Work Health Authority v Outback Ballooning Pty Ltd & Anor

[2018] HCATrans 146

[2018] HCATrans 146

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 WEDNESDAY, 15 AUGUST 2018, AT 10.05 AM

(Continued from 14/8/18)

Copyright in the High Court of Australia

KIEFEL CJ:   Yes, Mr Gleeson.

MR GLEESON:   Thank you, your Honour.  Could I resume at point 6 of our outline where I seek to deal with the history between 1920 and 1988 which, we submit, informs the exclusivity of the field and also helps identify it. 

The starting point in volume 1 of the materials at tab 4 is the shortly expressed Air Navigation Act 1920. If I could ask the Court to go to that. In the briefest of terms, in section 4 it provided for regulations to give effect to the 1919 Paris Convention and, I emphasise the next part:

for the purpose of providing for the control of Air Navigation in the Commonwealth and [relevantly] the Territories. 

We submit that from 1920, or at least the following year when the first statutory rules were made, the statutory rules number 33 of 1921 which your Honours should have as a separate hand up separate to the book, the Commonwealth assumed plenary control over air navigation in at least the Territories and that provided exclusivity such that no Territory ordinance could provide for rights, duties or legal relations which could be said to involve control of air navigation.  And so there we see the field at its earliest expressed in terms of control.

What has happened in the 68 years between 1920 and 1968 in this area of the law is a number of related developments.  The first is that there has been an increased understanding of the necessary reach of the power under section 51(1) to regulate the area we are in.  That is the progression from Burgess through to Airlines (No 1) and Airlines (No 2).  That is relevant because, as section 4 originally read, the language “control . . . in the Commonwealth” was held in Burgess not to justify a regulation controlling flying without a licence in a purely intrastate matter.  That aspect of the law has expanded as the understanding of section 51(1) has expanded.

The second matter which is related, and discussed in detail in the Airlines Cases, is the growth in the volume and complexity of aviation activity, calling for a much more detailed and comprehensive regime of safety regulation.  The third matter is the increased willingness of the Parliament to exercise its full constitutional power and extend exclusivity into what otherwise might have been viewed as a purely intrastate matter. 

The final matter, which is perhaps important, is that there has been a refinement in the focus of the field of exclusivity.  In 1920, it was controlled.  Certainly, by the 1998 Act it is at least controlled via the setting of safety standards for civil aviation in the manner I submitted yesterday.

Your Honours would observe from those very first statutory rules in 1921, even just from the index, that the focus at the time was to deal with safety partly as an aspect of conditions of flying – that was Part II of the rules – and then separately to regulate aerodromes ‑ they were regulated comprehensively from the outset – and then in Part IV to focus on the registration of the aircraft, including its airworthiness.  Also there was licensing and certain other matters were dealt with, including the rules of the air.

What is important, as of 1920, was that although this was a detailed and comprehensive regime, it had not yet taken the step of identifying that the operator needed to be directly regulated and that the air operations needed to be directly regulated.  The focus was more on the matters that I have identified.  That critical step, which is important to the field, occurred following the Chicago Convention. 

The other aspects of the earliest regulations of note are that the definition of “aircraft” already included balloons – that in section 4(1)(b), there was a reservation for what were described as the “police powers” of the State and that was intended to reserve the general operation of matters which would be under the control of the State police.  We have provided in volume 4, at page 1895, the second reading speech where that matter is explained.

Then, a number of the regulations specifically dealt with balloons in various fashions – for example, regulation 43.3 and regulation 53.  And, the rules of the air are found in Part IX and we would submit that that part of the civil aviation law, namely, the rules of the air was exclusive from the outset.

Your Honours, the next stage in the history that we refer to at point 7 is Burgess itself and, more importantly, its immediate aftermath, because the immediate aftermath of the decision in Burgess was volume 1 at tab 6.  The Parliament amended the regulation power, left “in control of air navigation” as the key words, but then linked it to squarely section 51(1) and section 122.  We submit that, at least in relation to Territories, Commonwealth law continued to exclusively govern all aspects of the control of air navigation.

In 1937 a cooperative scheme was put in place between the Commonwealth and the State to ensure that the regulations made under this Act could operate throughout the entire Commonwealth.  The regulations or the statutory rules of 1936 are found at volume 1, tab 8, and their significance to the field is this.  Your Honours will see from reg 2 that the subject matters covered are essentially the subject matters of the 1920 regulations.  The focus is still very much on the aircraft, the personnel and such matters, and it has not yet moved to the operator and the safety of the operation.

If you could look, please, at reg 5, the Commonwealth decided not to regulate to the full reach of the power.  It applied the regulations to international navigation.  It did not apply them to interstate navigation.  But again it applied them to the Territories.  Under reg 5(2) you will see that Part IX of the regs, that is, the rules of flight which are found on page 112 and following, were applied to all air navigation in Australia.

So, a view was clearly taken that in relation to rules of flight the subject matter was such that they could be sustained across the whole of Australia and it may be, if you look at Part IX which is found on page 112, reg 64, that that decision was taken under the external affairs power because, consistent with Burgess, there was a direct implementation of an annex to Paris.

Could I draw attention to regulation 76 on page 114.  This is relevant to the extent of an air operation.  This imposed the critical duty on the pilot or the commander to satisfy himself or herself of matters, including (c), that there was a satisfactory load “for safety in flight”.  Part of the air operation includes the safe loading of passengers and crew in order to enable the flight to be conducted safely.

Could I then move to point 8, which is Chicago.  Your Honours will have as a separate hand up the two Acts of 1947 which brought Chicago into Australian law:  Act No 6, followed by Act No 89.  The reason both were important is that it is Act No 6 which ratifies Chicago, but it is Act No 89 which revises the regulation‑making power to bring it into the form which it then took for the next few decades.

What is important in the reg power is that it is not just regs to give effect to Chicago but it is describing all matters in respect to air navigation necessary or convenient in relation to matters over which the Parliament has power, and similarly in respect to the Territory.  For present purposes, that continued the plenary exclusive regulation of air navigation by the Commonwealth in the Territory.

Could I ask your Honours to go to volume 2 and indicate the key relevance of Chicago to the field.  Ms Brownhill drew your attention to Article 12, which is on page 466, and this is one of several obligations on State parties to ensure uniformity to the greatest extent possible.

Ms Brownhill is correct that Article 12 has as its subject matter the flying over and manoeuvring within a territory.  That does not embrace the whole of what Chicago covers.  Article 12 does require in that territory, which is itself broad, the State must:

keep its own regulations . . . uniform, to the greatest possible extent, with those . . . under this Convention.  Over the high seas, the rules . . . shall be those . . . under this Convention.  Each contracting State undertakes to insure the prosecution of all persons violating the regulations ‑

What that means is at least in the territory of Article 12 Australia’s promise is that Australian domestic law concerning the flying or manoeuvring of any aircraft in the territory will be, as far as possible, uniform with Chicago.  That is the international obligation, or part of it, which the Full Court in Heli-Aust, we submit correctly, placed significant reliance upon in terms of understanding that the civil aviation law must be exclusive.

If your Honours could then go forward to Articles 31 to 33, you will see they follow the model of the Paris Convention, regulating the aircraft, the pilot and airworthiness.  It is Article 37 which is the second key part of the uniformity and which informs the field.  This is the article which Chief Justice Barwick and Justice Menzies discussed in Airlines (No. 2) at pages 690 and 739 to 741 of the bundle in a helpful manner.  What your Honours will see in Article 37 is a promise to secure the highest degree of uniformity in regulations and other matters:

in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation.

ICAO is then identified as having as role to set standards in a range of areas and critically at the end of it:

and such other matters concerned with safety, regularity, and efficiency of air navigation as may from time to time appear appropriate.

So the promise by Australia was an ambulatory one that we would collaborate to achieve uniformity in regulations consistent with the work over time of ICAO in areas of safety, regularity and efficiency.  That is what led to the specific role of the council which you can see in Article 54.  And, particularly, under paragraph (b), it established an air navigation commission.  Under paragraph (m), it is to:

Consider recommendations –

that is:

of the Air Navigation Commission for amendment of the Annexes –

You see in Article 56, the Air Navigation Commission is a specialist technical commission.  So, a specialist technical body recommends the annexes and under Article 90, the council adopts those annexes which then become part of the international obligation of Australia.

As an international obligation, we submit that the Commonwealth has undertaken to bring these uniform standards from Chicago into the control of the whole of air navigation and operation within Australia.  Australia is to have a single set of rules governing safety regularity and efficiency of air navigation.  To the greatest extent possible, it is to mirror the Chicago rules and as the Chicago rules mature and develop, Australia is to bring its law into line with it.  That is the international obligation.

It, of course, has a domestic limitation which is, for constitutional reasons, can the Commonwealth provide that single law across Australia.  And, the understanding, as of 1947, remained that at 1937 one would need to have the States adopting the air navigation regulations as State law – to the extent that the Commonwealth law could not validly operate.  That co‑operative scheme remained until the Airlines’ Cases.  Once that co‑operative scheme was done away with, after the Airlines’ Cases, then Australia was able, domestically, through a single law, to fully comply with the international obligation.  

Your Honours, you have annex 6, commencing at page 487.  It is important because, as I indicated yesterday, at least one strand of the field is everything covered by annex 6 which, in turn, is Part 14 of the Civil Aviation Regulations.  This is the part that deals with the safety of the air operation.  One of the matters I want to mention is that it is annex 6 which introduced the critical shift so that the focus now included the safety of the operator and the safety of the operations.  It is no longer just the aircraft and the personnel.  It is the operator who is regulated in its operations to achieve safety.

Now, if I could observe on page 487, you will see in the first paragraph that the standards were based on recommendations of an operations division in April 1946, developed in February 1947.  They came into effect in 1948.  Australia, in fact, took advantage of the work done in 46 and 47 because the new regulations were brought in in 1947.  That is slightly in advance of the formal adoption of annex 6 but cognisant of its contents.

Before coming to those regulations, could I just emphasise in annex 6 these matters.  On page 488 in the last paragraph, we see they are a useful summary of the purpose of annex 6 and that is the safety regulation purpose which I sought to submit yesterday, characterises the field governed by the Commonwealth law.  And this is the standard setting notion, setting the criteria for “safe operating practice and to contribute to efficiency and regularity” and so on. 

An important limitation of annex 6 I need to mention is on the top of that page, that is page 488, in the first full paragraph.  You will see that annex 6 was limited to aeroplanes engaged in international air transport.  When Australia came to implement annex 6, we took annex 6 to its logical conclusion and applied its rules indiscriminately across all aircraft.  They are the same rules but we applied it across all aircraft including, for example, balloons.

Now, on page 491 at the foot, could I draw attention to the definition of “standard”.  Your Honour Chief Justice asked me about how we put “standards” yesterday.  This is the binding sense in which we attribute meaning to “standards”.  Now, in the body of the annex, there are two critical manuals that are separately discussed.  The first on page 506 is the flight manual.  That is the one that effectively goes with the aircraft and comes from the manufacturer, and you will see that it must contain all instructions “necessary to the flight crew members for the safe operation of the aircraft”. 

So the balloon will have a manufacturer’s manual which will describe how it is to be safely operated qua aircraft, and then if you go to the operations manual on 509, that is the manual of the operator, which then becomes the subject of reg 215.  Interestingly, you will see a definition of “operational control” in terms of:

The exercise of authority over the initiation, continuation, diversion or termination of a flight in the interest of the safety of the aircraft and the regularity and efficiency of the flight.

That we rely upon to support what I put in answer to your Honour Justice Nettle yesterday about the scope of the operational control.  It is not simply while the plane is in flight.  The operation comprises the whole of the matter which is there referred to.

Could I then show briefly the body of annex 3, having given you all of it, on pages 512 and 513.  There are provisions for the responsibility of the operator.  Particularly at the foot of 513 there is an obligation upon the State to:

establish a State safety [management] programme in order to achieve an acceptable level of safety in civil aviation.

That is what the civil aviation law is.  It is the State safety program to achieve the acceptable level of safety in civil aviation which we are bound to adopt under Chicago.  You will see over the page, 3.3.3, the things that the State safety program must do. 

It is our proposition that, under Chicago, Australia can have only one State safety management program.  It must be uniform across the country.  The reason must be that any international flight coming into Australia knows that there will be a single State safety program that will deal with all these matters of safety.  For that reason we cannot have nine separate safety regulators in the country; there can only be one.

If your Honours go to page 516, please, this is where Chicago adopted the concept of regulating the air operator.  This is the move over Paris.  Section 4.2 is the obligation on the operator to have a valid AOC.  Importantly, you will see in 4.2.1.3, at the top of page 517, that it is Australia that must issue the AOCs and it must be “dependent upon the operator demonstrating” a range of matters:

adequate organization, method of control and supervision of flight operations, training programme –

and other matters consistent with the operations.  That is the critical Chicago move, that the entire operation of an operator must be brought under the control of our regulator in determining whether people will receive certificates to be able to fly.

If your Honours drop down to 4.2.2, this is one of the critical mutual recognition obligations of Chicago, that we are bound to recognise AOCs issued by other State parties, provided they comply with the same standards as we do under the annex.  That is the reason why South African Airways, for example, can get an AOC under the provisions of the civil aviation law by presenting compliance with local standards which match Chicago.  So this shows how the uniformity which must apply seamlessly internationally and domestically has now moved well beyond merely the rules of the air or the flying and manoeuvring aspects that were dealt with in Article 12 of Chicago.

Your Honours, the operations manual is dealt with in 518 and all the elements that we now see in regulation 215 are an implementation of clause 4.2.3 of the annex, including the need to keep it up to date, including a requirement that the manual be provided to the State.  So, under Chicago, the manual cannot simply be an idiosyncratic document that appeals to the whims of the individual operator.  It must be under State control and that is one of the central promises that we have made.  Then under 4.2.4 there is a duty on the operator to give proper instructions in their duties to all aspects of the operation.

The other parts before I leave the annex are more briefly dealt with, but at page 520 under the heading “Crew” the position of pilot‑in‑command is established.  If I could draw attention to 4.5 on page 522, this is the equivalent provision to reg 224.  You will see that it is a little narrower than reg 224 because it assumes an aeroplane, as does the whole annex, and assumes the concept of the doors being closed and it indicates that is the point at which the chain of command switches solely to the pilot‑in‑command.  Reg 224 has quite correctly looked at the matter in a broader fashion because it has to accommodate other matters such as balloons.

On 523 at 6.1.4 – that is the mirror to that part of reg 215 which requires the manual to be given to all relevant crew.  Over the page, 6.2.3 requires the aeroplane to carry both the operations manual and the flight manual.  Then, just finally, if you go please to page 531 through to page 535, simply to observe that this is detailed specification of what must be in the operations manual including, under 2.1.1, it must have:

Instructions outlining the responsibilities of operations personnel pertaining to the conduct of flight operations.

Pausing there, could I come to your Honour Justice Keane’s question yesterday about the mother?  Our answer to that question would be this.  Firstly, if the mother suffered injury, she would have a general law tort claim which is not excluded by the civil aviation law and is not excluded by the other law which does deal with liability which is the 1959 Carriers’ Liability Act because it is not death or injury to a passenger.  She is a non‑passenger.

So, the answer I gave your Honour Justice Gageler about the common law is not excluded by this law remains.  The common law is excluded, in substantial part, by the Carriers’ Liability Act where there is damage to persons or cargo and the Court has granted leave in a separate case – South West Helicopters – which will consider where nervous shock fits into that divide.

Your Honour’s question, then, was more directly about the regulatory law of the State or Territory.  Our answer would be, once the air operation has, relevantly, commenced, then the civil aviation law has descended and it is the sole law on safety.  Making that practical, while the people are travelling in the bus to River Track 1, there is not yet an air operation and if the mother is in the bus she is protected by ordinary law.

When they leave the bus, at a certain point the pilot and the crew member commenced to lay out the basket on the ground, to lay out the balloon, and they erect the fan, turn on the fan and start pumping air into the balloon.  At that point, an air operation has commenced.  At that point, the respondent has any and every duty under the Act and the regulations to make sure that air operation is conducted safely.  That would include duties to ensure that non‑passengers are not put in danger by the air operation.

The parallel, if we think of a more conventional aircraft, would be that the air operation commences once one either goes down the air bridge or, otherwise, goes through the doors and walks out onto the tarmac to board the plane on a staircase.  From that point, if not earlier, the air operator has all the duties of the civil aviation law and only those duties in respect to safety.

What that means is that Qantas or a Virgin would be bound by reg 215 to have in its manual procedures which regulate the safe boarding of the aircraft, and most probably, if one inspected their manual, one would find in it a rule saying, “no persons without a ticket duly checked by the Qantas or Virgin person at the gate, is to be permitted under any circumstance to go down the air bridge or to go onto the tarmac”.

And so, in the example where a person comes along and says, “I would like to shepherd my child onto the plane, safely put them into a seat and then I will quietly go off because I do not have a ticket”.  The answer to whether that can be done will be governed solely by federal law and, in particular, what the operations manual says about that risk.

So, in the present case, if there was any realistic risk of non‑passengers being allowed to board the bus and come in contact with the air operation, if that was a realistic risk, it had to be addressed – in the manual it had to be dealt with under federal law. 

And so, if the Northern Territory inspector came along at that point as the mother was starting to move near the fan and said, “I wish to give a direction about what is to happen here.  I want that person put back on the bus.  I want the fan turned off or I want a buffer erected, either to protect the mother or the passenger”, our answer would be the Northern Territory law would not operate in that circumstance. 

Your Honours, the final part of annex 6 is page 536 and following.  This is a fleshing out of what has to be in the State safety program and this tells us all of the generic matters which the civil aviation law must address and it has, within it, primary aviation legislation.  Then it recognises there will be specific operating regulations and could I emphasise 2.2. 

That is the core duty which Australia has which explains why we have multiple volumes of regulations.  They must be:

comprehensive, detailed and current . . . to ensure that satisfactory compliance will result in an acceptable level of safety for the operations undertaken.

And that is another place where we say you can capture a description of the field which is covered by the law.

Now, if I could then ask your Honours to go back to volume 1, to tab 10.  You have the 1947 regulations.  Sorry, tab 9.  We have only given you parts of it but you will see from the first page that it was the Department of Civil Aviation which became the Australian regulator at this point in time, for the State safety program.

On page 120, under Part XIII, this is the whole new provision which implemented annex 6 of Chicago and took it, as I have said, to its logical conclusion.  This is the material which was not in the earlier iterations and this is the material which has become, to a large extent, Part 14 of the modern regulations.

What you will see in reg 191 is the first concept that all operations are divided into four different types, including charter.  Under 192 an aircraft has to be classified in respect to particular operations.  So the critical move has been made.  It is not just a question of is it a safe plane, can it fly, but what is the particular operation for which you wish to use it and then are you an appropriate operator for that operation.

The regulations in 198 and 199 become the issue in the Airlines Cases, particularly Airlines (No. 2).  Could I indicate in regulation 199(2), as compared to (3), the decision taken in (2) was that where it was an interstate flight or service, the only criterion upon which the licence was to be given was safety; whereas, if it was intrastate or, more correctly, other than interstate, the Director‑General could consider matters more broadly. 

That was because of a view taken of section 92 that, if it was regulating interstate services, safety would provide a reasonable regulatory response to an interference with interstate trade but no broader matters could be justified given the then understanding of section 92.

So it produced the slight oddity that, because of section 92, the breadth of considerations was in fact broader where it was purely intrastate trade, which then produced the particular circumstances of the Airlines Cases:  what happens if the Commonwealth has validly issued a licence for intrastate flight and has taken into account matters extending beyond safety?  Is the Commonwealth field exclusive of State regulation on non‑safety matters?  So the Commonwealth may take them into account but can it be the sole law on non‑safety matters for intrastate trade?

The position reached in the Airlines (No 2) Case, which we understand has not been departed from in the Court, is that that is the outer limit at which the exclusivity runs out between Commonwealth and State.  So, if a State wishes to impose its licensing law by reference to non‑safety considerations and it is purely intrastate, Airlines (No 2) says that is a field which the Commonwealth cannot exclusively regulate.

We have given your Honours in volume 4 Professor Richardson’s article which expresses that view of the law following Airlines (No 2).  It is at page 1948.  For practical purposes, the reasons why the States, e.g. New South Wales, wish to exercise that non‑safety regulation had largely disappeared.

So, your Honours, the balance of the part I am dealing with, Part XIII of the 1947 regulations, then goes on to deal with the other aspects of regulation of the safety of the operation.  It is reg 212 on page 123 which is the origin of reg 215.  Your Honours will note in its original form it had a slightly different focus to the current relevant form.  The duty was to provide a manual with:

complete instructions as to the conduct of flight operations, including the responsibilities of its operations personnel.

EDELMAN J:   Sorry, which page is this?

MR GLEESON:   Page 123.  The duty as originally expressed was that the manual had to be complete in its instructions.  It was under the control of the Director‑General and it had to be provided to relevant personnel.  So that is an implementation of annex 6.  If you compare that to its current form, which is at page 260, you can see the shift that has occurred.  The shift occurred in 1971 under the amendments to the Air Navigation Regulations.  We have given your Honours separately that amendment.  But the critical shift is that, instead of it simply being “make a complete manual” for the conduct of flight operations, the duty is now expressed as:

must ensure that the operations manual contains [everything] with respect to the flight operations –

Then here is the critical confining of the focus - 

as are necessary to ensure the safe conduct of the flight operations –

So that is the critical shift that occurred in 1971.  What it has done, consistent with the way I have suggested the field is evolving, is identify that it is the safe conduct of the flight operations which is the central matter exclusively regulated by the Commonwealth law. 

The other critical focus of the 1971 shift is that, because it is a duty to ensure that the manual does this, compliance with that duty necessarily involves the operator conducting a risk management assessment.  In effect, in the specific context of the aviation industry, reg 215(2), or its predecessor in 1971, is probably one of the earliest examples of a technique taken up in later OH&S statutes, of saying for your particular operation you must identify any possible risk to safe conduct and then you must provide the norms to address those risks in a particular way in a documented manual which is then given to all personnel, and that is the way safety will be achieved in an aviation operation or, dare I say, an aviation workplace.

What that demonstrates is that from at least 1971 this very territory or topic is the same as the one which the subsequent OH&S laws, with their more general focus, entered upon.  Reg 217, if I could return to that, on page 124, that shows the Director‑General had control over facilities and safety devices at aerodromes.  Then, reg 219, which is the origin of reg 224, is, as I indicated earlier, Australia’s implementation of Chicago as to when the pilot in command takes control, but doing it in a manner that accommodates all aircraft, including balloons, not merely aeroplanes.

Reg 225 carries over the earlier regulation and in paragraph (c) indicates that loading is part of the regulated operation.  Over on page 127, reg 250, gave the Director‑General complete control over the flying of any free balloon, and reg 253 gave the Director‑General the power to conduct investigation and inspection of – your Honours see a series of matters:

crew, the operation of an aircraft or its equipment or of the ground organization –

and so on.  So, that is the central surveillance aspect of the Chicago obligation brought into the law.  It empowers the Director‑General to authorise those investigations.  It would be inconsistent with that for a State or Territory law to say, “We authorise our people to inspect your aircraft, its operations, or, perhaps, your balloon through a safety prism”.

Two final regulations.  Reg 293 is the specific regulation as expressed giving the Court power to cancel or suspend licences.  So, that is civil remediation for breaches of the licence.  Finally, prosecutions under 317:

shall not be instituted summarily without the authority of the Director‑General.

So, the Director‑General became the person – the sole person who determined whether any of these safety‑based regulations ought to be prosecuted.

Your Honours, the last step in the history observe two particular parts from the Airlines Cases which bear rather directly on the present question.  If your Honours could go to Airlines (No 1), which is in volume 2 commencing at page 603 – I will use the numbers from the tab – in the judgment of Justice Taylor commencing at page 634 of the book, you will see a useful recitation of the two arguments put by the plaintiff.

KIEFEL CJ:   Which page of the report is that, Mr Gleeson?

MR GLEESON:   Yes, I am sorry, your Honour, it is page 32 of the report.

KIEFEL CJ:   Thank you.

MR GLEESON:   The first argument, which was the cover the field argument put broadly, was that:

the Commonwealth had by its legislation . . .  assumed such a degree of control over the activities involved in or directly associated with aerial navigation that there was no room for the operation of the State Transport (Co‑ordination) Act so far as it –

prohibited:

carriage for reward . . .  on intra‑State journeys –

Then a meticulous examination was made of the provisions.  The alternative contention was more specifically based on regulation 198.  Justice Taylor says at about the middle of the page:

Though the second contention may call for independent consideration it may be said at once that the first contention fails to take any account of the fact that the provisions of the Regulations upon which it rests are designed exclusively in the interests of safety in relation to aerial navigation and have nothing to say on the topic of ‑

the State Act, which is:

the co‑ordination of transport services within the State.

So, when his Honour summarily rejects the first broad argument, what he has done, which we submit is very useful, is to say the reason it fails is that you have expressed your field slightly too broadly, that the field covered exclusively is not all control over aerial navigation, but it is all control over matters concerning the interests of safety in aerial navigation.  In other words, the field we urge upon your Honours is the way his Honour read the then regulations.

Once the field is about safety, one can then see the State Act is on a different subject matter.  It is simply on who should be able to fly on a particular route from Sydney to Dubbo.  That part of his Honour’s reasoning is returned to after his recitation of the history at page 39 of the report, or page 641.  His Honour about halfway down repeats that he is rejecting the primary contention and he says:

On the contrary, the regulations appear as a studied and careful attempt to devise general and comprehensive rules for securing safety in and in relation to the operation of an aircraft within the limits of the regulation-making power -

That, we submit, is an accurate statement then and now of the exclusive field covered by the civil aviation law.  The other passage that I wish to go to is in Justice Windeyer’s judgment.  It commences at page 50 of the report, or page 652.  At the foot of page 50 his Honour is discussing the question of Commonwealth power and he says it:

extends to the control of the movement of all aircraft in all air space above Australia and its territories.  It extends too, I consider, to all such incidental matters as the control of airports and airfields, the take‑off and landing of aircraft, and –

I emphasise the next one:

the prescribing and policing of safety precautions.

There we submit Justice Windeyer is identifying a key part of the field, consistently with Justice Taylor.  He is doing it as a matter of power at this stage, not yet inconsistency.  Over the page at 51, at the end of the first paragraph his Honour says that:

The proper regulation in the interests of safety of the operations of inter‑State and overseas airlines, and the due execution by Australia of the international obligations it has accepted, may well make it desirable that the one authority should exercise sole control of all movement of aircraft in the air and of matters connected with such movement, that is to say of all matters connected with how aircraft may be used.

Coming back to your Honour Justice Nettle’s question yesterday, we submit that is the activity which calls for the single form of control which the Commonwealth has assumed.  His Honour in the next paragraph comes directly to the question of inconsistency.  His Honour says this:

does not mean that a State can say nothing as to the purposes for which aircraft may be used within its borders.  A State law inconsistent with valid Commonwealth laws concerning the movement of aircraft in the air, or matters preliminary to and subsequent upon such movement, would to the extent of the inconsistency be invalid.

That, we submit, is the present case.  His Honour then distinguishes that case from the Airlines Case because the State law was in a different field, prescribing the purpose for which aircraft could be used within its borders in no way entering the exclusive common field.

NETTLE J:   Mr Gleeson, that passage you just took us to in Justice Windeyer’s judgment about halfway down, he is talking about direct inconsistency, is he not:

A State law inconsistent with valid Commonwealth laws concerning the movement . . . would to the extent of the inconsistency be invalid.

MR GLEESON:   Your Honour may be correct.  I had read it as not confining itself to one or the other, indicating if you were dealing with those matters ‑ ‑ ‑

NETTLE J:   If it were indirect inconsistency it would just be out of the ball altogether.  The fact that his Honour refers to “the extent of the inconsistency” rather suggests it is direct.

MR GLEESON:   Your Honour is correct.  What it illustrates though is that even with a direct inconsistency case, sometimes they will be at their narrowest, one provision against another, one forbids, the other permits et cetera, but even a direct inconsistency case could be built up through a range of provisions operating together to state the exclusive law. 

And even in a direct inconsistency case, the authorities sometimes say that when you look at how the provisions work together, they have a negative implication within them.  There can be no other law on that particular topic.  In that sense, the conceptual tool in direct inconsistency can sometimes mirror what happens in a broader indirect inconsistency case.

NETTLE J:   Yes, I see.

EDELMAN J:   When you said that the statement or the expression in that paragraph by Justice Windeyer is essentially a summary of your case, is that right?  The statement of the subject being concerning the movement of aircraft in the air, is not your case a focus on concerning safety matters relating to aircraft?

MR GLEESON:   I accept that, your Honour.  Yes.  I accept what both your Honours are putting to me.  And perhaps that explains why his Honour is speaking of indirect – of direct inconsistency because you could have a State law which directly trespasses on movement, which is not necessarily a safety‑related law which may fail for direct inconsistency.

EDELMAN J:   The indirect inconsistency would be the start of the previous paragraph which is:

The proper regulation in the interests of safety of the operations of inter‑State and overseas airlines ‑

MR GLEESON:   Yes, your Honour.  But I do not resile from the proposition that in a direct inconsistency case they can have degrees to them, and when we come to our direct inconsistency case it is, in fact, looking at the co‑operative working of a number of specific provisions I will identify, which is what creates the negative that there cannot be a State law of the character of the Northern Territory Act.

Now, I have now reached point 11 of the outline, save for one matter in the chronology.  Your Honour Justice Gageler asked about regulation 98(7) yesterday.  Could I supplement the answer I gave with this.  That regulation, or its predecessor, was brought into the scheme in 1980 immediately after self‑government.  It was a deliberate recognition of the Northern Territory (Self Government) Act and it is to be read together with section 98 of the Act, the regulation‑making power. 

Your Honours have it at page 76 of volume 1 but it is to be read together with section 98(6) on the previous page, which came in at the same time which indicates that in the ample regulation‑making powers they are all to be read as if the Northern Territory were a State.  So that the Parliament decided that it would put the relationship between these regulations and Territory law on the same footing as if the Territory were a State.  In other words, the section 109 principles were brought directly into the regulation‑making power and that explains why in 98(7) it says:

A law of a Territory . . . does not have effect to the extent to which it is inconsistent with a provision of the regulations –

subject to the proviso.  So, that is authorising a section 109 exercise.  The end result of all that is that the issue which Ms Brownhill was concerned about in asking you not to decide, does not arise in the case because it is not a – to the extent there is inconsistency with the regulation is not a power issue.  It has been dealt with through the Commonwealth statute and so the order that was made below – if we are otherwise correct – namely, that the law is inoperative to a certain extent, is the correct order.

Your Honours, could I then ask you to look at the Civil Aviation Act as it now stands at the relevant date which is at tab 3 and emphasise the key features in the modern Act which carry forward the field we have identified.  We have attempted in paragraph 11 of the outline to itemise eight aspects which together give rise to the exclusive field.  So, what I will be doing is going through the Act and the regulations to that effect.  The coverage of balloons, which I indicated yesterday, is detailed and specific; I will deal with separately at point 13, if I might.

Your Honours, in the Act, on page 35, the definition of aircraft is broad enough to cover balloons.  On page 37, there is an important definition of aviation safety standards, particularly paragraph (b):

the design, construction, maintenance, operation and use of aircraft and related equipment –

This concept of aviation safety standards is picked up in the powers of ‑ ‑ ‑

KIEFEL CJ:   I am sorry, which section is that?

MR GLEESON:   So, that is section 3.

GORDON J:   What is the definition you are looking at?

MR GLEESON:   Aviation safety standards.  It is picked up in section 9(1)(c) as being one of the means by which CASA is to conduct the function of the safety regulation of civil air operations in Australia.

Could I pause there?  Mr Dunning made a submission yesterday which I think went this far, that section 9(1) does not give CASA the exclusive safety regulation of civil air operations.  It permits of there being other bodies doing safety regulation of civil air operations in Australian territory.  We submit that is wrong.  Section 9(1) is an exclusive vesting of this function in CASA.  It does not permit of any other regulators doing that function.  If your Honours read that together with sections 9A and 11, CASA has two overriding mandates in how it performs all of its functions.  The first is it:

must regard the safety of air navigation as the most important consideration.

The second, under 11, is that it must perform functions consistent with Chicago.  No State or Territory regulator, in the OH&S space or otherwise, is constrained by those two mandatory obligations.

As part of the exclusive vesting of the function in CASA there is an exclusive specification of how CASA is to carry out those functions.  A Territory inspector or, perhaps, a health and safety representative may come along to a particular operation and have their own view as to whether they think it could be done more safely.  They might like to be able to give directions, saying, “You must change your operation and do it in a different fashion”.  We submit that that cannot be tolerated by this scheme, which says, “There is to be only one regulator of safety or air navigation, it is governed by these considerations and it controls and implements all of the rules”.

Returning to the definitions in section 3, could I observe a definition of “aviation security”.  This, we think, helps illustrate the divide between the safety field that we focus on and matters of aviation security, and aviation security being:

a combination of measures and human and material resources intended to safeguard civil aviation against acts of unlawful interference.

Laws designed to acts of unlawful interference with the operation are then the subject of separate Commonwealth law and can be the subject, potentially, of State and Territory law.

Could I then observe the definition of “Chicago Convention”, which includes not just the text but the annexes as adopted from time to time.  That is the ambulatory force of the Chicago Convention in Australian law, which means that, as each annex is updated or revised, under section 11 CASA must act consistently with the most up to date annex. 

Could I come to the definition of “flight”.  Your Honour Justice Gordon asked me about this yesterday.  It is correct that for “flight” there is a specific definition which means for a balloon the flight commences at the point of detachment from the earth, so this balloon had not commenced flight. 

What it also confirms, though, is that “flight” is a subset of the larger concept of operation of an aircraft; “operation”, we would submit, including the boarding of passengers.  If your Honours move to the definition of “manoeuvring area”, we see a recognition that the purpose of enabling passengers to board aircraft or to disembark from them must be taken into account as part of the overall operation.

There is one last definition, which is “safety rules”, which is a compendious term for everything in the Act, the regulations and the orders that relates to safety.  That term becomes important when one moves to section 28.

KIEFEL CJ:   We might at that point take an adjournment.  The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ:   Yes, Mr Gleeson.  Have we reached 1995 yet?

MR GLEESON:   I am tempted to say we are only seven years away, your Honour.  As to the balance of what we wanted to put on the Civil Aviation Act itself – I was taking your Honours to section 3A, the main object ‑ the Full Court in Heli‑Aust, we submit, quite correctly placed significant reliance upon that as one of the indicators of the exclusive field covered by the legislation.

In relation to CASA’s functions, they are built up sequentially.  In section 9(1) are the key functions, most of which are safety.  The section 9(2) functions are safety‑related, a slightly broader set of functions which may not necessarily require exclusivity. 

Then in 9(3) are other functions.  In particular, section 9(3)(b) is relied upon by Queensland, amongst others, as saying, “Here is an indication that some things are not covered exclusively by this law as a whole.”  That is true, because the law as a whole does some things beyond the core thing, which is safety.  So the functions referred to in 9(3)(b) are in fact functions conferred under the Carriers’ Liability Act in respect to insurance in order to meet claims for liability under that Act.

In the provisions from section 27 and following, which are the direct regulation of the operator, section 27(2) is the very important provision that there cannot be flight or operation without the AOC, and that is another indication that “operation” is broader than “flight”.  I had taken your Honours to 27AB yesterday concerning the central control of CASA over the manual.

I did want to emphasise with section 28 that, when CASA issues the AOC this is framed in terms of “must issue if, and only if”, so these criteria must be met but, if met, the licence must be issued.  One can see that safety is the key criterion.  So this is part of what I have suggested is the refinement of the focus that licensing is to be about safety; it is not to be about other matters.

Within 28(1)(b), could I draw attention to subparagraph (ii), where the chain of command within the organisation is something which CASA must be satisfied of when it is licensing.  If I could come to 28BA and what follows, which I have not yet addressed, while the structure of this is convoluted, under 28BA(1) the AOC is subject to conditions, including conditions that a whole lot of other requirements must be met. 

You then see in (2) and (2A) that, depending on which requirement it is that is breached, either the flight continues to be authorised despite the breach, or, in some cases, the AOC does not authorise the flight.  That particularly applies if relevant conditions in the regulations or the orders have not been complied with.  What that means is that certain breaches will remove the permission to fly and will thereby create an offence under sections 27 and 29.

Section 28BA(3), we submit, is important because this is one of the core civil remediation provisions for breaches.  The person given that power is CASA and, we submit, only CASA.  Section 28BB gives CASA power to impose conditions which can govern any matter of safety.  Your Honours will see in 28BC(1) the only conditions that can be imposed are in the interests of the safety of air navigation.  Again, that is the refinement and the focus in the field.

Section 28BD I have mentioned is one of the key provisions that any breach of the regulations or the CAOs or the Act is a breach of 28BD, which then could lead to offences under section 29.  I have already dealt with 28BE.  Could your Honours note under section 29 that the offences imposed on a variety of people including relevantly ‑ ‑ ‑

EDELMAN J:   Before you move from 28BE, in light of what you were saying about the regulator, does that mean that 28BE is a duty that is concerned with matters other than safety and, if so, what would those matters be?

MR GLEESON:   It certainly includes matters other than safety and that is why its generality extends beyond the core field of exclusivity.

EDELMAN J:   What are those matters?

MR GLEESON:   Two examples – I will get them from our submissions, your Honour.  The first example we would give is a balloon operator who carelessly allowed the balloon to land on privately held land without the permission of the owner, committing a trespass at general law.  That would be a failure to carry out the activity with diligence, not because it was done unsafely but because the operation is not authorised as an operation to commit trespasses.  So that could be a breach of 28BE and a general law claim for trespass would not be excluded.

The second example we gave - it is paragraph 110 of our written submissions - would be for an aircraft or balloon engaging in low level flying, enabling it to film a private event on private land without permission, in breach of the law of confidence.  Insofar as it is low level unsafe flying, it is exclusively regulated by the civil aviation law.  Insofar as it is an invasion of the privacy of the person, it could be attracted by 28BE, and also the general law of confidence would apply.

Your Honours, on section 29, the matter I wish to emphasise is the offence is imposed upon four types of people and it hinges off that person operating or permitting the aircraft to be operated, if it results in relevantly flying or operation in contravention of the part.  Now, one of the critical elements of that is going to be who is the operator from time to time.  Clearly, the pilot may be a relevant operator caught by it.  Also one might think the holder of the AOC may be, and ordinarily would be, the operator and thereby caught by the provision if, for example, there is a non‑compliance with the regulations about the manual.

There is one matter I need to add to that.  If your Honours have the full Civil Aviation Act and not merely the part in the book, I wish to draw attention to section 97A which we separately handed up - subsection (2) - and I will come back to this on direct inconsistency, but it illustrates ‑ ‑ ‑

KIEFEL CJ:   Did you say it has been separately handed up, Mr Gleeson?

MR GLEESON:   Yes, it should be –

KIEFEL CJ:   Just give us a moment.  Yes.

MR GLEESON:   Section 97A(2) creates a special rule in relation to attribution of conduct to a body corporate such as the operator.  It is a rule not found in the Northern Territory law or in general OH&S laws.  What it is designed to do is to say, prima facie, everything is attributed to the corporation, which would include the behaviour of the chief pilot, the pilot, but there is a reverse onus.  If you can prove you took reasonable precautions and due diligence to avoid the particular conduct which is attributed, then you have a complete defence. 

Now, what that indicates, as I mentioned yesterday, the techniques of safety regulation which are in particular the Act, include the manual, division of responsibility, chain of command.  This is a fourth technique I would add to those, which is that there is a special rule for when relevantly the operator is attributed with the conduct of the pilot or the crew, and that is a provision which the Northern Territory law alters or detracts or impairs from because it does not respect that approach.  Your Honours, the final provisions in the Act were Mr Dunning took you to ‑ ‑ ‑

NETTLE J:   Before you go on, at 29 you made a point of the fact that the operator could be the pilot.  I did not understand the significance of the point.

MR GLEESON:   I may not have put it clearly.  It could be either the operator or the pilot or both who are the relevant person operating the aircraft and caught by the provision.  It could be any one of the four people at the beginning who commits the offence, but the first element is that person is relevantly operating or permitting it to be operated.

NETTLE J:   Yes, thank you.

MR GLEESON:   Your Honours, section 32, Mr Dunning says that is evidence of room for State law.  It was dealt with correctly in Heli‑Aust at paragraphs 75 to 77, we submit.  It goes no further than recognise there could be cases where a State law relating to air navigation imposes a function on CASA.  We have given an example, which is the State component of the (Carriers’ Liability) Act confers insurance functions on CASA.  It goes no further than that.  It does not roll back the field.  What it also highlights is that a field described as any matter relating to air navigation would be too broad, but a narrower field, matters relating to the prescription and enforcement of safety standards, would be permissible.

Your Honours, I have almost reached 1995.  In fact, the good news is I have already done 1995 because the provisions are now in the current Act I have taken you to, so I do not need to separately deal with that.  In terms of the regulations ‑ ‑ ‑

KIEFEL CJ:   Was there a critical shift in 1995 that we need to know about?

MR GLEESON:   Yes, the shift is this, that particularly the provisions around the issue of the operating certificate are both strengthened, given a tighter safety focus and brought into the Act rather than merely being left in the regulations.  That is the central shift.  The amending Act is at tab 12, so it is at page 146 and following.  This was the Act that actually brought in the main object provision, section 3A.  It refined CASA’s functions to the form we are now in, which has the safety focus.  It added the section 9A, that safety is the number one consideration. 

On page 152 and following, it brought in the provisions that the manual must be given to CASA into the Act itself.  At page 155 and following, it tightened the conditions on what CASA must be satisfied of in granting the AOC, which is safety and only safety.  Then the provisions from 28BA to 28BH all came in as a set in 1995, including 28BE.  If one looks at that as a set of provisions, overall they were strengthening and tightening the noose on the operator.

KIEFEL CJ:   And 28BE comes in for the first time?

MR GLEESON:   In 1995, as part of that set.  So it actually helps to understand that 28BE would be most unlikely to do the work the Northern Territory says, and the Commonwealth supports, which is that it is designed to say in any matter covered by 28BE(1) by any part of the civil aviation law, there is no exclusivity.  It is highly unlikely it has that effect.  It was there as an expansion of the noose, as I have put it, that has been placed around the operator, and 28BE(5) is simply there to make sure that its over‑generality does not of itself create undue problems with other laws.

GAGELER J:   Is there any extrinsic material we should take into account?  While I am asking you that, was there anything that happened in Chicago or related to Chicago that prompted these amendments?

MR GLEESON:   We cannot offer your Honour any extrinsic material or source these changes to Chicago.  We think the source is more local, which was that extensive inquiries into an air crash, particularly the Monarch Airlines inquest, led to steps being taken with Air Services Australia to separate out more clearly the functions of Air Services from CASA so that it was confined more tightly as a safety regulator and not doing other things.  So that explains part of the change.  As to the 28BA and following, I cannot offer your Honour anything more than I have.

GAGELER J:   Who was conducting the inquest?

MR GLEESON:   It was conducted by Mr Gould, who was a coroner in New South Wales, and the authority he was conducting it under I would need to ‑ ‑ ‑

GAGELER J:   In your submission, would he have authority to conduct an inquest into an airline crash?

MR GLEESON:   Your Honours, I would like to check that.  I was actually in the inquest, and I should be able to remember but I cannot remember the precise authority, so I would like to track it down and then it may help me to answer that question.

Subject to tracking that down, our answer would be that if the inquest was being done under New South Wales’ law, under the relevant provision, it would be an inquiry into the manner and cause of death – death to the persons on the aircraft – and thus not directly – although, of course, indirectly – addressing the question of the safety standards.  It would be a response under the general law to – an inquiry into the manner and cause of death in order to then lead to either recommendations under the Coronial Act or, potentially, criminal prosecutions may come out of it.  If I can supplement that answer before we end, your Honour, I will.

BELL J:   The recommendations would hardly be under the Coroner’s – the recommendations would be, presumably, with respect to matters identified by the coroner, as matters that might be redressed to avoid a similar incident.

MR GLEESON:   Yes, and if they were such, then CASA would be a natural recipient of them.

BELL J:   Of the recommendations.

MR GLEESON:   Under its broad functions for safety, it would be able to revise standards, generally, or revise standards for that operator.  That would, in fact, show co‑operation between a valid field of State law and the exclusive field of the federal law.  But, if one were conducting purely a safety‑focused investigation in the manner of annex 13 that I took you to yesterday, looking at this as a safety incident and devising a standard in response to safety, that would be a matter, we would be submitting, is within the exclusive area.

BELL J:   Are you going to come back to 28BE(5) in more detail?  I understand your submission to be that given the scope of the duty that BE imposes, sub (5) is there to make sure that it does not scoop up too much outside the area – things outside the area of the prescription and enforcement of safety standards.  But, why would one divine an object that would prevent an additional, as it were, duty imposed in this case on an employer in relation to safety of a workplace?

MR GLEESON:   Your Honour, the key part is the opening words “This section”.  It has said whatever we have done in this section, 28BE, by imposing that additional duty on top of everything else which is in this law, we are not thereby, by that additional imposition, affecting duties which may exist under other laws, Commonwealth or State.

What it is not saying – and has never been worded as saying – is nothing in this scheme of provisions, as a whole, is intended to affect the operation of any other law, Commonwealth, Territory or State.  So, it is a savings provision in respect to an additional protection, we would submit, not an attempt by the Parliament – for the first time in 1995 – to say the exclusivity which we have established since 1920, we have now rolled back. 

And if it were to be read that way, as I have said, very difficult to stop short of saying it has rolled back the entire exclusivity of the civil aviation law.  It is very hard to say, well, if what we mean to say is nothing in the law affects the operation of any other law, then you would be saying a State or Territory can a pass a law to regulate the rules of flight. 

EDELMAN J:   Is the breadth of 28BE(1) that may, on your submission, need to give rise to the 28BE(5) qualification in the words “and everything done in connection with such an activity”.  In other words, if the reasonable steps to ensure every activity covered by the AOC were still concerned with the safety in relation to the operation of aircraft, everything done in connection with such an activity may, on one view, go beyond the scope of that subject matter.

MR GLEESON:   Yes, we do draw attention to that.  Another example, perhaps more mundane than the two I tried to give, is it would be an act done in connection with the activity to market and sell your tickets in a non‑misleading fashion.  It would be another act done in connection with the activity since the people are on your bus, to get them safely to River Track 1.

Now, those matters would be caught by BE but that is not to exclude the consumer law or the road safety law of the Northern Territory.  So it is an exceptionally broad general obligation recognising there can be a whole range of things you do which have nothing to do with safety. 

And so, in summary in answer to your Honour Justice Bell, we place a lot of emphasis on the opening words “This section”.  We do emphasise the generality of it and one of the examples the Heli‑Aust Court gave was, absent 28BE(5), there might be an implication at section 180 of the Corporations Act, the director’s duties were eliminated for aircraft operators.  That would be a classic Commonwealth law which would impose a duty of diligence in the conduct of the business, and that is very definitely not intended to be rolled back by this provision. 

Your Honours will see in 28BE(2) that the duty is imposed directly on each of the directors as well as on the holder of the AOC, so it has pierced the corporate veil in a sense and said even if you use a company, if you are a director you have this duty of diligence and care in respect to just about everything.  And so the target of it is really very different to saying we intend to roll back the exclusivity of the civil aviation law.

Your Honours, I have, therefore, hopefully completed point 11 and I will not read out the eight techniques but that is how we bring together what I have put at overly elaborate length. 

Can I come to balloons, in particular?  The submission is that the civil aviation law contains a details regime, both general and specific, for the regulation of the safety of balloon operations including, in the operation, loading, launching and retrieval.  In making that part of the submission, I seek to address those of the States, in particular, who have, either explicitly or implicitly, said there may be something about the loading, launching and retrieval which can be left as a field for dual regulation.

To flesh that out, as to it being a general regime, I need say no more than the balloon falls within the definition of aircraft, as we have seen.  So, everything I have discussed today applies to balloons.  As to specifics, could I ask your Honours to go to volume 1, page 244?  This is a regulation which is in volume 2 of the regulations.  That is the volume that deals with licensing, which is implementation of annex 1 of Chicago. 

If your Honours could go to regulation 5.144 to 46, these are highly specific rules for the licensing of commercial balloon pilots focusing on their experience, training and currency, and you will see in sub‑rule (2) of 5.144, that the relevant flight operations that must be recent include “at least 1 inflation of the balloon envelope”, certain flight time and “at least 1 deflation”.  So, inflation, launching, flight deflation, retrieval, they are all part of the matters which go to whether a person is qualified as a pilot.  The same can be seen in 5.146, that the training course must:

(a)

. . . 

(iii)includes at least 3 inflations, and 3 deflations, of a balloon envelope ‑

The next provision is, if your Honours could go to page 187.  This is Civil Aviation Order 40.7.  The relevant provisions are 12.12 and 12.14 and the effect of that is that a person who has an overseas balloon endorsement qualifying them to fly in a particular class will receive authorisation in Australia to operate as pilot in command for aerial or charter work.  So the safety rules for what is necessary to be a qualified pilot in charge are made the same worldwide through a mutual recognition scheme. 

That concerns specific rules on who can fly the balloon.  The next topic is which balloons can be flown and how they can be flown.  If your Honours could go to page 273, this is CASR, Part 31.  Your Honours will see at Part 31.001:

The airworthiness standards for manned free balloons are . . . in section 101.54 of the Civil Aviation Orders ‑

That takes us to page 219.  This is a detailed specification for what makes the balloon a safe balloon and you will see in 3.2 that whether it is imported or local it has to comply with the requirements of the United States or British balloon laws, plus whatever follows in this document. 

What follows in this document at 4.2(e) is that the material coming from the manufacturer must include a specimen flight manual approved by the competent authority – either CASA or the British or the United States authority.  The acceptable manual is in appendix II, which is on page 224.  That contains a number of requirements, including in 2.8, there must be all necessary information in relation to loading within the limits.  So loading is confirmed as being part of the operation that is regulated.  So that is the second special aspect.

The third special aspect is that the chief pilot is given a very particular role, which you can see from pages 210 to 217.  This is CAO 82.7.  I note that in 2.11 there is a definition of “operational support crew”:  persons involved in loading, launching and retrieving.  So that is where we, amongst other places, sourced the idea that that is all part of the regulated balloon operation.

In 5.6 you must include in your manual the material provided for in a certain guide and you must provide copies to all flight crew and all operational support crew.  So what it has done is to say the manual must be given to everyone who is involved in loading, launching and retrieving.  At 213, at 2.1, there is a similar obligation. 

Most importantly for this topic are 214 and 215, and this is not so for other air operations:  a person cannot be appointed as, or to act as, chief pilot without CASA’s approval.  So CASA actually controls who is to be the chief pilot in the organisation.  That is an intense form of regulatory control in the interests of safety for balloons.  You will see in 1.3 that the applicant must have:

passed an oral examination . . . covering the regulatory requirements for the safe conduct of aerial work operations and charter operations.

In 2 CASA can suspend the chief pilot’s licence.  Then 3.1 ‑ this is the special provision for balloons ‑ states:

The Chief Pilot is to have control of all flight crew training and operational matters affecting the safety of the flying operations of the operator.

So that is a very specific allocation of control for balloons over the present matters to the chief pilot.

There is a slight slip in some of the judgments.  The chief pilot was not the pilot‑in‑command on the day.  The pilot‑in‑command was Mr Livingstone.  The chief pilot was a different person within the respondent’s organisation.  As chief pilot, that person had the duty under 3.1.  Could I observe 3.2(e).  It was his duty to ensure that the loading procedures were complied with. 

Whether the chief pilot was there on the day or not, he could never escape his duty.  He had a duty of control to ensure compliance of the loading procedures.

KIEFEL CJ:   Would he have had a duty to exercise a reasonable degree of care and diligence under 28B in relation to loading?

MR GLEESON:   If he was a director, the answer is probably yes.  There is an ability to delegate under 4.1 as well.  This is creating this very particular regime, and it is a further illustration of the chain‑of‑command matter that I have raised. 

Finally, it is highly relevant to any defence under section 97A(3), because, if the operator is charged with any of the offences under the civil aviation law, the operator would have a potential defence available to it if it could establish that all reasonable precautions were taken and due diligence taken to avoid the particular conduct which is the subject of the charge.

The final aspect of the special regime I, fortunately, have already dealt with.  So, your Honours, that leads us to submit that there is nothing about balloons and nothing about the loading of balloons which allows for any different conclusion to that which the Full Court reached in Heli‑Aust. 

Could I ask your Honours to go to Heli‑Aust, which is in volume 3 at tab 44 – (2001) 194 FCR 502. The short submission is that the structure of the analysis which the Full Court followed between paragraphs 8 and 64 adequately justified the concisely expressed conclusion in paragraph 67, that when one has full regard to history:

international obligations, the main object of the CA Act . . . with its emphasis on safety and on preventing aviation accidents, the detailed provisions –

earlier described, then, subject to anything that follows, it is the exclusive field for the regulation of:

the safety of civil aviation in Australia –

The second submission is that the court then adequately dealt with the three contrary indications which were suggested:  28BE, 32 and 9(3)(b).  To the extent that the Commonwealth asks you to overrule Heli‑Aust, and the Territory may, we submit that this decision should not be overruled, either on its particular circumstances or in terms of its statement of principle.

Your Honours might note in Heli‑Aust that the particular provisions of the federal law which were part of the field but relevant to the case are found in paragraphs 27 through to 32, and they are essentially reg 215 that we rely upon, plus a low‑flying regulation and a seatbelt and safety harness regulation.  Heli‑Aust was a case where the helicopter struck an electrical power line and crashed in aerial work.  The issues tendered by the OH&S prosecution concerned the safety of its operation at that time, and we submit that that is exclusively covered by the Federal law.

Your Honours, I do need to put a brief submission on the status of the decision of the Full Court in Queensland in Morris.  I can do that through Heli‑Aust.  Heli‑Aust addresses Morris at paragraphs 70 to 80.  Morris is a case which is not instructive, we submit, because the central argument that was considered in Heli‑Aust and in this case was simply not put to the Full Court in Queensland, and the reasons do not engage with that argument perhaps accordingly.  Could I say one thing about the charge in that matter?  You will see it set out in paragraph 79: 

A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.

Because the correct issue was not addressed in Morris and we do not have from the judgment the instructions given to the jury, it is not clear the sense in which the case of endangering an operation was being run. 

If the case being run was a failure to comply with safety standards, the matter would be within our field.  If the case was something different - and we know from the facts that Mr Morris had used his light aircraft to buzz the home of his estranged wife and infant son - if the case put to the jury was that the conduct was done with the purpose or intention of exposing others to danger, that is, as an endangerment of life or liberty case, it may be that the case would be in an area which would remain open to the States.  But that cannot be resolved because the issues were not argued and the instructions are not available.

NETTLE J:   Just say if it had been a reckless endangerment of life count, you would accept that that is not within the exclusive field?

MR GLEESON:   We accepted that yesterday, your Honour.  We maintain that acceptance.

NETTLE J:   Yes.

MR GLEESON:   Your Honours, I have almost concluded.  In relation to point 14 there is one, unfortunately, technical matter that I feel we cannot pass over.  It is the question of that maritime occupational health and safety matter which was raised yesterday.  It turns out upon review of the submissions that none of the parties have actually given the Court the complete legislative scheme on the maritime area, and we are guilty of that as well.  We seek to remedy that fault because, on analysis, we think the decision you make in this case will not just resolve the intersection between the civil aviation law and State OH&S laws; it will also, by parity of reasoning, resolve the intersection between the Navigation Act (Cth) and such laws.

It therefore has even more profound implications than we perhaps mentioned yesterday.  To seek to remedy that, we have sought to give your Honours two things.  One is a separate folder which has the statutes you do need to understand what is happening in the maritime area, and the second is – for which we would need leave – a one and a half page document which sets out the parameters of what I have called the technical argument.  So I would seek your Honours’ leave to supplement our submissions with this document, invite your Honours to read it and then perhaps make a submission further.

KIEFEL CJ:   Yes, you have that leave.

MR GLEESON:   Could I just invite your Honours to read it, then I will make a submission on it. 

KIEFEL CJ:   Is this going to potentially involve some of the interveners in further argument?

MR GLEESON:   It may, both in fairness and in terms of getting the principle right.

KIEFEL CJ:   Was it addressed in the 30‑page written submission?

MR GLEESON: We addressed the point in paragraph 5, which is the 1993 OH&S law, and we addressed the point in paragraph 6, which was its overlap, or the significance of section 12A. What the argument so far has not sufficiently addressed is that the Navigation Act 1912, re‑enacted in 2012, is a functionally similar provision to the Civil Aviation Act.  It has a whole range of provisions in it for control of navigation, including a whole lot of matters which were about safety in navigation.

So we have a law that starts in parity with the civil aviation law.  There is a difference that the constitutional power behind the Navigation Act limits its reach and so it is tailored to matters which could be dealt with under external affairs or overseas trade and commerce, interstate trade, and so on.

What happened in 1993 in the Act that has been relied upon by the Territory is that the Commonwealth enacted its first specific OH&S law and applied it to a subset of the ships which are covered by the Navigation Act.  In particular, it did not apply it to government ships, those being a subset, in turn, of all of the ships that are navigating in or around Australia.

The provision that you have not been taken to, but you do need to have in order to understand the Territory’s argument, is that there is a provision, section 7 of the Navigation Act, which expressly deals with the relationship between that Act and the 1993 OH&S Act.  In the bundle we have sought to give your Honours you will have section 7, and it is section 7 of the Occupational Health and Safety (Maritime Industry) Act 1993. So you have been given that Act in the materials. You have not, to date, been given by anyone section 7. Section 7 says:

This Act does not affect the operation of the Navigation Act 2012.

So what that means is when the Commonwealth first moved into OH&S in a limited way, or part of the navigation of Australia, this potential for overlap was expressly recognised by giving pre‑eminence to the Navigation Act.  What that means is, at least on that part of the story, the 1993 Occupational Health and Safety Act (Cth) 1993 gives way to the Navigation Act in any matter the subject of that Act, in particular matters of safety.  So that is what happened on that particular intersection. 

The step which we have then added which is to then understand better the section relied upon by the Territory, which is section 12A of the Work Health and Safety Act 2011that is on page 327 of the bundle ‑ ‑ ‑

KIEFEL CJ:   Was this the bundle that you have handed up?

MR GLEESON:   No, I am sorry, that is in volume 1.  Your Honours need volume 1 as well.  On page 327 of volume 1, the Territory says, well, there is a provision specifically not applying the OH&S Act to certain vessels, so why do we not have something like that for the civil aviation law?  The answer is that 12A is doing something different.  What it is saying is, as between two Commonwealth laws which are directly occupational health and safety laws, we cannot have them both applying to the same vessel.  So if it is a vessel to which the 1993 Act applies, look to that Act and not to this Act. 

That says nothing about the relevant question which is, are any of these Commonwealth occupational health and safety laws cutting down or trumping the Navigation Act?

GORDON J:   Is that not because the Navigation Act, itself, is directed, in Part 5 of it, at the workplace, health and safety of the people on board the ship?  In other words, it is dealing directly with that very same subject matter.

MR GLEESON:   It is dealing with a whole range of subject matters of control of navigation.

GORDON J:   No, I am talking about occupational health and safety.

MR GLEESON:   It is dealing with – as we would say the civil aviation law does – every aspect of the safety of a shipping operation.  If your Honour is looking at the index to the current Act which is in the folder we have handed up, one sees the focus on safety, first in Chapter 3, that is about vessel safety.

GORDON J:   I was more concerned with Parts 4 and 5.

MR GLEESON:   Yes.  Then, 4 and – can I inquire which chapter your Honour is in?

GORDON J:   Of the Navigation Act.

MR GLEESON:   Yes.

MR DONAGHUE:   Your Honours, I am sorry to interrupt, but it is very difficult to follow this without the materials your Honours have been given.

MR GLEESON:   That can be remedied.

KIEFEL CJ:   I was not aware of that.

MR GLEESON:   That can be remedied, your Honour.  It should be remedied.

KIEFEL CJ:   We should not proceed further until that has been attended to.

MR GLEESON:   If your Honour pleases, yes. 

KIEFEL CJ:   Mr Gleeson, while the other party and interveners are just reviewing that material, there is a question about the 1995 amendments which you could assist with.  The material which was handed up to us suggests that there was a subsection (5) – that is the material in the bundles, as passed – but Justice Gageler has a copy of the amendment Bill, as passed, and there does not seem to be a subsection (5) in the Bill as presented and read the first time.  So, the question is whether or not subsection (5) was introduced in the course of argument in the House.

MR GLEESON:   Yes, your Honours, we are having printed the explanatory memorandum, which I am told by Mr Brennan, did refer to subsection (5) as part of the provision to come in.  I will try to get that document and give it to you over the adjournment.

KIEFEL CJ:   Perhaps you could come back to that.  It will be after lunch, though.  We will continue with the navigation.

MR GLEESON:   Thank you.  Your Honour Justice Gordon was asking about the Navigation Act.  If one looks at the index to the 2012 Act, it is divided into chapters and then parts. 

GORDON J:   The one I was referring to was under Chapter 2 dealing with seafarers and has extensive provisions in Parts 4 and 5 dealing with what were largely or broadly described as occupational health and safety of the seafarers on board the ship.

MR GLEESON:   It has those provisions.

GORDON J:   Which may explain why it is not the subject of the other occupational health and safety laws.

MR GLEESON:   My answer would be no because, when one looks on in the index, Chapter 3 is about the safety of the vessel but Chapter 6, Safety of Navigation, which is the key one, is the functional equivalent of the safety aspects of the civil aviation law and one can see the detailed provisions of Chapter 6 just through the index, including Part 6, which is about safe navigation itself.

Therefore, when the occupational health and safety law has said nothing in this affects any part of the Navigation Act it means relevantly for this part that you cannot attach an occupational health and safety standard to something which the Navigation Act is dealing with through its own eyes, in particular these matters of safety.

The final step to complete the argument is this:  at points 8 and 9 we indicate that in 2012 a separate maritime scheme was put in place for what were described as domestic commercial vessels.  That is a uniform scheme; it is a co‑operative scheme, Commonwealth law and State law because of limitations on Commonwealth constitutional power, and in that scheme, presumably as part of bargaining between the Commonwealth and the States, the possibility for conflict between OH&S laws and safety regulatory law was recognised. 

On this occasion the Act positively provided that the domestic commercial vessel law, even as a navigation law, yields to Territory OH&S laws.  So by express provision, in the case of that conflict, the Territory OH&S laws prevail.  You see that in the document which is behind the final tab, section 6(2)(xxi) and section 7. 

The conclusion we reach is that in the maritime area express recognition of the potential for conflict has occurred.  Two different techniques have been used in that area.  The provision relied upon by the Territory is not addressed to conflicts of that kind; it is merely delineating the spheres of operation of two Commonwealth OH&S laws. 

The end result of that is that there is today operation of the Navigation Act, which, on the argument put by the Territory and the Commonwealth in a safety area is cut down by State or Territory law. So our end submission on the maritime position is to seek to neutralise an argument to indicate that you do not get from section 12A the consequence the Territory seeks.

The final matter is direct inconsistency.  Could your Honours have the statement of charge available as a reference point.  It is in the appellant’s book of further materials at page 33 and it is to be read together with the statement of facts at pages 2 to 4.

KIEFEL CJ:   Sorry, what are we looking for, Mr Gleeson?

MR GLEESON:   The statement of charge which is at page 33 of the appellant’s book of further materials. Essentially, it is expressed in two different ways in paragraph 5 and 6. But, going straight to 6, there are three different allegations of reasonably practical measures which should have been taken. The first is to provide better warnings. The second is:

To set up and exclusion zone and a physical barrier around the hazard ‑

And, the third is to give an affirmative direction they were not:

to walk past the fan while in operation –

Each of those three matters indicates that the essence of the prosecution is a failure to take reasonably practical measures to ensure the safe loading of persons on to the balloon.  Could I then identify how federal law regulates that matter?  I will simply be pulling together provisions that we have now discussed without going to them in detail.

The first is that CASA exercised full legal authority over permitting the respondent to operate this charter service, to use this balloon, over who would be the chief pilot and the content of the flight manual and the operations manual.  All that occurred under federal law. 

Second is reg 215(2), the respondent had a duty to ensure the adequacy of content of the manual against safety risks and to revise the manual and furnish it to relevant personnel.  The third is, those duties in respect to the manual are made more specific by CAO 82.7 and to the role of the chief pilot of controlling the operation, leading to this consequence, that if there was a deficiency in the content of the manual, prima facie the operator would be in breach of reg 215, would be in breach of section 28BD and would be potentially in breach of section 29 subject to whether the operator could make out a defence under section 97A(3) with particular reference to what conduct – what things it did to prevent the particular conduct occurring, whatever be the element that is the wrongful element. 

And so in terms of those three ways, the charge is put failing to warn, failing to erect a buffer, failing to give positive directions to load differently.  Under federal law, those matters would be dealt with through the prism of – for the operator, did you allow a deficient manual in your operations and can you make out that offence.  In the extreme case, the operator could be guilty of an offence under section 20A. 

If there was no deficiency in the manual and if it was provided to all the crew and the operating support, then the next question would be, did the pilot or the support crew fail to comply with the manual.  If they did, they would be in breach of reg 215(9).  The pilot may be in breach of section 29(1) and 28BD for operating an aircraft in breach of the regulations and the chief pilot is in the particular position I mentioned.

Added to that is the special position of the pilot in command under regulation 224.  If I could go back to reg. 224, which is in volume 1 at page 266, the facts indicate that at the relevant time at least two of the persons had already boarded the balloon and the pilot in command was at least responsible for the safety of those persons as they were being carried on the aircraft.

So effectively, the first part of the flight operation had commenced, at least in that respect.  A way of testing it is if a director of the respondent had arrived on the scene just before the tragic incident and purported to give a direction to the pilot or to the crew to do something which was not in the manual, then that is a direction which, under the federal law, the pilot would be entitled to disregard.  The final steps of federal law are the civil remediation provision and the punishments set by federal law.

If your Honours could just go, finally, to our written submissions where I can indicate what we say about Territory law and its direct clash?  The table we have provided at page 28 indicates the inconsistency and the first aspect of the inconsistency is that the Northern Territory law prescribes and enforces norms for the safety of the very same air operation that is regulated by federal law but do so by imposing different incidents of liability for the same conduct.  But not, simply, over the same facts but for the essential same conduct, being the safe loading of persons on to the balloon.  In particular, the Northern Territory law recognises no role for the operation manual, no role for the division of responsibility between operator, chief pilot, pilot in command and crew, no role for chain of command and no role for the defence under section 97A.

KIEFEL CJ:   That is to say it does not itself provide for it, but where is the clash?

MR GLEESON:   The clash is that, in the prosecution, those matters are not made relevant criterion, either of the liability or of the defence available.

NETTLE J:   So, the prosecutor would take a court to the manual and say, this is grossly inadequate, it did not make the thing safe.  Thus, there was no discharge of the obligation.

MR GLEESON:   That is what a prosecutor would do in the Northern Territory court. 

NETTLE J:   Yes.

MR GLEESON:   What would be irrelevant in the Northern Territory prosecution, is what the Commonwealth law says is centrally relevant which is, as a first step to ascertain whether that manual failed to comply with reg 215(2), which is an issue, purely, of federal law.  Does it fail that standard?

If it fails that standard, what is the consequence for the liability of the operator, and that will depend, for example, given the chief pilot has the complete control and responsibility over that manual.  The operator could say under federal law, I wish to make out a defence under 97A(3), that I did everything available to me as a matter of diligence in the manner in which I interacted with the chief pilot in the preparation of this manual.

NETTLE J:   And that would be a good defence to that offence but not to the Territory one.

MR GLEESON:   And that is the clash, because the Territory has, we submit, over the very same conduct the safe loading of this balloon, imposed different incidence of liability to those which ‑ ‑ ‑

NETTLE J:   They are different elements to the two offences. 

MR GLEESON:   Well, our submission is that what section 19 is doing, is taking the very same conduct as reg 215 is addressing and imposing different incidence of liability for that same conduct.  It is doing it, through its eyes, producing potentially at least a different outcome.  So there is at least a possibility, that under federal law, this operator has fully complied with all the safety norms attached to it in loading and under Territory law an opposite result is reached. 

If that possibility arises, that falls into the category of direct inconsistency where the Territory is adding an additional layer of control on top of what the Commonwealth has said these are the safety standards to be complied with in loading.  So, it is in that category of direct inconsistency.  It is an additional layer of control.

KIEFEL CJ:   Are they not running more in parallel rather than having another layer of control?

MR GLEESON:   Our submission is ‑ ‑ ‑

GORDON J:   Why is it not Justice Dixon in McLean in relation to cumulative and supplementary?  

MR GLEESON:   Because, coming back to the subject matter, these are norms that have to be able to be complied with by people in real world situations.  The construction we have placed on the federal law is, it has said, these are the norms, the norms to ensure the safe loading of the balloon, and the technique by which we regulate this conduct is a specific one which we have adopted for this industry, this set of risks and your operation.

EDELMAN J:   But, if you are right about that, then we are not in direct inconsistency.  If you are wrong about that, there is no direct inconsistency.

MR GLEESON:   Certainly nothing I am putting here is to detract from our indirect inconsistency case.

EDELMAN J:   If there is no direct inconsistency, then it – almost by definition, you are concerned with two different subject matters or two different fields.

NETTLE J:   And, unless the occupational health and safety requirements prevented the pilot from complying with the CAL requirements, there would be no inconsistency.

MR GLEESON:   That is the very position this leads because the method by which the balloon is required to be loaded is such method as is set out in the manual.  At the stage of direct inconsistency, the manual does become relevant as an instrument upon which the Commonwealth law operates.  The manual has said, this is way in which you load balloons, including, in particular, that you load them in order to have an evenly distributed weight in the basket.  And, that is the reason why two people were asked to go in to the basket first and then two people were to come in on the other side of the basket.  Part of that was all about safely launching this balloon which had a whole range of risks attached to it in addition to the risk of the terrible fan, et cetera.

So, the argument is that that detailed specification by the federal law of how loading and launching is to take place, a specification that then finds its way into the manual, they are the rules and the specific rules and the only rules that anyone in this operation ‑ ‑ ‑

KIEFEL CJ:   But that is your exclusivity argument.  What I find difficult in this direct inconsistency argument is how it is said that the Northern Territory law detracts from the operation of any of these provisions in relation to how the manual operates and what is to be done according to the manual.  How does it prevent their operation?

MR GLEESON:   Because people on the ground, instead of saying, “My conduct is to be regulated by the manual, the chain of command”, and so on, say, “My conduct is to be regulated by a generally expressed duty that is in the terms of the Northern Territory Act”, and they are capable of producing different practical consequences for a person seeking to comply with them.  What cannot happen under federal law is for either the pilot or the support member to say, “I’m here now.  I think I’m going to erect a buffer between the fan and the balloon because it’s occurred to be today that might be a good idea”.  If that matter is not one of the safety procedures, federal law operates on the assumption people do not depart from the procedures that are laid down.  Your Honours, that is the first answer.

The next answer down is, of course, once one adds the layers of different – none of which are conclusive - but together different penalties, different prosecutors, different civil remediation which is quite important for the very same question of safety standard, the logic must be that the Territory’s inspector can come in and issue safety instructions.  That is the necessary logic of the case; different potential for a health and safety representative to come in, that entire scheme has simply imposed norms that cannot sit with the norms that the federal law has established.

KIEFEL CJ:   That might be a convenient time.  We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Gleeson. 

MR GLEESON:   Thank you, your Honours.  Could I ask your Honours to go to paragraph 16 of our outline.  The second sentence of that paragraph, subject to the fuller statement that I will now make, is the essence of our case on indirect inconsistency.  We have reflected on your Honours’ questions and we accept that we need to win on that case in order to succeed in the matter.  We therefore do not press the notice of contention. 

So the full statement that we contend for is that on the proper construction and effect of the civil aviation law, neither the HSR, the WHS entry permit holder, the inspector or the regulator, can have lawful authority to enter an aircraft or aerodrome to assess the safety of the air operation, nor authority to direct any participant in the air operation on how to act safely in the conduct of that operation, let alone power to sanction or prosecute for breach of any safety norm governing the air operation established by the NT Act. 

GAGELER J:   So your case now is put in terms of the power of the Northern Territory prosecuting authorities?  Is that what it comes down to?  You say that captures the essence of your case?

MR GLEESON:   The Northern Territory Act cannot establish a safety norm that governs the conduct of an air operation, so it cannot prescribe it and it cannot enforce it, which is what we have always said – cannot prescribe, cannot enforce safety norms in the conduct of an air operation.

The consequential matter - coming back to your Honour Justice Gageler’s question, the Monarch Airlines inquest was, perhaps unsurprisingly, done under the Coroners Act (NSW).  It does not enter the field because the coronial inquest does not prescribe or enforce standards of safety in an air operation.  An inquiry into the manner and cause of death is a separate matter.  Perhaps unsurprisingly, in the Monarch Case there was a separate safety‑related inquiry by the Australian Transport Safety Bureau under the Transport Safety Industry Investigation Act which implements annex 13 of Chicago. 

In terms of your Honours’ questions about 28BE, we have provided three documents to your Honours’ associates.  The first is that the bill as introduced into the House was missing a provision, but not what became 28BE(5).  It was missing the provision about no private cause of action created by the section.

KIEFEL CJ:   I see, subsection (4) becomes subsection (5).

MR GLEESON:   Yes.  The other material we have provided you with is the supplementary explanatory memorandum in the House which explains that the new provision was inserted in response to industry representations to make clear no new cause of action was being created.

EDELMAN J:   It is to avoid a breach of statutory duty claim in tort, is it?

MR GLEESON:   Yes.  The final document which is perhaps helpful on the purpose of 28BE(5) is the EM introduced in the Senate at a time when the provision was in its final form.  The matter is dealt with at the foot of page 25, over the page.  The points made on page 26 go directly to a number of your Honours’ questions.  The first is what is intended to be embraced by the new duty, and it is really a ‑ ‑ ‑

GORDON J:   Where are you reading from, Mr Gleeson?

MR GLEESON:   Page 26, at the top of the page, the first paragraph.  It is really an additional corporate governance‑type duty, so it is adding an additional layer of regulation on top of the entire scheme for safety, seeking to hold AOC holders to a standard of control and supervision of directors, servants or agents and adequate systems.  This paragraph indicates that matters of safety are embraced by the new duty, although in this corporate governance sense, but not limited to safety, for the reasons I put this morning.

The third paragraph on that page is important because it supports the proposition that 28BE(5) is only negativing an implication arising from the addition of this new statutory duty, not negativing indirect inconsistency generally.  It is a breach of this duty.  It does not create a new cause of action – that is (4).  Nor does it – that is, this new duty or a breach of it – affect any common law duty of care or other statutory duty, and so on.  That, we would submit, provides support for reading it in the way we have indicated.

Your Honours, the only final matters are twofold.  One is the regulation of aerodromes is probably not now at the centre of this matter.  Your Honour the Chief Justice asked a question about it yesterday.  We have reviewed the provisions overnight and provided copies of them which support the proposition that it is a most comprehensive form of regulation of aerodromes, including safety, which we would submit is exclusive.

The final matter was, in terms of the Court of Appeal’s judgment, we would commend the reasoning of Justice Riley, page 4, paragraph 91, which is the only paragraph where he mentions the operations manual as part of the cover the field exercise.  Subject to that, his reasoning we commend.  May it please the Court.

KIEFEL CJ:   Thank you. 

MR DONAGHUE:   Your Honours, I seek the Court’s leave to make some submissions in relation to the maritime industry point that Mr Gleeson raised before lunch, and with the Court’s permission, to briefly address two other matters that are, in our submission, new.

KIEFEL CJ:   Had you addressed the question of the Navigation Act, could you remind me, the matter that was raised? 

MR DONAGHUE:   The question of the – well, the Navigation Act and its interrelationship with the Occupational Health and Safety (Maritime Industry) Act, that bundle of materials that Mr Gleeson handed up just before lunch. 

KIEFEL CJ:   Yes, you have that leave.

MR DONAGHUE:   Thank you, your Honour.  If your Honours have the bundle that my friend handed up and his note, the first respondent’s note on maritime law, we do not take issue with anything in the first four paragraphs of that note. 

When we get to paragraph 5, your Honours have, in the bundle of material that was handed up behind the third tab, some parts of the Occupational Health and Safety (Maritime Industry) Act.  But before I take your Honours to the parts you have there, I need to start with a part that is not reproduced there, but it is reproduced in volume 1 of the consolidated book of authorities behind tab 22. 

So it is the same Act, it is just provisions that are not in the handed up bundle.  And once your Honours get to tab 22, you see the Occupational Health and Safety (Maritime Industry) Act of 1993, an Act of the Commonwealth Parliament.  And over the page you will see in section 14, there is imposed on the “operator of a prescribed ship” a duty to:

take all reasonable steps to ensure that persons, other than employees or contractors . . . are not exposed to risk to their health or safety ‑

That is you find a provision in the post‑Robens traditional OH&S type obligation to ensure an outcome rather than to take particular steps, that obligation being very much akin to the obligation you see in 19(2) of the Northern Territory Act.

So the obligations imposed on the operator of a prescribed ship, if your Honours then go to my friend’s bundle with four tabs to the third tab, you find the same Act.  On page 5 of that Act there is the definition in section 4 of “prescribed ship”, which is relevantly:

a ship to which Part II of the Navigation Act1912 would apply if that Act had not been repealed ‑

Then there is the exception for government ships.  To find the ships to which Part II of the Navigation Act would have applied you need to go to the last page of the preceding tab.  We do not have all of it but you will probably have enough of section 10 there to identify the application of Part II, which is:

(a)     a ship registered in Australia;

(b)    a ship that is used to engage in coastal trading . . .

(c)     a ship . . . of which the majority of the crew are residents of Australia –

There are various different links, but plainly many ships are covered by that definition and therefore are covered by the specific Commonwealth OH&S regime.  That is a regime where, back behind tab 3, if your Honours turn to page 2 of the print, you will see the objects of the provision, and they are wide‑ranging objects involving the securing of the health and safety and welfare at work of maritime industry employees.

What we say your Honours should draw from that is that, by enacting this Act, the Commonwealth Parliament has, we submit, sought in very clear terms to provide a comprehensive law concerning the workplace health and safety of people working in the maritime industry, and has done so in terms akin to the ordinary workplace health and safety laws.

That is significant because, returning to my friend’s note on the maritime laws and looking at paragraphs 5c and 5d, your Honours are invited to take from this regime the proposition that, recognising the possible conflict, the arrangement intended by the Parliament was that nothing in the OH&S law specifically directed to the maritime industry was to have any operation with respect to ships to which the Navigation Act applies. Well, paragraph 5d says:

in respect of all ships to which the Navigation Acts apply or applied, their safety duties prevailed over the Maritime Industry Act provisions.

Now, that is rooted, as we understand it, in section 7 of the OH&S Act, which is behind tab 3, which says:

This Act does not affect the operation of the Navigation Act 2012

In our submission, what that provision contemplates is that, to the extent that there is a conflict, a direct inconsistency, between the safety regime which our friends equate to the aviation safety regime, to the extent that that comprehensive regime is in direct conflict with the OH&S regime for the maritime industry, that then the Navigation Act will prevail; no argument there.  That is consistent with the submission we have already put that, to the extent that there is a direct inconsistency between any of the civil aviation laws and the Territory Act, the Territory Act will yield.

But in the context of where there is no direct clash of that kind, we submit it is not tenable to suggest that the maritime‑specific OH&S regime cannot operate to supplement the detailed safety regime that one sees in the Navigation Act and that, as two Acts of the same legislature, your Honours will endeavour to read those Acts together and that, contrary to the proposition put by our friends, what one actually gets from this regime is a recognition that, notwithstanding the comprehensive regime that our friends equated from maritime and aviation, one can have a modern OH&S law supplementing the duties of the operators of ships, except to the extent that there is a direct clash between them.

So that is what we submit your Honours should take from that.  And if there be any doubt that it is possible for those regimes to operate together, one can perhaps draw some comfort from the document behind the last tab in our friend’s bundle, the Marine Safety (Domestic Commercial Vessel) National Law Act, because, as Mr Gleeson pointed out, in section 6(2)(b)(xxi) that Act expressly acknowledges that State and Territory work place health and safety law may operate in the part of the maritime industry contemplated by that scheme.

So Parliament, in enacting that Act in 2012, evidently did not see any difficulty with the co‑existence of that regime with the comprehensive regime one finds in the Navigation Act.  That is all I wanted to say by reason of the navigation points.

If I could very briefly address the two other points we submit are new, if your Honours have my friend’s oral outline, you will see in paragraph 3 an articulation of the field that it is said is covered by the Commonwealth law.  You see nothing remotely approximating that field in the written submissions that the first respondent has filed, and that is why I seek to say something brief about it. 

The submissions that our friends made this morning took your Honours at some length through the Chicago Convention and the history, directed, as we understood the submission, to establishing the proposition that the regime contemplates that there must be one law – a single Commonwealth law – that descends to the exclusion of all other laws at the point where an air operation starts.  But, having developed that proposition, the first respondent then was forced to concede over the course of the argument quite a number of exceptions to the proposition that there is a single law that must descend in the course of the air operation.

So we have, for example, the recognition that a common law duty of care may co‑exist with what would otherwise be the single law during the air operations.  We have a recognition that workplace health and safety laws dealing with matters such as bullying on an aircraft, or personnel issues, may apply during the conduct of the air operation. 

EDELMAN J:   But they are not really exceptions.  They are just circumstances that do not fall within the prescription and enforcement of standards of safety.  They may have, as a consequence, some overlap with that.

MR DONAGHUE:   Yes.  Well, they have the consequence that when one has an aircraft engaged in an air operation, one cannot look just to the comprehensive Commonwealth law because you need to ask, well, is this actually a different subject matter in some way that means that a body of law outside the comprehensive Commonwealth law might apply?

So one does not have the pilot on the aircraft being able to safely assume, “As long as I do what the operation manual tells me, I can’t have any liability”.  You need to ask a more specific question, and your Honour asked my friend some questions about purpose – is it about all the purpose of this?  Your Honour Justice Nettle asked some questions about the criminal law.  So we had conduct of an air operation that causes death was said to be in a different field, then attempted conduct that causes was said to be in a different field.

But what your Honours did not hear at any point, in our submission, is any coherent principle that explains, well, why are all of these matters outside the field?  In our submission, the answer is that, whether one uses the language I used in submissions about criterion of operation or different elements, the answer is that when one is pursuing the criminal law for different purposes and with different elements, one is dealing with a different subject, a different subject to the subject that the Commonwealth has comprehensively regulated, and that that is what draws together the various exceptions that our friend – well, I call them exceptions, but I take your Honour Justice Edelman’s point. 

But that is what draws together the reason that certain things that occurred during the scope of air operations are nevertheless able to be regulated by laws outside the scope of the comprehensive Commonwealth sphere.  Once one accepts that, then the debate returns to the question, well, why is it that the common law of negligence can oppose additional obligations but a State workplace health and safety law cannot when it operates by different criteria?

Finally, your Honours, our friends attributed to us a submission that section 28B(5) effectively repealed the otherwise exclusive operation of the Commonwealth legislative regime.  That is not a submission that we have advanced.  Our submission is - and if your Honours could go back to subsection (5) - that what that section does is it contemplates that ‑ ‑ ‑

KIEFEL CJ:   I am sorry, go back to?

MR DONAGHUE:   To 28B(5), your Honours.

GORDON J:   You mean BE(5)?

MR DONAGHUE:   Sorry, I do mean BE(5).  Thank you, your Honour.  Section BE(5) contemplates that before 28BE was enacted, the Commonwealth law governing activity under an AOC was not exclusive as to at least some matters.  It contemplates that there might be State or Territory laws that impose duties in the same area of conduct as is the subject of an AOC and, contemplating that pre‑existing state of affairs, it then says the enactment of section 29BE does not change that pre‑existing state of affairs; that there may be co‑existing State and Territory laws.

So it is not that BE is repealing the pre‑existing exclusivity of Commonwealth law; it is that the section reflects an acknowledgement that the Commonwealth law was not exhaustive as to all duties that might be imposed within the area of the AOC.

So when subsection (5) commences with the words “This section”, the weight that those words are doing is saying the enactment of the whole of BE does not change that pre‑existing state of affairs, so the confinement of the section in that way does not confine the acknowledgement that State and Territory law may operate supplementary or cumulative upon Commonwealth law in area that goes well beyond the area of BE itself.  If the Court pleases.

KEANE J:   Mr Solicitor, before you sit down can I just ask you in relation to Heli-Aust v Cahill, do you submit it is wrong or do you distinguish it?

MR DONAGHUE:   We submit it is wrong because the law is on a different subject matter.  If the Court pleases.

KIEFEL CJ:   Thank you.  Solicitor‑General for the Northern Territory.

MS BROWNHILL:   Your Honours, can I address, firstly some matters arising from annexure 6 which my learned friend took you to, annexure 6 of the Convention.  Annexure 6, your Honours will recall, was said to be the critical part of the Convention and is enacted, as far as Australia is concerned, in Part 14 of the Civil Aviation Regulations.  To briefly return to the passage on page 488 of the joint book of authorities, under the heading “Applicability”, it says:

The present edition of Annex 6, Part 1, contains Standards and Recommended Practices adopted by the International Civil Aviation Organization as the minimum Standards applicable to the operation of aeroplanes by operators –

And there are other references in annexure 6 to this idea of there being minimum standards, as opposed to the precise standards which are prescribed.  We take from the reference to these being the minimum standards that, firstly, a contracting State could impose higher standards under its national regime.  And we say that if one goes to page 514, 3.3.3, which my learned friend I think took your Honours to which speaks of the States being required:

as part of their State safety programme –

to require:

that an operator implement a safety management system . . . as a minimum –

and then it sets out various things.  Similarly, at page 527, clause 8.7.3.3:

States shall require, as part of their State safety programme, that a maintenance organization implement a safety management system acceptable to the State that, as a minimum -

and does certain things. So what the annex requires is compliance or prescription of at least these standards, but they may be better than that or higher than that, and we would say it also follows that there can be, consistently with what annex 6 provides, additional standards directed to safety which are imposed by a combination of State and Territory law.

To the extent that that might give rise to some concern about their being a lack of uniformity amongst contracting States by virtue of these higher or additional standards, Article 38 of the Convention actually contemplates differences in standards.  Article 38 is at page 472 and it sets out that:

Any State which finds it impracticable to comply in all respects with any such international standard –

they can simply notify of any differences between their national standards or regulations and those in the annex to the other contracting States.  We say that that would only apply, of course, where the differences in standard would have an impact on safety; that is to say, they are lower than the minimum standards as opposed to higher than the minimum standards.  So, even where contracting States implement a system which has a lower level of standards than that prescribed, the Convention contemplates that and so, we say ‑ ‑ ‑

EDELMAN J:   Why should the references to “minimum” be read as requiring a minimum standard, rather than requiring a standard of a minimum; in other words, leaving it up to the organisation to exceed the standard if it wishes, but requiring that the standard that be imposed be a particular minimum standard?

MS BROWNHILL:   Because of the way that it is expressed in the first page that I took the Court to, your Honour, at page 488:

The present edition. . . contains Standards. . . adopted. . . as the minimum Standards applicable –

So, to the extent that my friend went to particular parts as setting out what should be set up as the standards, these are the minimum.  Further to the submission about the effect of Article 38, the idea that there may be differences amongst the contracting States is accommodated by clauses 3.1.1 and 3.1.2 ‑ ‑ ‑ 

GAGELER J:   Are you suggesting ‑ I am sorry.

MS BROWNHILL:   ‑ ‑ ‑ on page 512, where the operator is required to ensure that its employees must know that they have to comply, and then:

ensure that all pilots are familiar with the laws, regulations and procedures, pertinent to the performance of their duties, prescribed for the areas to be traversed –

So there may well be differences in the standards across the contracting States, and it is on operators to ensure that their operating personnel are aware of them.

GAGELER J:   The question I was about to ask is:  are you suggesting that there has been a notification by Australia under Article 38?

MS BROWNHILL:   No, your Honour, because the addition of work health and safety standards is something that enhances or exceeds these minimum standards.  The notification would operate only in relation to where there is a negative impact on safety from a failure to meet the minimum standards.

The point I am next about to make relates to one that my learned friend identified as one of the three elements giving rise to the exclusivity of the field that had been identified, the third of which was the chain of command or the exclusive control of the pilot in command of a particular flight or its operations.

And I think my friend took the Court to 4.5.1 which is on page 522.  That deals that when the pilot in command is to be responsible for safety on board, or the operation and safety of the aeroplane.  That is from the time the aeroplane is ready to move, et cetera. 

We say that that prescription in the annex is consistent with the construction of flight that I put to the Court yesterday.  That is the definition of “flight” within the meaning of the Civil Aviation Act as not extending outside the steps taken prior to – or the steps taken prior to the – in the case of the balloon, the release of the balloon from the point on the earth.  I cannot remember the exact words, but ‑ ‑ ‑

GORDON J:   Tether.

MS BROWNHILL:   Yes, thank you.  And consistently with that approach, the definition of “operational control” which is on page 509, the reference in that definition to:

authority over the initiation, continuation, diversion or termination of a flight ‑

We say the word “initiation” confirms that kind of construction, because instead of saying all matters preparatory to flight, it refers to initiation which, in the case of the reference in 4.5.1, would be the starting of the engines, or the closing of the doors, or the taxiing of the aircraft, and in the context of balloons, it would include things like the lighting of the burners that cause the inflated balloon to take off but not things relating to all matters preparing for flight, including inflating the balloon or moving passengers towards the basket so that they can get on.

These matters are also inconsistent with the notion that it is only the pilot, to the exclusion of the operator, who has control of safety relating to the air operations which extend outside flight.  My learned friend’s suggestion that in civil aviation regulation 224, which deals with the pilot‑in‑command’s control, it has not been a narrower approach elected to be taken; the approach, as I identified yesterday, is consistent with these matters. 

Another element of what was said to give rise to the exclusivity of the field identified was the subject matter of Part 14 of the Civil Aviation Regulations which prescribed safety standards in, it was said, air navigation or air operations and how comprehensive they are.

In relation to that, if I could ask your Honours to go to the bundle comprising Part 14 of the Civil Aviation Regulations, which was handed up by my friends.  Notwithstanding the size or the volume of Part 14, only a few of the regulations within it actually address matters relating to pre‑flight.  It is apparent from those regulations that, for the most part, Part 14 is essentially directed to ensuring that the aircraft has a safe flight, that it is a flight that is safe, not that it is passengers on the ground who are safe.  There are some incidental matters dealing with safety on the ground, but those incidental matters, we say, flow from the operation of the aircraft.  I will mention a couple.

If we go to CAR 233, it deals with the responsibility of the pilot in command before flight and it provides that the pilot must not commence a flight – that is, as defined by section 3‑ unless the pilot has received evidence or:

has taken such action as is necessary to ensure –

Then there is a list of matters from (a) through to (h).  If your Honours consider those, your Honours will see that they really go to the safety of the flight itself.

There is reference, in particular in (b), to the flight performance; in (d) to ensuring that fuel supplies are sufficient for the flight; and in (g) that the aircraft is safe for flight, et cetera.  Subparagraph (c) refers to:

the directions of [CASA] with respect to the loading of the aircraft given under regulation 235 –

and ensuring that they have been complied with.  If one goes to 235, which is headed:

Take‑off and landing of aircraft etc –

your Honours will see that for the most part, again, that regulation relates to the safe conduct of the flight.  So in subsections (1) and (2) they are dealing with ways of estimating the weight and the centre of gravity. 

Subsection (4) provides that the pilot in command of an aircraft must not allow the aircraft to take off when its gross weight exceeds a certain maximum.  Similarly, (5) and (6) deal with not landing the aircraft when its gross weight has a certain capacity or criteria. 

The only matter in 235 ‑ this is what the Court of Appeal relied on ‑ was the capacity of CASA, for the purpose of ensuring the safety of air navigation, to give directions with respect to the method of the loading of persons and goods, including fuel, on to the aircraft.  Some directions which have been referred to or relied on are those in the Civil Aviation Orders.

They deal ‑ for example, CAO 20.9, which is at page 162 of the book of authorities, is an order made under 235(7).  It deals with precautions in refuelling and engine and ground operations.  What it goes to is addressing things like the dangers of loading fuel onto an aircraft when passengers are either on board or not on board.  For example, 4.2.1 deals with that subject, 4.1 deals generally with fuelling, 4.2 fuelling with passengers on board and 5.3, for example, deals with the embarkation of passengers when the engine is running.

The other Civil Aviation Orders relied on by the Court were 20.16.3(6.1)(a), which is the ground crew members provision, which I referred to yesterday, at page 177.  What these provisions show is that, contrary to the submission of the first respondents, the matters dealing with the embarkation of passengers or, particularly, the inflation of a hot air balloon, are, by no means, comprehensively dealt with by these provisions.  In particular, one would think that if there was a regime which was to comprehensively prescribe the safety of hot air balloon operations, that there would be an order or a regulation dealing with the use of the inflation fan and there is not one.  So, although there is dealing with things like, who can fly, what aircraft can be flown, and so on, there is not actually any comprehensive regime in relation to the inflation of the hot air balloon.

That point is consistent with the construction in CAR 215(2) which is the provision – the first plank of the exclusivity argument which was in relation to the operations manual.  CAR 215(2) requires the operator to ensure that the:

manual shall contain such information, procedures . . . as are necessary to ensure the safe conduct of the flight operations –

We say that “flight operations” there means the things that are directed to the safety of the flight, not to the safety of things that go on, on the ground. 

It is, of course, possible and permissible for an operator to include information in their operations manual other than that which is actually required by the Convention or its annexures.  That is apparent in annexure 6 ‑ in Appendix 2 which is at page 531 about line 21.  Contents, provides that:

The operations manual . . . shall contain at the least the following –

information.  So other information is permissible.  And the CASA publication CAAP 215, which is in the respondent’s book of further materials at page 12 makes clear ‑ so at 4.1:

This document is intended to provide guidance for operators to prepare an Operations Manual in line with the relevant [standards] in Annex 6 ‑

And there is reference in 4.2 to regulation 215.  And then at 4.3:

Operations Manuals normally contain a greater range of information than is required by the [Council] . . . and CASA, and operators should use their own judgment as to how much extra information to include –

So, for example, the operator is permitted but not, we say, required to require the pilot in command to point out the dangers of the inflation fan to passengers but, once an operator does that, it cannot mean that they thereby place that matter, which is directed to safety, within the exclusive field and therefore exclude the operation of the Territory Work Health and Safety Act in relation to that matter or any other matter that they place in their operations manual.

Your Honours, we were criticised by my learned friend for not having made a positive definition ourselves of what is the exclusive field of the civil aviation law.  I have not done that because it is not our case that there is an exclusive field.  But the difficulty with providing a definite description of the exclusive field is that any debate about whether something is within it or without it then tends to turn on the language you have used in your definition and the semantics involved rather than on the proper construction of the civil aviation law itself.

If we were pressed, however, to produce a defined, exclusive area, we suggest that adopted by Justice Barr of the Northern Territory Supreme Court, a decision appealed from to the Court of Appeal or the court below. 

His Honour in his reasons at paragraph [21], which is in the core appeal book at page 29, said that the civil aviation law is exclusive on the subject matter of safety in civil aviation or air navigation in flight, including ground operations which:

affect the safety of aviation and passengers in flight.

That is consistent with the matters that I was referring to about flight operations and what that entails. In terms of the effect of section 98(7) of the Civil Aviation Act, my learned friend, Mr Gleeson, suggested that the intended effect of that provision is to place the Northern Territory on the same footing as a State.  We would accept that.

My learned friend’s other submission, that therefore the case can be resolved on the basis of the operation of that provision, consistently with the view of the court below that, if there is inconsistency, it is a case of the Territory law not operating, as opposed to a case of the Territory law being invalid. 

The difficulty with that conclusion is that, as has already been pointed out, section 98(7) relates only to the inconsistency between the Territory law and the regulations. My learned friend Mr Gleeson has pointed to a number of the provisions of the Civil Aviation Act and the Air Navigation Act as in support of the indirect inconsistency case. 

So it is not clear to us, at least, that section 98(7) would have that protective, if you like, effect on Territory law in relation to inconsistency arising with those provisions of the Acts. Therefore, I press the submission I made yesterday about what the Court should do in relation to any identified inconsistency.

Your Honours, I adopt the submissions of my learned friend the Solicitor‑General for the Commonwealth in relation to the maritime industry matters, save that my learned junior is going to make a submission in relation to one aspect of that ‑not that that submission is going to be taking issue with what the Solicitor for the Commonwealth said.  We adopt what he said and we say something additional which my junior will address.

KIEFEL CJ:   Yes, Mr Moses.

MR MOSES: Your Honours, my submission is going towards paragraph 6 of the first respondent’s submissions on the maritime laws that was not addressed by the Commonwealth Solicitor‑General. Paragraph 6 is a slightly different point directed at section 12A of the Work Health and Safety Act (Cth) on which we place some reliance.

If I can ask your Honours to turn up section 12A of that Act, which appears at page 325, volume 1, tab 24 of the joint book of materials. That section simply provides that, in relation to two cases, the Work Health and Safety Act (Cth) does not apply in relation to any vessel or any structure to which the Occupational Health and Safety (Maritime Industry) Act applies.

KIEFEL CJ:   Would you please remind me, Mr Moses, what, for the purposes of the Northern Territory’s argument, this is meant to establish before we spend all this time on it?

MR MOSES:   Certainly, your Honour.  Our friends place a lot of reliance on an analogy between the relation between the Work Health and Safety Act (Cth) and the separate Occupational Health and Safety (Maritime Industry) Act.  They say that both operate within separate spheres and that neither interact within the sphere of influence in which the other operates.  They say that the same thing occurs in relation to the relationship between the Northern Territory Work Health and Safety Act and the civil aviation law.

They say that the civil aviation law should be treated – that the two laws are in different spheres and that the civil aviation law should be thought of, insofar as it is dealing with work, health and safety matters, as an industry specific code.  That leads to their submission that the specific governs the general.  And, that is how they reconcile their construction of the civil aviation law with the Commonwealth Work Health and Safety Acts.

So, that is the submission that they make.  And, we responded to it at paragraph 6 of our written submissions by saying the interaction between the Commonwealth Work Health and Safety Acts and the Maritime Industry Act is expressly dealt with in section 12A. And, the Commonwealth, in enacting the Work Healthand Safety Act (Cth), has expressly turned its mind to the issue of potentially inconsistent regimes and has provided a rule for how they sit together, how they intermesh.

We say that we are not in that category in relation to the relationship between the Work Health and Safety Act (Cth) and the civil aviation law because we have no equivalent provision. So it is an argument that is put to resist that reliance by the first respondent on the analogy between the regimes.

And in paragraph 6 of their maritime industry submissions they seek to respond to that by saying that in fact the two sets of laws, the Work Health and Safety Act (Cth) and the Maritime Industry Act have no joint common sphere of operation by reason of their terms. So they rely on – and it is behind tab 3 in the bundle that was handed up in support of those

maritime industry submissions – firstly, on section 6, which deals with the operation of the Maritime Industry Act, which says that it:

applies in relation to a prescribed ship –

And then they go forward to section 4 to the definition of “prescribed ship”, which, for relevant purposes, excludes a government ship.  So a government ship is not a ship to which this Act applies.

Then the definition of “government ship” a little further forward in section 4 is, for relevant purposes, a ship owned or in which the Commonwealth has a beneficial interest. 

So the submission made in paragraph 6 is that, contrasting that definition, that operation, which is not in relation to government ships, with the operation of the Work Health and Safety Act (Cth), the general Act, in section 8, which provides that it only applies in relation to a Commonwealth workplace, being a place where work is carried out for a business or undertaking, specifically a Commonwealth business or undertaking.

They seek to draw from that that one is dealing with private sector workplaces on ships and the other with public sector workplaces on ships.  Our response is simply this, that there can be Commonwealth workplaces, to which the Work Health and Safety Act (Cth) applies, which are privately owned ships. An obvious example would be where the Australian Transport Safety Bureau goes onto a private ship to investigate a safety matter.

That is a Commonwealth workplace within the meaning of the general Work Health and Safety Act (Cth), and it is also a ship to which the Maritime Industry Act applies. So section 12A is providing a rule as to how those particular Acts are to be intermeshed together, how they operate in conjunction. We submit that there is an interaction between them.

Section 12A of the Work Health and Safety Act (Cth) does have work to do in terms of defining how that interaction is to work. The point that we draw from it, that the Commonwealth has deliberately turned its mind to the interaction of these regimes, does not have any comparable analysis, or in fact negates the notion that this Court should read in a similar provision to section 12A, inserting the Commonwealth aviation legislation, which is really what the first respondent’s case resolves to. May it please the Court.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow.

AT 3.11 PM THE MATTER WAS ADJOURNED