The Charges Brought and the Inconsistencies Relied Upon
93 The particulars relied upon to make out the two charges brought by the Prosecutor pursuant to the State Occupational Health and Safety Act were the genesis of the inconsistency asserted.
94 The objects of that Act in 2004, it may be noted, were set forth as follows in s 3:
The objects of this Act are as follows:
(a) to secure and promote the health, safety and welfare of people at work,
(b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work,
(c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs,
(d) to provide for consultation and co-operation between employers and employees in achieving the objects of this Act,
(e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled,
(f) to develop and promote community awareness of occupational health and safety issues,
(g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices,
(h) to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety.
95 The charge brought in reliance upon s 8(2) of the State Act alleges that Heli-Aust was "an employer" and that it failed "to ensure that people … [were] not exposed to risks". Section 8 in its entirety provided in 2004 as follows:
Duties of employers
(1) Employees
An employer must ensure the health, safety and welfare at work of all the employees of the employer.
That duty extends (without limitation) to the following:
(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,
(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,
(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,
(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,
(e) providing adequate facilities for the welfare of the employees at work.
(2) Others at workplace
An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
The term "premises" is defined by s 4 as including "any vehicle, vessel or aircraft".
96 The other charge brought invokes s 10(1) of the State Act. That charge alleges that Heli-Aust was the "person who controlled premises, namely, an aircraft Bell Helicopter 206B JetRanger". Section 10, in its entirety provided as follows:
Duties of controllers of work premises, plant or substances
(1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.
(2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.
(3) The duties of a person under this section:
(a) do not apply to premises, plant or substances used only by employees of the person, and
(b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and
(c) extend to the means of access to or exit from a place of work, and
(d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person.
(4) In this section, a person who has control of premises, plant or substances includes:
(a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and
(b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease).
97 The duties imposed by provisions such as ss 8 and 10 are fundamental to ensuring safety of workplaces. When speaking of comparable provisions previously found in s 15 of the Occupational Health and Safety Act 1983 (NSW), in Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ thus observed:
[10] A few observations may be made at this point. The obligation upon the employer is expressed in terms personal to that employer. It is the employer who must ensure the health, safety and welfare of employees at work. The obligation is the kind of non-delegable duty spoken of in Kondis v State Transport Authority [(1984) 154 CLR 672]. It is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement "to ensure" the health, safety and welfare of employees or that persons are not exposed to risks to their health and safety at the place of work. …
[11] Section 15(2) identified, in general terms, some types of measures which an employer may need to take in order to ensure the health, safety and welfare of employees. The list is not exhaustive. What measures are necessary to be taken will depend upon the particular circumstances prevailing at the workplace, what activities are there conducted, what machinery, plant or substances are involved, the tasks undertaken by the employees and the skills of the employees in question, to mention but a few factors. What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk (s 15(2)(a)). An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary" (s 15(2)(c)). An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use (s 15(2)(f)(i)). Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.
98 For each of the two charges, substantially the same "particulars" are provided and for the charges brought pursuant to s 10(1) provide as follows:
Aspects of the defendant's control over the premises that were unsafe and had the risks to health were any combination of the following:
(a) Failure to ensure that there existed or was undertaken, or both, an adequate risk assessment of the risk of wire strike.
(b) Failure to ensure that when undertaking low level flying work, such as locust control work, there was a standard crew number of no more than one pilot and one passenger.
(c) Failure to ensure that when undertaking low level flying work, such as locust control work, there should be pre-flight planning in the form of gathering intelligence from landholders on the placement of wires.
(d) Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with and had reinforced adequate safety information, instruction and training about the risk of wire strike and strategies to prevent or reduce that risk.
(e) Failure to ensure that a helicopter involved in low level flying work, such as locust spotting work, ascended to a height that ensured safety before transiting or traversing to another area or paddock.
(f) Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with a wire strike prevention system.
(g) Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with four point harnesses to each seat.
(h) Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with personal protective equipment in the form of a suitable flight helmet and a nomex or equivalent flight suit.
99 In reliance upon s 109 of the Constitution, one of the two ways in which Heli-Aust seeks to advance its case is that the Commonwealth Parliament has evinced an intention to "cover the field" such that each of the "aspects" set forth in paragraphs (a) to (h) of the particulars impermissibly intrude into that field. For the purposes of resolving this submission, it is essential to determine with some degree of precision the intention of the Commonwealth Legislature and "the field" which is said to be covered.
100 Alternatively, to the extent that Heli-Aust contends that there is a "direct inconsistency" between State and Commonwealth laws, it is essential to identify the laws of both the State and the laws of the Commonwealth and to then determine if there is an inconsistency between those provisions.
101 Without for present purposes seeking to resolve either the "field" which is said to be covered or the "laws" which are said to be inconsistent, Heli-Aust contends that each of the particulars or "aspects" of the charges brought against it are addressed by the following Commonwealth regulatory provisions:
Particular Commonwealth regulatory provisions
(a) "Failure to ensure that there existed or was undertaken, or both, an adequate risk assessment of the risk of wire strike." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988;
Regulations 138, 157, 207, 215, 219, 224, 233, 239 and Part 12 of the Civil Aviation Regulations 1988 and Part 21 of the Civil Aviation Safety Regulations 1998;
Civil Aviation Order 20.21 Issue 3; and
Civil Aviation Order 40.6.
(b) "Failure to ensure that when undertaking low level flying work, such as locust control work, there was a standard crew number of no more than one pilot and one passenger." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988;
Regulations 138, 157, 208, 215, 224, 233 and 249 of the Civil Aviation Regulations 1988; and
Civil Aviation Order 40.6.
(c) "Failure to ensure that when undertaking low level flying work, such as locust control work, there should be pre-flight planning in the form of gathering intelligence from landholders on the placement of wires." Part 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988,
Regulations 138, 157, 207, 215, 219, 224, 233, 239 and Part 12 of the Civil Aviation Regulations 1988;
Civil Aviation Order 20.21 Issue 3; and
Civil Aviation Order 40.6.
(d) "Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with and had reinforced adequate safety information, instruction and training about the risk of wire strike and strategies to prevent or reduce that risk." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988,
Regulations 138, 157, 207, 215, 219, 224, 233, 239 and Part 12 of the Civil Aviation Regulations 1988;
Civil Aviation Order 20.21 Issue 3; and
Civil Aviation Order 40.6.
(e) "Failure to ensure that a helicopter involved in low level flying work, such as locust spotting work, ascended to a height that ensured safety before transiting or traversing to another area or paddock." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988;
Regulations 138, 157, 207, 215, 219, 224, 233, 239 and Part 12 of the Civil Aviation Regulations 1988;
Civil Aviation Order 20.21 Issue 3; and
Civil Aviation Order 40.6.
(f) "Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with a wire strike prevention system." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988,
Regulations 138, 157, 207, 215, 219, 224, 233, 239 and Part 12 of the Civil Aviation Regulations 1988;
Civil Aviation Order 20.21 Issue 3; and
Civil Aviation Order 40.6.
(g) "Failure to ensure that any helicopter involved in low level flying work, such as locust control work, was fitted with four point harnesses to each seat." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988; and
Regulation 251 of the Civil Aviation Regulations 1988.
(h) "Failure to ensure that a passenger of a helicopter involved in low level flying work, such as locust control work, was provided with personal protective equipment in the form of a suitable flight helmet and a nomex or equivalent flight suit." Sections 5, 9, 9A, 11, 98 and Part III of the Civil Aviation Act 1988; and
Regulations 138, 207, 215 and 224 of the Civil Aviation Regulations 1988.