Work Health Authority v Outback Ballooning Pty Ltd
[2018] HCATrans 144
[2018] HCATrans 144
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D4 of 2018
B e t w e e n -
WORK HEALTH AUTHORITY
Appellant
and
OUTBACK BALLOONING PTY LTD
First Respondent
DAVID BAMBER
Second Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 14 AUGUST 2018, AT 10.00 AM
Copyright in the High Court of Australia
MS S.L. BROWNHILL, SC, Solicitor‑General for the Northern Territory: May it please the Court, I appear with my learned friend, MR T. MOSES, for the appellant. (instructed by Solicitor for the Northern Territory)
MR J.T. GLEESON, SC: May it please the Court, I appear with MR T.J. BRENNAN for the first respondent. A submitting appearance has been filed for the second respondent. (instructed by GSG Legal)
MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia: May it please the Court, I appear with MS Z.C. HEGER and MR T.M. WOOD, for the Attorney‑General of the Commonwealth intervening. (instructed by Australian Government Solicitor)
MR P.J. DUNNING, QC, Solicitor‑General of the State of Queensland: May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the Attorney‑General for the State of Queensland intervening. (instructed by Crown Law Queensland)
MR M.E. O’FARRELL, SC, Solicitor‑General for the State of Tasmania: May it please the Court, I appear with my learned friend, MS S. ELANKOVAN, for the Attorney‑General for the State of Tasmania. (instructed by Office of the Solicitor‑General – Tasmania)
MS K.L. WALKER, QC, Solicitor‑General for the State of Victoria: May it please the Court, I appear with MS F.I. GORDON, for the Attorney‑General for the State of Victoria intervening. (instructed by Victorian Government Solicitor)
MR G.T.W. TANNIN, SC: May it please the Court, I appear with MS J.A. GODFREY, for the Attorney‑General for the State of Western Australia. (instructed by State Solicitor’s Office (WA))
KIEFEL CJ: Thank you. Yes, Ms Solicitor.
MS BROWNHILL: Your Honours, the Court of Appeal held that two Commonwealth statutes and various regulations and legislative instruments made thereunder together comprised the exclusive law on the subject of safety in civil aviation, with the consequence that the first respondent cannot be prosecuted for a breach of the duty in section 19(2) of the Work Health and Safety (National Uniform Legislation) Act (NT) for failing to, so far as is reasonably practicable, ensure the health and safety of Stephanie Bernoth was not put at risk from work carried out as part of the first respondent’s business of taking customers for rides in hot air balloons in Alice Springs. Ms Bernoth died from the injuries she sustained when her scarf was drawn into the inflation fan that was being used to inflate the hot air balloon as she was walking to the basket to embark.
In the briefest terms, the court erred, we say, in three ways: firstly, in concluding that the Commonwealth law was the exclusive law on the subject. It construed the Commonwealth law without regard for other Commonwealth law existing at the time of the incident, namely, the Work Health and Safety Act 2011 (Cth), which conflicts with the construction of the Commonwealth law as the only law on the subject of safety in civil aviation.
Secondly, the court was led into error by following the decision of the Full Court of the Federal Court in Heli‑Aust Pty Ltd v Cahill, a decision of 2011, which contains various errors, but in particular a wrong construction of section 28BE(5) of the Civil Aviation Act, which is against the conclusion that the Commonwealth law is the exclusive law on the subject of safety in civil aviation.
Thirdly, that the court failed to properly identify the subject matter of the Territory Act which is different to safety in civil aviation and, instead, concluded that the Territory Act entered upon the exclusive subject matter of the Commonwealth law because it replicated a similar duty to one which was fashioned by the court from various Commonwealth sections and regulations and instruments, and the first respondent’s operations manual, and which the court held applied to the facts of this case.
And we say that in doing so, it adapted the duty which is contained in section 28BE(1) of the Civil Aviation Act, contrary to the terms of subsection (5), and it treated the first respondent’s operations manual as if it were a law of the Commonwealth or otherwise relevant for the ascertainment of the intention of the Commonwealth Parliament to cover the field.
The first respondent’s case is essentially that the civil aviation law is the Australian law prescribing safety standards for air navigation and air operations and providing for their enforcement and that the Territory Act did not operate on the facts of this case.
The first thing I want to do is note, by way of backdrop, the comparative maximum penalties which apply to offences under the Territory Act and under the civil aviation law. The relevant maximum penalties for offences under the civil aviation law – and I will come to describe what that is in more detail in a moment – but the penalties are found in section 29 of the Civil Aviation Act read with sections 4B(2) and (3) and section 4AA(1) of the Crimes Act 1914 (Cth).
Firstly, for operating an aircraft in contravention of section 20A of the Civil Aviation Act, which is where a person is “reckless as to whether the manner of operation could endanger” life, for a natural person the maximum penalty is five years’ imprisonment and/or 300 penalty units, which translates to $63,000. For a body corporate the maximum penalty is 1500 penalty units, which translates to a maximum fine of $315,000. For otherwise operating an aircraft in contravention of Part III of the Civil Aviation Act, the maximum penalty for a natural person is two years’ imprisonment and/or a penalty of 120 penalty units, which translates to $25,200, and for a body corporate 600 penalty units, which translates to $126,000.
Those maximum penalties are to be contrasted with the maximum penalties applying under the Northern Territory Act, sections 31 and 32. Section 31 deals with recklessly exposing a person to a risk of death or serious injury and for a natural person who is an officer of a person conducting a business or undertaking, the maximum penalty is $600,000 or five years’ imprisonment or both. For a body corporate the maximum penalty is $3 million.
Under section 32, which is the relevant section for these proceedings, for failing to comply with a health and safety duty and thereby exposing a person to risk of death or serious injury the maximum penalty for a natural person who is an officer is $300,000 and for a body corporate is $1.5 million.
EDELMAN J: Are the penalty units that you were referring to in relation to the Civil Aviation Act those that are current or those that were current in 2013?
MS BROWNHILL: Those that were current in 2013 but, I think they continue to be the same value – $210 under the Crimes Act. But, we would say that the relevant comparison point is at the time of the incident.
Your Honours, the parties in the court below accept that in identifying inconsistency between Commonwealth and Northern Territory law, the proper course is to apply, by analogy, the principles, approaches and jurisprudence applicable to section 109 of the Constitution. In short, firstly, there must be identified a “real conflict” between the two laws – and I take most of what I am about to refer to from the decision of this Court in Jemena Asset Management v Coinvest (2011) 244 CLR 508.
The first point appears at paragraph 42 of that decision. And, it must be a real conflict in the sense that the Territory law alters, impairs or detracts from the Commonwealth law – that is, undermines it in a significant and not trivial way. That appears in paragraph 41. And, the Court identified there that this will occur where it appears that the Commonwealth law is:
intended as a complete statement of the law governing a particular matter or set of rights and duties –
That is Jemena at 39 which repeats the decision of the Court in Dickson v The Queen.
As Justice Gummow put it in Momcilovic v The Queen (2011) 245 CLR 1 at paragraph 244, upon its true construction, there must be:
an implicit negative proposition that nothing other than what [the Commonwealth law] provides upon a particular subject matter [may] be the subject of legislation –
or the law. Consistently, we say, with that description, the Court in Jemena stated, or observed, that the term “cover the field”, the traditional reference to indirect inconsistency, means cover the subject matter. So, if a Commonwealth law is exclusive on a subject matter, the Territory law will not be inconsistent, in this sense, if it regulates not that subject matter but some different subject matter.
The approach which I intend to take is, as your Honours will see from the outline of oral argument, firstly, to construe the Commonwealth law, firstly, to identify its subject matter and, secondly, to discern if it is intended to be exclusive on the subject matter, and then to construe the Territory law to ascertain whether it purports to regulate the intended exclusive subject matter or to regulate some different subject matter, and then, if inconsistency does not arise in that circumstance, to go on to consider the notice of contention which raises some issues of direct inconsistency.
Turning first then to the civil aviation law and what it is, I do not propose to take your Honours on a walking tour through all of the provisions that have been referred to by the Court of Appeal or raised by my learned friends in argument. I intend to take your Honours to some of the relevant provisions in the course of argument, and I anticipate that others will do the same, but I will identify the constituent parts of the civil aviation law, particularly those referred to or relied on by the court below.
The first constituent part then is the Air Navigation Act 1920. By its long title, it is:
An Act relating to Air Navigation
By section 3A, it approves the ratification of the Chicago Convention and various amendments to it on behalf of Australia. The text of the convention and the protocols are schedules to the Act. The Court of Appeal’s decision did not expressly rest on any aspect of that Act.
The second constituent part is the Civil Aviation Act 1988. The Court of Appeal did refer to and rely on a number of provisions of this Act. Its long title is:
An Act to establish a Civil Aviation Safety Authority with functions relating to civil aviation, in particular the safety of civil aviation ‑
By Part II of that Act, the authority is established: CASA. By Part III, which is headed:
REGULATION OF CIVIL AVIATION
Division 2 deals with air operators’ certificates. The first respondent held an air operators’ certificate in relation to its hot air balloon operations. Subdivision E deals with the conditions of air operators’ certificates, or AOCs. Division 3 is headed:
GENERAL OFFENCES IN RELATION TO AIRCRAFT
That is where section 29 is located. Division 3A is headed “Serious and Imminent Risks to Air Safety”, but we note that that does not contain any offence provision. The remainder of the Civil Aviation Act essentially deals with CASA’s functionings and modes of operating, save for section 98 which is the power to make regulations.
The third constituent part of the civil aviation law is certain Civil Aviation Regulations of 1988. They are made under section 98(1) through (3) of the Civil Aviation Act. In particular, the Court of Appeal referred to Civil Aviation Regulation or CAR 215. That deals with operations manuals. The court also referred to CAR 235(7), or subregulation (7), and (7A) which gives CASA the power to give directions with respect to the methods of loading of persons and goods, including fuel, on aircraft. And the court referred to, and the first respondent relies on, some aviation orders made in the exercise of that power. Other civil aviation regulations are relied on by the first respondent. I am not going to go to those at the moment.
The next component part of the civil aviation law is certain Civil Aviation Safety Regulations 1998. Again, they are made under section 98(1) through (3) of the Civil Aviation Act. But again the Court of Appeal’s decision does not expressly rest on any particular regulation thereunder.
The next component part is certain Civil Aviation Orders made either under section 98(4A) of the Civil Aviation Act or under regulations and “containing a direction, instruction, notification”, et cetera under section 98(5) of the Civil Aviation Act. Both of those kinds of orders are given the status of a legislative instrument under the Legislative Instruments Act 2003 (Cth) respectively by section 98(4B) or 98(5AAA).
The Civil Aviation Orders or CAOs referred to by the Court of Appeal in particular are: firstly, CAO 20.9, clause 4.2.1 which deals with fuelling of aircraft with passengers on board, and 5.3 which deals with embarking or disembarking while an aircraft engine is running; next, CAO 20.16.3, clause 6A which sets out the number of ground crew members for loading manned balloons in certain circumstances; also CAO 82.7, clause 6.1 which sets out AOC conditions for charter operations in hot air balloons, and particularly Appendix 2 which provides that the chief pilot is to ensure compliance with loading procedures for balloons set out in operations manuals.
The Court of Appeal’s reasons also mentioned certain normative instruments referred to in the regulations – as being a component of the civil aviation law ‑ but the Court of Appeal’s reasons do not actually identify or refer to any particular normative instrument outside of the CAO’s and other things that I have referred to.
The first respondent now relies on the content of CASA’s publication. It is CAAP 215. It is a guide to the preparation of operation manuals. It is contained in the respondent’s book of further materials page 8 and following. That document was not tendered or referred to below. We do not accept that it is a legislative instrument which is how my learned friend characterises it, but we do not take issue with the fact that it was not tendered or put below. I leave it for my learned friend to put to your Honour how it comes before the Court on the appeal but we are content for it to be taken into account and referred to.
So it comes then to identify the subject matter of the CAL, or the Civil Aviation Law as I have just described it, for the purposes of comparison with the subject matter of the Territory Act. We say that the identification of the subject matter is a purposive inquiry for a particular subject matter and we rely on the decision again of the Court in Jemena.
At paragraph 40, I think I have mentioned that is where the Court said that “cover the field” means cover the subject matter. At paragraphs 54 to 59, so this is in the joint book of authorities, volume 3 at tab 45, paragraphs 54 to 59. In those paragraphs the Court holds that a State award directed to portable long service leave benefits in the construction industry, was not inconsistent with a federal award dealing with all of the obligations and entitlements of employers and employees in respect of long service leave, because they were on different subjects and the latter had nothing to say about the former. So noting, we say, that it is relevant that the civil aviation law does not deal in its terms, with the obligations of employers or others whose business involves work by workers and the risks to those workers and other persons by the work that they do.
At paragraph 56 in Jemena, the Court identified the mischief to which the State Act was directed, namely the portability of long service leave benefits in the construction industry, and held that the federal law did not cover that subject matter.
A similar approach, we say, was taken by the Court in the decision of R v Winneke; Ex parte Gallagher (1982) 152 CLR 211. The decision appears in the book of authorities at page 1642. It is volume 4, number 54, and at page 218, lines 30 to 40, Chief Justice Gibbs concludes that the two laws dealt with different subjects, namely, inquiries under Commonwealth authority and inquiries under State authority respectively. His Honour reached that view by reference to the object, meaning the purpose, of each Act. That appears at lines 30 to 40. His Honour had earlier referred to where the two laws are made for the same purpose, as opposed to what his Honours concludes, which is the two laws being made for different purposes.
In a similar vein, I just mention his Honour Justice Kitto’s observations in the Airlines (No 2) Case (1965) 113 CLR 54. The observations are at pages 121 to 122, where his Honour was observing that:
the federal Regulations and the State Act each employ a licensing system –
which was directed to serve a particular end, but those ends were different, and that that meant that:
the two sets of provisions are directed to different subjects of legislative attention.
So, on the basis of those authorities and others that we have referred to in our written submissions, we say that the identification of a law’s subject matter is to be identified with a degree of particularity and by reference to its purpose. The first respondent appears to accept that the subject matter is identified by reference to purpose, but says that the subject matter and purpose of both the civil aviation law and the Territory Work Health and Safety Act is the safety of persons and the management of risks to that safety.
Our first response to that, your Honours, is that, if that is right, it is impossible to find the implicit negative proposition that nothing other than what the Commonwealth law provides on a particular subject matter may be the subject of the legislation or the law. The civil aviation law is clearly not intended to be the only Australian law dealing with the subject matter safety of persons and management of risks. So, on that basis, there would not be an indirect inconsistency.
The first respondent also refers to a difference, or acknowledges a difference between the objects of the laws, by which they actually mean the targets of the laws or the scope of their operation, and submits at paragraph 95 of their submissions that there is no difference between the targets of the civil aviation law and the Territory Act in relation to commercial air operations because in that sphere the objects are the same – the crew, the passengers and those whose work may be put at risk by aviation work.
KIEFEL CJ: How does the Northern Territory describe the subject matter of the civil aviation law?
MS BROWNHILL: We accept, as does the Commonwealth, that generally speaking one can describe the civil aviation law subject as safety of air navigation, but we do not accept that it is exclusive in that description in the way defined by the first respondent, which is they define it to include all matters preparatory to flying by air and incidental thereto. We say it does not in its ‑ ‑ ‑
NETTLE J: But you would accept that the embarkation is part of air navigation?
MS BROWNHILL: As a subject matter, yes.
NETTLE J: That is to say, loading the passengers into the aeroplane, or onto the balloon in this case, is part of air navigation.
MS BROWNHILL: Certainly, but not as an exclusive subject matter, yes. So the idea that in commercial air operations the objects are the same, which is what is put by the first respondent, the response is that the civil aviation law is not confined in its operation to commercial air operations. It applies to all aircraft operating in Australian territory and to all Australian aircraft outside Australian territory, and the Territory Work Health and Safety Act is not confined to aviation workplaces; it extends to all workplaces in the Territory. So there is clearly a substantial difference between the targets of the two laws, notwithstanding that there might be an overlap in the centre of a Venn diagram, if you like, where the two targets are the same.
GAGELER J: If the Commonwealth part of the Venn diagram does cover that field, then to the extent that there is overlap, whatever the target of the State law or the Territory law, there is an invasion of that field, is there not?
MS BROWNHILL: To the extent that we are speaking of the exclusive subject matter, yes.
GAGELER J: Your argument is really about exclusivity ‑ ‑ ‑
MS BROWNHILL: Yes.
GAGELER J: ‑ ‑ ‑ and does it really go beyond pointing to section 28BE(5)?
MS BROWNHILL: Yes. There are a number of aspects to the argument. We positively point to 28BE(5) but respond to various other aspects that are identified by the first respondent and say why it is that those do not create the implied proposition.
GORDON J: Can I be more direct: do you need any more than 28BE(5)?
MS BROWNHILL: That is what we place the emphasis of our argument on. Our positive case is founded on subsection (5), yes, your Honour. We resist the other matters which are put, as put by the first respondent, as resisting what appears to be a clear textual indication in subsection (5) that the civil aviation law is not to be “the law” on safety of civil aviation or safety of air navigation.
Just to finish the point about the difference of targets, we say that acknowledgment of different targets of the law demonstrates that the laws are on different subject matters. As I have said, the first respondent frames the exclusive subject matter of the Commonwealth law differently with respect to safety, and they say it is the safety of air navigation and define it as all matters preparatory to flying by air and incidental thereto.
NETTLE J: Would not the titles of both be the same in the intersection set in your Venn diagram?
MS BROWNHILL: Yes.
NETTLE J: There they absolutely coalesce, do they not? They are the one target, which is the safety of that operation, in this case the loading of the balloon.
MS BROWNHILL: We say that that intersecting part is broader than the exclusive part. Alternatively, we say that they are on two different subject matters.
NETTLE J: They are not on two different subject matters at that point within their intersection set that you recognise. They are both specifically directed to the safety of the procedures to be employed in loading the aeroplane or balloon with people.
EDELMAN J: You would have to say, would you not, that the purposes are different in relation to those targets at that point in order to say that the subject matters do not overlap.
MS BROWNHILL: The purposes, if one defines them with the particularity that is required, are different in the sense that one relates to workplaces and work health and safety and the other relates to aviation or air navigation.
GORDON J: Your short point is that you can have laws directed at the same target – i.e. directed at the same persons or directed at the same activities ‑ but have two different subject matters. One is dealing with air navigation and one is dealing with workplace health and safety.
MS BROWNHILL: And they can complement or supplement each other.
KEANE J: If the deceased had been accompanied by her mother who was not flying – who was just a visitor – and what happened to the deceased happened to the mother, the mother is not involved in loading the aircraft. She is not flying. There could not be any doubt, could there, that there was a contravention of legislation intended to preserve her safety at what is a workplace.
MS BROWNHILL: I would accept that, your Honour. We say that it extends, also, to what happened to Ms Bernoth. The concept of civil aviation in the way described by the first respondent would extend to all manner of things relating to, somehow, preparation of flight. So, there could be trip hazards on the air bridge leading to the aircraft or the driving of a baggage cart or the pushing of a passenger in a wheelchair through the airport to get to the aeroplane. All of those things could be preparatory to flight or involve the status of a person as a passenger but it does not mean that the civil aviation law is, and can be, the only law operating in respect of the safety of that person or those things.
EDELMAN J: Is your submission, in effect, that the subject matters do not overlap because one needs to characterise the subject matter of the former as the safety of persons in relation to air navigation and, the subject matter of the second, is the safety of persons in relation to workplaces.
MS BROWNHILL: Yes, we would accept that.
GAGELER J: I actually have a lot of difficulty with that. The subject matter of a law is defined by its legal operation.
MS BROWNHILL: To the extent that it is relevant in relation to indirect inconsistency, the relevant sphere of operation is what is exclusive. So, a law may have multiple layers and operations and subject matters – you can define or identify a general subject matter – aviation – but in its exclusive operation, the subject matter may well be more confined than that.
GAGELER J: Yes. So, it really comes back to exclusivity and the extent of exclusivity, does it not?
NETTLE J: It is not really subject matter at all in this critical intersection set in your Venn diagram. Evidently, the subject matter at that point is the same – the safety of the persons involved in that procedure. The question is, are one or other of the sets of provisions exclusive?
MS BROWNHILL: That is part of our case, yes, absolutely, your Honour. The second part is that two laws can – as her Honour Justice Gordon put to me – operate in respect of the same targets and do the same things, although we do not necessarily say that they do the same things.
NETTLE J: So long as the superior one is not intended to be the exclusive repository of the provisions.
MS BROWNHILL: Even if it is intended to be exclusive, then you have really have a debate about what is the extent of the subject matter, yes.
NETTLE J: But we have no debate here, have we? The critical subject matter is the safety of the persons being loaded onto the balloon.
MS BROWNHILL: That is not the way the first respondent describes the exclusive subject matter. They describe it as all matters preparatory to flying.
NETTLE J: Okay, we can put those aside because we do not have to worry about them. Let us concentrate on the people getting into the balloon. At that point the critical subject matter is their safety, is it not?
MS BROWNHILL: At a broad level, generalised level, it is the safety of persons either in that workplace or persons involved in that aviation operation, which may well be the same persons.
NETTLE J: Yes. Thank you.
MS BROWNHILL: If I can move then to the process of construction by which one would identify whether there exists the implicit negative proposition that nothing other than what the civil aviation law provides upon the subject matter may be the subject of legislation or the law, the first matter to point to is the terms of the civil aviation law.
In their written submissions, the first respondent suggests that exclusivity is expressed in the Civil Aviation Act – this is at written submissions 24 – and add at 29 that exclusivity is further expressed in the CARs and the CASRs, but it does not actually point to any express statement that the Civil Aviation Act is to operate, for example, to the exclusion of all other laws or to the exclusion of all laws made by States and Territories. Instead, it points to various provisions of the Act and the regulations and so on, from which it seeks to imply the negative proposition.
KIEFEL CJ: The question might be, as a matter of construction: why would the civil aviation laws in this context have to be exclusive? State or Territory provisions dealing with the safety of passengers and persons involved in the aviation operation, how do they impinge upon the operation of the Commonwealth law?
MS BROWNHILL: Yes. That is certainly an aspect of the construction, the contextual aspect that we rely on, the existence of the other Commonwealth law, the Work Health and Safety Act of the Commonwealth.
KIEFEL CJ: You say that the civil aviation law does not require exclusivity for its operation, and the Northern Territory or State laws to similar effect do not detract from its operation.
MS BROWNHILL: Our submission in a nutshell, your Honour. We refer to two things. In addition to the Commonwealth law, which I will come to in a moment, we rely on 28BE(5). To address BE(5) requires reference to BE(1). In considering that provision, I can address your Honours on the Court of Appeal’s error in relation to what it identified as the chief pilot’s duty, which is in the reasons of Justice Southwood at paragraph [48].
That identification of the chief pilot’s duty led to the court’s conclusions that the exclusive field of the civil aviation law extends to the loading of the passengers onto the balloon in this case, and that the Territory law entered into that exclusive field. The chief pilot’s duty rests substantially on 28BE(1) because it is the only possible source of a duty in the civil aviation law to, with reasonable care and diligence, take all reasonable steps to do anything.
According to the Court of Appeal, the things that were to be done were to point out the dangers of the fan and to supervise the area around the fan. Those two things can only have been sourced from the first respondent’s operations manual. In particular, the Court of Appeal’s reasons at 14, identified certain aspects which I will just take your Honours to briefly.
The extracts from the operations manual are in the appellant’s book of further materials at page 5 and following, with the particular parts referred to by the court below. First, on page 10, item A4.07, the second paragraph which refers to the P.I.C, which can be taken to actually refer to the pilot in command:
The P.I.C. is responsible for the supervision and surveillance of passengers on the tarmac area. Particular care shall be exercised when in vicinity of the inflated balloon.
And then the third paragraph:
Passengers, particularly children, will be kept well clear of the inflation fan whilst it is operating.
On the following page at the bottom, item A6.18 requires all pilots to comply with the checklists in Part B. Then over the page, the checklist sets out all pilots’ responsibilities. Under item 2), it is to:
Give a flight briefing to passengers.
It should cover the following points including, relevantly, the last one, viii, to:
Point out the dangers of the inflation fan and smoking
And then item 3, to brief the passengers who are assisting with the inflation of the balloon . Ms Bernoth was not one of those, she was not assisting with the inflation, but the relevant paragraph is iii:
If a person is allocated the task of supervising the inflation fan they will not be wearing clothing that can be entangled in the fan. The importance of standing behind the line of rotation of the fan blade will also be emphasised.
And the court also referred on the following page, page 13, item D1.02, and to the requirement under [a], the third paragraph:
A crew member will supervise and keep clear the area around the fan and basket at all times during inflation.
That applies to tethered operations and this was not a tethered operation; this was a free operation.
KIEFEL CJ: But your primary submission is that the manual is irrelevant, is it not?
MS BROWNHILL: Yes.
KIEFEL CJ: So why are we dealing with it?
MS BROWNHILL: I am only highlighting what the Court of Appeal relied on, which is sketchy at best, and it also gives your Honours a sense of what is relied on by the first respondent in terms of the so‑called detail of the civil aviation law.
KIEFEL CJ: But your argument, as I understand it, is that the Court of Appeal error commenced with an assumption of exclusivity and after that it becomes, the reasoning is perhaps less helpful, if you are right about that point.
MS BROWNHILL: Yes.
KIEFEL CJ: Their Honours felt constrained to follow previous authority, which led them into an assumption of exclusivity.
MS BROWNHILL: Correct. They did that and this chief pilot’s duty was also a critical aspect of the reasoning and I accept that, if you are with us on the exclusivity issue, this chief pilot’s duty thing simply falls away, but it was also a central plank in the court’s reasoning and led to the conclusions that it was exclusive and that the Territory law entered into the exclusive arena.
So in contrast with what is in the operations manual, none of the civil aviation regulations, the orders, the civil aviation safety regulations or the European standards for hot air balloons, or the CASA guide to the preparation of operation manuals, contain the things that the Court of Appeal placed in this chief pilot’s duty, the duties relating to the inflation fan.
So the operations manual is prepared pursuant to Civil Aviation Regulation 215. That is in the joint book of authorities at page 228. Your Honours will see from subregulation (2) that operations manuals are to be written by the holder of an AOC and they are idiosyncratic to the operations of the AOC holder. They are also subject to change according to the idiosyncrasies of the holder of an AOC by subregulation (5).
So our position is that the operations manual is not a law of the Commonwealth Parliament, it is not a legislative instrument, it is not extrinsic material within the meaning of section 15AB of the Interpretation Act. So it is not something that can be taken into account to decide whether the Commonwealth Parliament intended its law to be the law on the subject.
GAGELER J: Regulation 215(9) is a law for the purposes of section 109 of the Constitution, is it not?
MS BROWNHILL: The regulation itself?
GAGELER J: Yes.
MS BROWNHILL: Yes.
GAGELER J: Which imposes a duty which, in some circumstances, may give rise to an operational inconsistency with a State or Territory law.
MS BROWNHILL: In the sense of direct inconsistency, I would accept that, your Honour. But, the creation of the obligation to comply with what is in the operations manual still does not cure, in our submission, the difficulties of the nature of the operations manual as being entirely personal to the holder of the AOC and its operations. It is not a law of the Commonwealth in that generally applicable sense. It does not apply, in its terms, generally. So, that error renders the Court of Appeal’s decision unsound.
If we then go back to subsection (5) – subsection (5) refers to the duty in subsection (1) and says it “does not affect” – and then what is not affect is broadly and generally expressed. It contemplates the ongoing existence, despite subsection (1), of:
any duty imposed by, or under, any other law of [either] the Commonwealth, or of a State or Territory, or under the common law –
In its literal meaning those words would capture both the duty in the Work Health and Safety Act (Cth), section 19, and the Northern Territory’s section 19(2). So, the question is, why should that provision not be read in accordance with its literal meaning?
The Court of Appeal followed the reasoning in the decision of Heli‑Aust in this regard. That decision is in the joint book of authorities. It is at page 1010, and following – item 44 in volume 3. The relevant paragraphs of the plurality reasons – his Honour Justice Flick did not deal with this issue – but the plurality reasons at paragraphs 70 to 74. At 71, their Honours say that the word “any”:
does not presuppose that there are any other laws operating.
But, in our submission, simply enacting the provision presupposes the existence of other laws, including the common law or, at the very least, the possibility thereof.
Also at 71 the plurality says that subsection (5) refers only to this section as not affecting other duties, so it does not confine the exclusive operation of any other aspect of the Civil Aviation Act. That may be so but we say that subsection (5) is undeniably a statement that the Civil Aviation Act is not intended to be exclusive in the whole of its operation. Contrast that with what their Honours say in paragraph 73, to the effect that it says little about whether the Civil Aviation Act is intended to cover the field.
At paragraph 72 their Honours say that subsection (5) only “has work to do in fields removed” from the exclusive field, “the maintenance of safety in civil aviation”. We say that is the wrong approach because it does not consider subsection (5) as a term of the Civil Aviation Act as part of the process of constructing the civil aviation law to identify the implicit negative proposition. Rather, it construes or concludes that the civil aviation law is exclusive as to safety in civil aviation and then seeks to construe subsection (5) by reference to that conclusion to only have work to do in things unrelated to safety outside the exclusive subject matter.
Subsection (1) clearly captures things impacting on the safety of air navigation. Subsection (5) speaks generally of the duty in subsection (1), so it is not confined in any sense in its terms to things outside the safety of air navigation. To read the words in subsection (5) as saying something other than what they say requires a reading‑in of words or a reading‑out of words and clarity about what those words would be. The only warrant for doing it is the conclusion you have already reached, that the civil aviation law is exclusive. We say that is the wrong approach and that is why the court erred in that respect. Subsection (5) is a textual indication in the Civil Aviation Act itself against the negative implicit proposition.
In relation to some matters relied on by the Court of Appeal or put by my learned friends to resist what appears in subsection (5) and that textual indication, the Court of Appeal, at paragraphs 8 and 77 of its reasons, relied on the observation in Heli‑Aust in the plurality reasons at 68, that:
the safety of civil aviation is, by its very nature one that would seem to cry out for one comprehensive regulatory regime –
That is a reference to Justice Evatt’s comments in Victoria v Commonwealth, where his Honour observed that:
There the subject matters practically permit only one system of law and one system of administration.
That may be accepted to a point because the general subject matter of safety in civil aviation or safety of air navigation includes various subtopics which we would accept that that observation would apply: things like the rules of the air, for example, or navigational aids, aircraft communications.
But that observation does not sustain the submission that the civil aviation law and the Civil Aviation Act as a component part of it are to be the law regulating all matters preparatory to flying and incidental thereto. For the reasons I have already said, there are other things ‑ trip hazards on the air bridge or baggage carts or hygienic storage of food that is going to be eaten on the aircraft by passengers or the like – where there could clearly be complementary State and Territory legislation dealing with those things.
Both the Court of Appeal and the first respondent have emphasised the complex and detailed nature of the civil aviation law but the complexity is to be expected, given that the civil aviation law covers an extremely broad general subject matter, safety in air navigation. It is to be expected that you would find volumes of legislation about the multitude of subtopics that fall within that more general subject matter.
As for its detail, the provisions are not detailed about what specifically is to be done in relation to the loading of a hot air balloon or the passengers – or the inflation of a hot air balloon. They do not prescribe any safety standards on those topics because they are largely indirect facilitative provisions in the sense that they require an operator to produce an operations manual or a flight manual and those are to contain procedures regarding embarkation of passengers and inflation of balloons, but they leave the actual content of the operations manual to the individual operator, and that will vary according to the operations.
Consistently with that submission, for example, can I ask your Honours to turn to Civil Aviation Order 20.16.3, clause 6A? It is at page 177 of the joint book of authorities. The first respondent suggests that this clause 6A deals with – this at paragraph 60 of their submissions – pilot and ground crew responsibilities during the loading of a balloon. But what 6A is actually – what it provides is that a balloon:
engaged in charter operations need not carry a cabin attendant if –
and then certain criteria are set out there, including that the operations manual sets out what the pilot in command’s responsibilities are and that there be a certain maximum number of passengers, and so on. So there are not any safety standards or processes or procedures spelled out, save to the extent that you are to have one or two ground crew.
GAGELER J: Are you still dealing with the “covering the field” argument at this stage?
MS BROWNHILL: Yes, your Honour, yes. So, this is part of the construction of the civil aviation law and what it comprises to determine whether it is to have an exclusive operation or not.
GAGELER J: What section does this order link to? What section of the Act?
MS BROWNHILL: This is an order made under section 98 of the Act which permits the making of civil aviation orders or regulations. Your Honour can see that on page 174 of the order itself. So, it says it is made under – I have to withdraw what I said about section 98. It is made under regulations 208 and 235 which are directions, et cetera, within the meaning of section 98(5), I think it was, of the Act.
GAGELER J: I am sorry, just to understand this part of your “covering the field” argument, what is it directed to? What section do you say does not cover what field?
MS BROWNHILL: This is in response to the first respondent’s submission that the civil aviation law exclusively covers the field of safety in air navigation and one can discern that from a whole bunch of things, including that these parts, or subparts, of the civil aviation law are detailed and complex and relate to things, including getting on a hot air balloon. We say that complex civil aviation law, as a whole, may be detailed but not detailed as to prescribe safety standards so that there is room left for the State and Territory work health and safety laws because these prescriptions do not, in their nature, clearly set out everything that one should do in order to conduct a safe workplace.
GAGELER J: Would it matter if they did, on your argument? I mean, do you really need to find tiny gaps in the detail of the scheme to make out your argument?
MS BROWNHILL: The submission is to demonstrate that the level of detail or intricacy relied on by the first respondent is really not there. That is as far as it goes.
The first respondents also suggest that the construction of the civil aviation law is as exclusive in its operation is informed by the fact that it endorses the Chicago Convention and they rely on Chief Justice Barwick’s observations in Airlines (No 2) to the effect that the convention confers:
an obligation . . . to secure uniformity of regulations, standards –
and so on, regarding aircraft personnel airways throughout Australia as the means to attain uniformity in international air navigation.
Our responses to that submission are that the Convention does not, in its terms, require that there can only be one federal applicable law directed to ensuring, in all respects, the safety of passengers or the safety of passengers when embarking on an aircraft because Article 12 of the Convention requires uniformity of regulations in relation to flight and manoeuvring of aircraft. Article 37 refers to international air navigation. None of the articles go any further than that.
Similarly, we say that the Convention does not require that there can be no extra or additional safety obligations on local operators other than those imposed by the contracting State in accordance with the Convention.
Airlines (No 2) does not sustain the first respondent’s case because, at the risk of stating the obvious, it was not about which safety regime, Commonwealth or State Territory, could apply to regulate matters conducted in air navigation. It was about which aircraft and which operators could operate commercial airline services, those licensed by the Commonwealth or those licensed by the State or both. And the majority held, with Chief Justice Barwick in dissent, that the Commonwealth law was not exclusive in that respect.
The other point we make in response is that the first respondent has not made out what is essentially an implicit submission that there is not the requisite degree of uniformity of standards applying to air operations involving workplaces by virtue of the combined operation of the section 19 duty in the seven jurisdictions which have adopted the model Bill. So seven out of the nine jurisdictions in the country all say the same thing about work, health and safety law and there are very similar duties in the other two jurisdictions that have not adopted the model Bill. So, to the extent that uniformity is necessary, it is not clear where that lack of uniformity might be found given the state of work, health and safety law in the States and Territories and the Commonwealth.
The first respondents also rely on annexure 19 to the Convention. The short response to that is that it was not enforced at the time of the incident which occurred on 13 July 2013. This is apparent from the terms of annexure 19. Annexure 19 is at page 555 of the joint book at tab 32, volume 2.
The cover page of the annexure states that the first edition “was adopted by the Council” ‑ that is the Council of the International Civil Aviation Organization ‑ on 25 February, but did not become applicable to Australia as a contracting state until 14 November 2013, after the incident.
The way that it proceeded to become applicable is set out on page 567 and the Table A, which identifies that it was adopted on 25 February, effective on 15 July and applicable on 14 November, and those stages are explained by reference to Article 90 of the Convention, which is at page 478 of the book and that article shows the process for the applicability of annexed annexures.
There is an adoption by the council at a meeting. It is then submitted to contracting States. It becomes effective within three months after the submission or such longer time as council prescribes. Council then notifies the contracting States of its coming into force and it is then applicable. So that happened after the incident.
If I can then move to what is the other major plank in our case: the context of other Commonwealth laws, particularly the Work Health and Safety Act. The first respondent poses this issue as whether the passage of the Work Health and Safety Act 2011 (Cth) had any effect on the pre‑existing exclusive operation of the civil aviation law, whereas our case is that the Court must construe the civil aviation law and its operation at the time of the incident in 2013 and in particular ask whether it contains the implicit negative proposition.
In doing that, a construction of the civil aviation law as “the law” gives rise to a conflict with the terms of the Work Health and Safety Act (Cth) being a law of the same polity. Consequently, that conflict gives rise to a constructional choice which the Court must resolve either by concluding that there is no implicit negative proposition or by reading down the Work Health and Safety Act (Cth).
The principles of statutory construction we say that apply are set out in our written submissions, paragraphs 20 to 22. We say that on those principles it is not principally a question of which came first, the exclusive civil aviation law or nationally uniform work health and safety laws, because where there has been an evolving statutory picture on both subject matters the proper construction can get obscured by the kind of chicken‑and‑egg debate that goes on between the Commonwealth and the first respondent in terms of which came first – which was uniform first.
We, with respect, adopt the observations of your Honour Justice Gageler in Commissioner of Police v Eaton (2013) 252 CLR 1 at paragraphs 98 to 99 about the presumptions of the law of laws of the same polity. Essentially, the law presumes that a legislature by its statutes does not intend to contradict itself, so laws of the same legislature should be construed so far as possible in harmony and not in conflict.
KIEFEL CJ: This submission is addressed to the operation of the Commonwealth equivalent of the Work Health and Safety Act with the civil aviation laws.
MS BROWNHILL: Yes.
KIEFEL CJ: Which of the key provisions of the Commonwealth Work Health and Safety ‑ ‑ ‑
MS BROWNHILL: Firstly, your Honour, section 8 of the Commonwealth Act is found in the joint book of authorities at page 324. The Commonwealth Act is in volume 2, tab 24. Section 8 says that “workplaces” is defined to include aircraft, and then section 19 of the Commonwealth Act imposes duties in the same terms as those in the Territory Act but it imposes duties to ensure the health and safety of workers at work and other people from work. It must follow that that would include workplaces, and so aircraft.
So it means that the Commonwealth Work Health and Safety Act, in its terms directed to safety, is to operate in respect of work occurring within the subject matter of air navigation.
KIEFEL CJ: Does it contain offence provisions or refer to other offence provisions?
MS BROWNHILL: The Commonwealth Act is in very similar terms to the Territory Act. So it includes, for example, section 32, which creates the offence of having a duty and breaching it and exposing a person to risk.
GORDON J: Do you place any reliance on 12A?
MS BROWNHILL: Yes, your Honour. In addition to section 19 and the operation of the Act in relation to air navigation, firstly section 3(1) of the Commonwealth Act sets out the main object of the Act and it is:
to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by -
Then reference specifically to (h):
maintaining and strengthening the national harmonisation of laws . . . to facilitate a consistent national approach to work health and safety -
And noting here that the Commonwealth Act was passed – and this is found in the explanatory statement to the Act, joint book of authorities pages 1804 to 1805 – this Act was passed to implement the model Work Health and Safety Bill within the Commonwealth jurisdiction so as to form part of the nationally harmonised system in which all States and Territories agreed to implement the model bill, so bills in the same terms. The other section we place reliance on is section 12(9), which notes that both the Commonwealth Act and:
a corresponding WHS law may apply in relation to a worker or a workplace –
as covered by the Commonwealth Act. Then subsections (10) through to (13), which deal with a situation which provide or prevent a person being prosecuted for offences under both the Commonwealth laws and the State or Territory laws, or vice versa.
KIEFEL CJ: That might be a convenient time. The Court will adjourn for 15 minutes.
AT 11.17 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.30 AM:
KIEFEL CJ: Yes, Ms Solicitor.
MS BROWNHILL: Your Honours, continuing on with my references to the Commonwealth Work Health and Safety Act, I just note, in relation to my reference to section 3(1) where what is addressed there is reference to facilitating:
a consistent national approach to work health and safety in this jurisdiction –
to note, of course, that what that means is, in the Commonwealth jurisdiction in the sense of the application of the Act to Commonwealth public authorities and, essentially, Commonwealth workplaces, the Commonwealth Act only applies to those types of entities, which is why there is a necessary national scheme involving the laws of the States and Territories.
Secondly, in relation to section 12 and the references to a corresponding work health and safety - or “a corresponding WHS law”, which is the way it appears in the Act - section 4 defines that term by listing each of the work health and safety laws of the States and Territories.
Then, your Honour Justice Gordon pointed out – or referred me to section 12A which we mention in our reply. Section 12A expressly carves out from the operation of the Commonwealth law, safety in relation to maritime operations, and the first respondent appears to suggest that maritime operations and civil aviation are essentially treated in the same way by Commonwealth laws. But it is clear here that maritime law is expressly out and there is no similar express carve‑out of aviation law. So they are not treated the same way under the Work Health and Safety Act.
So what is contemplated by the Commonwealth Work Health and Safety Act in its terms, as confirmed by the extraneous materials, is that there would be State and Territory laws made in the same terms imposing a duty to ensure the health and safety of workers at work and other people from work, including that undertaken at workplaces, including aircraft.
So, we say that it follows from that, that the Commonwealth Act contemplates the operation of section 19(2) of the Territory law in respect of aircraft, which means that there is a conflict between the Work, Health and Safety Act (Cth) and a construction of the civil aviation law which implies that it was to be the law with respect to the safety of air navigation.
So how is it that the conflict is to be resolved? On our case, it is to construe the civil aviation law so that it is not the law applying to the facts, either because it is not the law on the safety of air navigation including all things preparatory to flight and incidental thereto, or because it is the law on that subject matter, but the work, health and safety laws are laws on a different subject matter.
The first respondent’s case is that one should construe the civil aviation law as the law, and then read down the Work, Health and Safety Act (Cth) so that it does not contemplate State of Territory laws which apply to aircraft, and to do that you would have to read down the terms of the Commonwealth Act and its application to aircraft.
The court below did not refer to the Work, Health and Safety Act (Cth) at all, so it did not identify or resolve the conflict between these two Commonwealth laws, perhaps because it uncritically followed the decision of the Full Court in Heli‑Aust regarding the operation of the then existing Occupational Health and Safety Act (Cth) And the plurality reason suggested that that Act was irrelevant to the section 109 question, that is at paragraph [82] of the reasons.
In that paragraph, the plurality held that any conflict which one might find between the two Commonwealth laws was to be resolved by two principles of construction for determining the interaction between Commonwealth laws, either that the general workplace safety law yields to the specific aviation safety law or, alternatively, that the later civil aviation law impliedly repealed the earlier Occupational Health and Safety Act.
And then the plurality goes on to say that if the civil aviation law was not the exclusive law about safety in air navigation and that subject matter was also regulated by the Occupational Health and Safety Act (Cth), then it followed that the field was exclusively regulated by both of those Acts.
We say that that reasoning is flawed and/or does not apply to resolve the present conflict between the civil aviation law and the Work Health and Safety Act (Cth). Firstly, the approach is wrong because the court did not properly consider the conflict between their construction of the civil aviation law and the other Commonwealth law and did not consider whether there was an alternative constructional choice open which avoided that conflict and so, thereby, the court was led into error.
Secondly, we say that one cannot resolve the conflict by having the express terms of one Act yield to what is said to be implied by the terms of another Act, let alone an Act that only has an exclusive operation if you add on delegated legislation. Thirdly, of course, one cannot take the approach of implied repeal leading to a construction of the civil aviation law as exclusive now because the later law is the Commonwealth work health and safety law, not the civil aviation law.
Fourthly, the idea that the civil aviation law and the Commonwealth work health and safety law together exclusively regulate safety in air navigation is inconsistent with the passage of the latter as the implementation of the model Bill in the context of a national scheme in which States and territories would also pass the same laws, and it is also inconsistent with the terms of the Commonwealth law such as sections 12(9) through to (13) which contemplates the operation of State and Territory laws.
So, the first respondent’s approach to resolving the conflict is to suggest that one should read‑down the Work Health and Safety Act (Cth) so that it does apply on aircraft, as its terms provide, but only in relation to things that do not fall within the subject, safety of civil aviation. So, for example, only in relation to health but not safety or only in relation to matters involving flight crew as workers that will not affect the performance of their aviation safety functions.
We say that is a lot to read into the Work Health and Safety Act (Cth). It would involve the Court in an exercise of legislative drafting essentially and would add a new element to any work health and safety prosecution because it would have to be determined whether a particular workplace issue or risk was one which affected the performance of aviation safety functions or not. It would also require something of a strict delineation between workplace issues or risks that did affect that performance and those that did not, and in the real world that kind of delineation is unlikely to be clear.
The first respondent also suggests that giving this construction to the Work Health and Safety Act (Cth) and State and Territory Acts alike will enhance the goal of national harmonisation of work health and safety laws but, in our submission, that would simply compound the problem because of the difficulties I have identified operating both in relation to the Commonwealth jurisdiction and in relation to all of the States’ and Territories’ jurisdictions as well. We say that is not the preferable construction.
The other thing on this subject, your Honours, is to briefly mention another Commonwealth law which we say indicates that the civil aviation law is not the law on the safety of air navigation, and that is the Crimes (Aviation) Act 1991 found in the joint book of authorities at page 277. It is tab 19 of volume 1. Sections 19 to 22A and 25, the Act sets out various offences directed to acts jeopardising the safety of aircraft and aerodromes, and so on. The simple proposition is that those provisions indicate that the civil aviation law which is not defined to include this Act is not the only law on the subject of safety in civil aviation.
This was the view taken by the Queensland Court of Appeal in the decision in R v Morris [2004] QCA 408. At paragraph [37] the Court held that the statute demonstrated that the Civil Aviation Act and the Civil Aviation Regulation which was in issue in that case did not evince:
an intention to cover the field of offences relating to the use of aircraft to the exclusion of other legislation ‑
including State law. We say it does a similar thing here. The other aspect of the construction argument is the consequence which my learned friends point to of our construction of the civil aviation law as not being the law.
It is put against us that it is improbable in the extreme that Parliament intended that standards regarding the safety of crew and passengers on board a flight would change as between orders in the Australian jurisdiction and that this would be the consequence of the civil aviation law not being the law.
That, of course, presupposes that there is some material inconsistency as between State and Territory law and none has been pointed to, but of course it ignores the operation of the civil aviation law in its ongoing way and the direct inconsistency, which would always operate to prevent an inconsistency in that sense. We say that that consequence is not a consequence which flows from our construction.
The next phase then is in relation to the Territory Work Health and Safety Act. We say that, as a matter of construction, the civil aviation law is not intended to be the law as it applies to the events occurring in this case and it is only if we are wrong about that that one needs to then identify the subject matter of the Territory Work Health and Safety Act.
I have already addressed your Honours on this point essentially, but just by reference to both the long title of the Territory Act and its objects clause, which is contained in section 3, we say that it is a law regarding the elimination or minimisation of health and safety risks to persons arising from work and workplaces, which is different to the safety of air navigation or the safety of civil aviation.
Your Honours, that is all I was intending to say about indirect inconsistency. It remains to deal with the notice of contention and the direct consistency matters. I intend to do that now, unless your Honours have a different approach.
KIEFEL CJ: Thank you.
MS BROWNHILL: The first respondent’s notice of contention is contained in the core appeal book at page 111. Ground 1 of the notice of contention refers to direct inconsistency between sections 19(2), 27 and 32 of the Territory Work Health and Safety Act as against sections 28BD and 29(1) of the Civil Aviation Act, together with Civil Aviation Regulation 215 and Civil Aviation Order 82.7.
The written submissions, however, at paragraphs 118 to 121, do not refer to section 27 of the Territory Act, so I am putting that to one side. Nor do they refer to Civil Aviation Order 82.7, so again I am putting that to one side, and instead I refer to Civil Aviation Regulation 215.
So the inconsistency identified is that there are two duties imposed by the Commonwealth and the Territory laws, which are said to be different and conflicting, and this is supported by the table in the submissions of the first respondent on pages 28 and 29.
Of course, the fact that the table highlights differences between the two duties is not enough. What needs to be shown is either or both. That the duty under Civil Aviation Regulation 215, which is a duty to deal with safety risks in the operations manual, is the only duty regarding safety risks intended to apply to operators, so the section 19(2) duty under the Territory law is inconsistent.
So there is this area of liberty which has been designedly left by – or deliberately excluded by the Commonwealth law, or secondly, that an operator cannot comply with both of the duties. And both of these propositions appear to be put, although not specifically, and are said to flow, it appears, from the exclusive control, so it is put, of the pilot in command, which is provided for by Civil Aviation Regulation 224.
As to the first proposition, that an operator’s obligation for safety of its aviation operations goes no further than a duty to have an appropriate operations manual, seems implausible and also is contrary to provisions of the civil aviation law itself which set out duties, other duties, on an operator relating to its aviation operations. Section 28BE(1) is an example. We have already been to that.
That duty, a duty to take all reasonable steps to ensure activities covered by the AOC are done with a reasonable degree of care and diligence, would surely affect the safety of people. And there are also others like section 30DB which is to:
not engage in conduct that constitutes, contributes to or results in a serious and imminent risk to air safety.
As to the second point, we say that the section 19(2) duty under the Territory law may well be fulfilled, at least in part, by producing an appropriate operations manual and, in addition, the section 19(2) duty is only to ensure as far as reasonably practicable, the health and safety of persons is not put at risk. Those words, “as far as reasonably practicable” are defined in section 18 and in section 18(d), reference is made to giving consideration to the availability of the “ways to eliminate or minimise the risk”.
So, the words “as far as reasonably practicable” can readily take account of any control over safety by the pilot in command which is exclusive to, or to the exclusion of, the operator, which seems to be what is put in relation to the operation of CAR 224. So, if the operator does cease to have control or the capacity to control safety at some point during a flight, then its duty to ensure safety, under section 19(2), ceases to be reasonably practicable at that point. That means that it is possible to comply with both duties. In relation to the operation of CAR 224, it is contained in the joint book of authorities at pages 235 to 236. Subregulation (2) provides that:
A pilot in command of an aircraft is responsible for:
(a)the start, continuation, diversion and end of a flight by the aircraft; and
(b) the operation and safety of the aircraft during flight time; and
(c) the safety of persons and cargo carried on the aircraft; and
(d)the conduct and safety of members of the crew on the aircraft.
Then, subsection (3) provides that:
The pilot in command shall have the final authority as to the disposition of the aircraft while he or she is in command –
And we say that refers back to the operation of regulation (2) while they are responsible under that subregulation. The term “flight” is not defined in the Civil Aviation Regulations but it is defined in the Civil Aviation Act, section 3. That is in the joint book of authorities at page 40. In the case of a lighter‑than‑air aircraft, which a hot air balloon is, “flight” means:
the operation of the aircraft from the moment when it becomes detached from the surface of the earth or from a fixed object on the surface of the earth –
So the first respondent is wrong to say that from the embarkation of the first passenger the pilot in command’s command commenced and the operator’s capacity to control was exhausted, because the pilot in command’s command is of the flight, and flight does not start until the balloon is detached from the surface of the earth. Similarly, the pilot in command’s responsibility for the safety of passengers is only for the passengers when they are carried on the aircraft; that is, during flight or at least once they have got onto the aircraft, and the incident here occurred off the aircraft and before Ms Bernoth got on the aircraft.
NETTLE J: Would the loading not be part of the start within the meaning of subregulation (2)?
MS BROWNHILL: We would say not, in the sense that the start of the flight is at that point of ‑ ‑ ‑
NETTLE J: Lift‑off.
MS BROWNHILL: Lift‑off or separation from the surface of the earth.
GAGELER J: Does the obligation of the pilot under regulation 224 do anything to displace the obligation of the owner or the operator of the aircraft?
MS BROWNHILL: No. That is our point, that what is set out in 224(2) is specific but it certainly does not cover all aspects of safety of the operation, and there is no reason to conclude that the operator’s obligations in relation to safety should cease for the duration of the flight and then spring back into existence again when the flight is over.
GAGELER J: There is no conflict between regulation 224 and section 28BE(1).
MS BROWNHILL: No. So, for those reasons, we say that ground 1 is not made out in the notice of contention. Ground 2 refers to section 19(2) of the Territory Act and CAR 92(1)(d). CAR 92(1)(d) is found in the book of authorities at page 254. It provides:
A person must not . . . engage in conduct that causes an aircraft to take off from, a place that does not satisfy one or more of –
And then there are a series: (a) to (c) deal with where the place is an aerodrome or authorised for use as one; and (d) refers to where:
the place . . . is suitable for use as an aerodrome for the purposes of the . . . taking‑off of an aircraft;
and, having regard to all the circumstances of the proposed landing or take‑off . . . the aircraft can land at, or take‑off from, the place in safety.
So, the first respondent’s case is that section 19(2) of the Territory law by reference to what is set out in the particulars of the complaint would require the erection of a physical barrier excluding the inflation fan – sorry, excluding passengers from a safe distance from the inflation fan, whereas CAR 92(1)(d) would prohibit that conduct because it would render the place of take‑off not suitable for take‑off.
The essential difficulty with that submission is that there is no foundation for the assertion that the erection of a barrier on the land to separate passengers and crew from the inflation fan in proximity to the balloon while it is being inflated and might take‑off would render the place unsuitable as a place for take‑off. There is no foundation in the evidence for that assertion, nor in the reasons below. So there is no reason to assume that both duties cannot be complied with. We say that the two obligations are complementary and supplementary to one another and not contradictory and, for that reason, ground 2 is not made out.
The only other matter I had to address, your Honours, is in relation to the effect of any inconsistency between Northern Territory law and Commonwealth law. The Court of Appeal concluded that section 19(2) of the Territory law was valid but inoperative to the extent of its inconsistency with the civil aviation law, and so did not impose any duty on the first respondent in the circumstances. None of the parties have taken issue with that conclusion.
KIEFEL CJ: I thought the Commonwealth put on submissions about this being power rather than ‑ ‑ ‑
MS BROWNHILL: I was just about to come to that, yes. So there is no ground of appeal relating to it; there is no notice of contention relating to it. The Commonwealth makes submissions about the consequence of inconsistency, but we say they should not be entertained on this appeal, essentially because none of the parties at any level of the proceedings have made any submissions about, for example, whether what the Commonwealth puts is the correct construction of the Northern Territory (Self‑Government) Act or the operation in this case of section 98(7) of the
Civil Aviation Act which is the provision that deals with inconsistency between a Northern Territory law and the regulations; nor whether section 59 of the Interpretation Act of the Territory would operate. That is the law that provides that laws are to be construed within power.
So there have been no submissions about the effect of that provision in this case or how it would operate, nor has there been any submission about whether what the consequence would be is that section 19(2) of the Territory Act and the other provisions which are said to be inconsistent would be wholly invalid and have been wholly invalid since its enactment in 2012, raising questions about the prosecutions that have occurred pursuant to the provisions.
So what we would say is that if your Honours do find inconsistency, the proper order would simply be to dismiss the appeal without addressing that as an issue and in that instance the Court of Appeal’s orders would stand, which allows the appeal from the - the orders of the Court of Appeal would be dismissed and the complaint would have been dismissed. So we would end up with the Court of Summary Jurisdiction’s order that the complaint be dismissed, which is as far as it should go. Unless the Court has any other questions ‑ ‑ ‑
KIEFEL CJ: Yes, thank you. Solicitor-General for the Commonwealth.
MR DONAGHUE: Your Honours, the focus of the Commonwealth’s oral submissions is on the role of the subject matter of a law in the inconsistency analysis. Of course, the context in which the inconsistency issue arises in this case is an asserted inconsistency between Commonwealth and Territory law but, as we have submitted in writing, we contend that the same principles apply in that context as apply under 109, and none of the other parties are here to take issue with that proposition.
The subject matter of a law has been recognised as critical to the operation of section 109 for a very long time, although the use of that particular phrase seems to come in and out of currency. Sometimes the word “field” is used instead.
One sees the concept in the foundational analysis of Sir Owen Dixon in Ex parte McLean. If I could invite your Honours to go to that case, it is in volume 3 behind tab 43 of the folder. It is (1930) 43 CLR 472. Your Honours might recall this was a case about the consequences ascribed to a failure to perform contractual obligations under both Commonwealth industrial legislation and a specific State law where different penal sanctions were involved in respect of a failure of an employee to perform their obligations.
If your Honours turn to page 483 in the report, you see a fairly famous analysis of the operation of the section 109, noting at the end of the first paragraph on the page that the context was that the same acts or omissions were subject to sanctions under the two different regimes, the federal enactment and the State law, so two laws applying to the same facts. Sir Owen Dixon’s analysis from the next paragraph refers to laws of the Parliaments of the Commonwealth and the States each legislating on the same subject and prescribing:
what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical –
That is said to be settled by Hume v Palmer:
But the reason is that, by prescribing the rule to be observed, the Federal statutes shows an intention to cover the subject matter and provide what the law upon it shall be.
Nowhere in this analysis do you see any reference to covering the field. It is all about covering the subject matter of the law. His Honour then picks up a concept that, again, finds the expression in later authorities in the next sentence:
If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency –
arises. The inconsistency arises not from the:
coexistence of two laws which are susceptible of simultaneous obedience. It 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 –
will be. So, the language suggests a fairly specific analysis of subject matter. Then, at the bottom of the page:
Although neglect by a shearer to perform such a contract constitutes an offence against Federal law, this does not arise from any statement by the Federal Legislature of what the law shall be upon that subject.
So, throughout that page, one sees the concept being analysed. But then, interestingly, two pages on at 485, his Honour returns to this question. I will come to a passage in the middle of the page in a moment, but if your Honours could start near the bottom of 485, at about point 8, there is a reference to penalising conduct on “a very different subject”. Then, about seven or eight lines up from the bottom:
It may perhaps follow from this rule that, while the arbitrator can make his award the exclusive measure of industrial rights and duties between the disputants –
So, we are talking about a law that, on its subject matter, is exclusive -
the laws of a State which do not regulate industry at all are not inconsistent with the exclusive authority which the Commonwealth statute gives to the award merely because they deal with specific conduct which, as between the disputants, is dealt with by the award.
That is, even where you have an exclusive Commonwealth law, the fact that a State law deals with the same facts as are the subject of the exclusive Commonwealth law is not itself enough to give inconsistency. Why not? Because the subject matter may be different. His Honour then gives the famous example of the sheep shearer:
For example, if the award in this case expressly forbad shearers to injure sheep –
So, the Commonwealth law says you cannot injure sheep -
it would not be a necessary consequence that a shearer who unlawfully and maliciously wounded a sheep he was shearing could not be prosecuted under the State criminal law for unlawfully and maliciously wounding an animal.
The reason for that, as the rest of that paragraph explains, is that the laws would be upon different subject matters. The State criminal law is on a different subject matter to the State industrial law, notwithstanding that both of them are applying to the same facts.
Now, if your Honours go back to the middle of page 485, you see that that analysis does not apply in the case where a federal statute forbids a particular cause of action ‑ course of action, rather. And his Honour says, in effect, in would not matter if they had different subjects in that scenario. And the same point is made in very clear terms, I will not take your Honours to it, but by the whole court in Telstra v Worthing at paragraph 32.
And the difference we submit is this. That in cases where the inconsistency that is said to arise is a conflict between the State or Territory law on the one hand and the negative implication, or the negative penumbra of a Commonwealth law, that is, that the Commonwealth law be the only law on the subject, subject matter is critical because the whole idea is that the Commonwealth law has exhaustively prescribed on a particular subject matter. So you have to ask whether the State law concerns that subject matter.
But where the Commonwealth law makes a particular rule or confers a particular immunity and a State law collides with it, what may be somewhat loosely is the indirect – sorry, the direct inconsistency category, subject matter does not…..
So the submissions that I am about to develop are submissions that concern the circumstances in which subject matter analysis might mean there is no indirect inconsistency but they say nothing about the case of that direct conflict, which as Sir Owen recognised in that passage and as the Court recognised in Telstra, would require a different analysis.
Where that takes us, in our submission, your Honour, is to the analysis we have set out in paragraphs 4 and 5 of our written outline. So one starts first and most critically with an analysis involving the construction of the Commonwealth law and that analysis has two components.
First, construe the Commonwealth law or the relevant part of the Commonwealth law to identify its subject matter and, second, having identified that subject matter, again construe the Commonwealth law to ask whether it is intended to be a complete exhaustive or exclusive statement on that subject matter, whatever you have identified it as being. And, the answer to that second question then guides the analysis that follows down one of two separate but interrelated paths, which is what we have endeavoured to identify in paragraph 5.
So, if the answer to the question was the Commonwealth law intended to be a complete exhaustive or exclusive statement on its subject was that it was not so intended, then one might have concurrent operation of the Commonwealth and State laws, even if they have the same subject matter because the Commonwealth law has not purported to cover it completely and you may have an intermeshing or interlocking of laws all subject to any direct inconsistency.
If, on the other hand, the Commonwealth law was intended to be a complete or exhaustive or exclusive statement of its subject matter, that is still not the end of the analysis. You still then need to ask, “As a matter of construction of the State law, is that law on the same subject as the Commonwealth law”, because if it is on a different subject we have Sir Owen Dixon’s sheep example. Both laws applying to the same facts, one criminalising the malicious wounding of an animal, one regulating industrial rights and obligations, both applying to the same sets of facts, but able to do so concurrently, even though the Commonwealth law is exclusive on its subject.
So that, in my submission, highlights, with respect, the danger of the Venn diagram analogy. The Venn diagram analogy tends to suggest that the analysis is to be undertaken on two dimensions and that, once one has the law applying to a set of facts that fall within the sphere of the Commonwealth law, that would be the end of the analysis.
GAGELER J: Your submission slips between subject matter – which is a legal subject matter – and facts, which are the things on the ground to which the legal obligations apply, I think.
MR DONAGHUE: With respect, it does not, your Honour. In my submission, the analysis should not be undertaken at the level of the facts to which the matter applies – the subject matter analysis of both Commonwealth and State law is undertaken as a matter of construction of the law. But what it seeks to highlight – and I will develop this – is that subject matter is not just the persons or conduct that are captured by law. It is also the characteristic of those persons or conduct that the law seeks to fix upon. I am worried about using a term borrowed from a different context, but the criterion of operation of the law is relevant to its subject matter and that law, of course, can often be relinked to the purpose of the law. Why is the law regulating?
So if a particular law says, “I am regulating this conduct because you, the person who are engaging in this act, are an employer” then the fact that the law is fixing on the status as an employer is part of the identification of the subject of the law.
To take a different example, if the law applies to you because you are a member of the military, so you are subject to a military disciplinary code, then the fact that the law is prohibiting drink‑driving is one aspect of the subject matter of the law, but the subject matter of the law is not the same as the common laws of traffic that prohibit everyone from drink‑driving because it is fixing upon the characteristic of the person by reason of something special about them for a particular purpose and that is McWaters v Day.
EDELMAN J: There is, then, on this approach a vast gulf between direct and indirect inconsistency. Indirect inconsistency requires this exercise of characterisation but direct inconsistency does not.
MR DONAGHUE: Characterisation of subject matter; that is so. And where one actually has a collision between the laws, some positive provision of the law, then the State law cannot interfere with it. Inconsistency will arise. But where the question is not a collision of that kind but it is said, “Well, we cannot show any direct inconsistency but we, nevertheless, say the Commonwealth has exhaustively regulated the topic,” it is correct, in our submission, to say, “Well, even if you make that good, has the State entered that topic?” And it does not enter the topic just by regulating the same facts.
In my submission, one sees this analysis – and I will make it good by a number of authorities – in a number of decisions of the Court, going right back to McLean. Winneke; Ex parte Gallagher is an example of it. McWaters v Day is an example of it. The Morris Case that the learned solicitors for the Northern Territory mentioned is an example of it.
The Commonwealth law, assumed to be an exhaustive regulation of civil aviation, does not mean that if you fly a plane in a way that is criminal, you have not committed an offence against State criminal law. If one transplants the September 11 facts to Australia, the civil aviation law does not make murder a crime, but that set of scenarios – well, that would be terrorism offences under Commonwealth law. But it would highlight the fact that the Commonwealth law, regulating the safety of civil aviation, has not specified all of the legal consequences that might follow from the unsafe operation of a plane. One needs to engage in the subject matter analysis.
So, building on that, we submit that one can answer the inconsistency allegation in this case in one of two ways. One can say, to the extent that the subject of workplace health and safety falls within the Commonwealth civil aviation laws, the Commonwealth laws were not intended to be exclusive on that topic; or one can say, the subject matter of the Northern Territory workplace health and safety law is different from the subject matter of the civil aviation law and so, even applying to the same facts, there is no inconsistency between them.
GAGELER J: So on the second of those strands of the argument, are you going to get to a submission to say that the subject matter of section 28BE(1) of the Civil Aviation Act is different from the subject matter of section 19(2) of the Work Health and Safety Act of the Northern Territory?
MR DONAGHUE: Yes, I am, although, while I do intend to do that, I think in doing that I will not be meeting the case in quite the way that the respondent has put it because they do not identify the subject matter at the level of the particular provision that your Honour puts to me. They identify it at a much higher level of generality. So I need to meet that, but I will also address the provision your Honour mentions.
But if I could start, before getting to those two strands, consistently with 4.1 of the outline, with the two stages with the question of what is the subject matter of the Commonwealth law and, in our submission, as I think I said in answer to a question from your Honour Justice Gageler, we submit one cannot identify the subject matter of the law by its factual application in this case. So the question is not - the subject matter of the Commonwealth law cannot be identified, or the State law for that matter, as the loading of passengers onto balloons.
They are the facts that are said to engage the operations of both laws, but the subject matter should be identified as a matter of statutory construction, and the parties have pitched the analysis at a much more general level in relation to both laws.
KIEFEL CJ: I think in Morris it was described as offences relating to aviation safety, was it not?
MR DONAGHUE: I think it was, your Honour, yes.
KIEFEL CJ: Would you disagree with that?
MR DONAGHUE: Offences related to aviation safety? Well, that would be too narrow.
KIEFEL CJ: Too narrow?
MR DONAGHUE: Yes. If one is looking – as an intervener we are not seeking to quibble with the way the parties have framed the case and the case has been framed in relation to a body of Commonwealth law that includes all of the laws that the learned solicitors took you through this morning. But their subject matter goes well beyond simply creating offences in relation to the operation of aircraft.
KIEFEL CJ: What you are saying is that one must construe the whole of the Commonwealth law on the topics that it seeks to cover, rather than viewing the Commonwealth law through the prism of the particular provision in the Territory law which gives rise to the question here.
MR DONAGHUE: I am certainly saying one should not do it through the eyes of the Territory law. One could, in my submission – and it would often be more helpful to do so – break up a Commonwealth law. So, 109 analysis obviously does not have to take place at the level of the Act. Indeed, it usually does not take place at the level of the Act. It usually takes place at the level of particular provisions or parts or divisions of the Act, and one could then conduct the analysis at that level.
KIEFEL CJ: But you would only narrow it in the way that has been discussed if you were looking for either a direct inconsistency or an operational inconsistency which could arise in the context of the civil aviation laws quite easily?
MR DONAGHUE: Quite easily, absolutely, and we do not back away from that. There would obviously be circumstances where the Commonwealth law would render State and Territory laws inoperative in that way. There may also be areas within the Commonwealth civil aviation law – flight paths seem like an obvious example – where one would say without hesitation that the Commonwealth law does exhaustively regulate that sub‑area within the Act. But on the first of the two ways, we submit that the topic can be addressed, which I think we have this in common with the Northern Territory. We say, to the extent that one is looking at the Commonwealth law and saying is it exhaustive on the topic of workplace health and safety, the answer should be no.
KIEFEL CJ: You have identified in paragraph 9, the subject matter of the civil aviation law is the regulation of the safety of air navigation.
MR DONAGHUE: Yes.
KIEFEL CJ: The emphasis on “regulation”?
MR DONAGHUE: Yes, and we added “regulation” to what we put in writing because we think it necessary to do so in order to emphasise the extent to which other laws can operate in the safety of air navigation field. The Commonwealth law, Crimes (Aviation) Act that your Honours were taken to a short time ago is a good example of that.
KIEFEL CJ: But they operate in different ways as duties and ‑ ‑ ‑
MR DONAGHUE: They do, they operate - but possibly in relation to the same facts, there will certainly be planes that are being flown that will be subject to both laws. But they are operating in reference to different ways, different standards, different subject matter, we would say.
Now, in our submission, one gets some assistance in identifying the approach to the pitching of the level of the subject matter from the analysis the Court conducted in Jemena, and I know that you have been taken to it, but if your Honours could go back to it briefly, it is behind tab 45 in volume 3. It is (2011) 244 CLR 508.
The issue in Jemena was whether a certified agreement under Commonwealth law that included obligations in relation to the granting and payment of long service leave, operated to exclude the portable long service leave regime created under State law. The attempt was made - if your Honours go to paragraph 54 just to see this, the argument was made at the end of paragraph 54 by the appellant that:
the Full Court erred in not characterising the State Act scheme as pertaining to the employment relationship between employers and employees.
So the attempt was made to pitch the subject matter of the Commonwealth law as the employment relationship between employers or employees, but the Court did not analyse the issue at that level of generality, as one can see from the discussion that follows, particularly in paragraph 58 at the top of page 529, where the Court emphasised:
The importance of clearly identifying the field said to be covered exhaustively -
And there it was said the State regime for portable long service leave created an entitlement to the payment a benefit. It was a different topic to the topic of long service leave, and so there was no intersection or no inconsistency, notwithstanding the apparent close relationship between the subjects of the Commonwealth and State law.
While your Honours have Jemena, if you could go back to page 524, paragraph 39, one sees the Court – the Court in Jemena quoting Dickson, quoting Telstra v Worthing, quoting Justice Dixon in the Kakariki Case, but that demonstrates the long history of endorsement of Justice Dixon’s analysis in a series of cases that includes McLean and Victoria v The Commonwealth. Having approved that analysis which notes with the quote from, I think, Worthing about covering the field, the Court says in paragraph 40:
The expression “cover the field” means “cover the subject matter” –
NETTLE J: Mr Solicitor, just to pause at 58, the way in which you define the subject matter is at a far higher level of abstraction than what seems to be suggested ought be the approach in 58 of Jemena.
MR DONAGHUE: Yes, I accept that, your Honour. We are seeking to engage with the arguments in the ways that they have been put by the parties and the parties have pitched them at that level. The inconsistency that the respondent asserts is inconsistency which identifies the purpose of the Commonwealth - or the subject matter of the Commonwealth law, and one sees this in paragraphs 92 and 93 of our friend’s submission – the safety of persons and the management of risks to that safety or the reduction and control of risks of death or injury to people.
So it is pitched at the level of what is said to be the subject matter of the entirety of the Commonwealth legislative regime on this topic, and we are seeking to answer it in that way. But we do submit that one could quite properly conduct the 109 analysis by breaking the Commonwealth legislative regime down quite a lot. In another case one could easily say, well, the subject matter of the Commonwealth law – if, for example, a State purported to interfere with the flight paths that could be followed by planes, one would not need to look at the whole of this Commonwealth regime. You could just identify the bits of the Act that deal with that and say, well, the Commonwealth law exhaustively regulates that subject matter; that is the end of the case.
GORDON J: Is there any more to say that there were aspects to the subject matter?
MR DONAGHUE: Yes, or different dimensions to the subject matter, and one has to make a choice as to how it is identified and, depending on the level of generality that is chosen, that will have implications for the way the argument plays out. So, the wider the subject matter is said to be, the harder it will be to say that the Commonwealth has exhaustively legislated on that subject matter.
If we take our friend’s subject matter - safety of persons and the management of risks to that safety - if that really is the subject matter of the Commonwealth civil aviation law, it is obviously not exclusive on that topic, because there are lots of laws about the safety and management of risks to persons other than the Commonwealth aviation law. So, as one narrows down the subject matter, it gets easier to say that it is exhaustive on a particular topic.
We have accepted that one way of identifying the subject matter of the Commonwealth law is in the way that we have put in paragraph 9 of the outline, but ultimately our argument is that, if one pitches the subject matter at the level we have accepted in paragraph 9 then, to the extent that that subject matter includes workplace health and safety, it is not exhaustive. But on the other limb of our argument, it does not actually matter at what level one pitches the subject matter because the State law will clearly be, in our submission, on a different topic, for reasons that I will come to.
If your Honours still have Jemena, can I just also ask your Honours to note, just following the passage that I read in paragraph 40:
“cover the field” means “cover the subject matter” –
their Honours note that there has been criticism of the notion of “covering the field”. In footnote 75, you see a reference to two judgments of Justice Evatt in Stock Motor Ploughs Ltd and in Kakariki. I will not, in light of time considerations, take your Honours to those passages, but the essence of Justice Evatt’s criticism is that the “cover the field” metaphor is unhelpful because his Honour says that legislation has little resemblance to a geographical area – he says in Stock Motor Ploughs at 147. In Kakariki his Honour returns to the criticism and emphasises that the subject matter cannot be equated to the metaphor of a two‑dimensional field.
In our submission, the reason that the two‑dimensional field analysis can be problematic is helpfully explored in an article by Professor Goldsworthy that we have included in the materials. But, for my purposes, I can just take your Honours to a quote in our written submissions, if your Honours have those, at paragraph 14. This is really the point that I foreshadowed in answer to a question from Justice Gageler a few moments ago. On page 5 of our submissions, at the end of paragraph 14, we pick up Professor Goldsworthy’s analysis that:
The subject matter of the law is the regulation of persons, things, activities or transactions by reason of their possession of some particular characteristic. For that reason, two laws addressing the same persons, things, activities or transactions may have different subject matters, even when they apply to the same set of facts.
As the quote emphasises:
Subject matters describe groups of things according to certain defining characteristics . . . But all things belong to many different subject matters –
So laws can focus on different characteristics, apply to the same facts but nevertheless have different subject matters.
We say that is the sheep example from McLean, but McWaters v Day is a good example of the same thing. A person driving a car while intoxicated commits an offence against State criminal law and against military discipline law. The same law applies to the same person doing the same thing, but the laws are not inconsistent. The reason for that is that they identify and operate upon different characteristics of that person. McWaters v Day is a strong illustration of the example.
NETTLE J: Whereas Jemena and ABC are the other way.
MR DONOGHUE: Jemena said that this is actually a different subject matter.
NETTLE J: Whilst held to be so.
MR DONOGHUE: Yes.
NETTLE J: But the analysis would appear to be the converse of the McLean sort of approach of generality.
MR DONOGHUE: This is why I said the points are interrelated, your Honour. One can get to the same answer by a process of reasoning that often looks quite similar, by saying that the Commonwealth law on the subject is not exclusive, so that a State law can operate in a way that intermeshes with or supplements the Commonwealth law. Or one can say that the State law is just on a different topic and therefore, without any need to intermesh, the State law survives. Either one of those analyses can give you the conclusion.
EDELMAN J: Except the same factors that are going to tell you whether the Commonwealth law is exclusive or not are going to be the same factors that inform the level or the generality at which you characterise subject matter, are they not?
MR DONAGHUE: Not necessarily, your Honour.
EDELMAN J: What factors would be different?
MR DONAGHUE: To take the McLean example, the Commonwealth law regulating the industrial rights of the worker is exclusive on that topic, but it does not mean that the worker who, while working, breaks the State criminal law by wounding the sheep, that that State law cannot apply to that set of facts. But that does not deny the exclusive nature of the Commonwealth law regulating industrial rights and obligations. It just says that one set of facts might, by reason of a focus of the law on different characteristics, give you a different conclusion.
EDELMAN J: But that is because you are characterising the subject matter as being in the industrial field, and then saying it is exclusive within that field.
MR DONAGHUE: Within that field but not exclusive within other fields. That is why we proposed the stepped analysis in paragraph 4. You identify the subject matter of the Commonwealth Act, and then you ask: is it exhaustive? If it is not, the State law can supplement it; if it is, what is the subject matter of the State law?
GAGELER J: Mr Solicitor, the difficulty is that “subject matter” at this level of analysis is no more informative than “field”. Really, what you need to do is to look at the legal operation of the Commonwealth Act and to ask, “Is that legal operation, on the proper construction of the Act, exhaustive of a set of rights or relations?” But it is the set of rights or relations, whether they be military discipline or industrial obligations and rights, that gives you the relevant subject matter or field. It does not really matter what metaphor you use, does it?
MR DONAGHUE: It does not matter as long as the field analogy does not lead to the conclusion that, because the Commonwealth law applies to this person doing this thing, that is the end of the analysis.
In my submission, there can be no doubt that the Commonwealth law dealing with military discipline is exclusive. That must be so but the exclusivity of the Commonwealth military discipline regime, including within its sphere of operation the drunk driving of a car, does not exclude the State law. Why not? Because the State law is engaging with that set of facts by reason of a different set of characteristics to the military law. So I do not know that I disagree with what your Honour is putting to me.
GAGELER J: Why is it not simply because the Commonwealth law has nothing to say about the criminal liability of the person who happens to be a soldier under State law? Is that not that the analysis?
MR DONAGHUE: It has nothing to say about it, notwithstanding that it subjects the soldier to punishment for doing the same thing that the State law punishes.
One cannot say in this case, to revert to that, that because one can bring within the sphere of operation of the Commonwealth law the loading of balloons by reason of instruments made under regulations made under the Act, one can bring it within the Commonwealth law, that that gets you in terms of identifying inconsistency. The mere fact that the Commonwealth law has within its sphere of operation the loading of the balloon does not mean it is on the same subject matter or that it relevantly regulates the rights of the parties on the issue of workplace health and safety.
In the same way that the military law does not have anything to say about the criminal liability of the driver, the civil aviation regime for the balloon has nothing to say about the workplace health and safety liability of the operator. That is another way of putting it.
We submit that one could do the same kind of analysis in the Morris example with criminal laws. One could deal with a similar analysis in the Airlines case with different licensing regimes applying to the same people who want to fly the same planes. But the two regimes can operate together because they are dealing with a different subject matter. One is about safety; one is about economic control of transport.
I have referred your Honours to paragraphs 92 and 93 of the first respondent’s submission where, under the heading “The Subject Matter of the Law”, they identify the subject matter at the very high level of safety of persons or management of risks, without, in that formulation, any confinement to aviation at all in their characterisation of the subject matter of the Act.
They do that because they suggest that one should draw a distinction between the subject matter of the Act on the one hand and the object on the other. One sees that particularly at paragraph 95 of our friend’s submissions.
Tellingly, in our submission, there is no authority cited to support that distinction. And it is a distinction, in our submission, that cannot stand because if one takes, for example, two laws dealing with safety, one applying to the maritime industry and one applying to the operation of land transport equipment, on that analysis of our friends, because the subject matter of the law is the same, one could have inconsistency between those two laws even though they cannot possibly apply to each other.
The object of the law is not something that can be separated out from the identification of the subject matter of the law. It is an integral ingredient of the proper analysis.
Furthermore, to suggest, as our friends do in paragraphs 92 and 93, that the subject matter of the law is the safety of persons and the management of risk is under‑inclusive as a description – both under and over‑inclusive as a description of the operation of the Commonwealth law because the Commonwealth law is not just about the safety of persons, it is also about the safety of property – as you see, expressly, in provisions such as section 20A, section 24(2) of the Civil Aviation Act.
While probably not a major point, in paragraph 93 of our friends’ submissions, they note that the objects of the Civil Aviation Act “refers to the avoidance of accidents or incidents”, being terms that are not defined but they pick up – or they refer to – the cognate definition in the Transport Safety Investigation Act. I do not think I will hand that definition up to your Honours but we note that the part that is referred to there, “An accident occurs when a person dies or suffers serious injury”, is only one of three separate limbs of the definition of “accident” in that Act and the other two focus on property.
So, one cannot accurately characterise the subject matter of the Commonwealth Act as about the safety of persons because it is much wider. On the other hand, one also cannot – the characterisation is over‑inclusive because the Commonwealth law plainly is not an exhaustive statement of all of the relevant safety laws. For example, it says nothing about product safety, food safety, traffic safety, any of those other things that would fall within the very wide formulation our friends have adopted.
There is, if your Honours still have our friends’ submission, an interesting approach reflected in paragraph 100, which then refers back to paragraph 79 of those submissions where their level of analysis seems to be pitched somewhat differently. This is picking up the reference to the OHS and WHS Acts.
I should note for the avoidance of confusion it seems that in this part of our friends’ submissions they use “WHS Act” to mean the Commonwealth WHS Act. One sees that “the Territory Act” is defined in 94 as the Territory Act. In other parts of our friends’ submissions they use the “WHS Act” to mean the Northern Territory Act as it is defined at paragraph 2. We think our friends’ submission at paragraph 100 is to say that the Commonwealth WHS Act can operate, and they say that both laws apply to workplaces physically located on the aircraft – see paragraph 79.
So it appears that our friends accept that at least the Commonwealth Workplace Health and Safety Act will apply during – on an aircraft even when the aircraft is in flight for certain particular reasons. That, we say, is correct for the reason that the laws are on different subject matters but the correctness of the concession in relation to the Commonwealth Workplace Health and Safety Act points to the same conclusion, in our submission, for the Territory Act because the obligations that the two Acts impose are in relevantly identical terms, as the Northern Territory Solicitor has already highlighted.
Your Honours, can I briefly make a submission that we have developed in writing on the question whether the Commonwealth Act was intended to be exhaustive of the subject of workplace health and safety? The Territory has developed a submission based on the Commonwealth Workplace Health and Safety Act and that history. We have made a submission that draws on a different part of the legislative context which is the state of workplace health and safety law in Australia at the time the civil aviation law was enacted.
What that law showed is that following the Robens Report in the United Kingdom, most Australian jurisdictions changed the model that was used for workplace health and safety law to move away from prescriptive specific obligations to instead impose what can fairly be described as “outcome orientated” duty. So, instead of saying you have to take reasonable care to do x and y, the legislative framework shifted so that employers were subject to an obligation to ensure a safe workplace by reference to the outcome.
One had, at the time of the enactment of the Commonwealth laws, provisions of that kind enforced in New South Wales, Victoria, Western Australia and South Australia, as well as in the Northern Territory and we have listed them in footnote 72 of our submissions. It is true, as the respondents point out in their submission, that those laws were not identical and it is also true that they could be supplemented by industry codes or by regulation but, in our submission, the important point is that responding to the Robens Report, the way in which the topic of workplace health and safety was regulated shifted to focus on the imposition of positive duties to ensure an outcome, a safe outcome. One looks – that the Commonwealth Act, as your Honours know, was significantly amended in 1995 with the creation of CASA and by then some additional jurisdictions, Queensland and the ACT had also, I think, come on board.
So, one had in Australia at that time and also in the Commonwealth Act, an approach that while not entirely uniform reflected an acceptance of the appropriate way to go about regulating workplace health and safety. One sees in the very detailed, notwithstanding the huge volume of the Commonwealth law, not a single provision imposing an obligation of that kind.
So, what one ends up confronted with is the proposition that either the Commonwealth did intend to exhaustively regulate workplace health and safety in the civil aviation context and to do so pursuant to a model that was different to the model that applied in all jurisdictions and in all other industries; that is one possibility. Or the other possibility is that the Commonwealth did not intend to touch that subject at all but to allow the State and Territory laws to supplement the Commonwealth civil aviation regime so that one would have, in the civil aviation industry as in all other industries, an approach based on these positive outcome obligations. That, we submit, is the far more likely conclusion.
KIEFEL CJ: Yes, that might be a convenient time. The Court will adjourn until 2.15.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
KIEFEL CJ: Yes, Ms Solicitor.
MS BROWNHILL: Your Honours, I rise simply to correct what I said about Justice Flick in Heli-Aust not dealing with the construction of section 28BE of the Civil Aviation Act. His Honour did, of course, address the construction at paragraphs 167 to 175 of the reasons but not in any way that differs, in our submission, significantly from the way dealt with by the plurality. May it please the Court.
KIEFEL CJ: Thank you. Yes, Mr Solicitor.
MR DONAGHUE: Your Honours, could you turn to section 28BE of the Civil Aviation Act. I propose to make two submissions to conclude the submissions on the first limb of our argument – that is, that the regime is not exhaustive with respect to workplace health and safety laws, and then to turn to the question of different subject matters, the other limb of the case, and to directly address Justice Gageler’s question to me about the different subject matter of that provision.
But just to conclude on the exhaustiveness question, if your Honours look at subsection (1) of BE, the first point that we make is that it is immediately apparent that that provision does not take the model of a workplace health and safety law in the post‑Robens universe in that the obligation that one sees there is a process‑based obligation, take all reasonable steps to ensure that activities covered by the AOC are done with a reasonable degree of care and diligence.
It is not an obligation to take reasonable steps to ensure an outcome in the model that one sees in section 19. And so, that provision, which is the closest one, comes in the entirety of the Commonwealth regime to something that looks a bit like a workplace health and safety law still does not adopt the model that one sees in the nationally uniform law; that is the first point.
The second point is that subsection (5) in 28BE points strongly against the inference that this regime was intended to be exhaustive. I do not seek to add to what other parties are saying about that provision save in one respect, which is to note that in some of the authorities dealing with the question whether or not a Commonwealth law is exhaustive, some significance has been attached to the fact that the Commonwealth law specifically recognises somewhere in its terms the continuing operation of State or Territory laws.
So one sees that ‑ and I will not take your Honours to them but I will give you two references. In Commercial Radio Coffs Harbour v Fuller (1986) 161 CLR 51 at the top of page 58, one sees the Court relying on that kind of factor. Also, in Hospital Benefits Case (1983) 151 CLR 302, particularly at page 317, one sees it again.
So we submit that in addition to the arguments the other parties have made, recognition there of the possible parallel operation of State and Territory law is a significant factor pointing against exclusiveness.
GAGELER J: Mr Solicitor, would you apply the same analysis and the same case law to section 98(7)?
MR DONAGHUE: Yes, with one caveat: that 98(7) in its terms is only about inconsistency with regulations.
GAGELER J: And would you take in their instruments that take their force from the regulations?
MR DONAGHUE: From the regulations, I would, yes indeed. Now, staying with 28BE(1), if I can then turn to the second limb of the argument, the different subject matters. The reason that we submit that section 28BE(1) is on a different subject matter to the Territory WH&S law, is because the criterion governing the legal operation of 28BE(1), or the criterion of operation as I put it before lunch, are different in fundamental respects to the criteria that govern the operation of section 19. And there are three particular points that we emphasise.
The first is that 28BE(1) selects, as the person upon whom an obligation is imposed, the holder of an AOC, as opposed to the Territory law which selects, as the person upon whom the burden is imposed, a person who is conducting a business or undertaking.
And so the characteristic that attracts the operation of the section is immediately different, for example, an AOC may ‑ will apply both to recreational flyers as well as to people who are conducting a business, and so in that respect the subject matter is different.
Second, the burden to take reasonable steps with a reasonable degree of care and diligence, under 28BE(1), applies to “every activity covered by the AOC”. So, that is the criteria there – whereas under section 19, the focus is upon activities that create a risk to health or safety arising from work. So, again, the activities may overlap but the focal point of Parliament’s attention is on a different category of activity. One is an activity that creates a risk to health and safety – that is what is selected as the criterion. The other is AOC activities – whether or not they create such a risk.
The third significant difference is that in 28BE, one finds no reference to the intended beneficiary of the obligation there imposed, whereas in sections 19(1) and (2) of the Territory Act, the focus is on protecting workers in 19(1), other persons who attend the premises of the business or undertaking.
So, in all of those respects, while it may be that there are particular facts that will attract the operation of both laws, that does not suffice to demonstrate commonality of subject matter. And, when one looks at the position from the point of view of the construction of the laws, they identify quite different criterion and that, we submit, points to the difference of subject matter.
Can I conclude, your Honours, by taking you to three authorities that, we submit, support this mode of analysis? First, can you turn to Momcilovic which is behind tab 48 in volume 3 of the authorities? It is (2011) 245 CLR 1. I am taking your Honours to a passage in Justice Gummow’s judgment with which your Honour Justice Bell agreed – on this aspect of the reasoning. The relevant discussion starts on page 115 at paragraph 259 – perhaps, 258. So, at 258, his Honour emphasises that the first task is to construe the federal law. In 259, his Honour deals with the class of case, also identified in our outline, where the federal law is intended to be cumulative upon the State law, discussing Coffs Harbour v Fuller. So, that is the case of the non‑exhaustive Commonwealth law in 259.
In 260, his Honour then turns to the exhaustive Commonwealth law and recognises that there may be laws of that kind and cites many authorities in support of that. Then, staying with the topic of the exhaustive Commonwealth law – so, 260, in particular, is the exhaustive Commonwealth law that is expressly made exhaustive. Paragraph 261 is the exhaustive Commonwealth law by implication. And, his Honour, again, notes that that can happen. You can discern the legislative implication that the law deal completely with the particular subject matter and he identifies the negative implication criterion, there. Then, immediately following footnote 559, Justice Gummow says:
The question then –
That is in the case of the exhaustive law by implication:
is whether the State law is upon the same subject matter as the federal law and, if so, whether the State law is inconsistent with it because it detracts from or impairs that negative implication.
So, there is only an impairment of the negative implication in circumstances where, having concluded the Commonwealth law is exhaustive, one can properly situate the State law as a law upon the same subject matter.
The next case is R v Winneke; Ex parte Gallagher which is in volume 4 of the authorities, behind tab 54. It is (1982) 152 CLR 211. This case was briefly mentioned by the learned solicitor for the Northern Territory. As your Honours might recall, the circumstance that gave rise to the constitutional question was that Mr Winneke had been tasked with conducting royal commissions, under both Commonwealth and Victorian law, into the activities of the BLF. So, he was conducting what was, in practice, a single inquiry but authorised by reference to two different terms of reference. And, in the course of conducting that inquiry, a single question was asked which was not answered.
Now, that same conduct of a particular witness in the witness box refusing to answer a single question, potentially involved offences under both the Commonwealth law and the State law, because the questioning was authorised by both, and the question was, was there inconsistency in those circumstances in circumstances where the penalty was different.
The answer given by the Court was “No”. And if your Honours turn to Chief Justice Gibbs’ judgment at 218, in the middle of the page, in the middle paragraph, four lines down:
the fact that a Commonwealth Act and a State Act impose different penalties for the same conduct does not necessarily mean that the laws are inconsistent. If the two laws are made for the same purpose – e.g. if they prescribe substantially identical rules on a particular subject but with different penalties for contravention – it will be easy to conclude that the Commonwealth law covers the whole subject‑matter . . . However, the two laws may deal with different subject matters, so that each may validly apply in relation to the same set of facts.
So that, we submit, is a clear recognition that – and, indeed, the factual context of the case highlights the possibility for the subject matter analysis to apply to avoid a conclusion of inconsistency, notwithstanding that it is the same set of facts that give rise to the operation of both laws. That observation of the Chief Justice was picked up and endorsed by five Justices of this Court in Viskauskas v Niland at page 295, and it was also applied by the Court in McWaters v Day.
The final case that I take your Honours to is the Metal Trades Industry Association v Amalgamated Metal Workers which is behind tab 48 in the folders. It is (1983) 152 CLR 632. And this is a case that the first respondent has relied upon to support the proposition that both the Territory and the Commonwealth law are upon the same subject matter.
The facts that gave rise to the case is that there were Commonwealth awards that contained provisions governing termination of employment, including dismissal for misconduct but not limited thereto. And there was then a State law passed which did not apply to termination for misconduct but applied to all other termination and that purported, in effect, to create further procedural conditions that had to be satisfied and that could then lead to the referral of the matter to the State Industrial Relations Commission.
The conclusion in the case was that the laws were inconsistent and that conclusion was reached because the two laws were on the same subject matter. They were on the question of what you had to do when you were terminating an employee for other than misconduct ‑ so no question that that was the end result, but the reason that leads to that conclusion is, we submit, entirely consistent with the analysis that we advance, as is the way the Court deals with its then recent decision in Ansett v Wardley.
There are three judgments. The first is Chief Justice Gibbs and Justices Wilson and Dawson. If your Honours turn to page 262, you will see in that joint judgment, in the middle of the paragraph in the middle of the page, “At the heart of the doctrine” of inconsistency under 109 is ‑ ‑ ‑
KIEFEL CJ: I am sorry, what was the page reference?
MR DONAGHUE: Sorry, your Honour. I am going too quickly ‑ page 642.
KIEFEL CJ: Thank you.
MR DONAGHUE: And in the middle of the middle paragraph there is a reference to the “well‑established doctrine of inconsistency” under 109 and it said:
At the heart of the doctrine is the call to take the law or the award with which the State law is alleged to be inconsistent and to discern precisely the matters which it is the intention of the Parliament, or the Commonwealth . . . to be exhaustively determined ‑
Then at the bottom of the page, there is an acknowledgement that often the existence of the State laws will be assumed and that the Commonwealth law will:
supplement or modify rather than supplant State law.
That is at the end of the last full paragraph on the page. Then over to page 644, in the first full paragraph at about point 2 on the page, the conclusion is reached that:
Both in subject‑matter and effect, Pt II of the State Act is dealing precisely with the same topic –
which was why there was found to be inconsistency in the case. Then going on to page 646, in the discussion of the judgment in Wardley, at the top of the page, their Honours said of Justice Stephen’s judgment:
It is also to be observed, as Stephen J. emphasized, that the agreement amd the Act dealt with entirely disparate subject‑matters, the former being narrowly confined to employment relationships determined in settlement of an industrial dispute and the latter with the general social question of equality of opportunity between men and women.
So their Honours are recognising that it was a subject matter analysis of that kind that underpinned Justice Stephen’s reasoning in that case.
In the other joint judgment of Justices Mason, Brennan and Deane at 650 – and I will not read it – but in the middle of the page, there is reference to whether or not the federal award was – it said:
which apparently regulates an entire subject‑matter may leave some small area of it untouched.
Then, at 651, near the bottom of the page, there is again, in our submission, an analysis of some prior authority consistent with the – and one, in particular, sees the discussion of Wardley right at the bottom of the page, which finishes with a quote:
it ‘simply is not a subject within the purview of the award’.
And, in addition to those authorities – I will not take your Honours back to them – but in Jemena at paragraph 58, there is a footnote that contains a reference to a number of other authorities adopting the same approach.
So, in our submission, there is a significant body of authority in this Court that recognises the possibility that, even where one has a Commonwealth law that exhaustively regulates a particular subject matter that is not the end of the analysis. Even if the exhaustive Commonwealth law applies to a particular set of facts, one has to ask, does the State law, in applying to the same set of facts, do so in the course of regulating the same subject matter. And, in our submission, one cannot conclude that that is the case here because the subject matter of the Territory Act, focusing as it does on workplace health and safety, obligations of employers with respect to their workers and others who attend the premises, is not properly equated with the subject matter of the Commonwealth aviation law.
If your Honours would excuse me for one moment? Sorry, your Honours, there is one matter I need to correct. You might recall that I said a few moments ago that the AOC might apply to recreational activities in the course of illustrating – the substantive point I made still holds – that the criterion of operation is the holder of an AOC rather than the person who conducts a business or undertaking. But, the holder of an AOC will not apply – the AOC will not apply to recreational activities because if your Honours trace through sections 27(2) and 27(9), the AOC applies only with respect to prescribed purposes. And, when one goes to reg 206, the purposes that are prescribed are all commercial. So, under the regulations, that submission is not correct. Unless your Honours have any questions, those are our submissions.
KIEFEL CJ: Yes, thank you. Solicitor‑General for Queensland.
MR DUNNING: Thank you, your Honours. Your Honours, many of the authorities we rely upon, our learned friends, particularly the Solicitor‑General of the Commonwealth, have addressed your Honours on and we will not deal with those again, but they are effectively those authorities we picked up as well.
Can I, at the outset, deal with a question that arose during the course of the morning, and that is this question of, as it were, the Venn diagram, and that of exclusivity and whether in particular it was the same subject matter as was, in effect, posited by Justice Gageler and, I believe, Justice Nettle. We understood our learned friend the Solicitor for the Northern Territory to say, no, they were different subject matters, but to agree that ultimately exclusivity was the key question.
In our submission, both are right in the sense that they are directed at different subject matters, but the question of exclusivity here is of the kind that was identified by Justice Dixon, as his Honour then was, in Ex parte McLean.
Your Honours will recollect the Solicitor for the Commonwealth carefully took you through this morning, the reasoning of Justice Dixon at page 485 where his Honour, on the one hand, deals with – and this is paragraph 4 of our outline - on the one hand deals with a Commonwealth law that purports to require that that law, and only that law, regulate a particular Act or omission.
In our submission, that was the sort of exclusivity that is of the kind that Justice Gageler’s question was, in our submission, directed at. Is it a question that the Commonwealth has exclusively sought to legislate that that particular Act or omission might be regulated by that law and that law only? Subject to the head of power being sufficiently wide, it might do so, and any State law that was inconsistent with that, and regardless of its subject matter, would offend section 109.
On the other hand, as Justice Dixon went on to reason at that passage on page 485, you may have the alternative where, in fact, the question is, has the Commonwealth sought to legislate in respect of a particular subject matter and done so exclusively? In the event that the Commonwealth has sought to legislate exclusively in respect of a particular subject matter, the State or Territory may not legislate in respect of that same subject matter and in a sense that inquiry would really approach the matter, in our submission, the way Justice Gordon had raised it during the course of the morning. In that sense, the lack of exclusivity would be fatal to an inconsistency argument.
Ultimately, we say those inquiries are questions that are asked in order to answer the ultimate integer or the integer of constitutional invalidity. That is, does the State law in the relevant sense detract from the Commonwealth law, and inquiries as to whether the Commonwealth law was exclusive in respect to an omission or conduct, or whether the Commonwealth law purported to be exclusive in respect of a particular subject matter, are each relevant inquiries.
On particular occasions they might be overlapping inquiries but that is, in our submission, the distinction between them which would ultimately lead to the situation where, in our submission, the Territory is right to say that they are differing subject matters. But it is also right to say that, if there is no exclusivity here, then the judgment in the Court of Appeal cannot be sustained. One might get there either by saying the Commonwealth did not purport to legislate exclusively in respect of acts or omissions regarding the boarding of hot air balloons; or that the Commonwealth did not legislate exclusively in respect of the subject matter of safety in respect of air navigation.
Your Honours, we have sought to develop those alternatives in what appears in paragraph 6 and onwards of our oral outline. The only matters that we would particularly wish to emphasise in that regard is at 6 in our submission, the desirable nomenclature is “cover the subject matter” rather than “cover the field”. Again, people before me have already canvassed why “cover the field” is prone to – and, in our submission, in this case probably did - distract from the proper inquiry, and that is to ascertain what was the subject matter of the Commonwealth legislative regime and what was the subject matter of the State regime.
There is then, your Honours, only one other matter that I wish to develop, and that is that which is set out in paragraph 10 of our oral outline. That is to say that, not only is there no negative proposition implicit in the Commonwealth legislation here, but in fact, in our submission, there are two positive propositions to the contrary.
The first is section 28BE(5). Your Honours have already been addressed on that provision. We adopt the submissions that have gone before us and refer also to what we have already said in writing in that regard.
May we also draw your Honours’ attention, please, to section 32 of the same Act? In that regard may we ask your Honours please to take up section 32 of the Act? Your Honours will find that in volume 1, tab 3, page 69.
If it is convenient, could we also ask your Honours please to take up the criticism of our submission made by the first respondent at paragraph 116 of its written submissions? Your Honours will see that the criticism made of the submission Queensland has made is that it is said that the section 32 is not engaged in the present circumstances because in reality it is left to deal with non-safety‑related functions that are conferred on CASA and some references are given to 9(3)(b) and 9(3)(ba). I will take your Honours to section 9 shortly, but for your reference it is volume 1, tab 3, page 46. May we first of all deal with section 32? Section 32, in a truncated form, effectively provides that CASA or its officers:
having powers and functions under this Act . . . may also have similar powers and functions conferred by the law of a State or Territory relating to air navigation.
There are two matters of particular note, in our submission, regarding the language of section 32. In the first line where it talks of CASA having powers and functions under this Act, there are no words of limitation such as those that are urged by the first respondent about it being limited to non‑safety matters. Rather, it is in plain terms that it is concerned with CASA or its officers who have had powers and functions conferred under the Act. The second matter we draw attention to is that it in terms contemplates a like legislative competence of States and Territories where, in the second line, it says:
may also have similar powers and functions conferred by the law of a State or Territory relating to air navigation.
Now, the section itself is directed, in a sense, in a machinery way at ensuring that CASA might have conferred on it State powers that exist under a State or Territory law of a similar character, but implicit in that is that a State or Territory is competent to legislate in respect of air navigation in a way that is similar, to use the statutory language, to the powers and functions that are conferred on CASA.
At that point, may I ask your Honours, please, to go to section 9 of the Act. Our friends, in terms of making good the non‑safety characterisation of section 32, if we can put it that way, draw attention to subsections (3)(b) and (ba) of section 9. True it is that subsection (b) refers to a corresponding law of a State or Territory, but there is nothing in the language of section 32 and nothing in the language of section 9 that suggests that it is intended to have that confined operation. To give your Honours a couple of other references to make good that, if we go to subsection (1) of section 9:
CASA has the function of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a)civil air operations in Australian territory ‑
That is not purporting to say that it is something that the States or Territories are precluded from having harmonious legislation in relation to. When one goes back to talk of similar powers in 32, there is no reason to think it should not have such an operation. If we go to subsection (3)(e), CASA has the following functions:
promoting the development of Australia’s civil aviation safety capabilities, skills and services, for the benefit of the Australian community ‑
In respect of civil aviation safety capabilities and services, that is inevitably something that will engage States and Territories, because, if there are issues like that anywhere across Australia, it is more likely that the local police sergeant might be called in to assist than necessarily an officer in Canberra.
We give your Honours that as but one illustration of the fact that section 9 is capable of reflecting the fact that the Parliament had intended that the States and Territories could, and would, enact laws with a similar operation.
Naturally, if those State laws could not be complied with without breaching a Commonwealth law, they will fail on that direct inconsistency ground. But there is nothing in the language of the Act that suggests that the Commonwealth was intended to have exclusive legislative power on this subject matter.
In our submission, to the contrary: the language is clear that it was contemplated that the States could, and would, legislate in respect of such matters. If that submission is right, it is difficult to see how the indirect inconsistency ‑ if I can give it that appellation ‑ argument could possibly be sustained. Your Honours, unless there is anything else we can assist you with, they are our submissions.
KIEFEL CJ: Thank you.
MR DUNNING: Thank you, your Honours.
KIEFEL CJ: Solicitor‑General for Tasmania.
MR O’FARRELL: If your Honours please, if I can just say a few words in addition to my learned friends who have preceded me.
Firstly, your Honours, accepting that the Commonwealth’s formulation of the subject matter of civil aviation laws as the regulation of air safety navigation, we would say that this case illustrates that nicely. Really, the level at which the subject matter or the legal norms at which the Commonwealth legislation operate in relation to the facts of this case are effectively the operations manual ‑ in fact, the requirement to have an operations manual, and, secondly, to obey it. All of that is provided in Regulation 215. Who colours in the operations manual? There is a framework for it, admittedly, in various documents, but ultimately it is the responsibility of the operator, with some direction from CASA.
So it starts then, with respect, your Honours, to look more like a quality assurance system where the operator says, “This is how we describe and construct our safety mechanisms for our different planes and balloons and what have you that we put into the air.” All that the Commonwealth legislation does is to say, “You have to obey it, and when you get to BE you have to obey it to a particular standard.” But that really says nothing about the more general requirement that is imposed by section 19 of the work health and safety legislation for people who are conducting a business or
undertaking to ensure, as far as practicable, that they conduct their operation safely.
We say that, for all the reasons advanced by the Commonwealth just a little while ago, there is a considerable difference between the subject matter and the way it is dealt with by Commonwealth legislation and by the uniform legislation in relation to work health and safety. That deals with up to paragraph 4 of the outline, your Honours.
The only other point we wanted to make, more by illustration than anything else, is in response to the submission of our learned friends for the respondent at 24, that the safety of air travellers is capable of being shared, is not capable of being shared with State or Territory laws.
In our submission, your Honours, while you can understand in Airlines (No 2) that there is a very good reason for the Commonwealth to take over the licensing functions in relation to air travel and air operations, not so, with respect, issues about human safety.
In an Act which says, in section 3(a) as to its objects, it is to set up a framework for the maintenance and promotion and enhancement of safety, why then would you say that that was intended ever to cover the field in relation to human life or physical harm? If your Honours please.
MS WALKER: If the Court pleases, Victoria is content to rely on its written submissions in this matter.
KIEFEL CJ: Thank you. The Attorney-General for Western Australia.
MR TANNIN: May it please the Court, we are content to rely upon our written submissions.
KIEFEL CJ: Yes, Mr Gleeson.
MR GLEESON: May it please the Court. Your Honours will see from our outline that we submit that the three essential questions on the appeal can be identified in order, the first question being: does the civil aviation law of the Commonwealth of Australia, as in force at, it should be, 2013, state the exclusive law of Australia on any subject matter? If it does not then the appeal would succeed, subject to the notice of contention.
The second question is: if it does, how should that subject matter positively be defined? Then the third consequential question is: so defined, does it exclude the operation in whole or in part of modern occupational health and safety laws at the State and Territory level?
Posing the questions that way, your Honours, we immediately observe that in the six presentations, written and oral, you have heard so far no one, not even the Commonwealth, has offered you a positive definition of “the field”, if any, which the Commonwealth law exclusively covers. The most you have heard is a possibility thrown out by the Commonwealth but not adopted expressly that maybe it is exclusive in relation to the rules of flight, but nowhere have any of the six parties identified for you what they say is the exclusive field.
What they have done is to start at the opposite end. They have really looked at the Territory law and said, “In terms, it looks like a law about workplace health and safety,” which is true, and have said, “Working backwards, whatever else the Commonwealth law does, it leaves that as a vacuum or a hole that the States and Territories can fill and then, if there is any Commonwealth law, it will be merely supplementary to that State or Territory law, subject to the possibility of direct or operational inconsistency.” That is the legal technique that they are urging upon you, and we submit that that technique is plagued with error.
To give the Court our positive statement of the answers to those three questions, firstly, we ask you to find that the civil aviation law does state exclusive law in Australia on a subject matter or matters.
Secondly, we submit that those matters can be described as the prescription and enforcement of the standards of safety in the conduct of air navigation or air operations into or from Australia and the consequences that section 109 or equivalent doctrines leave room for the operation of State and Territory OHS laws only to the extent that they regulate workplace matters other than the safety standards for the conduct of air operations.
Before moving to point 4, could I flesh out one aspect of point 3 and take up a question from your Honour Justice Nettle and perhaps some of your Honours’ other questions of the level of specificity at which the field or the matter is identified. Your Honours will see from our paragraph 3(b) that that still looks to be a fairly general specification of the field.
Can I say something about that? It is a general specification, but when one breaks down its elements, as one can, consistent with the questions of your Honour Justice Gageler, one would come up with these elements. Firstly, it is not any regulation of air navigation per se. It is not that broad. To the extent that the Commonwealth has suggested in writing that we are urging that, they are wrong.
Secondly, it is not anything to do with safety in any possible sense; it is standards of safety. By “standards of safety” we mean the concept which was built up over 70 years of the Chicago Convention, of what it means to regulate safety as a risk‑management exercise.
Could I give your Honours a reference? In volume 2 of the authorities, in the Chicago Convention at annex 19 which, yes, was adopted just before the incident came into effect, just after it, but reflects 60 or 70 years of international consensus on regulation, you will see on page 570 of the book a definition of “safety”. Safety is:
The state in which risks associated with aviation activities, related to, or in direct support of the operation of aircraft, are reduced and controlled to an acceptable level.
Now that, we submit, is a useful way of thinking about this aspect of the field. When we say it is safety standards, it is doing anything and everything which addresses the safety of the air operation in that risk management sense.
Now, the other aspect of that definition that is helpful is that it distinguishes between the risks associated with aviation activities and with the more specific subject which is the operation of aircraft. One of the critical features of Chicago and of the Australian law and of the regulation of transport operation, is that necessarily the risks to the safety of the operation of a particular aircraft can come from a range of aviation activities which are greater than simply flying the aircraft or even loading it, taking off, landing and disembarking passengers.
The aviation activities lead us directly into maintenance organisations. They lead us into training. They lead us into the conduct of aerodromes. They lead us into a whole raft of matters. So the safety which Chicago and the Australian law focuses on is the safety of the whole body of aviation activities which ultimately are directed to reducing risk in the operation of aircraft.
The final aspect that is important about this definition is when it says “operation of aircraft”, the operation of an aircraft includes everything from the loading of the passengers, the manoeuvring for take‑off or lift‑off, take‑off, flight, landing and ultimately disembarking. The operation of an aircraft is the entire process of getting people and cargo safely onto the aircraft, into the air, to the other end and safely disembarked. So that is what we comprehend by safety standards within our definition of the subject matter or the field.
The next aspect we would add the explication of paragraph 3 is that, in terms of rights and duties, the exclusive subject matter covered essentially concerns who will have the right to participate in aviation activities, what roles they can play, what aircraft can be used and, in terms of duty, what will be the duties imposed upon anyone and everyone who participates in the operation which may impact on safety?
KIEFEL CJ: Standards are, of course, not a rule, although you might say they are an aspect of regulation, do you?
MR GLEESON: I am using standards in a rule‑like sense.
KIEFEL CJ: Are you?
MR GLEESON: Yes. And the Act itself draws a clear distinction between matters which are binding and matters which are advisory, and the law we trace to the former. But in terms of duties, the people who were the objects of the duties under the civil aviation law are anyone and everyone who may be participating in the operation and manner which might impact on safety. Then the final aspects of the law, the subject matter exclusively covered, we submit there is a single specialist technical regulator that Australian law allows only for one regulator of matters of safety, in the sense I have outlined, and the logic of the argument against us is that it allows for as many safety regulators as there are States and Territories.
GORDON J: Regulators or regulations?
MR GLEESON: Both - regulators. The logic of their argument is ‑ ‑ ‑
GORDON J: No, I am asking you what your submission is.
MR GLEESON: My submission is under the law there can only be one regulator of the safety of air navigation and there can only be one body of regulation of the safety of air navigation – each of those. Finally, there can only be one body of civil and criminal sanctions and remediations addressed to safety.
Can I indicate to your Honours why it is that that subject matter then leaves other areas, which are not part of the exclusive territory of the Commonwealth civil aviation law? At this point, I will briefly just go ahead, if your Honours would cast an eye over paragraph 14 of the outline.
The civil aviation law is not concerned with civil liability for death, personal injury or damage to cargo arising out of air operations. So its focus is safety in the sense I have mentioned, but in the event that there be a death, personal injury or damage to cargo, that is not a matter governed by the civil aviation law; that is separately dealt with by the Commonwealth (Carriers’ Liability) Act, and that is a Commonwealth Act which, for constitutional reasons, is applied in the States under State complementary legislation under a scheme that was settled in the late 1950s before the airlines cases.
So, if there is a breach of a safety standard and it results in death or injury, civil liability is a matter not governed by the exclusive field. We identify that can be governed by those other regimes. The second matter that is not governed – and some of the examples are in this territory – are matters of aviation, terrorism or security, which is where people do things which endanger the aircraft or the lives of people on it.
Your Honours will recall that that is subject to a separate Commonwealth regime and may well be subject to State and Territory laws. That became a particular problem following terrorism and hijacking in the 1970s and a Montreal convention on those tops led to the Commonwealth passing the Crimes (Aviation) Act that you have seen, and what it is doing is something different in civil aviation law. It is about people doing things recklessly or otherwise endangering, as I say, the aircraft or the persons on it.
The third example ‑ and your Honour Justice Bell asked about this on the special leave question ‑ what do we do with the criminal law of the States or Territories for unlawful killing or injury of persons? The answer we would give to that, which is a more correct answer than the one I gave several months ago, is that both murder and manslaughter are not part of the field covered by the civil aviation law.
The reason is that in those areas of criminal liability, what is being punished is the unlawful killing or injury of persons, and the civil aviation law does not exclusively deal with that matter. It deals with what may well be an anterior matter which is as each person complied with the obligation in respect to safety imposed on that person.
NETTLE J: What about manslaughter by criminal negligence?
MR GLEESON: Manslaughter by criminal negligence, on the concession we are making, is outside the field because where there is the death – the element of death – that goes beyond the area that the law has covered which is concerned with have you done the things in respect to safety you are required to do? What that means is, in manslaughter by death, you may be subject to both. One is punishing your failure to observe a safety standard. The second is producing a person’s death. Then, to the extent the two overlap, they may be taken into account under the Crimes Act in terms of punishment and prosecution, indeed.
But the distinction we are drawing is between – and this is the sense in which I use “safety standards”; your Honour the Chief Justice asked about that – I am using it in a binding legal sense but as in what are the norms or things each person within the overall sphere is required to do in order to reduce safety risks to an acceptable level?
NETTLE J: If the manslaughter were committed by so far departing from the mandatory CASA standard as to warrant criminal punishment, it would be the exact breach of the CASA standard which would result in the manslaughter.
MR GLEESON: That may be so. But the concession we are making is that, where the breach has resulted in the death of a person, the death is an extra element which you will not find captured in the CASA offences as an element of the offence. What you will find is, in section 20A, reckless operation of an aircraft, and you will find under section 29 that that suffers five years’ prison. For that offence to be complete under CASA, there is no element that you have killed anyone. If you have killed someone, it is an extra element to the criminal offence which you do not find in the CAA scheme.
NETTLE J: Would that not also be true, at least in principle, of the occupational health and safety offence which includes elements, obviously different to, although in some respects the same as, those of the CASA offence?
MR GLEESON: No, your Honour, because the essential difference is that when we look at the occupational health and safety offence, what it does is to say certain persons have a duty to protect against certain risks, and the offence is constituted by a breach of that duty and, in an aggravated case, it is constituted by a breach which exposes people to danger. A Northern Territory offence does not have as an element, even in its aggravated form, the actual causing of death or bodily harm to a person. So, they are not an element of the offence.
Of course they would be relevant in assessing penalty if a matter like the present were allowed to go to trial. But the Northern Territory has not, in this statute, used as an element of the criminal offence the causing of death or injury. In that sense, like the CAA regime, it has stopped at the earlier level and said, “Our focus is imposing a standard of health and safety and then holding people to that standard and then punishing them for breach of that standard on various aggravated levels”. For that reason, the Northern Territory statute is entering and dealing with the very topic which the Commonwealth law is dealing with, which is what are the standards that must be observed in order to minimise risks of aircraft, persons and cargoes suffering harm?
BELL J: But here the law imposes – this is the criminal law of the Northern Territory – a duty on a person, a duty of care, gross departure from which will result in liability for manslaughter in the event of a death. But there is the duty that the law of the Northern Territory imposes on the person which you accept coexisting with the duty under 28BE(1).
MR GLEESON: Your Honour, I want to make separate submissions on 28BE(1) because the focus of our case is not 28BE(1), despite what appears in the Court of Appeal’s judgment.
BELL J: Yes.
MR GLEESON: The central provisions in the Commonwealth scheme that are relevant to this matter are particularly section 29, which creates an offence, which we know about. Section 29 hinged back to 28BD. Any conduct which is a breach of any part of the Acts, the regs or so on places the operator in breach of 28BD, which means that there will be a breach of 29 if the aircraft is flown or operated in that circumstance, and if it is done recklessly there will be an aggravated offence under 29(3) or (4).
Those provisions then operate on top of the critical provisions in the regulations, including 225 that we will come to, which is a critical part of the Commonwealth’s scheme of regulating this area. They are the key provisions which in the present case would be attracted if there were a Commonwealth prosecution. Section 28BE, which came in in 1995, does something slightly different. What it does is to impose a broadly expressed duty of diligence over everything done in the operation.
It is correct that a breach of a safety standard could be looked at under a 28BE perspective, but 28BE could deal with a whole lot of other things other than breaches of safety standards, and we have given some examples of that. It is true that 28BE(5) says because this provision is expressed in such broad terms which could cover a whole range of things, safety and non‑safety, nothing in this section is to prevent the operation of a parallel law.
The critical words there, which the Commonwealth and the Territory ignore - its negativing effect is saying no implication from this section that other laws cannot continue to operate. What it does not do is go the distance that is essential for the Northern Territory’s and the Commonwealth’s case, which is to say, “What we are here telling you is that the entirety of what otherwise appears to be the most comprehensive exclusive scheme is simply to operate supplementary upon State or Territory law”.
EDELMAN J: So you say, then, that subsection (5) helps your case?
MR GLEESON: Yes. When the Commonwealth, particularly in modern drafting, which I will put to more than the last five years, wants to make clear that State and Territory law can continue to operate it has a series of techniques available. The first is 28BE(5). Section 28BE(5) is used when a Commonwealth provision which otherwise has generality is not intended to cut back operation of other provisions of the general law, Commonwealth or State. The very thing that has happened here is a bit like in Dickson where the provisions like this, which were designed to prevent a roll‑back of State and Territory law, were only found in particular parts of the Crimes Act and the Court then reasoned, “Well, if you have not put that provision in the rest of it, you obviously intend the rest of it to mean what it says”.
So 28BE(5) is a very specific provision, indicating that we cannot get exclusivity out of 28BE(1). And, to the extent that the Court of Appeal said we could, we did not make that argument there and we do not make it now. To get the exclusivity it must come out of the larger scheme.
The second technique which the Commonwealth uses, if it wants to preserve a body of identified State law, is to say in terms: State and Territory occupational health and safety laws continue in operation, notwithstanding this Act. It is an absolutely critical absence in this scheme that you do not see any such provision anywhere in it. And tomorrow I will give you an example of a parallel provision in the maritime sphere where the latest legislation on the regulation of domestic maritime, the 2012 Commonwealth legislation, which is a complementary scheme, says in terms: we preserve the operation of State and Territory OH&S laws.
What is being argued for by the Territory, the Commonwealth and the States is, in effect, notwithstanding the entire absence of any recognition in the civil aviation law, that State and Territory WHS laws are to continue. That is what the Commonwealth intended and that is the argument that we wish to confront.
GAGELER J: Mr Gleeson, another standard Commonwealth drafting technique is the language you find in section 98(7). Will you deal with that at some stage in your argument?
MR GLEESON: Yes, so your Honour – your Honour says another technique used and one not free from difficulty is to recognise the possibility of inconsistency, to then recognise that if concurrent operation is possible, it is allowed, but otherwise to claim the operation of section 109. Now, that also – so we could come to that. It is in the volume 1 at page 76. It has these significances. Firstly, in the present case where it is a conflict between the Commonwealth and the Territory, we have a specific recognition of a rule of inconsistency parallel to section 109 and, to that extent, general resort to repugnancy is not necessary although it would lead to a similar direction. Secondly, it is about the regulations. It is not about the Act. So, to the extent anything in the Act is relied upon it has its force under the earlier repugnancy doctrine.
KIEFEL CJ: But the standards or rules that you are referring to mostly come through the regulations, do they not?
MR GLEESON: Most of them come through the regulations, as I understand; your Honour is correct. So, it is telling us that if there is an inconsistency with the regulations then the Territory law cannot have effect unless it is capable of operating concurrently with that provision.
Now, the tenor of the submissions that I will develop as I come first to the history and then to the Act and the regs is that the Territory law is incapable of operating concurrently with the regulations that we will go to and I will just simply, if I might, introduce that now but come back to the detail with two key points of the inability to operate concurrently, perhaps three. The first concerns the role of the operations manual, the second concerns the division of responsibilities under federal law and the third concerns chain of command.
Federal law adopts three specific techniques to control or regulate risk. The first technique is the operations manual, reg 225, which is found on page 260. In 215(2), it is addressing, amongst other things, the very topic which the Territory law then seeks to address, which is: what must the operator do and how must it be done to ensure safe conduct of the flight and therefore, safety for the workers and the passengers who are the visitors.
But what it does is to have a specific technique that the operator has strict liability to ensure that everything that is necessary for safe conduct of flight operations is in the manual. Then there are duties to revise it regularly in (5) and it is all under CASA’s control in (3).
Over the page under subregulation (9), everyone in the operations personnel is under a strict liability to comply with the manual. What that means is that, instead of being simply a generalised, undifferentiated obligation as per a workplace law, it is an obligation made specific ‑ if you are the operator, you must make sure everything necessary for safety is in the manual.
In the present case, if there was a deficiency, as alleged by the Territory in the complaint, and the deficiency related to something which should have been in the manual – for example, should the manual have said, “There must be a buffer protecting the people from the fan” – the operator will be guilty of a strict liability breach of 215(2), which, depending on the circumstances, will become a breach of section 29 of the Act and punishable in those ways.
GORDON J: Does it matter that it is limited to the operator?
MR GLEESON: This is part of my point about allocation of responsibilities. The operator’s primary responsibility is to get everything right in that manual. If you do not, you are guilty here. You are probably guilty under 29 if you allow the aircraft to be flown or operated – that is the extra element for 29.
What it then says is, if the manual has everything in it that is necessary for safety, then the matter passes into the responsibility of the members of the operations personnel, that they must comply with those instructions. Again, at this point, it is not an undifferentiated generalised, do everything reasonable, it is do what the manual tells you to do. In the case of a prudent breach where an operations person says the manual does not tell me to do x or tells me not to do x but I will breach the manual because I think that is necessary to save life, the result will be that that person will still be in breach of reg ‑ ‑ ‑
KIEFEL CJ: But that puts a person in breach of a duty.
MR GLEESON: It puts them in breach of a duty because the Commonwealth scheme is based on the idea that the manual is so critical to this process.
KIEFEL CJ: Quite, but the manual is produced by the person who is subject to the duty to put things in the manual. The manual does not, itself, state the rule or standard, does it?
MR GLEESON: Two answers, your Honour. We accept that if one is asking what is the Commonwealth law, it does not include the content of the manual. The Court of Appeal was wrong to the extent it said otherwise. In the case of direct or operational inconsistency, the content of the manual does then become relevant. I will come to that at the end. But in terms of how this operates as a scheme, before even opening this manual, what we know is that there is to be a manual which CASA is to approve and, indeed, if I give your Honours the reference in the Act itself, in section 27AB which is on page 55, you cannot get an AOC without lodging the manual with CASA and CASA can give you directions what is to be in it.
It is a document, Ms Brownhill, with respect, was wrong to call it “idiosyncratic” save that that word is used in a non‑pejorative sense. It is specific to you but it is your way of managing the risks of your operation consistent with CASA’s supervision and control over you. But, so what this means is under federal law ‑ this is the first of the three points ‑ an essential regulatory technique is that the manual is given the key role in the process.
The second technique, which is related, is that there is a division and an allocation of responsibility. The operator has one responsibility, operations personnel have further responsibility. And the third technique is the chain of command technique which is that there has to be ‑ and this is reg 224 ‑ a pilot in command. Once one has reached a critical point in the operation and once that happens only the pilot in command can give orders.
So, your Honour Justice Kiefel asked a question this morning ‑ Chief Justice Kiefel ‑ how does this matter, how does it make a difference in terms of people doing real things on the ground, that is a poor paraphrase of the question. What is the problem in having two sets of commands?
The problem ‑ and it is a very practical one and a legal one ‑ is any person involved in air operations, we submit, under federal law says, “I know there will only ever be one set of rules which govern what I have to do to play my part in safety. And I will find those rules in places like the operations manual and I will find them, for example, in directions given by the pilot in command. And my job is to follow those rules”.
An OH&S modern statute takes a very different approach to managing the very same risk and your Honours will have seen from that definition of “reasonable practicability”, it is in a sense a version of Wyong Shire Council v Shirt. It is identify each risk. Think of how much damage if it comes home. Think of ways of avoiding it. Think of the cost of diversionary measures. Come up with a solution that is reasonably practicable. That necessarily creates a totally different standard by which the same problem, risk management, is to be conducted and so it would impose upon any person in the operation, inconsistent demands. Now, your Honours, we want to give a practical example ‑ ‑ ‑
KIEFEL CJ: Could I just ask, because the manual is relied upon for what it currently requires as approved and as directed by CASA, in the case of an incident such as that in question, what you are saying is that CASA could determine, with hindsight, that something else needed to have been put in the manual and hold a person in breach of duty for what was missing from the manual and that is a rule or standard which they are to comply with at all times?
MR GLEESON: The former, yes, but the latter, no. CASA would be expected in a response to an incident like this, to review the manual and going forward to require something else to be added to it. But not, we would submit or suggest, retrospectively alter the norm that governed the person at the time.
NETTLE J: Does CASA see the manual before the incident occurs as a matter of course?
MR GLEESON: Yes. Under the section I took you to, 27AB, it has to see the manual before it can give the person a licence.
NETTLE J: And approves it.
MR GLEESON: And approves it. And, indeed – I will explain tomorrow, there are in fact two manuals. The one we focused a lot on is the operations manual. That is the operator‑specific manual, reg 215. The other manual which is a central part of this process, is the flight manual, which comes from the manufacturer. I will give you the provisions tomorrow but most balloons will be manufactured overseas. Even if they are manufactured in Australia, they are basically required by law to be manufactured to the standard set by either the FAA or the British Aviation Authority.
So there are common standards worldwide for what makes a balloon airworthy. They include a flight manual. The flight manual itself has to indicate all aspects of safe operation of the balloon, including loading. So there is a correlation between what a flight manual says and what an operational manual says.
And so, that is part of this web of regulation to achieve safety where you can take little bits apart but, in the end, the Commonwealth scheme only works as an integrated scheme. That is partly why I did not quite answer, or even attempt, or properly answer Justice Nettle’s question – are we too general? Are we too high in our field?
In one sense, I can make life easier and give your Honour a lower field, and I will offer that as an alternative, but the richness that is lost by going to low in the field is that the civil aviation law, and Chicago, work by a web of interrelated safety mechanisms. Licensing people to fly only if they are safe operators, is a critical part at one end. Licensing and supervising their training programs, is another part. Licensing the aircraft, itself, is another part. And, then, expressing rules which will govern the actual operation, itself, is another part and there are other parts still again.
If the Court had to decide the full reach of the exclusivity of the Commonwealth law, it is all of those matters I have mentioned and they are encompassed by our definition. Could I give your Honours a reference to a document which might indicate where that submission would lead? If your Honours have the book of supplementary materials – or the respondent’s book – the book of further materials – if your Honours have the first respondent’s aspect of that, the document at page 6 – they indicate, first, its status. It is put before your Honours but it is an aide‑mémoire.
A document, in a similar form, was given to the Northern Territory Court of Appeal in answer to the question, what is the reach of the field? And, what the document indicates is that, if you take each of the 19 annexes of Chicago – and in the second column there is a brief description of what they do or cover – the third column tells you the part of the Australian legislation which implements those annexes. It does not refer to the Civil Aviation Act, itself – that is taken as a given.
But, what you will see, for instance, is Annex 1 of Chicago which is about “Personnel Licensing” – that is, who can play a role in the aircraft industry – pilots, and so on ‑ those international obligations are dealt with in the Civil Aviation Regulations, Part 5. And, they are also now dealt with partly in the Civil Aviation Safety Regulations. If one broke down the larger field and said, “personnel licensing” is a subject matter or topic, we would say that can be covered only by one system in Australia and that would be an aspect of the field.
Your Honours probably know that the reason for the CASRs is that, progressively, Australia is moving to rewrite the whole of the regulations to follow the FAA model, including their numbering structure and, so far as possible, wording. That is why the regs are spread across two places. That is annex 01. If one broke it down, we would say that personnel licensing, if you read all those rules, is exclusive.
Annex 02, which is called the rules of the air, is the one that the Commonwealth suggested might, without being definitive, be exclusive. It self‑evidently must be. They are the rules which Chicago applies to international transport, and they are the rules which, under the CAR, Part 12, are applied to all aircraft flying in Australia. They include the visual flight rules, instrument flight rules and such matters. If one had to break down the field, undoubtedly they are exclusive, and they have to be.
You only have to think of it for one second. If a flight is leaving Johannesburg for Sydney via Perth, on our argument, while it is over the high seas it is governed by Chicago, and, as it enters Australian territory, it is then governed by the civil aviation law, and that law alone, until it gets safely to Sydney.
The logic of the argument put by the Territory, and potentially the Commonwealth, is that because work health and safety is a subject matter, as the Commonwealth would say, which is simply not dealt with in the civil aviation law, they say, would have to be that the rules of the air must become dual and triplicate as that plane travels across Australia. That just cannot be right.
Annex 03, meteorological matters. You can see that that is dealt with partly in the Air Services Act and partly in certain regulations. Annexes 04 and 05 speak for themselves.
Annex 06 is important, your Honours ‑ perhaps the most important in this case. Annex 06 of Chicago deals with operations of aircraft and it becomes Part 14 of the Civil Aviation Regulations. We have sought to supplement the materials by giving to your Honours’ associates the whole of Part 14 of the Civil Aviation Regulations. That is the part that includes regs 215, 224 and so on, but if you look at that part as a whole you will see that it is the exclusive law of Australia on the matters of safety governing the actual operation of the aircraft.
If the field had to be any narrower to resolve this case, simply for the purpose of not resolving unnecessary matters, at a minimum we would ask your Honours to conclude that the provisions of Annex 06 of Chicago, which become Part 14 of the CARs, as then supplemented by the Act and the Civil Aviation Orders, is the law of Australia on the subject of the safe operations of aircraft.
EDELMAN J: Then the textual basis is section 98(7)?
MR GLEESON: Yes. Now, what you will see from some of these annexes – and I will mention next Annex 07 – is that some of the Chicago annexes will not necessarily be about safety either directly or at all. So, if your Honours think about the notion of aircraft nationality and registration marks, which goes back to some of the earliest provisions of the Paris Convention, it is not simply or directly about safety. It is about knowing whose plane it is, which country has sanctioned this plane? Does it have a number plate on it like a car? And that could be there for a series of those broader purposes that Chief Justice Barwick spoke about in Airlines (No 2), when he referred to safety regularity and efficiency.
And so the provisions of Annex 07 will not necessarily be within the field we identify, although probably they are within their own field – a field that would be differently identified. Annex 08, “Airworthiness of Aircraft” – that is, within the field in general and it is also its own subfield if necessary. If you look at Annex 09, “Facilitation” you will see that is taken up in separate legislation. That is not part of our field, although it may well be exclusive in its own right.
Annexes 10, 11, 12 and 13 – you can see those there and in an appropriate case one could decide how to characterise their field, but they will most probably be exclusive. But, importantly, for the present case Annex 14, “Aerodromes”; Annex 15, Aeronautical Information Services”; Annex 18, and particularly Annex 19, “Safety Management” – they are all within the field we identify.
So, your Honours, our submission is you have our general description of a field. You also have the subfield, if that be an appropriate term, which will resolve any and every issue in the case which is Annex 06, CAR Part 14.
NETTLE J: Would Annex 13 exclude the civil police, if it were suspected that a crime had been committed in relation to the aircraft accident?
MR GLEESON: No, your Honour.
NETTLE J: Because?
MR GLEESON: The short answer, as Mr Brennan indicated, is that the Australian statute indicated in the column there does not exclude the operation of the State police for that purpose. What Annex 13 is about – so that is the short answer – the Transport Safety Investigation Act does not exclude that. But the underlying reason for that is that Annex 13 – you have a very small extract from it in volume 2, at page 549 – perhaps if I go to page 553 it might answer your Honour’s question.
NETTLE J: Thank you.
MR GLEESON: Objective 3.1 indicates that the subject of Annex 13 are investigations of accidents and incidents which are defined on page 549, “It is not the purpose . . . to apportion blame or liability”. So, they are there to say as a safety aircraft matter, looking at that accident or incident, how do we investigate that to learn better how to prevent such accidents in the future. So, the subject matter of this part of Chicago is not to say this will be a uniform regulation of the entire domestic State’s ability to investigate and prosecute crime.
NETTLE J: So, it is not suggested that each of these items manifest an intention of the Commonwealth to be the sole province, sole depository of the legislative provisions?
MR GLEESON: No, I am not suggesting that and what I am suggesting is that so far as necessary to resolve this case that at least Annex 06 ‑ ‑ ‑
NETTLE J: You say it is in that category.
MR GLEESON: It is in that category, definitely. Annex 02 would have to be in that category, as would be Annex 01, most probably 03, 04, 05, 14, 15 and 18 and 19. Annex 18 is important, it is really a bit like the present case. There can be only one set of rules on the safe transport of dangerous goods by air. They are the Commonwealth rules. That would not preclude a State law criminalising someone who killed people by reason of putting dangerous goods onto a plane.
NETTLE J: But it would preclude a State law which proscribed carrying explosives on one’s body.
MR GLEESON: A State law – the answer is probably yes because a State law is saying this is the norm for what will be safe or not safe in the carrying of dangerous goods on a plane. There can only be one law and there can only be one specialist regulator who will assist in determining the content of that law and the application of it and the prosecution of it so far as it affects safety, not so far as it has a flow‑on effect for killing people.
NETTLE J: It would not be enough to have the potential to kill the passengers, it would have to kill them before the State law operator.
MR GLEESON: The reason is yes because at that point one would be in the area of the general criminal law of the State where we would accept that some of the cases you have been taken to this morning say there can be cases where a Commonwealth law is enacted against an assumption ‑ ‑ ‑
NETTLE J: What about attempt homicide?
MR GLEESON: Attempt homicide?
NETTLE J: Yes, he has…..him and the jury is persuaded that he has gone sufficiently far to constitute an attempt to commit homicide. What then?
MR GLEESON: That can be done under State law.
NETTLE J: There has been no killing, happily. The police get to him before he does the job. So, how does one reconcile it there?
MR GLEESON: The dividing line we are seeking to draw, your Honours, is the field or matter covered by the Commonwealth is the proscription of the standard of safety for all persons involved in the operation. What it leaves as a separate field is the proscription and punishment of doing of things which, put broadly, recklessly or intentionally endanger life or cargo. So, the division you see between the civil aviation law and the Crimes Aviation Safety Act illustrates the division we are drawing. But what the Commonwealth has prosecuted in that Act, your Honours have it in volume 1 ‑ ‑ ‑
GORDON J: Sorry, just so I can clarify that, does that mean in 14(c) of your outline, I think I must have misunderstood your earlier submission that death was an element with a focus on death. In answer to Justice Nettle’s question we have now, in effect, carved out a greater set of provisions.
MR GLEESON: That is correct, your Honour, that is what I have done.
KIEFEL CJ: The annexes to which you have referred rely upon – have in common a direct connection with the operation of an aircraft except perhaps for aerodromes, but even they – the reference to aerodromes is restricted to allowing for use of aerodromes to other nation States and other things. It does not purport to cover everything to do with aerodromes. So, how much coverage do we have?
MR GLEESON: Your Honours will find that Annex 14 and the aerodrome provision, in fact, is extensive and proscriptive. So, I will just make that submission and come back and deal with the detail of it, but in terms of your Honour’s ultimate question, so far as it is the safety standards in respect to these matters, including in particular, the operation of aircrafts, that we say is exclusively covered and what I need to do is then show you what Chicago has said about these matters and then, most importantly, where you find in the Civil Aviation Act the intention that these matters are to be covered only by Commonwealth law. I have to find that intention in the Act.
KIEFEL CJ: But is there a question about the point at which – I will not use the word “flight” – the operation of aircraft commences and which is the true concern of the Chicago Convention and the legislation made upon it?
MR GLEESON: In the court below, the primary argument proceeded on that question. The court below considered itself bound by Heli-Aust to accept, as your Honour put in argument, that there was a very large field exclusively covered, so the argument, not entirely but largely, turned for the Territory to ‑ ‑ ‑
KIEFEL CJ: It was not gone into then.
MR GLEESON: Could we get loading outside the field? On that point we submit the Court of Appeal got it correct, that the scope of an air operation, as governed by Chicago, necessarily includes getting the passengers safely on board the aircraft.
It is not entirely clear from the submissions, particularly the States’ written submissions. A number of them have dallied a little bit with the idea that maybe loading is not in the exclusive field. None of them have made a full-blooded argument explaining why, but I propose to take that on as if that is part of the ‑ ‑ ‑
GORDON J: I think it was put that a reference to the definition of “flight” being detached, having regard to the fact that this is the lighter‑than‑the‑air aircraft.
MR GLEESON: There are two matters, your Honour. In terms of the subject matter or the field that we are propounding, it is the safety of, and the safety standards for, air operations, and for that purpose we say the air operation is the entire exercise, commencing with embarkation and ending with disembarkation.
There is then a more specific argument about reg 224, which is: at which point does the pilot in command assume total responsibility for the safety of the craft and all persons and cargo on it? That is a separate point of particular relevance in the notice of contention, but at the primary stage of the field our proposition is that the operations in the aircraft, as per Chicago and as per CAR Part 14, include, and start no later than, loading.
When I take your Honours through the provisions, particularly the provisions for balloons, which will be item 13 of our outline, I will show your Honours that they specifically treat loading, launching and retrieval as part of the subject matter which is covered, and covered exclusively, by the Commonwealth.
EDELMAN J: Just before you do, can I ask about the scope of your concession about the criminal law. Do you accept that the criminal law can also serve a safety or a protective purpose? If so, is the reason why criminal norms are outside the field in this area that the criminal law is serving purposes other than just the protective or safety purpose?
MR GLEESON: I just want to give a precise answer to that, your Honour. If I am taking matters which are outside our field, such as murder and manslaughter, the answer is yes, they are serving a fundamental purpose which is beyond and different to any safety matter. They are proscribing the mere wrongdoing of members of the community, irrespective of whether it was in aviation or any other part of the community. So they are general, as in they are applying to behaviour across the whole community, and their purpose is to uphold the basic norms which allow our society to continue, and their punishments are sufficiently severe accordingly.
Undoubtedly, a criminal prosecution for manslaughter by neglect in an aircraft, as your Honour Justice Nettle put to me, would not but have some incidental or other safety purpose or consequence attached to it; namely, that prosecution might be a public exposition of a very particular form of wrongdoing which may lead to a valuable reform of the industry, and there have been examples to that effect. But that, we submit, is something the civil aviation law says is part of the general law; “We do not purport to deal with that.” For what reason? Partly because that is such a well‑established, longstanding part of the general law of the fabric of society and that it would be a large measure for the Commonwealth to say, “We wish to take that solely within our special purview.”
Could the Commonwealth do it? That would raise questions of constitutional power, so there may be reasons for prudence and restraint in doing that. But has the Commonwealth done that? The answer is no. It is the same reason and the answer to Justice Nettle about the annex on the investigation of accidents. Could the Commonwealth have said that where a plane has an accident or incident only our police and our investigators are permitted to look at it and only they can charge under any provision? That would raise constitutional questions. Has the Commonwealth gone that far? No.
But then we come back to the present case and we say, if one looks at the subject matter of these work health and safety laws – and the Venn diagram is, with respect, useful; it is not a distraction or a misleading metaphor – undoubtedly there are some things which the civil aviation law does which the Northern Territory law does not intrude upon. The Solicitor for the Commonwealth gave some examples. Equally, there are some things the Northern Territory law does which it is permitted to do by the Commonwealth law, without any problem under 109.
But, in the middle area, where the Northern Territory law is imposing obligations on persons to observe certain safety norms in the conduct of their air operation, in that respect, if we focus on what that law is doing, it is inevitably dealing with the same topic or subject matter as the Commonwealth law.
Undoubtedly, it is doing it, in one sense, for a broadly similar purpose, which is safety. It is also doing it through a slightly different prism, and that also must be accepted – a workplace health and safety prism says, “I approach this problem as a person conducting a business or undertaking, exposing workers and invitees to risk, and I require them to manage risk.” That is a workplace perspective.
A civil aviation perspective says, “This is an air transport operation which inevitably creates a whole bundle of risks, bar operation, because it is an operation, because it is moving people from A to B in an inherently dangerous and risky conveyance”. What a civil aviation law says is: “I am regulating the safety of that as an operation as a means of transporting people from A to B.”
Inevitably in the Venn diagram, there is a very large area in the middle where the two are imposing differently expressed norms in respect to the same thing: what am I to do as a person, as part of this operation, to protect the safety of those around me?” That is where, whether you call it direct inconsistency or indirect inconsistency ‑ your Honour Justice Edelman raised whether it is necessary to distinguish between them ‑ in that central area, the State and Territory have necessarily intruded into the subject matter upon which the Commonwealth has said there can only be one law.
Following from that question, can I deal with just two matters. One is that the Commonwealth has given you in its outline, and perhaps in its written submissions, a conceptual framework to answer this case. We would submit that caution should be exercised before adopting the Commonwealth’s framework, particularly paragraph 5, both at the level of principle and when you see how it plays out in practice.
From paragraph 5, and 5.2 seems to be the highpoint the Commonwealth wishes to reach, that even if you find the Commonwealth law is the complete exclusive or exhaustive statement of the law on a particular subject matter, and for present purposes I will interpolate the setting of safety standards for air operations, then the Commonwealth law will operate concurrently with State or Territory law only if it has a different subject matter.
I think that is intended to convey “will operate concurrently with and therefore leave fully intact the State or Territory law if you can attribute to that State or Territory law a different subject matter”. That seems to be the conceptual approach argued. But when you look at the application of it in paragraph 16, the Northern Territory law is attributed a different subject matter through a criterion of operation tests that emphasises three matters.
The first is that the Northern Territory law is imposing duties on employers by virtue of a connection with work. Well, the answer to that is yes, true, but, with respect, so what? When it imposes that duty on that person, the person being an operator who is conducting an undertaking, necessarily is imposing a duty directly upon how the person is to conduct their air operation. So it has done the very thing which is at the centre of the rights and relations regulated by the Commonwealth law.
Paragraph 16.2: the Northern Territory law is broader than the civil aviation law because it applies beyond aircraft. True. All that tells you is you are not in the centre of the Venn diagram. Paragraph 16.3: the Northern Territory law is concerned only with the safety of persons, not property. True. All that tells you is you are not in the other side of the Venn diagram.
So you can really get rid of 16.2 and 16.3, we would submit, and all that is left is the Northern Territory law is imposing these duties on air operators in terms of how they are to safely run their air operations because it has a particular WHS focus, and that, we submit, could never be a means to escape 109 inconsistency. And it can be tested in reverse.
If 16.1 is enough to save the Northern Territory law, it is difficult to see how any part of the Commonwealth civil aviation law can survive with exclusivity because, take the rules of the air, the most obvious case, or licensing - very obvious - the rules of the air may tell the operator that when you are flying you follow the manual and the pilot in command has disposition of the aircraft. If a Northern Territory law comes along and says, “Well, I’m looking at you, the very same person, the same activity, but I’m doing it through my perspective, which is I regard you as a person carrying on work; therefore I’m outside your field”, the result can only be that there can be now multiple norms governing the flying of the plane.
So, if 16.1, 16.2 and 16.3 is the illustration of the test that is proposed in paragraph 5.2, we would submit your Honours would reject it as erroneous. Your Honours, the other follow-up point - at that point I might deal with it now – do your Honours have the Northern Territory ‑ ‑ ‑
NETTLE J: Can I just say, in defence of the Commonwealth’s 16.1, that it more or less accords with Dickson, does it not, the drunken serviceman? I wanted you to go on and answer this question. Does it mean in the end that it really comes down to the nature of the activity? Sometimes this test in 16.1 will work, namely with a drunken serviceman. Other times it will not, and we are talking about how you would fly the plane straight and level, or land it or, as you would say, load it.
MR GLEESON: The answer is yes, your Honour, the nature of the activity. We would add the international obligations to which it responds, the history by which this activity has been regulated over time and what Heli–Aust did on that, we submit, was perfectly correct.
A subject matter crying out for a single uniform regulation plus, coming back to your Honour Justice Edelman’s question, Justice Dixon’s example is a good area, a good illustration of where the general law of the land which imposes rules for A, B and C, et cetera, may be something which a specific piece of legislation says, “I will leave that well alone.” So that is the activity compared, as it were, to the purposes of the general law of the land that is being left intact.
So 16.1 could work in some cases - not in this case, not when we see the nature of the activity which the Commonwealth law is addressing. The point I wanted to supplement was if your Honours go to the Northern Territory statute which is in volume 1 at tab 31.
I wanted to make the submission that if the Territory and the Commonwealth are correct, most probably it is not just sections 19, 27, 30 and 34 which apply validly to air operations because those provisions sit as part of an integrated scheme imposing duties not just on the person conducting the business, but your Honours will see from sections 28 and 29 workers and invitees, so that what it purports to do is to say if this thing is a workplace, because of our concern with health and safety we will impose relevant duties, primarily perhaps on the operator, but most importantly also on the workers and the invitees so that together you will follow our generally expressed standards of care in the goal of achieving workplace safety.
Then further - and unfortunately not all the Act has been reproduced, but your Honours might be forgiven for having unhappy memories about other parts of it - the Act goes on to proceed with rights of entry for people who hold union tickets and it goes on to proceed to the health and safety representative. You will see that starting at page 402, where a work group can elect an HSR, and after many detailed provisions the HSR, at sections 84 and 85 - page 423 - can direct workers to cease unsafe work. Indeed, the worker can cease himself or herself under 84.
There is also an inspector with various powers. The workplace entry by WHS entry permit holders starts on 437, but we have lost that material. Then we have got a regulator under 155 who can summons information. Then under section 230, offences are brought by the regulator or the inspector, and 254 there are WHS civil penalty provisions.
Now, what that means is that if we come back to thinking about the subject matter of this Act, what it is saying is in our interests of advancing workplace health and safety, we are going to comprehensively regulate the entirety of that workplace including aircraft and, reading our provisions, we are in fact going to impose duties on not just the operator but on the crew and the passengers to comply with our generally expressed standards of reasonable diligence in order to protect safety. Then we are going to have rights for the HSR to come in and direct work to stop.
The logic of the argument put by the Territory, supported by the Commonwealth, cannot stop short of saying that the whole of this subject matter, WHS, as dealt with in a modern statute, is simply left by the civil aviation law as something for the States and Territories to do.
Once one understands that – coming back to your Honour Justice Nettle’s question ‑ it is not only looking at the activity which the Commonwealth is regulating in a manner that calls for only one regulator, but one is then looking at what the State or Territory law is purporting to do by way of legal obligation in relation to that activity. One can see the impossibility of sustaining the continuing operation of this law in the Territory we have identified.
Your Honours, we have indicated in writing that the logic of our argument that this statute has no operation ever in an air operation. The operation it can have is in matters which do not affect the safety of the operation. Can I give two examples. The first is if it is a pure matter of health but not safety, it can operate. I think an example was given today: what about crook food being brought onto the plane and poisoning people?. If that is a pure health matter, a very serious one, this Act can do its work.
Let me come closer to the line with safety. Assume we have a situation where bullying is occurring on the aircraft – bullying of some passengers by other passengers – bullying perhaps, one hopes not, by the pilot in command of a subordinate. Through a pure WHS perspective, an operator who knows of that matter and does not take appropriate steps to prevent the bullying occurring, could properly be the subject of investigation and, potentially, prosecution under this Act provided that does not enter the field of the safe operation of the aircraft.
The result is that, if the pilot in command is giving commands, even in a manner causing extreme stress to a crew member, as a matter of the civil aviation law, the commands must be followed under reg 224 and, in terms of the flying of that plane and that operation, the operator cannot interfere with the pilot in command. What the operator can do is, when that air operation has ceased, the operator can resume the ordinary duties under this law to ensure that pilot in command is disciplined and, perhaps, does not fly with that person again.
What that shows is that the State and Territory authorities have room to move and work to do under this law but not in the full area covered in terms by the law in what I would call the reduced area once primacy has been given to the properly defined federal law.
Your Honours, that answer is also the explication of the relationship between the civil aviation law and the other Commonwealth statute, in particular, you were referred to which is the Work Health and Safety Act 2011 (Cth) which is at page 324. On page 325, the Commonwealth has applied its WHS law to certain limited Commonwealth undertakings – let me take that back – has applied it to defined Commonwealth undertakings which will cover a vast raft of Commonwealth enterprises.
The only area of intersection between this and the civil aviation law will be if the Commonwealth is conducting an air operation, as might occur for instance if CASA was chartering a plane to conduct training or supervision and the like. In that area, this Act in terms applies. The reconciliation between the Acts is that, to the extent that the general language of this Act would impose a workplace duty in any area dealt with specifically by the safety regulation of the civil aviation law, the general gives way to the specific.
For that reason, the relationship between the civil aviation law and this law is functionally the same as the relationship between the civil aviation law and the State and Territory OHS laws. Each is left with work to do but not in an area which intrudes upon safety of air operation as defined.
GAGELER J: Mr Gleeson, on your definition of the exclusive operation of the civil aviation law, does it operate to the exclusion of the common law?
MR GLEESON: The answer would be in two parts, your Honour. There is unlikely to be any known principle of the common law which does the thing the civil aviation law does, which is prescribe standards. What there will be at common law – for instance, the common law of tort ‑ would be actions for compensation for liability where ‑ ‑ ‑
GAGELER J: To be specific, I am thinking of the common law duty of care.
MR GLEESON: The answer is that it does not exclude those doctrines of common law, the reason being is that they are functionally equivalent to the Civil Aviation (Carriers’ Liability) Act example I gave, which is where that common law obligation is responding to the causing of harm to a person – duty, breach and damage.
`That is a matter in respect of which civil aviation law has not gone to the next step and said, “We will be the only law of Australia on civil or criminal responses to the causing of damage out of the operations of aircraft. We will give your Honours tomorrow the example. That issue has been dealt with in other courts below, and the position to date is the one I have indicated.
BELL J: But it is not a complete answer to say, “I looked to what the manual prescribes as the sole source of my obligation because I am under a duty imposed by the common law to take reasonable care.” Let us assume that the manual is deficient in some regard, that common law duty persists and its breach will sound in damages or criminal liability in the event of a gross breach and the death of a person.
MR GLEESON: I think my answer to that is “yes”, your Honour. I was going to say to Justice Gageler, that accepting as I do that common law can continue, then in the formulation of the duty of care and the breach, the common law will have to say what role or status do we give to the statutory framework which has given the manual that central responsibility. And that may become – it may become quite fact‑specific.
One of the examples is that particularly in relation to balloons, and I will come to the balloon provisions tomorrow, there is a very particular provision which says for balloons only the chief pilot has total control over the entire operation, including the content of the manual.
Now if it was the chief pilot who was sued for negligence at common law, or criminally for causing a death, in that particular case the chief pilot is going to have a lot difficulty saying, “but it is in the manual” because the chief pilot was, by federal law, made responsible for the manual. If we were looking at a lowly operations crew member who simply followed the manual, it may be harder, depending upon the facts, for that to be a breach of duty at common law.
So that illustrates that (a) the common law is allowed to survive but (b) in the application of its doctrine, it will have to work out what to do with federal law. So that is not an inconsistency problem but that is a problem of reconciliation.
EDELMAN J: Is it ultimately a purpose point, that the purpose of the common law like the purpose of perhaps the common criminal law or criminal law rules is not at its core concerned with safety which is why you cannot have negligence in thin air, that its core is the rights of individuals?
MR GLEESON: The answer would be yes and, in specific, with tort, damage, damage has occurred to an individual or to their cargo and that is a matter the common law is responding to. It is not responding to compliance with safety standards in the ether, that is true. Nor is it responding simply to the degree of departure from a safety standard, it is the safety standard
breach causing loss to which the common law or other laws are responding. So, there is the purpose point. Is that a convenient time?
KIEFEL CJ: Yes, thank you. The Court will adjourn to 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.
AT 4.16 PM THE MATTER WAS ADJOURNED
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