
[100]eg, Dickson v The Queen (2010) 241 CLR 491 at 506-507 [32]; Momcilovic v The Queen (2011) 245 CLR 1 at 141 [341].
[101]eg, Zheng v Cai (2009) 239 CLR 446 at 455 [28]; [2009] HCA 52; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 389-390 [25]; [2012] HCA 56.
[102]Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 497; [1997] HCA 36.
Groups acting deliberatively according to established procedures can meaningfully be seen to have intentions, distinct from the subjective intentions of their constituent individuals, both as to what collectively they seek to achieve and as to how collectively they seek to achieve it[103]. Legislative assemblies in representative democracies are the paradigm of groups acting deliberatively, as courts in representative democracies have for the most part done well to recognise when construing legislative output.
[103]See generally List and Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents (2011).
"[O]ne of the surest indexes of a mature and developed jurisprudence" is "to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning"[104]. The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have"[105]. That a finding of purpose can involve a "contestable judgment"[106] only heightens that responsibility.
[104]Cabell v Markham (1945) 148 F 2d 737 at 739, quoted in Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 644 [27]; [2000] HCA 33 and in Thiess v Collector of Customs (2014) 250 CLR 664 at 672 [23]; [2014] HCA 12.
[105]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78]; [1998] HCA 28.
[106]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389 [91].
"The words 'intention', 'contemplation', 'purpose', and 'design' are used routinely by courts in relation to the meaning of legislation" and "are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked"[107]. Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to "the constitutional relationship between courts and the legislature"[108].
[107]Singh v The Commonwealth (2004) 222 CLR 322 at 336 [19]; [2004] HCA 43.
[108]Singh v The Commonwealth (2004) 222 CLR 322 at 336 [19].
The extent, if any, to which the Commonwealth Parliament intends a law enacted in an area of concurrent legislative power to operate as a complete or exhaustive statement of the law on a subject-matter is often left by the Commonwealth Parliament to emerge inferentially by reference to the nature of the subject-matter and the express or apparent purpose of the Commonwealth law. However, the Commonwealth Parliament can, and not infrequently does, make the intended operation of the law express, either by stating that the law is to operate on a subject-matter to the exclusion of State or Territory laws or a category of State or Territory laws[109], or by stating that the law is to operate on a subject-matter concurrently with State or Territory laws or a category of State or Territory laws[110]. True it is that any such statement of legislative intention must be construed in context, and that the generality of the language in which such a statement is cast might, on a proper construction, be qualified by some contraindication in the legislative scheme of which it forms part[111]. But once the statement of legislative intention has been properly construed, fidelity to the constitutional relationship between courts and the legislature requires that the statement be given effect in determining the scope of the operation of the Commonwealth law[112].
[109]New South Wales v The Commonwealth(Work Choices Case) (2006) 229 CLR 1 at 166-169 [370]-[372]; [2006] HCA 52, applying Wenn v Attorney-General (Vict) (1948) 77 CLR 84 especially at 109; [1948] HCA 13.
[110]Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 466, applying R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 563; [1977] HCA 34. See also Palmdale-AGCI Ltd v Workers' Compensation Commission (NSW) (1977) 140 CLR 236 at 243; [1977] HCA 69.
[111]John Holland Pty Ltd v Victorian Workcover Authority (2009) 239 CLR 518 at 527 [20]; [2009] HCA 45; Dickson v The Queen (2010) 241 CLR 491 at 508 [36]-[37].
[112]Momcilovic v The Queen (2011) 245 CLR 1 at 121 [272].
The test of inconsistency applied
Having regard to the expression of the main object of the CA Act as being "to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation"[113], having regard to its evident purpose of facilitating implementation of Australia's obligation under Art 37 of the Chicago Convention 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", and having regard to the obvious impracticality in the modern world of attempting to separate the regulation of domestic aviation from the regulation of international aviation, I see no reason to gainsay the view taken in Heli-Aust that the CA Act has an operation as an exhaustive statement of the law in Australia on a subject-matter there described as "the safety of civil aviation in Australia"[114] or "the safety of air operations in Australia"[115]. The subject-matter can be described with more precision for present purposes, in language drawn from Annex 6 to the Chicago Convention, as encompassing the prescription and enforcement of standards for the safe operation of aircraft in, to and from Australia, noting that a "standard" for the purpose of the Chicago Convention is a "specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention"[116].
[113]Section 3A of the CA Act.
[114](2011) 194 FCR 502 at 530 [67], 534 [83].
[115](2011) 194 FCR 502 at 554 [159]-[161], 555-556 [164].
[116]Annex 6 to the Chicago Convention, Pt I at (xxi).
Confirming the ambition of the CA Act to provide a single regulatory framework for the prescription and enforcement of standards for the safe operation of aircraft in, to and from Australia is the regulation-making power conferred by the CA Act. The power is expressed to allow for the making of regulations "for the purpose of carrying out and giving effect to the provisions of the Chicago Convention relating to safety", the making of regulations in relation to safety of air navigation in, to and from a Territory, and the making of regulations in relation to safety of air navigation, where the regulations are with respect to interstate and international trade and commerce or with respect to any other matter with respect to which the Commonwealth Parliament has power to make laws[117]. The evident intention is that the regulations made under the CA Act are to operate as comprehensively as the legislative power of the Commonwealth Parliament permits.
[117]Section 98(1)(c)-(f) of the CA Act.
There is no reason to consider the reach of the CA Regulations to be less ambitious than is permitted under the CA Act. To the contrary, the CA Regulations are expressed at the outset to have comprehensive application in relation to air navigation throughout Australia and to and from Australia[118]. The CA Regulations are then structured to make detailed prescription in relation to subject-matters relevantly identified to include qualifications of flight crew (the subject-matter of Annex 1 to the Chicago Convention)[119], rules of the air (the subject-matter of Annex 2 to the Chicago Convention)[120], airworthiness of aircraft (the subject-matter of Annex 8 to the Chicago Convention)[121] and air operations (the subject-matter of Annex 6 to the Chicago Convention)[122].
[118]Regulation 3(1) of the CA Regulations.
[119]Part 5 of the CA Regulations.
[120]Parts 11 and 12 of the CA Regulations.
[121]Part 4 of the CA Regulations.
[122]Part 14 of the CA Regulations.
Whilst there may be exceptions, each regulation should be read as intended to lay down the sole rule to the precise topic with which it deals. Take, for example, the regulation which sets at 500 feet the minimum height at which aircraft can be flown over areas other than cities, towns or populous areas[123]. Accepting that the CA Act and the CA Regulations accommodate the prospect of a State or Territory law penalising the dangerous operation of an aircraft[124], it is impossible to see how the CA Act and the CA Regulations can be interpreted as accommodating the prospect of a State or Territory law setting a different minimum height of say 700 feet. That is so even though it would obviously be possible for the pilot of an aircraft to comply with the minimum height set under the CA Act by flying at or above the height set by the State or Territory law. The point is that, in setting the minimum height at which aircraft can be flown, the CA Regulations are specifying a physical requirement for the operation of aircraft the uniform application of which the CA Act treats as necessary for the safety and regularity of international air navigation.
[123]Regulation 157(1)(b) of the CA Regulations.
[124]cf R v Morris [2004] QCA 408 at [4]-[7], [38]-[40], [51].
Section 98(7) of the CA Act does not, in my opinion, indicate that regulations made under the CA Act are to have some less pervasive application. In providing that a "law of a Territory (not being a law of the Commonwealth) does not have effect to the extent to which it is inconsistent with a provision of the regulations having effect in that Territory", s 98(7), in my opinion, does no more than to provide for the consequence of inconsistency between a Territory law and a provision of the regulations to be that the Territory law is inoperative to the extent of the inconsistency[125]. And in going on to provide that "such a law shall not be taken to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision", s 98(7), in my opinion, does no more than to confirm that the test of inconsistency between a law of a Territory (not being a law of the Commonwealth) and a provision of the regulations is whether the Territory law, if operative, would "alter, impair or detract from" the operation of the regulation[126]. Section 98(7) has nothing to say about the extent to which the CA Regulations are intended to operate as a complete or exhaustive statement of the law on any subject-matter. Moreover, the section has nothing to say about the relationship between the CA Regulations and any State law. The section is rather framed to leave no doubt that a Territory law is either to stand with or yield to a regulation in precisely the same way as would a State law by force of s 109 of the Constitution.
[125]cf TheCommonwealth v Australian Capital Territory (2013) 250 CLR 441 at 466 [52]; [2013] HCA 55, citing Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 351 [75]; [1999] HCA 44.
[126]cf The Commonwealth v Australian Capital Territory (2013) 250 CLR 441 at 468 [59].
To resolve the question of inconsistency in the present case, I do not think it is necessary to attempt to describe the area of operation of the CA Act with any greater precision than the prescription and enforcement of standards for the safe operation of aircraft. That is because, contrary to the ultimate holding in Heli‑Aust, I am unable to construe the CA Act as including the subject‑matter of s 28BE within the area in which that operation is exhaustive in light of the statement in s 28BE(5) that s 28BE "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". Section 28BE(5) makes plain that, irrespective of precisely how the area of operation of the CA Act might be described, the particular subject-matter of s 28BE is not within its exclusive operation. The subject-matter of s 28BE can be sufficiently described as the general requirement to exercise reasonable care and diligence in the operation of an aircraft.
Of course, the CA Act itself prescribes, and permits the prescription of, standards for the safe operation of aircraft which incorporate some requirement for the exercise of some measure of care and diligence. An example is the requirement in reg 215(2) of the CA Regulations that an operator ensure that an 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". The regulation must be taken to be a definitive statement of all that an operator has an obligation to include in an operations manual. The standard which reg 215(2) prescribes nevertheless coexists within the scheme of the CA Act with the obligation imposed on the operator by s 28BE(1) to exercise reasonable care and diligence in the operation of an aircraft, and the standard can also coexist with a similar obligation imposed on the operator by a State or Territory law. Some degree of overlap between a specifically prescribed standard and the general obligation imposed on the operator by s 28BE(1) accordingly does nothing to detract from the operation of s 28BE(5), which enables a State or Territory law to impose an enforceable obligation on the operator of an aircraft to exercise reasonable care and diligence in the operation of an aircraft – an obligation which is cumulative upon all of the obligations that the operator has as the holder of an AOC under the CA Act.
To construe s 28BE(5) as an express acknowledgement of the cumulative or concurrent operation of State and Territory laws requiring the exercise of reasonable care and diligence in the operation of an aircraft is not to overlook the point made in Heli-Aust that s 28BE(5) is addressed in terms only to the non-exclusive operation of s 28BE itself[127]. What is important to recognise is that s 27(2) prohibits the operation of an aircraft in Australia except, relevantly, by the holder of an AOC and that the obligation imposed on the holder of an AOC by s 28BE(1) to "take all reasonable steps to ensure that every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence" is necessarily cumulative upon the obligation imposed on the holder of an AOC by s 28BD(1) to "comply with all requirements of [the CA Act], the [CA Regulations] and the Civil Aviation Orders that apply to the holder". By making clear that a State or Territory law can impose a duty which coexists with the obligation imposed on the holder of an AOC by s 28BE(1), s 28BE(5) makes equally clear that a State or Territory law can impose a duty on the holder of an AOC which exists cumulatively upon the obligation imposed on the holder of an AOC by s 28BD(1) to comply with the other requirements of the Act, with the CA Regulations and with applicable Civil Aviation Orders.
[127](2011) 194 FCR 502 at 531 [71].
Nor is to construe s 28BE(5) as an express acknowledgement of the cumulative or concurrent operation of State and Territory laws requiring the exercise of reasonable care and diligence in the operation of an aircraft to overlook another point made in Heli-Aust[128], that s 28BE(5) "has work to do in fields removed, and potentially far removed, from the maintenance of safety in civil aviation". That point may be accepted, but it does not mandate a construction of s 28BE(5) which would confine the section's operation to duties other than duties to exercise reasonable care or diligence in the operation of an aircraft. Such a construction does not sit comfortably with either s 28BE(5)'s reference to "[t]his section" or the generality of its references to "any other law" and "any duty". Such a construction, moreover, runs counter to the stated legislative purpose of inserting s 28BE(5) into s 28BE. The purpose recorded in the Explanatory Memorandum accompanying the Bill for the amending Act was to clarify that although s 28BE imposes by s 28BE(1) an obligation on the holder of an AOC to exercise reasonable care or diligence in the operation of an aircraft, a contravention of this obligation will not, by reason of s 28BE(4), give rise to an action for damages or compensation. The Explanatory Memorandum notes that s 28BE does not "affect any common law duty of care or any other statutory duty under which a person may be able to bring an action in negligence or other legal proceedings against the AOC holder"[129].
[128](2011) 194 FCR 502 at 531 [72].
[129]Australia, Senate, Civil Aviation Legislation Amendment Bill 1995, Explanatory Memorandum at 26.
The potential scope of the "other legal proceedings against the AOC holder" to which reference was made in the Explanatory Memorandum is worth noting. The Chicago Convention has taken its place in international law alongside first the Warsaw Convention[130] and then the Montreal Convention[131], each of which has regulated the civil liability of international carriers. In the same way, the CA Act has taken its place within the Commonwealth statute book alongside the Civil Aviation (Carriers' Liability) Act 1959 (Cth), which regulates the civil liability of international carriers. The CA Act has done so against the background of complementary State statutes[132] and of the common law, which together regulate the civil liability of domestic carriers. And just as the CA Act now sits within the Commonwealth statute book alongside the Work Health and Safety Act 2011 (Cth), so the latter Act has come to be mirrored in complementary legislation in each State (other than Victoria and Western Australia) and Territory, of which the NT WHS Act is an example, imposing general obligations on persons conducting businesses or undertakings to "ensure, so far as is reasonably practicable", that health and safety is not put at risk[133]. Provided the qualification "so far as is reasonably practicable" takes as given the obligation to comply with the standards imposed by or under the CA Act, the application of those general statutory obligations to air operations conducted by the holder of an AOC creates no legal impediment and no obvious practical impediment to the prescription or enforcement of standards for the safe operation of aircraft within the framework established by the CA Act.
[130]Convention for the Unification of Certain Rules relating to International Carriage by Air (1929).
[131]Convention for the Unification of Certain Rules for International Carriage by Air (1999).
[132]See Civil Aviation (Carriers' Liability) Act 1961 (Vic); Civil Aviation (Carriers' Liability) Act 1961 (WA); Civil Aviation (Carriers' Liability) Act 1962 (SA); Civil Aviation (Carriers' Liability) Act 1963 (Tas); Civil Aviation (Carriers' Liability) Act 1964 (Qld); Civil Aviation (Carriers' Liability) Act 1967 (NSW).
[133]See Work Health and Safety Act 2011 (Cth), s 19(2); Work Health and Safety (National Uniform Legislation) Act 2011 (NT), s 19(2); Work Health and Safety Act 2011 (ACT), s 19(2); Work Health and Safety Act 2011 (NSW), s 19(2); Work Health and Safety Act 2011 (Qld), s 19(2); Work Health and Safety Act 2012 (SA), s 19(2); Work Health and Safety Act 2012 (Tas), s 19(2).
To draw a mundane terrestrial analogy, the relevant distinction between the exclusive and non-exclusive areas of operation of the CA Act is akin to the distinction between, on the one hand, the statutory duties of the driver of a motor vehicle to be licensed and to obey the rules of the road, and, on the other hand, the common law and statutory duties of the driver of a motor vehicle to exercise reasonable care for the safety of other persons in the operation of the motor vehicle. Far from being in conflict, the two sets of duties are complementary.
There is nothing in the argument that the CA Act does not contemplate the intrusion into aircraft operations of a regulator other than the Civil Aviation Safety Authority ("CASA") and therefore does not accommodate investigative or enforcement action by the Work Health Authority under the NT WHS Act. Section 28BE(5)'s acknowledgement that the holder of an AOC can be subject to a duty imposed by or under another law carries with it an acknowledgement that the holder can become subject to investigative and enforcement action by a regulatory authority having responsibility for the administration of that other law. To the extent that particular administrative action taken by such a regulator might have the potential to impair or detract from the operation of the CA Act or action taken by CASA under the CA Act, the question of whether the action of the regulator might give rise to "operational" inconsistency would appropriately be addressed if and when the question arose. There is no such question in this case. The mere potential for inconsistency to arise in practice as a consequence of the exercise of one or more statutory powers is no reason for holding the statutes conferring those powers to be inconsistent in all of their potential applications[134].
[134]Victoria v The Commonwealth (1937) 58 CLR 618 at 631-632; Carter v Egg and Egg Pulp Marketing Board (Vict) (1942) 66 CLR 557 at 574-576; [1942] HCA 30; The Commonwealth v Western Australia (1999) 196 CLR 392 at 417 [62], 441 [145]; [1999] HCA 5.
Havel and Sanchez have argued that "[u]nlike in the sphere of technical cooperation on aircraft safety, the international response to the contemporary threat to aviation security has lacked purposiveness"[225]. Aviation security issues were not contemplated at the time of the Chicago Convention in 1944[226]. The subsequent international response has included the Tokyo Convention on Offences and certain other Acts committed on board Aircraft (1963), the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970), and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971) with its Protocol[227].
[225]Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 174.
[226]Milde, International Air Law and ICAO, 2nd ed (2012) at 219; Bartsch, Aviation Law in Australia, 4th ed (2013) at 547 [15.15]. But see, now, Annex 17, adopted by the ICAO Council in 1974.
[227]Australia, House of Representatives, Crimes (Aviation) Bill 1991, Explanatory Memorandum at 1.
These security conventions were implemented in Australia by the Civil Aviation (Offenders on International Aircraft) Act 1970 (Cth), the Crimes (Hijacking of Aircraft) Act 1972 (Cth) and the Crimes (Protection of Aircraft) Act 1973 (Cth)[228]. Together with the Crimes (Aircraft) Act 1963 (Cth), the three security Acts described above were consolidated in the Crimes (Aviation) Act 1991 (Cth). But unlike the provisions of the Civil Aviation Law, which create the regime of regulation of the safety of air navigation, s 50(1) of the security‑related Crimes (Aviation) Act provides that the Act, ie in its entirety, "does not exclude or limit the operation of any other law of the Commonwealth, or of a State or Territory".
[228]Australia, House of Representatives, Crimes (Aviation) Bill 1991, Explanatory Memorandum at 1.
G. The WHS Act and the subject matter of s 19(2)
The WHS Act creates a wide‑reaching, general regime for workplace health and safety in the Northern Territory. The focus of this appeal was upon the obligations it creates. But it is pertinent to its wide scope, and its potential to cut across the exclusive Civil Aviation Law regime of safety of air navigation, that the WHS Act also confers broad powers on persons to do things in workplaces (defined in s 8 to include an aircraft). For instance, a person who holds a WHS entry permit may enter a workplace to inquire into a suspected contravention of the WHS Act[229]. Inspectors may enter a workplace at any time with or without consent[230] and without notice[231], examine anything at a workplace[232], seize evidence[233], and seize a workplace or part of the workplace, or plant, a substance or a structure at the workplace, which the inspector reasonably believes is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur[234]. A health and safety representative has power in some circumstances to direct a worker to cease work if the representative has a reasonable concern that the worker would be exposed to a serious risk to the worker's health and safety, emanating from an immediate or imminent exposure to a hazard[235].
[229]WHS Act, s 117.
[230]WHS Act, s 163.
[231]WHS Act, s 164.
[232]WHS Act, s 165.
[233]WHS Act, s 175.
[234]WHS Act, s 176.
[235]WHS Act, s 85.
The Work Health Authority alleged various failures by Outback Ballooning to eliminate or minimise risks posed to persons in the vicinity of the balloon's inflation fan. The provision under which Outback Ballooning was charged, s 32 of the WHS Act, creates an offence where a person fails to comply with a health and safety duty and the failure exposes an individual to a risk of death or serious injury or illness. The maximum penalty for a corporation is $1,500,000. The health and safety duty that the Work Health Authority alleged that Outback Ballooning breached is s 19(2) of the WHS Act.
Section 19 of the WHS Act relevantly provides:
"(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a)workers engaged, or caused to be engaged, by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(a)the provision and maintenance of a work environment without risks to health and safety; and
(b)the provision and maintenance of safe plant and structures; and
(c)the provision and maintenance of safe systems of work; and
(d)the safe use, handling and storage of plant, structures and substances; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
What is "reasonably practicable" in ensuring health and safety is defined in s 18:
"reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a)the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or the risk; and
(c)what the person concerned knows, or ought reasonably to know, about:
(i)the hazard or the risk; and
(ii)ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
Although the requirement of reasonable practicability in s 19(2) is formulated in similar terms to a standard of care in the tort of negligence[236], it is a higher duty than the common law[237]. An attempt to draw elements from the common law tort is "not ... helpful"[238].
[236]See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48; [1980] HCA 12; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 433 [27], 456 [105], 480-481 [213]; [2005] HCA 62.
[237]Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at 322 [51], 332 [87]; [2001] HCA 6.
[238]Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at 333 [89], citing Marshall v Gotham Co Ltd [1954] AC 360 at 373. See also Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 at 122; Dinko Tuna Farmers Pty Ltd v Markos (2007) 98 SASR 96 at 109 [42]-[43].
Section 19(2) is part of a strict liability[239] duty to "ensure" a result. The offence is based upon risk, not outcome[240]. Hence, no individual rights need be violated before the duty is breached[241]. The duty is a general one concerned with regulating safety in the workplace. That general regulation is consistent with the 1972 recommendations of the committee chaired by Lord Robens[242] to move away from a "haphazard mass of ill-assorted and intricate detail partly as a result of concentration upon one particular type of target". The WHS Act, and s 19 in particular, thus follows the recommended model of imposing general duties, supported by regulations and codes of practice, requiring employers to participate in the making and monitoring of arrangements for health and safety in the workplace[243].
[239]WHS Act, s 12B.
[240]Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at 682 [3].
[241]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 553 [13]; [2010] HCA 1.
[242]United Kingdom, Safety and Health at Work: Report of the Committee 1970-72 (1972) Cmnd 5034 at 8 [30].
[243]United Kingdom, Safety and Health at Work: Report of the Committee 1970-72 (1972) Cmnd 5034 at 152 [459], 153 [469]-[471].
As s 19(2) and other general duties in the WHS Act are designed to ensure safety, the s 19(2) duty is designed to be supplemented by regulations made by the Administrator under s 276. Detailed regulations have been proclaimed in the Work Health and Safety (National Uniform Legislation) Regulations (NT), which, amongst other things, impose a hierarchy of risk control measures for the elimination or minimisation of risks to health and safety[244]. The general duty in s 19 is also supplemented by codes of practice approved by the Minister under s 274, which are admissible as evidence of whether or not there has been compliance with a duty under the WHS Act[245].
H. Section 19(2) of the WHS Act is inconsistent with the Civil Aviation Law in its application to air navigation
[244]Work Health and Safety (National Uniform Legislation) Regulations (NT), reg 36.
[245]WHS Act, s 275.
The Attorney‑General of the State of Queensland broadly, and succinctly, identified the subject matters of the Civil Aviation Law and the WHS Act as, respectively, the safety of air navigation and the safety of the conduct of a business. That characterisation is correct. So stated, there are areas where the subject matter of the safety of the conduct of a business will not intrude into the subject matter of the safety of air navigation. But where the business relevant to the WHS Act involves air navigation, and on the assumption of the parties that the WHS Act should be construed as extending to that subject matter, there will be precise co-existence of the subject matter of the regulation of safety and, therefore, inconsistency because the Civil Aviation Law exclusively covers the subject matter of safety of air navigation. When the business conducted involves air navigation, the subject matter of the WHS Act will purportedly be the safety of air navigation.
No party disputed that the purpose of s 19(2) of the WHS Act was the prescription and enforcement of standards of safety. The parties were correct not to characterise the subject matter of s 19(2) of the WHS Act in any other way, such as general criminal law norms or the protection of individual rights. Section 19(2) regulates conduct in order to ensure safety, irrespective of whether any individual is affected and irrespective of the norms that underlie general criminal prohibitions.
Where the workplace is an aircraft, then, to the extent that s 19(2) as a general standard of workplace safety applies to air navigation, s 19(2) is inconsistent with the specific, exclusive subject matter of the Civil Aviation Law. An illustration of that inconsistency in the particular circumstances of this appeal is discussed in the next, concluding, section of these reasons, Section I. Another illustration of the inconsistency arising due to the implied exclusivity of the Civil Aviation Law can be seen in the role of the regulator.
In comparison with the general powers of the Work Health Authority and its inspectors in the Northern Territory, CASA has many specific powers, including, relevantly in the circumstances of this appeal, "for the purpose of ensuring the safety of air navigation, [to] give directions with respect to the method of loading of persons and goods (including fuel) on aircraft"[246]. The pilot in command commits an offence of strict liability if he or she allows the aircraft to take off or land without complying with a direction given by CASA about the loading of the aircraft[247]. In Airlines No 1[248], Windeyer J said that the "proper regulation in the interests of safety ... and the due execution by Australia of the international obligations it has accepted, may well make it desirable that the one authority should exercise sole control of all movement of aircraft in the air and of matters connected with such movement, that is to say of all matters connected with how aircraft may be used".
[246]Civil Aviation Regulations, reg 235(7).
[247]Civil Aviation Regulations, reg 235(8), (12).
[248](1964) 113 CLR 1 at 51. See also Airlines No 2 (1965) 113 CLR 54 at 151.
The ultimate issue on this appeal is whether preparation for a balloon take‑off, including embarkation of passengers, falls within the specific, exclusive subject matter of the Civil Aviation Law, being the prescription and enforcement of standards of safety in the conduct of air navigation.
The Work Health Authority's submission that the exclusive subject matter of the Civil Aviation Law did not extend to embarkation of passengers requires a distinction to be drawn between (i) safety in air navigation while all parts of an aircraft have left the ground, and (ii) safety during boarding, take-off, landing and disembarking.
The Work Health Authority was correct to insist that the subject matter of the Civil Aviation Law be limited to safety of air navigation rather than all aspects of safety generally. For instance, as Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ said in Construction Montcalm Inc v Minimum Wage Commission[249], "the requirement that workers wear a protective helmet on all construction sites including the construction site of a new airport has everything to do with construction and with provincial safety regulations and nothing to do with aeronautics". However, the subject matter of air navigation is not limited to the events that actually occur in the air. It involves a "broad conception going far beyond what might be called 'aeronautics'"[250] and extends to "all the matters preparatory to flying by air, incidental thereto or consequent thereon"[251]. This is consistent with the definition of "[o]perational control" in Ch 1 of Pt I of Annex 6 to the Chicago Convention as "[t]he exercise of authority over the initiation, continuation, diversion or termination of a flight in the interest of the safety of the aircraft and the regularity and efficiency of the flight".
[249][1979] 1 SCR 754 at 771.
[250]Airlines No 2 (1965) 113 CLR 54 at 136.
[251]R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 670; Airlines No 2 (1965) 113 CLR 54 at 160.
An essential matter that is preparatory to the safety of air navigation is the process of boarding the aircraft. As Taschereau and Estey JJ said in the context of considering the scope of Canadian Parliament's exclusive legislative power in Johannesson v Rural Municipality of West St Paul[252], "aeronautics"
"contemplates the operation of the aeroplane from the moment it leaves the earth until it again returns thereto. This, it seems, in itself makes the aerodrome, as the place of taking off and landing, an essential part of aeronautics and aerial navigation. ... Indeed, in any practical consideration it is impossible to separate the flying in the air from the taking off and landing on the ground and it is, therefore, wholly impractical, particularly when considering the matter of jurisdiction, to treat them as independent one from the other. ... Legislation which in pith and substance is in relation to the aerodrome is legislation in relation to the larger subject of aeronautics and is, therefore, beyond the competence of the Provincial Legislatures."
[252][1952] 1 SCR 292 at 319. See also Quebec (Attorney General) v Lacombe [2010] 2 SCR 453 at 472 [27], 513 [135]; Quebec (Attorney General) v Canadian Owners and Pilots Association [2010] 2 SCR 536 at 551 [33].
Similarly, as Jackson J said in the United States Supreme Court, from "[t]he moment [an aircraft] taxis onto a runway it is caught up in an elaborate and detailed system of controls"[253]. In the same way, the exclusive regulation of the safety of a balloon operation includes the moment when, with the inflation fan started, passengers begin boarding the balloon.
[253]Northwest Airlines Inc v Minnesota (1944) 322 US 292 at 303. See also City of Burbank v Lockheed Air Terminal Inc (1973) 411 US 624 at 633-634.
I. Conclusion
Outback Ballooning has not been charged with any offence under the Civil Aviation Law. But that does not mean that no relevant provision creating a safety offence exists under the Civil Aviation Law. To the contrary, the Civil Aviation Law contains a detailed scheme of regulation of the safety of air navigation but does so by a different approach and with different consequences.
For instance, the Civil Aviation Regulations required Outback Ballooning to keep an operations manual, made available for use by all members of operations personnel[254], containing all information, procedures and instructions necessary to ensure the safe conduct of the flight operations[255]. The breach of these regulations is an offence. Failing to comply with these regulations could also put the operator in breach of the duty in s 28BD of the Civil Aviation Act, and make it liable for the commission of an offence[256].
[254]Civil Aviation Regulations, reg 215(1), (6), (7).
[255]Civil Aviation Regulations, reg 215(2).
[256]Civil Aviation Act, s 29.
Further, Outback Ballooning's operations manual required that "[p]assengers, particularly children, will be kept well clear of the inflation fan whilst it is operating". A failure to comply with all instructions in the operations manual is an offence[257]. If that failure involves reckless operation of an aircraft then the pilot may be liable for operating the aircraft, or permitting it to be operated, recklessly[258].
[257]Civil Aviation Regulations, reg 215(9).
[258]Civil Aviation Act, ss 20A, 29(3).
Apart from questions of sovereign authority over airspace, safety has been the issue most responsible for the existence and evolution of an international aviation law regime[259]. Since World War I, the international community has been moving towards a consistent, uniform regulation of air safety. Australia has been a central participant in that process. The circumstances of this case are just a snapshot of how, for the reasons explained above, the general provision in s 19(2) of the WHS Act could cut across the specific, exclusive regime of regulation of the safety of air navigation. The subject matter of s 19(2), workplace safety, was assumed in this litigation to include safety of air navigation where the workplace is an aircraft. To that extent, it is inconsistent with the detailed, specific and exclusive approach taken to the safety of air navigation in the Civil Aviation Law.
[259]Havel and Sanchez, The Principles and Practice of International Aviation Law (2014) at 175.
The appeal should be dismissed.
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2
NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883
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