D. The concept of inconsistency
The concept of inconsistency between a Commonwealth law and a Northern Territory law involves the same test as, although not identical consequences to, the concept, recognised in s 109 of the Constitution, of inconsistency between a Commonwealth law and a State law. The different consequences are that inconsistency leads to a State law being inoperative, capable of later revival, but it leads to the Territory law being invalid and beyond power due to either an express limit on Territory law‑making power for inconsistencies with earlier Commonwealth laws or a necessarily implied limitation for inconsistencies with later Commonwealth laws.
The early view of s 109, expounded by Griffith CJ, was that inconsistency was limited to circumstances where obedience to both laws was impossible. But, as Gummow J and Hayne J observed, that view did not prevail. Inconsistency arises whenever there is a "real conflict" between two laws. Real conflict occurs whenever a State or Territory law "would alter, impair or detract from" the Commonwealth law. This verbal formula concerning altering, impairing, or detracting has sometimes been limited to instances described as "direct inconsistency", with a different category of conflict said to be one of "indirect inconsistency". This distinction can mislead, especially in this context. A better approach, without attempting to abolish concepts that have a long-established usage in both case law and legislation, is to accept that both direct and indirect inconsistency involve the State or Territory law altering, impairing, or detracting from the Commonwealth law but to acknowledge that the descriptions of direct and indirect inconsistency are simply attempts to describe different ways that this can occur.
The category sometimes described as indirect inconsistency arises where the State, or Territory, law purports to address a subject matter despite an expression or an implication that the Commonwealth law is exhaustive, "covering" a "subject matter" or a "matter". In other words, indirect inconsistency usually describes an implication where the Commonwealth law "contains an implicit negative proposition that nothing other than what the [Commonwealth] law provides upon a particular subject matter is to be the subject of legislation". The existence of such an implication, and the characterisation of the subject matter, is determined by interpretation of the Commonwealth law. It will usually be a logically anterior issue to that of "direct" inconsistency.
In contrast, the description "direct inconsistency" is usually applied where the State or Territory law alters, impairs, or detracts from the Commonwealth law either despite the two laws operating on different subject matters or despite the Commonwealth law not excluding concurrent operation on the same subject matter. Following a concession by Outback Ballooning in oral submissions, this appeal is not concerned with so-called direct inconsistency. It is concerned only with indirect inconsistency.
E. The subject matter exclusively covered by the Civil Aviation Law
The starting point for an assessment of inconsistency is the interpretation of the Commonwealth law. The relevant Commonwealth law on this appeal is comprised in the suite of laws, described on this appeal as the Civil Aviation Law, that give effect to Australia's obligations under the Chicago Convention.
The Civil Aviation Law includes the remaining provisions of the Air Navigation Act 1920 (Cth), s 3A of which approves Australia's ratification of the Chicago Convention. However, the Civil Aviation Law primarily comprises the Civil Aviation Act 1988 (Cth), which repealed and substantially re-enacted parts of the Air Navigation Act. The Civil Aviation Law also includes instruments made under the Civil Aviation Act, namely, the Civil Aviation Regulations 1988 (Cth), the Civil Aviation Safety Regulations 1998 (Cth), and Civil Aviation Orders. In 1960, one reason given by the Minister for Defence for not restricting the Civil Aviation Law to a single instrument, including "many of the regulations [that] relate to detailed safety standards", was the frequency with which, and extent to which, the Annexes to the Chicago Convention were amended.
(i) The dispute about the extent of exclusivity
There can be little doubt that the Civil Aviation Law contains the implicit negative proposition that nothing other than what the Commonwealth law provides upon a particular subject matter is to be the subject of legislation. The existence of a core of exclusivity in the Civil Aviation Law is clear from the background, context, and text of the Civil Aviation Law. Each of the background, context, and text of the Civil Aviation Law supports an implication, in terms expressed by Outback Ballooning, that the law exclusively covers at least the subject matter of the prescription and enforcement of standards of safety in the conduct of civil air navigation in, to or from Australia. Expressed in short, the exclusive subject matter is standards of safety in air navigation.
Although none of the parties to this appeal disputed that the Commonwealth Parliament intended the Civil Aviation Law to be exclusive as to some subject matter, none of the parties other than Outback Ballooning focused upon the scope or boundaries of the exclusivity. For instance, the Attorney‑General of the Commonwealth conceded in oral reply that there was a "subject that the Commonwealth has comprehensively regulated" and a "comprehensive Commonwealth sphere", but did not seek to define that sphere or to explain its boundaries. The Work Health Authority accepted that the Civil Aviation Law had exclusive coverage over some subject matter but only in oral reply did it submit that, if pressed to formulate the subject matter of exclusivity, it would adopt the formulation of Barr J in the Supreme Court of the Northern Territory that the Civil Aviation Law was "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". The Work Health Authority submitted that "ground operations" affecting "the safety of aviation and passengers in flight" did not include the embarkation of passengers.
No party contended that a hot air balloon was exempted from the exclusivity of the Civil Aviation Law. Such a submission could not have succeeded in light of (i) the width of the current definition of aircraft in the Civil Aviation Law, and its background and context, which specifically included hot air balloons, and (ii) the detail of regulations and orders in the Civil Aviation Law dealing specifically with hot air balloons.
(ii) The consistent international goal of uniform safety rules for air navigation
The first multilateral attempt at uniformity of regulation of air safety was the Convention relating to the Regulation of Aerial Navigation (1919) ("the Paris Convention"). The Paris Convention was ratified by over 30 states, including Australia. In Art 2, each contracting state undertook in times of peace to accord freedom of innocent passage above its territory to the aircraft of other contracting states, provided that the conditions under the Paris Convention were observed. Those included conditions in its Annexes which set uniform standards with respect to airworthiness for airlines and certificates of competency for pilots, and established an independent body whose purposes included the harmonisation of standards in technical matters.
In 1944, the Chicago Convention "supersede[d]" the Paris Convention. The need for uniformity is central to the Chicago Convention. Part II of the Chicago Convention establishes the International Civil Aviation Organization ("the ICAO"), of which Australia is one of the 192 member states. The objectives of the ICAO are stated in Art 44 and include the promotion of "safety of flight in international air navigation". One of the mandatory functions of the Council of the ICAO is to adopt "international standards and recommended practices", which are promulgated as Annexes to the Chicago Convention.
Article 12 of the Chicago Convention provides that contracting states undertake to keep uniform, "to the greatest possible extent", the Convention rules and regulations relating to the flight and manoeuvre of aircraft. Article 37 provides for contracting states to "collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures, and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation". In Airlines No 2, Barwick CJ described Art 37 as an obligation "to secure in Australia uniformity of standards, practices, procedures and organization to the extent mentioned in art 37, and where annexes have been relevantly adopted to achieve uniformity according to the standards, practices and procedures which they do adopt".
Annex 6 to the Chicago Convention, entitled "Operation of Aircraft", has the purpose of contributing to "the safety of international air navigation by providing criteria of safe operating practice", and contains "the minimum Standards applicable to the operation of aeroplanes". It defines a "Standard" in terms that relate to safety and uniformity:
"Standard: Any specification for physical characteristics, configuration, matériel, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38."
Annex 6 provides for state parties to "establish a State safety programme in order to achieve an acceptable level of safety in civil aviation" and to "require, as part of their State safety programme, that an operator implement a safety management system" which fulfils various minimum safety requirements.
The general provision in Annex 6 for the implementation of minimum safety requirements is not one that invites a number of different standards within a single contracting state. It strives towards a goal of uniformity, by providing for a single international standard imposing a duty upon operators to achieve a required minimum level of safety. For this reason, Art 38 requires a contracting state to notify the ICAO if it deviates from the ICAO's standards. The notification must be given where the domestic regulations or practices differ "in any particular respect" from the international standard. The notification must be given immediately. The Council of the ICAO is then obliged to make immediate notification of that difference to all other contracting states. The rationale for this strict requirement to notify any differences is the need for full transparency so that all contracting states are "aware, in the interest of safety of air navigation, that in a particular place the standard procedures, facilities or services are not available".
(iii) The international goal was a basis for the Civil Aviation Law
The legislation comprising the Civil Aviation Law was enacted and amended against the background of these efforts, now over nearly a century, to create uniformity in air navigation laws and consequent safety. As Barwick CJ said in Airlines No 2, the object of uniformity is "the safety and orderly growth of civil aviation throughout the world".
The Paris Convention and its Annexes were described by Latham CJ, quoting the Privy Council, as covering "almost every conceivable matter relating to aerial navigation". In 1937, following an unsuccessful attempt to confer power on the Commonwealth to make laws with respect to air navigation and aircraft, which failed at a referendum, the Commonwealth and State governments agreed that each State would enact legislation which, as recited in the preambles to the Acts, applied the Commonwealth Air Navigation Regulations within each State to provide for "uniform rules throughout the Commonwealth" on matters including air navigation and aircraft.
The Chicago Convention, which Australia ratified in 1947, was likewise described by Owen J as covering "almost every conceivable matter relating to aerial navigation". The Air Navigation Act 1947 (Cth) and the Air Navigation Act (No 2) 1947 (Cth) amended the Air Navigation Act to approve of Australia's ratification of the Chicago Convention and to confer power, on the "widest possible basis", to make regulations for the purpose of carrying out and giving effect to the Chicago Convention. In 1960, when significant amendments were made to the Air Navigation Act, the Chicago Convention was included as a Schedule. And in 1964, the Commonwealth, relying in part upon an expanded view of s 51(i) of the Constitution, extended the Air Navigation Regulations (Cth), which Taylor J had earlier described as a "studied and careful attempt to devise general and comprehensive rules for securing safety in and in relation to the operation of aircraft", to all civil air navigation in Australia, domestic or international. Similarly, s 98(1) of the Civil Aviation Act provides for a purpose of making regulations to be "carrying out and giving effect to the provisions of the Chicago Convention relating to safety" and "in relation to safety of air navigation" within the limits of the powers of the Commonwealth Parliament. Like the Air Navigation Regulations, the Civil Aviation Regulations are expressed to apply to all civil air navigation within Australian territory.
(iv) The textual basis for exclusivity of safety of air navigation in the Civil Aviation Act
The long title of the Civil Aviation Act is "An Act to establish a Civil Aviation Safety Authority with functions relating to civil aviation, in particular the safety of civil aviation, and for related purposes". Together with the provisions in Pt 14 of the Civil Aviation Regulations and certain Civil Aviation Orders, the Civil Aviation Act implements and extends the safety requirements in Annex 6 in a consistent regime of standards of safety of air navigation in Australia, domestic or international.
The careful and detailed text of the Civil Aviation Law prescribes a regime for safety of air navigation that requires an exclusive and unitary, uniform approach because every person involved in an air operation must be able to identify the set of rules governing the safety of that operation, and must be able to identify the person with whose directions he or she is required to comply. That can become impracticable or impossible if there are two or more safety regimes, involving instructions from two or more safety regulators, even if those regimes and instructions impose identical obligations. Indeed, one of the matters about which CASA must be satisfied before issuing an Air Operator's Certificate ("AOC") is that "the organisation's chain of command is appropriate to ensure that the AOC operations can be conducted or carried out safely".
CASA is established by s 8 of the Civil Aviation Act. By s 9, CASA's functions include conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards. In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration and act consistently with Australia's obligations under the Chicago Convention, including Annex 6.
Section 27(2)(b) provides relevantly that an aircraft shall not operate in Australian territory except as authorised by an AOC. An AOC is issued by CASA on an application made in accordance with Pt III, Div 2, Subdiv B. CASA must issue an AOC if, and only if, the criteria in s 28 are satisfied, most of which are concerned with safety. The first of these is that CASA is satisfied that the applicant has complied with, or is capable of complying with, the "safety rules". The safety rules are, in effect, all the provisions of the Civil Aviation Law that relate to safety. And, as explained above, most are contained in the Civil Aviation Regulations due to the frequency with which, and extent to which, the Chicago Convention is amended.
A central manner in which the Civil Aviation Regulations have regulated safety is by imposing a duty upon operators to create an operations manual that contains all matters necessary to ensure safe flight operations. This implements cl 4.2.3 of Pt I of Annex 6 to the Chicago Convention. An applicant for an AOC is required to lodge the current or proposed version of the operations manual with CASA. The regulations, as supplemented by directions given by CASA in the form of Civil Aviation Orders, are highly prescriptive of the content of the operations manual and the consequences for failing to comply with it.
Of particular note is reg 215 of the Civil Aviation Regulations. An obligation in this form has existed since its predecessor, reg 212 of the Air Navigation Regulations, was amended in 1971. Regulation 215(1) requires an operator to provide an operations manual for the use and guidance of the operations personnel of the operator. The operator must ensure that the operations manual contains "such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations". The operator must revise the operations manual from time to time where necessary, and CASA may give a direction requiring that the operator include particular content or revise the operations manual. Each member of the operations personnel of an operator must comply with all applicable instructions contained in the operations manual. Offences under reg 215 are strict liability offences.
Section 29(1) of the Civil Aviation Act creates an offence where the owner, operator, hirer, or pilot of an aircraft operates the aircraft or permits the aircraft to be operated in contravention of a provision of Pt III of the Civil Aviation Act or a direction given or condition imposed under such a provision. When read with s 28BD(1), which requires the holder of an AOC to comply with all applicable requirements of the Civil Aviation Law, s 29(1) has the effect of criminalising a breach of any of the requirements of the Civil Aviation Law if the holder of the AOC is the owner, operator, hirer, or pilot of the aircraft. An offence is also committed under s 29(3) if the owner, operator, hirer, or pilot of an aircraft operates the aircraft being reckless as to whether the manner of operation could endanger the life of another person.
The textual detail of the regime of safety of air navigation is particularly prominent in the provisions of the Civil Aviation Law that concern the authority of the pilot in command. Under reg 224(2) of the Civil Aviation Regulations, the pilot in command is responsible for: (a) the start, continuation, diversion and end of a flight by the aircraft; (b) the operation and safety of the aircraft during flight time; (c) the safety of persons and cargo carried on the aircraft; and (d) the conduct and safety of members of the crew on the aircraft. The pilot in command must discharge these responsibilities in accordance with the Civil Aviation Law and, if applicable, the operations manual. The pilot in command's responsibility for maintaining discipline of all persons on board creates a correlative duty on the part of those persons to obey the pilot in command.
(v) Territorial self-government provisions do not detract from exclusivity
Some Commonwealth laws and regulations contain a provision which evinces "an intention that the statute is not intended to cover the field", for example by providing that the law is "not intended to exclude or limit" the concurrent operation of any State and Territory laws, or by referring to the "concurrent operation" of laws of both States and Territories in the absence of "direct inconsistency". Provisions of this type that militate against an implication of exclusivity might be described as "anti-exclusivity" clauses.
Section 98(7) of the Civil Aviation Act provides as follows:
"A law of a Territory (not being a law of the Commonwealth) does not have effect to the extent to which it is inconsistent with a provision of the regulations having effect in that Territory, but such a law shall not be taken to be inconsistent with such a provision to the extent that it is capable of operating concurrently with that provision."
This sub-section is not an "anti-exclusivity" clause for four reasons. First, it is directed to the laws of a Territory, not the laws of the Commonwealth. It is concerned with the effect of inconsistent laws of a Territory. It is not concerned with whether regulations made under Commonwealth legislation are intended to exclude or limit Territory laws. In The Commonwealth v Australian Capital Territory, this Court said of the similar terms of s 28 of the Australian Capital Territory (Self-Government) Act 1988 (Cth):
"The text of s 28 thus makes plain that the section is directed to the effect which is to be given to an enactment of the Assembly; it is not directed to the effect which is to be given to a federal law. That is, s 28 is a constraint upon the operation of the enactment of the Territory Assembly. It does not say, and it is not to be understood as providing, that laws of the federal Parliament are to be read down or construed in a way which would permit concurrent operation of Territory enactments." (emphasis in original)
Secondly, s 98(7) is an example of a provision concerning only the Territories that commonly appears in Commonwealth legislation. The common form of such a provision, in the Northern Territory and the Australian Capital Territory, employs a post‑self‑government drafting technique intended to reflect the general principle of s 109 of the Constitution. The classic example of this technique is in s 28 of the Australian Capital Territory (Self-Government) Act, which is entitled "Inconsistency with other laws". That section provides that a provision of an enactment has no effect to the extent that it is inconsistent with a law in force in the Australian Capital Territory, but that "such a provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law". In other words, the Commonwealth Parliament, recognising that s 109 of the Constitution has no direct application to the Australian Capital Territory, provided a rule of inconsistency drawing upon s 109 concepts to be applied to conflicts between a Commonwealth law and a law of the Australian Capital Territory.
Thirdly, that s 98(7) should have this interpretation, creating a rule of interpretation with similar effect to s 109 of the Constitution as a response to Territorial self-government, is also supported by the history and context of the sub-section. As to history, the predecessor to the provision was s 26(5) of the Air Navigation Act. That provision was inserted by s 5 of the Air Navigation Amendment Act 1980 (Cth), after the Northern Territory was granted self‑government, in order to "put the Northern Territory in the same position as the States in regard to the control of air services within the Territory's boundaries". The amendments also included a new s 2A, which provided that the Act also bound the Northern Territory, and s 26(4), which was the predecessor to s 98(6) of the Civil Aviation Act. As to context, s 98(6) is further evidence of the focus of s 98(7) upon Territory self-government, as s 98(6) provides that the preceding provisions of s 98 "have effect as if the Northern Territory were a State".
Fourthly, if a Commonwealth provision like s 98(7) were an anti‑exclusivity clause, then it would have the effect that uniform Commonwealth legislation otherwise exclusively covering a subject matter in the States would not do so in the Territories. That would be a very surprising result which must militate against such an interpretation.
(vi) The 1995 amendments to the Civil Aviation Act did not alter its exclusivity
The Work Health Authority and the interveners placed considerable emphasis on s 28BE(5) of the Civil Aviation Act manifesting a lack of parliamentary intention for the subject matter of safety of air navigation to be exclusive. There are two fundamental points about s 28BE(5) that combine to show that the sub-section did not affect the scope of exclusivity of the regime of standards of safety in air navigation. The first is that s 28BE was not inserted into the Civil Aviation Act until 1995 by the Civil Aviation Legislation Amendment Act 1995 (Cth). The second is that s 28BE(1) is not a tortious duty. There is a vast conceptual gap between a duty that regulates safety and one that protects rights. Section 28BE(5) was therefore a precautionary clause that provided that previous laws both within and outside the exclusive regime were unaffected.
The 1995 amendments included s 28BE(1), which requires the holder of an AOC to "take all reasonable steps to ensure that every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence". The amendments also included s 28BE(4), which provides that no action lies, for damages or compensation, in respect of a contravention of the section. And they included s 28BE(5), which provides that s 28BE "does not affect any duty imposed by, or under, any other law of the Commonwealth, or of a State or Territory, or under the common law". The use of the words "does not affect" is important. Section 28BE(5) does not say that other State or Territory, Commonwealth, or common law duties are preserved. It merely says that the section does not affect them. If the duties had been excluded because they fall within the area of exclusivity then s 28BE(5) does not reinstate them. If the duties had not previously been excluded then they are not excluded by s 28BE.
Although the Work Health Authority and all the interveners on this appeal relied upon s 28BE(5) of the Civil Aviation Act, only the Commonwealth Attorney‑General acknowledged the timing of its introduction in 1995, saying in oral reply that s 28BE(5) "reflects an acknowledgement" that the Civil Aviation Law did not exclusively cover the subject matter of the safety of air navigation (emphasis added). However, this submission involves the logical fallacy of assuming that which is sought to be proved. Section 28BE(5) could only confirm or acknowledge a lack of exclusivity if such a lack of exclusivity preceded the provision. The operation of s 28BE(5) must be understood in the context of the effect that it had, and was intended to have, upon the pre-existing terms of the Civil Aviation Act. Those terms had established a legislative intention to cover exhaustively the subject matter of the safety of air navigation.
The Civil Aviation Legislation Amendment Act involved amendments to establish CASA as the organisation with responsibility for the safety regulation of civil aviation in Australia. The Explanatory Memorandum explained that many of the provisions in the Civil Aviation Act "remain wholly or largely unchanged because they provide appropriately for the aviation safety regulation activities which CASA will take over when it commences operations". The introduction of CASA could hardly be interpreted as manifesting a parliamentary intention that the regulation of safety of air navigation not be exclusive. On the contrary, as the Explanatory Memorandum said, CASA was intended to be a body with enhanced independence to oversee the implementation of aviation safety standards.
There is no need to interpret the provision in s 28BE(5) as unwinding the pre-existing exclusivity of the regime of safety of air navigation. Rather, taken as a whole, and in the context of the pre-existing exclusive subject matter of safety of air navigation in the Civil Aviation Law, sub-ss (4) and (5) of s 28BE are provisions designed to ensure that none of the pre-existing law is altered. As the Explanatory Memorandum explained, the section "makes it clear that a breach of this statutory duty does not create a new cause of action; nor does it affect any common law duty of care or any other statutory duty under which a person may be able to bring an action in negligence or other legal proceedings against the AOC holder".
The specific reference to negligence in the Explanatory Memorandum is telling. The pre-existing duties described by the Explanatory Memorandum as giving rise to an action for negligence that, by s 28BE(5), the duty in s 28BE(1) "does not affect" include the common law tortious duty of care and the equitable duty of care. Those duties are outside the exclusive subject matter of the safety of air navigation. By providing in s 28BE(5) that they were not affected, the sub-section confirms the continuing applicability of these existing duties. The reason s 28BE(1) does not affect those duties is that it is not analogous to a general law duty of care. It applies to regulate safety concerns including, but not limited to, those within the exclusive regime of the regulation of safety, and irrespective of whether the rights of any individual are infringed. As I explain below, this is quite different from the general law duty of care, which is concerned with the protection of individual rights.
There are other examples of pre-existing duties that might fall within the general duty in s 28BE(1) but which that duty "does not affect" because those pre-existing duties were, and are, outside the exclusive regime of enforcing the standards relating to safety of air navigation either because they are concerned with individual rights or because the duties regulate only the subject matter of matters connected with air navigation. Simply by reference to hot air balloons, a number of examples given by Outback Ballooning can illustrate the breadth of these concurrent, non-excluded duties. One example is where a balloon operator operated the flight safely but carelessly allowed the balloon to land on privately held land, committing the tort of trespass. Another is where a balloon operator made careless misrepresentations or engaged in misleading or deceptive conduct in the course of selling tickets for a balloon flight. Another might be a lack of care causing injury in the course of transporting passengers to the site of departure.
F. Subject matters not exclusively covered by the Civil Aviation Law
Even if it were possible, it would not be necessary or appropriate to attempt to delineate and enumerate all subject matters that do not fall within the exclusive coverage of standards of safety in air navigation in the Civil Aviation Law. However, in oral argument, some subject matters were raised by the Work Health Authority and the Attorney‑General of the Commonwealth in the course of submitting that Outback Ballooning's characterisation of the subject matter of the Civil Aviation Law was too broad. It is necessary to explain why those subject matters are not covered by the Civil Aviation Law, and why they do not militate against recognising the Civil Aviation Law's exclusive coverage of standards of safety of air navigation. The Civil Aviation Law operates concurrently with these other laws because they are laws on a different subject matter. The co-existence of laws on a different subject matter naturally does not detract from the exclusivity of the Civil Aviation Law on the different subject matter of standards of safety of air navigation.
(i) Workplace health and safety unconnected with safety standards for air navigation
The Work Health Authority relied upon the Work Health and Safety Act 2011 (Cth), and particularly the duty in s 19(2) to ensure that the health and safety of other persons is not put at risk from the conduct of the business. The Work Health Authority submitted that the existence of this workplace health and safety duty, read with s 12(9), which accepts the concurrent application to a worker or a workplace of a "corresponding WHS law" (defined in s 4 to include the WHS Act), was evidence that the Civil Aviation Law was not intended to be exclusive at least in relation to that duty. That submission misunderstands the operation of the Commonwealth Work Health and Safety Act.
The contrast, and area of overlap, between the subject matter of State and Territory workplace health and safety laws, concerned with health and safety in a business, and the subject matter of the Civil Aviation Law, safety of air navigation, is addressed in detail below in Section G. It suffices here to address that issue only in the context of the Commonwealth workplace health and safety legislation.
Laws concerning occupational health and safety contrast with the longstanding legislation concerning air navigation that, since 1920, has contained some undisputed core, exclusive, uniform regulation over safety. As late as 2005 there was no single national approach to occupational health and safety legislation. It would be a curious result if the enactment of the Commonwealth Work Health and Safety Act in 2011, or the non-uniform legislation that it replaced, the Occupational Health and Safety Act 1991 (Cth), were interpreted to manifest an intention by Parliament to alter the longstanding approach to exclusivity and uniformity under the Civil Aviation Law. In order to determine whether the Work Health and Safety Act did so in 2011, the proper approach to the interpretation of the Work Health and Safety Act is to interpret it together with the Civil Aviation Law "in a way which best achieves a harmonious result", including a construction that would treat each as operating "within its respective field".
The duty in s 19 of the Work Health and Safety Act applies, by s 8, where the workplace is an aircraft, although only to the Commonwealth or to a "public authority" established under a law of the Commonwealth or of a Territory other than the Australian Capital Territory, the Northern Territory or Norfolk Island. Section 19 cannot be construed without regard to its context and the history of regulation of air navigation. To do so would mean that it would apply even to failures by the Commonwealth or by a public authority to take reasonable care for persons on aircraft when making safety decisions concerning flight paths or rules of the air. Every active party to this appeal disclaimed such a result, which would detract from the exclusivity in that area of the Civil Aviation Law.
The proper approach to the text of the generalised duty in s 19 of the Work Health and Safety Act is for it to be construed in its context including its concern with a different subject matter from the existing exclusive regime of the safety of air navigation. There remain numerous examples where a public authority, if responsible for workplace health and safety on an aircraft, could contravene the general duty under s 19 within the general subject matter of workplace health and safety rather than the safety of air navigation. These could include situations unconnected with safety of air navigation as varied as unsafe meals provided to passengers on a flight, bullying conduct between employees on an aircraft, or the provision of health services or support to cabin crew. In a different legislative context, Canadian provincial labour laws have been held applicable in circumstances including: (i) building airports; (ii) transporting passengers to and from airports; (iii) operating retail services for passengers at airports; (iv) operating an airport parking lot; (v) providing baggage porter services; (vi) providing maintenance services to an air traffic control training school; (vii) repairing certain objects used by airlines; (viii) providing food to airlines; and (ix) providing airline booking and ticketing functions.
Although many more examples might be given of work health and safety matters that are unconnected with the specific, and pre-existing, exclusive regime of safety standards in air navigation, it suffices to say that the Work Health and Safety Act does not extend to matters directly involving standards of safety in air navigation that have long been covered by the different subject matter of the exclusive regime in the Civil Aviation Law, such as safety of the flight itself.
(ii) The general law duty of care and torts generally
The rules of the law of negligence might have the effect of promoting safety, but that is not their object. A person who digs a pit knowing that another may fall into it creates a grave risk to safety. But the person infringes no-one's rights, and therefore commits no tortious act, unless someone falls in it. A driver who grossly exceeds the speed limit may create serious risks to safety and will contravene laws designed to ensure safety, but no-one's rights are infringed, and no tort is committed, if no-one is injured and no property is damaged. The driver has not violated the rights of all those persons he or she might have injured. Not only is a threat to safety insufficient to establish negligence, it is also unnecessary. A surgeon who fails in his or her assumed responsibility to warn an individual of a remote risk of complications from surgery can commit the tort of negligence even if no risk to safety is created by that failure.
The law of negligence, and indeed the law of torts generally, is not the judicial regulation of safety. Torts are concerned with the protection of the rights of individuals. That is why it is sometimes said that there is no negligence in the air. A regime that is concerned with safety has a different purpose and regulates a different subject matter from one that is concerned with the violation of individual rights.
The subject matter of individual rights was not part of the intended uniform regime of the Chicago Convention. Rather, it was covered by the Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air (1929) and the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (1999), which were enacted, respectively, into domestic law in Australia by the Civil Aviation (Carriers' Liability) Act 1959 (Cth) complemented by uniform State legislation, and the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth). In general terms, and without descending into the boundaries of its exclusivity, the Civil Aviation (Carriers' Liability) Act has been described as imposing liability on air carriers but exempting them from "what would otherwise have been their ordinary liability for negligence at common law".
(iii) The general criminal law and air security
In a commonly repeated example from Ex parte McLean, Dixon J described an award made under a Commonwealth Act that exclusively covered the subject matter of industrial relations that are in dispute. He hypothesised that the award expressly forbade shearers from injuring sheep while shearing. His Honour then said that this duty under the award would not necessarily be inconsistent with a State criminal law that prohibited unlawfully and maliciously wounding an animal. The reason is that the purpose of the two laws, which informs the characterisation of their subject matters, might be different. The purpose of the former might be the narrow purpose of regulating industrial disputes. But the purpose of the latter might be the maintenance of social norms of behaviour in the treatment of animals.
Numerous examples can be given of criminal law proscriptions that have a different purpose from the enforcement of safety in air navigation, even though they might operate upon the same facts as those involved in the violations of safety standards in air navigation. Simple examples concern criminal proscriptions that are concerned with conduct that violates individual and social rights. Assault, false imprisonment, manslaughter, or murder on a plane can all compromise safety in the course of air navigation, but the criminal proscriptions, when they apply during the course of air navigation, do not have the purpose of facilitating the safety of air navigation.
More closely related, but nevertheless upon a different subject matter from safety of air navigation, is security concerned with air travel. Although overlapping, in that both are designed to avoid injuries, the regulation of safety of air navigation has been described as "quite different" and a "separate issue[]" from regulation of security. The former involves regulation to ensure safety of aircraft by requiring strict compliance with a regime of standards of conduct, even where conduct is accidental. The latter, aviation security, proscribes intentional acts that threaten the security of individuals; it is defined separately in the Civil Aviation Act as "a combination of measures and human and material resources intended to safeguard civil aviation against acts of unlawful interference".
Havel and Sanchez have argued that "[u]nlike in the sphere of technical cooperation on aircraft safety, the international response to the contemporary threat to aviation security has lacked purposiveness". Aviation security issues were not contemplated at the time of the Chicago Convention in 1944. The subsequent international response has included the Tokyo Convention on Offences and certain other Acts committed on board Aircraft (1963), the Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970), and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971) with its Protocol.
These security conventions were implemented in Australia by the Civil Aviation (Offenders on International Aircraft) Act 1970 (Cth), the Crimes (Hijacking of Aircraft) Act 1972 (Cth) and the Crimes (Protection of Aircraft) Act 1973 (Cth). Together with the Crimes (Aircraft) Act 1963 (Cth), the three security Acts described above were consolidated in the Crimes (Aviation) Act 1991 (Cth). But unlike the provisions of the Civil Aviation Law, which create the regime of regulation of the safety of air navigation, s 50(1) of the security‑related Crimes (Aviation) Act provides that the Act, ie in its entirety, "does not exclude or limit the operation of any other law of the Commonwealth, or of a State or Territory".
G. The WHS Act and the subject matter of s 19(2)
The WHS Act creates a wide‑reaching, general regime for workplace health and safety in the Northern Territory. The focus of this appeal was upon the obligations it creates. But it is pertinent to its wide scope, and its potential to cut across the exclusive Civil Aviation Law regime of safety of air navigation, that the WHS Act also confers broad powers on persons to do things in workplaces (defined in s 8 to include an aircraft). For instance, a person who holds a WHS entry permit may enter a workplace to inquire into a suspected contravention of the WHS Act. Inspectors may enter a workplace at any time with or without consent and without notice, examine anything at a workplace, seize evidence, and seize a workplace or part of the workplace, or plant, a substance or a structure at the workplace, which the inspector reasonably believes is defective or hazardous to a degree likely to cause serious injury or illness or a dangerous incident to occur. A health and safety representative has power in some circumstances to direct a worker to cease work if the representative has a reasonable concern that the worker would be exposed to a serious risk to the worker's health and safety, emanating from an immediate or imminent exposure to a hazard.
The Work Health Authority alleged various failures by Outback Ballooning to eliminate or minimise risks posed to persons in the vicinity of the balloon's inflation fan. The provision under which Outback Ballooning was charged, s 32 of the WHS Act, creates an offence where a person fails to comply with a health and safety duty and the failure exposes an individual to a risk of death or serious injury or illness. The maximum penalty for a corporation is $1,500,000. The health and safety duty that the Work Health Authority alleged that Outback Ballooning breached is s 19(2) of the WHS Act.
Section 19 of the WHS Act relevantly provides:
"(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a) workers engaged, or caused to be engaged, by the person; and
(b) workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:
(a) the provision and maintenance of a work environment without risks to health and safety; and
(b) the provision and maintenance of safe plant and structures; and
(c) the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
What is "reasonably practicable" in ensuring health and safety is defined in s 18:
"reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about:
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
Although the requirement of reasonable practicability in s 19(2) is formulated in similar terms to a standard of care in the tort of negligence, it is a higher duty than the common law. An attempt to draw elements from the common law tort is "not ... helpful".
Section 19(2) is part of a strict liability duty to "ensure" a result. The offence is based upon risk, not outcome. Hence, no individual rights need be violated before the duty is breached. The duty is a general one concerned with regulating safety in the workplace. That general regulation is consistent with the 1972 recommendations of the committee chaired by Lord Robens to move away from a "haphazard mass of ill-assorted and intricate detail partly as a result of concentration upon one particular type of target". The WHS Act, and s 19 in particular, thus follows the recommended model of imposing general duties, supported by regulations and codes of practice, requiring employers to participate in the making and monitoring of arrangements for health and safety in the workplace.
As s 19(2) and other general duties in the WHS Act are designed to ensure safety, the s 19(2) duty is designed to be supplemented by regulations made by the Administrator under s 276. Detailed regulations have been proclaimed in the Work Health and Safety (National Uniform Legislation) Regulations (NT), which, amongst other things, impose a hierarchy of risk control measures for the elimination or minimisation of risks to health and safety. The general duty in s 19 is also supplemented by codes of practice approved by the Minister under s 274, which are admissible as evidence of whether or not there has been compliance with a duty under the WHS Act.
H. Section 19(2) of the WHS Act is inconsistent with the Civil Aviation Law in its application to air navigation
The Attorney‑General of the State of Queensland broadly, and succinctly, identified the subject matters of the Civil Aviation Law and the WHS Act as, respectively, the safety of air navigation and the safety of the conduct of a business. That characterisation is correct. So stated, there are areas where the subject matter of the safety of the conduct of a business will not intrude into the subject matter of the safety of air navigation. But where the business relevant to the WHS Act involves air navigation, and on the assumption of the parties that the WHS Act should be construed as extending to that subject matter, there will be precise co-existence of the subject matter of the regulation of safety and, therefore, inconsistency because the Civil Aviation Law exclusively covers the subject matter of safety of air navigation. When the business conducted involves air navigation, the subject matter of the WHS Act will purportedly be the safety of air navigation.
No party disputed that the purpose of s 19(2) of the WHS Act was the prescription and enforcement of standards of safety. The parties were correct not to characterise the subject matter of s 19(2) of the WHS Act in any other way, such as general criminal law norms or the protection of individual rights. Section 19(2) regulates conduct in order to ensure safety, irrespective of whether any individual is affected and irrespective of the norms that underlie general criminal prohibitions.
Where the workplace is an aircraft, then, to the extent that s 19(2) as a general standard of workplace safety applies to air navigation, s 19(2) is inconsistent with the specific, exclusive subject matter of the Civil Aviation Law. An illustration of that inconsistency in the particular circumstances of this appeal is discussed in the next, concluding, section of these reasons, Section I. Another illustration of the inconsistency arising due to the implied exclusivity of the Civil Aviation Law can be seen in the role of the regulator.
In comparison with the general powers of the Work Health Authority and its inspectors in the Northern Territory, CASA has many specific powers, including, relevantly in the circumstances of this appeal, "for the purpose of ensuring the safety of air navigation, [to] give directions with respect to the method of loading of persons and goods (including fuel) on aircraft". The pilot in command commits an offence of strict liability if he or she allows the aircraft to take off or land without complying with a direction given by CASA about the loading of the aircraft. In Airlines No 1, Windeyer J said that the "proper regulation in the interests of safety ... and the due execution by Australia of the international obligations it has accepted, may well make it desirable that the one authority should exercise sole control of all movement of aircraft in the air and of matters connected with such movement, that is to say of all matters connected with how aircraft may be used".
The ultimate issue on this appeal is whether preparation for a balloon take‑off, including embarkation of passengers, falls within the specific, exclusive subject matter of the Civil Aviation Law, being the prescription and enforcement of standards of safety in the conduct of air navigation.
The Work Health Authority's submission that the exclusive subject matter of the Civil Aviation Law did not extend to embarkation of passengers requires a distinction to be drawn between (i) safety in air navigation while all parts of an aircraft have left the ground, and (ii) safety during boarding, take-off, landing and disembarking.
The Work Health Authority was correct to insist that the subject matter of the Civil Aviation Law be limited to safety of air navigation rather than all aspects of safety generally. For instance, as Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ said in Construction Montcalm Inc v Minimum Wage Commission, "the requirement that workers wear a protective helmet on all construction sites including the construction site of a new airport has everything to do with construction and with provincial safety regulations and nothing to do with aeronautics". However, the subject matter of air navigation is not limited to the events that actually occur in the air. It involves a "broad conception going far beyond what might be called 'aeronautics'" and extends to "all the matters preparatory to flying by air, incidental thereto or consequent thereon". This is consistent with the definition of "[o]perational control" in Ch 1 of Pt I of Annex 6 to the Chicago Convention as "[t]he exercise of authority over the initiation, continuation, diversion or termination of a flight in the interest of the safety of the aircraft and the regularity and efficiency of the flight".
An essential matter that is preparatory to the safety of air navigation is the process of boarding the aircraft. As Taschereau and Estey JJ said in the context of considering the scope of Canadian Parliament's exclusive legislative power in Johannesson v Rural Municipality of West St Paul, "aeronautics"
"contemplates the operation of the aeroplane from the moment it leaves the earth until it again returns thereto. This, it seems, in itself makes the aerodrome, as the place of taking off and landing, an essential part of aeronautics and aerial navigation. ... Indeed, in any practical consideration it is impossible to separate the flying in the air from the taking off and landing on the ground and it is, therefore, wholly impractical, particularly when considering the matter of jurisdiction, to treat them as independent one from the other. ... Legislation which in pith and substance is in relation to the aerodrome is legislation in relation to the larger subject of aeronautics and is, therefore, beyond the competence of the Provincial Legislatures."
Similarly, as Jackson J said in the United States Supreme Court, from "[t]he moment [an aircraft] taxis onto a runway it is caught up in an elaborate and detailed system of controls". In the same way, the exclusive regulation of the safety of a balloon operation includes the moment when, with the inflation fan started, passengers begin boarding the balloon.
I. Conclusion
Outback Ballooning has not been charged with any offence under the Civil Aviation Law. But that does not mean that no relevant provision creating a safety offence exists under the Civil Aviation Law. To the contrary, the Civil Aviation Law contains a detailed scheme of regulation of the safety of air navigation but does so by a different approach and with different consequences.
For instance, the Civil Aviation Regulations required Outback Ballooning to keep an operations manual, made available for use by all members of operations personnel, containing all information, procedures and instructions necessary to ensure the safe conduct of the flight operations. The breach of these regulations is an offence. Failing to comply with these regulations could also put the operator in breach of the duty in s 28BD of the Civil Aviation Act, and make it liable for the commission of an offence.
Further, Outback Ballooning's operations manual required that "[p]assengers, particularly children, will be kept well clear of the inflation fan whilst it is operating". A failure to comply with all instructions in the operations manual is an offence. If that failure involves reckless operation of an aircraft then the pilot may be liable for operating the aircraft, or permitting it to be operated, recklessly.
Apart from questions of sovereign authority over airspace, safety has been the issue most responsible for the existence and evolution of an international aviation law regime. Since World War I, the international community has been moving towards a consistent, uniform regulation of air safety. Australia has been a central participant in that process. The circumstances of this case are just a snapshot of how, for the reasons explained above, the general provision in s 19(2) of the WHS Act could cut across the specific, exclusive regime of regulation of the safety of air navigation. The subject matter of s 19(2), workplace safety, was assumed in this litigation to include safety of air navigation where the workplace is an aircraft. To that extent, it is inconsistent with the detailed, specific and exclusive approach taken to the safety of air navigation in the Civil Aviation Law.
The appeal should be dismissed.