Two Regulatory Regimes for Civil Aviation Operators: High Court finds that workplace health and safety laws apply to regulate the safety of civil aviation 7 February 2019
7 FEBRUARY 2019
The High Court delivered judgment in Work Health Authority v Outback Ballooning Pty Ltd1 on 6 February 2019 which has serious ramifications for aircraft operators because the High Court held that operators are subject not only to the civil aviation regulatory regime, but also subject to concurrent State and Territory occupational health and safety laws.
The case concerned an attempted prosecution of Outback Ballooning (a hot air balloon operator based in Alice Springs) under sections 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act (NT) ("the NT WHS Act") after a passenger was killed when her scarf was caught in the inflation fan as she was boarding. The NT Work Health Authority alleged that Outback Ballooning breached its primary duty of care under the NT WHS Act through its failure to eliminate or minimise risks to embarking passengers. The relevant provisions of the NT WHS Act concerned the primary duty of care:
“A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”2
The Act purported to apply because the accident happened at a workplace even though the deceased passenger was not an employee of Outback Ballooning.3
The question before the Court was whether or not the NT WHS Act was inconsistent with the Commonwealth Civil Aviation Act, which imposes its own very specific regulatory regime conformably with the Chicago Convention for the safety of air navigation, and therefore invalid.
The Court, by majority, found that sections 19 and 32 of the NT WHS Act are not inconsistent with the Commonwealth civil aviation regime. This means that aircraft operators and airlines are subject not only to Commonwealth laws in relation to the safety of civil aviation but are also subject to concurrent State or Territory laws (including occupational health and safety laws).
1 HCA 2
2 NT WHS Act s 19(2)
3 NT WHS Act s 9 defines an aircraft as a workplace.
7 February 2019
The generalised risk of subjecting operators and airlines to a multitude of non-uniform laws was addressed by Justice Edelman in dissent:
“...it would be surprising, confusing, and potentially dangerous if the Civil Aviation Law were to have the effect that the rules of the air on a flight from Darwin to Melbourne, via Sydney, could be regulated not merely by the comprehensive and uniform rules policed by the Commonwealth Civil Aviation Safety Authority ("CASA"), but also, depending upon the airspace, by separate and different rules policed by the Work Health Authority and its inspectors in the Northern Territory, or regulators in New South Wales and Victoria.” 4
Justice Edelman argued that an exclusive civil aviation regime is necessary to achieve a uniform national safety regime and rules of the air.
The maximum penalty for a corporation for a breach of workplace health and safety legislation can be as high as $1.8 million in Western Australia and $1.5 million in other States and Territories. The cost of defending against an alleged breach of the WHS Act is likely to be significant.
The current situation should be rectified, which can only occur if the Commonwealth parliament amends the Civil Aviation Act to make it clear that the regime created by that Act and the Regulations is intended to cover the field in respect of the safety regulation of air navigation in Australia. There are some things that are clearly outside the safety regime (such as the liability of commercial operators which is regulated by a different regime to the exclusion of other laws under the Civil Aviation (Carriers’ Liability) Act) but the Act should be amended to achieve a result which conforms with the observation by Justice Edelman:
“Does the Civil Aviation Law contemplate that its scheme, including duties concerning aviation safety, could be fragmented by the concurrent application of a different safety regime in the States and Territories? It is plain that the answer to this question in relation to the rules of the air is "no." The Civil Aviation Law operates exclusively to cover a subject matter that includes at least the rules of the air.”5
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4 Outback Ballooning  at 34 .
5 Outback Ballooning  at 34  - .