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[2019] HCA 2
appellant. Appeal allowed. Orders of the Court of Appeal of the Supreme Court of the Northern Territory made on 19 October 2017 and 28 March 2018 set aside and, in their place, order that the appeal to that...
A passenger died after her scarf was sucked into a hot air balloon inflation fan while she was boarding. The Northern Territory work health authority prosecuted the operator under general safety laws for not managing the obvious risk. Lower courts ruled that federal aviation rules covered all safety issues around flying, including getting in and out of aircraft, so the Territory law could not apply. The High Court disagreed. It held that the federal aviation legislation works together with other safety laws rather than replacing them. A specific clause in the federal Act says it does not override other duties of care imposed by Territory laws or the common law. Therefore the prosecution can proceed.
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3,454 words · generated 24/04/2026
On 13 July 2013 a group of passengers arrived at a site outside Alice Springs for a hot air balloon ride operated by Outback Ballooning Pty Ltd. The balloon envelope was laid out on the ground and the basket placed on its side. Passengers received a briefing warning them to avoid the stand-alone inflation fan, which had a metal guard around its blades. The fan was started. Three passengers boarded. As the fourth, Ms Stephanie Bernoth, approached the basket her scarf was drawn into the fan, dragging her into the metal guard. She died from the injuries sustained.
30 cited instruments linked from this judgment.
The Work Health Authority laid a complaint alleging that Outback Ballooning had committed a Category 2 offence under s 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (NT WHS Act). The charge asserted a breach of the primary duty in s 19(2), which requires a person conducting a business or undertaking to 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 business. The particular breach alleged was the failure to eliminate or minimise risks to embarking passengers arising from the use of the inflation fan.
The Northern Territory Court of Summary Jurisdiction dismissed the complaint on the basis that its subject matter fell within the field exclusively occupied by the Commonwealth civil aviation regulatory scheme, which the magistrate considered extended to pre-flight operations affecting passenger safety on the ground. The Work Health Authority obtained an order in the nature of certiorari from the Supreme Court of the Northern Territory quashing that decision. Barr J held that the Commonwealth regime regulated aviation operations affecting safety in flight but did not extend to all operations, and that the embarkation procedure was not so closely connected with safety in flight as to be exclusively regulated.
The Court of Appeal of the Supreme Court of the Northern Territory allowed Outback Ballooning's appeal. Southwood J (with whom Blokland J agreed) and Riley J concluded that the Commonwealth aviation law was a complete statement of the relevant law and that indirect inconsistency existed because the Commonwealth law extended to the embarkation of passengers. Their Honours followed the Full Federal Court decision in Heli-Aust Pty Ltd v Cahill and held that the Commonwealth law covered the field and was not intended to operate in conjunction with any State or Territory safety scheme directed to the same end.
On appeal to the High Court the Work Health Authority contended that the Commonwealth aviation law did not cover the field of safety standards for aircraft operations. Outback Ballooning argued that the Commonwealth scheme dealt completely, exhaustively and exclusively with the prescription and enforcement of standards of safety in the conduct of air navigation or air operations in Australia. The High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, Gageler J agreeing, Edelman J dissenting) allowed the appeal, set aside the Court of Appeal's orders, and ordered that the appeal to that Court be dismissed with costs. The Court held that there was no indirect inconsistency; the Commonwealth aviation law was designed to operate within the framework of other laws, including the NT WHS Act.
The majority began by noting that the Northern Territory Legislative Assembly's power under s 6 of the Northern Territory (Self-Government) Act 1978 (Cth) is subordinate to Commonwealth legislation. Inconsistency between a Territory law and a Commonwealth law is resolved by the Commonwealth law prevailing, and authorities on s 109 of the Constitution apply by analogy.
Two approaches to inconsistency were identified, drawn from Dixon J in Victoria v The Commonwealth (The Kakariki) and applied in later cases such as Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd. The first is direct inconsistency, where a Territory law would alter, impair or detract from the operation of the Commonwealth law. The second is indirect inconsistency, where the Commonwealth law is read as expressing an intention to deal completely, exhaustively or exclusively with the subject matter.
The question is always one of construction. Where indirect inconsistency is alleged the focus is on whether the Commonwealth law contains an implicit negative proposition that nothing other than what it provides is to be the subject of legislation on that matter. A law is not expected to declare its exclusivity expressly. Its detailed scheme, any rule of conduct it states, and provisions that allow concurrent operation of other laws are all relevant. An express or implied permission for other laws to operate is a strong indication against exclusivity.
The Commonwealth aviation law comprises the Air Navigation Act 1920 (Cth), the Civil Aviation Act 1988 (Cth) (CA Act), the Civil Aviation Regulations 1988 (Cth) (CARs) and certain Civil Aviation Orders. Its main object is to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing accidents and incidents. It establishes the Civil Aviation Safety Authority (CASA) to develop and promulgate aviation safety standards, issue Air Operator's Certificates (AOCs), and perform safety-related 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.
An AOC is required to operate an aircraft in Australian territory. The first respondent held an AOC authorising passenger charter balloon operations. AOCs are subject to conditions including compliance with the CA Act, CARs and Civil Aviation Orders. Section 28BD requires compliance with all applicable requirements. Section 28BE(1) 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 it, is done with a reasonable degree of care and diligence. Sub-section (5) provides that the section does not affect any duty imposed by or under any other law of the Commonwealth, a State or a Territory or under the common law. Section 29 creates offences for operating an aircraft in contravention of Part III or in a reckless manner that endangers life. Regulation 215 requires a commercial operator to maintain an operations manual containing information, procedures and instructions necessary to ensure the safe conduct of flight operations. Regulation 235(7) empowers CASA to give directions as to the method of loading of persons and goods. Certain Civil Aviation Orders deal with ground crew for passenger loading and refuelling while passengers are embarking.
The majority accepted that the Commonwealth aviation law deals exhaustively with some aspects of matters preparatory to and subsequent to flight, including embarkation and disembarkation. The dispute was whether it deals exhaustively with the broader subject matter of the prescription and enforcement of standards of safety in the conduct of air navigation or air operations.
That contention was rejected. The CA Act must operate within the setting of other laws with which operators and their staff must comply. Adapting the language of Dixon J in Ex parte McLean, the CA Act was intended to be supplementary to or cumulative upon State or Territory law. The fact that the CA Act creates offences does not exclude other laws; the Crimes Act 1914 (Cth) recognises that a person cannot be punished twice for the same act. Gross breach of a CA Act standard could still ground a manslaughter prosecution. The existence of the Crimes (Aviation) Act 1991 (Cth) dealing with terrorism and security offences and the Civil Aviation (Carriers' Liability) Act 1959 (Cth) dealing with civil liability confirms that the CA Act operates within a broader legal framework.
Of particular significance is the Work Health and Safety Act 2011 (Cth), which imposes the same duty as the NT WHS Act and applies to aircraft. It could not sensibly be read down to accommodate the CA Act. The CA Act is not concerned with civil liability for death or injury, which is dealt with by the carriers' liability legislation.
Sections 28BD and 29 do not prescribe a specific rule of conduct for the safety of embarkation that excludes other regulation. Section 20A(1) prohibits reckless operation endangering life, and s 28BE(1) imposes a general duty of reasonable care and diligence. Even when CASA sets standards through regulations or orders, s 98(7) provides that a law of a Territory is not to be taken to be inconsistent with a regulation to the extent that it is capable of operating concurrently. This is an anti-exclusivity clause that leaves room for other laws.
Section 28BE(5) puts the matter beyond doubt. It recognises the continuing operation of other laws concerned with the taking of care by AOC holders. The majority rejected the narrow reading given to s 28BE(5) in Heli-Aust Pty Ltd v Cahill, which had confined it to duties arising when an AOC holder was acting in some other capacity, such as driving a car. That reading misapprehended the breadth of s 28BE(1), which extends to every activity covered by the AOC and everything done in connection with it, including pre- and post-flight tasks. The drafting technique in s 28BE(5) is similar to that in s 98(7) and confirms that the CA Act does not evince an intention to operate exclusively of other laws. The Explanatory Memorandum to the 1995 amending Act that introduced s 28BE confirms that the provision does not affect common law duties of care or other statutory duties that might give rise to actions in negligence or other proceedings.
The CA Act therefore does not contain an implicit negative proposition that it is the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including embarkation. The NT WHS Act can operate concurrently. It has not been suggested that the CA Act deals exclusively with some more limited aspect of embarkation so as to exclude the NT WHS Act from that aspect. The appeal was allowed on that basis.
Before the decision the law was unsettled. The Court of Appeal had followed the Full Federal Court's decision in Heli-Aust Pty Ltd v Cahill, which treated the CA Act as a comprehensive regulatory regime for the safety of civil aviation that cried out for a single uniform scheme. That decision read s 28BE(5) narrowly and concluded that the Commonwealth law covered the field of safety standards for air operations, including embarkation and disembarkation. The Court of Summary Jurisdiction had similarly considered that the Commonwealth scheme extended to pre-flight operations affecting passenger safety on the ground. The result was that Territory work health and safety legislation was held inoperative in its application to aviation-related activities.
The High Court decision changes that position. The CA Act is now understood to operate within the framework of other Commonwealth, State and Territory laws that impose duties of care. Section 28BE(5) is given its ordinary breadth as a savings provision that preserves the operation of laws such as the NT WHS Act. Section 98(7) is confirmed as an anti-exclusivity clause that permits concurrent operation of Territory laws capable of operating together with the regulations. The existence of overlapping Commonwealth work health and safety legislation and the acceptance that general criminal law and civil liability regimes continue to apply alongside the aviation law reinforce the cumulative character of the CA Act.
After the decision, regulators and operators must treat the NT WHS Act (and its equivalents in other jurisdictions) as capable of applying concurrently to risks arising in the course of aircraft operations, including preparatory steps such as inflation of a balloon and passenger embarkation, provided there is no direct inconsistency in the sense that simultaneous obedience to both regimes is impossible. CASA remains the sole regulator of the detailed aviation safety standards contained in the CARs and Civil Aviation Orders, but work health and safety authorities may investigate and prosecute breaches of the general duty to ensure safety so far as reasonably practicable. The operations manual required by reg 215 continues to bind personnel, but its content does not itself constitute Commonwealth law that excludes the general duty.
The decision aligns the treatment of aviation safety with the treatment of other areas of concurrent Commonwealth and State regulation where specific standards coexist with general duties imposed by work health and safety legislation. It confirms that the implementation of Australia's obligations under the Chicago Convention does not require the exclusion of all other safety-related regulation.
The majority judgment contains several passages that are central to the reasoning. One is the description of the two approaches to inconsistency drawn from Dixon J in Victoria v The Commonwealth (The Kakariki): "The first approach has regard to when a State law would 'alter, impair or detract from' the operation of the Commonwealth law. This effect is often referred to as a 'direct inconsistency'. … The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say 'completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed'. This is usually referred to as an 'indirect inconsistency'."
In plain English, the Court is saying that sometimes two laws simply cannot both be obeyed at the same time, and sometimes the Commonwealth law is meant to be the only law on that topic even if both could technically be obeyed. The judges emphasise that the question is always one of what Parliament intended, ascertained by looking at the whole scheme.
Another key passage addresses the effect of s 28BE(5): "Section 28BE(5) puts this beyond doubt. It will be recalled that s 28BE(1) 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'. … Section 28BE(5) provides that the section does not affect any duty imposed by, or under, any other Commonwealth, State or Territory law, or under the common law. It operates in a way similar to s 98(7), which has been discussed above. In its terms s 28BE(5) recognises the continuing operation of other laws concerned with the taking of care in the conduct of activities by the holder of an AOC."
This is translated as: the extra duty of care that the federal Act places on balloon operators does not wipe out the separate duty that the Northern Territory work health and safety law places on the same operators. The federal Parliament has expressly said that its law leaves room for the Territory law.
The conclusion is expressed succinctly: "The CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT WHS Act is one such law. And it has not been suggested that the CA Act contains an implicit negative proposition that it is to be the only law with respect to some particular aspect or aspects of the embarkation of passengers. It cannot be said that the CA Act contains an implicit negative proposition that it is to be the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including the embarkation of passengers."
In everyday language the Court is saying the federal aviation safety rules and the Territory workplace safety rules are meant to work side by side, not fight each other. Because the federal Act contains clear statements that it does not exclude other safety duties, the Territory prosecution can go ahead.
The precedent is triggered whenever a person conducting a business or undertaking that involves aircraft operations is alleged to have breached the general duty in s 19(2) of the NT WHS Act (or its equivalents) in circumstances connected with matters preparatory to or subsequent to flight, including embarkation and disembarkation of passengers, where the alleged breach does not directly contradict a specific requirement of the CA Act, the CARs or a direction given by CASA.
Typical triggers include failure to manage risks arising from ground equipment such as inflation fans, failure to provide adequate barriers or exclusion zones around propellers or rotors while passengers are boarding, inadequate briefing of passengers about loose clothing or other hazards during embarkation, or failure to supervise passengers while engines or fans are operating. The precedent applies because the CA Act does not prescribe a detailed rule for these exact risks that would be contradicted by the general obligation to ensure safety so far as reasonably practicable.
The precedent does not apply where a specific CAR or Civil Aviation Order prescribes a precise method of loading or a precise distance that must be maintained and the WHS provision would require a different method or distance. In such a case direct inconsistency might arise. Nor does it apply to the detailed content of operations manuals once approved or directed by CASA; personnel must still comply with the manual. The precedent is limited to the general duty of care and does not affect the exclusivity of the CA Act in relation to matters such as the rules of the air, pilot licensing, or airworthiness certification.
Because the NT WHS Act applies to any workplace, including an aircraft, the precedent extends to in-flight risks that are not the subject of specific aviation standards, although the majority noted that many in-flight matters are exclusively regulated. The fact that the business is conducted by the holder of an AOC does not remove it from the scope of the WHS Act once s 28BE(5) is properly understood.
The judgment is recent and the provided text does not contain any discussion of subsequent treatment by later courts. The majority judgment itself distinguishes the earlier Full Federal Court decision in Heli-Aust Pty Ltd v Cahill on the basis that that Court misapprehended the scope of s 28BE(1) and the effect of s 28BE(5). The High Court therefore restores the understanding that existed before Heli-Aust that the aviation regime is not intended to exclude all other safety-related regulation.
The judgment applies and adapts the long-standing principles from Ex parte McLean, Victoria v The Commonwealth (The Kakariki), Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd. It confirms that those principles continue to govern the relationship between Commonwealth aviation law and Territory work health and safety law. No later treatment is discussed in the text, but the reasoning makes clear that the Court expects lower courts to give full effect to the savings provisions in s 28BE(5) and s 98(7) rather than implying exclusivity from the comprehensive nature of the aviation regulatory scheme.
The judgment leaves open the precise boundaries of any exclusive field that the CA Act does occupy. While it accepts that there are aspects of matters preparatory to and subsequent to flight that are completely, exhaustively or exclusively dealt with by the Commonwealth aviation law, it does not define those aspects. Future cases will need to determine whether particular requirements in the CARs or Civil Aviation Orders are so specific that a general WHS duty cannot add to them without direct inconsistency.
The interaction between the general duty in s 28BE(1) and specific standards set by CASA under reg 215 or reg 235(7) is not fully explored. If CASA gives a direction under reg 235(7) about loading of passengers, would a WHS requirement that goes further create a direct inconsistency? The majority notes that no such direction had been given in this case.
The judgment does not resolve the exact scope of CASA's investigative and enforcement powers when a parallel WHS investigation is under way. It leaves for another day any question of "operational" inconsistency that might arise if administrative action by a WHS regulator impairs CASA's ability to perform its functions.
The relationship between the NT WHS Act and the detailed offences created by s 29 of the CA Act remains open in circumstances where the same facts could ground both a Category 2 WHS offence and a CA Act offence. The majority accepts that the Crimes Act 1914 (Cth) prevents double punishment, but the precise interaction between the two regulatory regimes in sentencing or plea negotiations is not addressed.
Finally, the judgment does not consider whether the same analysis would apply to the Civil Aviation Safety Regulations 1998 (Cth), which were mentioned in submissions but assumed no importance in the reasons. Whether those regulations contain different anti-exclusivity indications or more prescriptive standards that might alter the analysis is left for future decision.
KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 6 February 2019 D4/2018
On appeal from the Supreme Court of the Northern Territory
S L Brownhill SC, Solicitor-General for the Northern Territory, and T Moses for the appellant (instructed by Solicitor for the Northern Territory)
J T Gleeson SC with T J Brennan for the first respondent (instructed by GSG Legal)
S P Donaghue QC, Solicitor-General of the Commonwealth, with Z C Heger and T M Wood for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Queensland)
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S Elankovan for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General - Tasmania)
K L Walker QC, Solicitor-General for the State of Victoria, with F I Gordon for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G T W Tannin SC with J A Godfrey for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Constitutional law (Cth) - Powers of Commonwealth Parliament - Territories - Inconsistency between Commonwealth and Territory laws - Where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers - Where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation - Where Territory law regulates work health and safety - Whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws - Whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation - Whether Territory law inconsistent with Commonwealth law.
Words and phrases - "alter, impair or detract from", "anti-exclusivity clause", "Chicago Convention", "civil aviation", "cover the field", "embarkation", "implicit negative proposition", "indirect inconsistency", "intention to deal completely, exhaustively or exclusively", "legislative intention", "nationally harmonised laws", "operations associated with aircraft", "rule of conduct", "safety standards", "subject matter".
Constitution, ss 109, 122. Air Navigation Act 1920 (Cth). Civil Aviation Act 1988 (Cth), ss 3, 3A, 9, 11, 20A, 27, 28BA, 28BD, 28BE, 29, 98. Civil Aviation Regulations 1988 (Cth), regs 2, 215, 235. Crimes Act 1914 (Cth), s 4C. Northern Territory (Self-Government) Act 1978 (Cth), s 6. Work Health and Safety Act 2011 (Cth). Work Health and Safety (National Uniform Legislation) Act 2011 (NT), ss 19, 27, 32.
KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. Outback Ballooning Pty Ltd, the first respondent to this appeal, operates a business in Alice Springs which provides rides in hot air balloons to passengers. On 13 July 2013 a group of persons were taken to a location some distance from Alice Springs airport for that purpose. On their arrival the basket which would hold them was laid on its side pointing towards the balloon, which was spread out on the ground preparatory to its inflation. The intended passengers were given a short briefing during which they were told to avoid the inflation fan. The fan was a stand-alone piece of equipment driven by a motor with a metal guard around its blades. The fan was started. Three passengers boarded. The fourth, Ms Stephanie Bernoth, approached the basket and as she did so the scarf she was wearing was sucked into the inflation fan causing her to be dragged towards the metal guard. Ms Bernoth later died from the injuries she sustained. The NT WHS Act complaint Section 19(2) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ("the NT WHS Act") requires that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of persons "is not put at risk from work carried out as part of the conduct of the business or undertaking". Section 19(3) provides that, without limiting sub-ss (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, a number of things which are directed to the protection of all persons from risks to their health and safety from work carried out as part of the conduct of the business or undertaking. The NT WHS Act also creates a number of duties which apply to conduct at a "workplace", which is defined as a place where work is carried out for a business or undertaking, and includes an aircraft. Section 32 of the NT WHS Act provides that if a person who has a health and safety duty fails to comply with that duty, and that failure exposes an individual to a risk of death or serious injury or illness, that person commits a Category 2 offence for which substantial penalties may be imposed. The Work Health Authority ("the WHA"), the appellant in these proceedings, filed a complaint against the first respondent under s 32 of the NT WHS Act in which it was alleged that the first respondent failed to comply with the duty imposed by s 19(2) of that Act. The breach of duty referred to in the complaint was identified as a failure to eliminate or minimise risks to embarking passengers that arose from the use of a fan to inflate the hot air balloon. The decisions below The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction as invalid because the subject matter of it was within the field covered by the Commonwealth regulatory scheme with respect to aviation. That scheme, Magistrate Bamber considered, extended to pre-flight operations affecting the safety of passengers on the ground. The WHA sought an order in the nature of certiorari from the Supreme Court of the Northern Territory to quash that decision. Barr J held that the Court of Summary Jurisdiction was wrong to hold that it lacked jurisdiction to hear the complaint, and made the order sought. In his Honour's view, the Commonwealth regime regulates aviation operations which affect the safety of aviation and passengers in flight but does not extend to all operations. His Honour did not consider that the embarkation procedure, the subject of the complaint, was so closely connected with safety in flight as to be regulated by an exclusive Commonwealth regime. The Court of Appeal of the Northern Territory allowed the first respondent's appeal from his Honour's decision. Southwood J (with whom Blokland J agreed) and Riley J concluded that the Commonwealth aviation law was a complete statement of the relevant law and that there was an indirect inconsistency between the Northern Territory law and the Commonwealth aviation law, which extended to the embarkation of passengers. Riley J was of the view that the Commonwealth aviation law was intended to cover the field and was not intended to operate in conjunction with any State or Territory scheme directed to the same end. In reaching these conclusions their Honours followed the decision of a Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill. Following a grant of special leave, the WHA appeals to this Court. In this Court, Outback Ballooning contends that the Commonwealth aviation law, as defined below, deals completely, exhaustively or exclusively with the "prescription and enforcement of the standards of safety in the conduct of air navigation or air operations" in Australia. For the reasons that follow, that contention should be rejected. In rejecting that contention, it is important to recognise that there is no dispute that there are aspects of matters preparatory to and subsequent to an aircraft flying, including embarkation and disembarkation of passengers, that are completely, exhaustively or exclusively dealt with by the Commonwealth aviation law. The Commonwealth aviation law The body of law referred to by the Court of Appeal as the Commonwealth civil aviation law comprises the Air Navigation Act 1920 (Cth) ("the ANA"), the Civil Aviation Act 1988 (Cth) ("the CA Act"), the Civil Aviation Regulations 1988 (Cth) ("the CARs") and some Civil Aviation Orders ("CAOs"). These will be referred to as "the Commonwealth aviation law" in the balance of these reasons. Some reference was made in submissions to the Civil Aviation Safety Regulations 1988 (Cth), but they assume no importance in the reasons below. The ANA initially provided for the making of regulations to give effect to the Paris Convention for the Regulation of Aerial Navigation (1919) for the purpose of providing for the regulation of air navigation in Australia. It later approved the ratification of the Chicago Convention on International Civil Aviation (1944) and subsequent Protocols. It deals with matters such as freedom of the air and the regulation of international airlines, aircraft, airports and flights. It is mentioned only in passing in the reasons of the Court of Appeal. The focus of the reasons in the Court of Appeal is the CA Act and the CARs and CAOs made under it. The CA Act has as its main object the establishment of a "regulatory framework for maintaining, enhancing and promoting the safety of civil aviation, with particular emphasis on preventing aviation accidents and incidents". Subject to certain provisions concerning its extra-territorial application and mutual recognition, the CA Act applies to civil aviation in Australian territory. The CA Act establishes the Civil Aviation Safety Authority ("CASA"). Its function is the conduct of safety regulation including that of civil air operations in Australia. The means by which it is to do so include developing and promulgating aviation safety standards, developing strategies to secure compliance with them and issuing certificates, licences, registrations and permits. The definition of "aviation safety standards" includes standards relating to flight crews engaged in operations of aircraft, the design, construction, maintenance, operation and use of aircraft and related equipment, similar activities in relation to aerodromes, and personnel involved in these activities. CASA also has what are termed "safety-related functions", such as encouraging acceptance by the aviation industry of obligations to maintain high standards of aviation safety through safety education and training programmes, aviation safety advice and fostering an awareness of the importance of aviation safety, amongst other things. CASA is required to promote the development of Australia's civil aviation safety capabilities, skills and services. In the exercise of its powers, CASA is required to regard the safety of air navigation as the most important consideration. Its functions are to be performed in a manner consistent with Australia's obligations under the Chicago Convention and any other international agreements entered into by Australia relating to the safety of air navigation. Section 27(2) prohibits the flying of an aircraft into or out of Australia, and the operation of an aircraft in Australia, except as authorised by an Air Operator's Certificate ("an AOC") issued by CASA. "Flight" is defined, in the case of lighter-than-air aircraft, to refer to the operation of an aircraft when it is detached from the earth's surface or a fixed object on it. The first respondent's AOC authorised it to operate four classes of balloon for passenger charters in Australia. It is necessary for an applicant for an AOC to lodge manuals, including an operations manual, for which the CARs provide, with CASA. CASA may require information and inspections in connection with an application for an AOC and may issue an AOC only if it is satisfied about certain matters. An AOC has effect subject to certain general conditions which are set out in s 28BA of the CA Act. Those conditions include compliance with ss 28BD and 28BE. An AOC is also subject to conditions imposed by CASA and conditions specified in the CARs or CAOs. CASA may suspend or cancel an AOC for breach of a condition. Section 28BD requires the holder of an AOC to comply with all the requirements of the CA Act and the CARs and CAOs that apply to the holder of the AOC. Section 28BE is in the following terms: "(1) The holder of an AOC must at all times 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. (2) If the holder is a body having legal personality, each of its directors must also take the steps specified in subsection (1). (3) It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of: (a) inadequate corporate management, control or supervision of the conduct of any of the body's directors, servants or agents; or (b) failure to provide adequate systems for communicating relevant information to relevant people in the body. (4) No action lies, for damages or compensation, in respect of a contravention of this section. (5) This section 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 effect of s 28BA, which is referred to above, is that in the event of a breach of s 28BE, an AOC may be suspended or cancelled. Section 29(1) provides that an offence is committed if an owner, operator or hirer operates an aircraft or permits an aircraft to be operated in contravention of a provision of Pt III, or of a direction given or condition imposed under such a provision. Each of ss 28BA, 28BD and 28BE appears in Pt III. The offence is punishable by imprisonment for two years. Section 29(3) provides for an offence, punishable by imprisonment for five years, where an owner, operator or hirer operates an aircraft or permits it to be operated in contravention of s 20A(1). Section 20A(1) provides that a person must not be reckless as to whether the manner of operation of an aircraft could endanger the life of another person. Other provisions of Pt III create offences, punishable by imprisonment, of flying without satisfying safety requirements in relation to an aircraft, or where provisions respecting the carriage of dangerous goods are not complied with. Section 98 contains the regulation-making powers of the CA Act. Section 98(7) provides that a law of a Territory shall not be taken to be inconsistent with a provision of the regulations having effect in the Territory to the extent that it is capable of operating concurrently with those regulations. Regulation 215 of the CARs provides that a commercial aircraft operator is to provide an operations manual for the use and guidance of the operations personnel of the operator. The manual is to contain 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". CASA may give a direction requiring particular information, procedures and instructions to be included in the manual or for it to be revised or varied. An operator is to revise the operations manual from time to time as a result of changes in operations, aircraft or equipment, or in the light of experience. All personnel are required to comply with instructions in the operations manual. A breach of reg 215 may result in the imposition of a penalty. Regulation 235(7) provides CASA with the power to give "directions with respect to the method of loading of persons and goods (including fuel) on aircraft" for the purpose of ensuring the safety of air navigation. The regulations make it clear that a balloon is a lighter-than-air aircraft. A contravention of a direction under reg 235(7) exposes a person to a penalty. No such directions were given. CAOs are made under s 98(4A) or under the regulations and have the status of legislative instruments. CASA has made CAO 20.16.3, which identifies, in relation to "manned balloons", the number of ground crew members required for "passenger loading and launching operations". CAO 20.9 directs that refuelling not take place while "passengers are on board, or entering or leaving, the aircraft". It gives further directions with respect to the safety of embarking or disembarking of passengers whilst an aircraft's engine is operating. The first respondent's operations manual contained requirements with respect to passengers in connection with the operation of the inflation fan. It is accepted by the first respondent that the content of the manual is not a Commonwealth law although the Court of Appeal appears to have considered that federal law operates upon it "to create a norm". Approaches to inconsistency When a law of a State is inconsistent with a law of the Commonwealth, s 109 of the Constitution resolves the conflict by giving the Commonwealth law paramountcy and rendering the State law invalid to the extent of the inconsistency. The NT WHS Act is a law of the Northern Territory Legislative Assembly. The Legislative Assembly derives its legislative power from s 6 of the Northern Territory (Self-Government) Act 1978 (Cth), which is enacted under s 122 of the Constitution. The terms of s 109 of the Constitution are not addressed to the relationship between laws of the Commonwealth and those enacted by the legislatures of the Territories. The subordinate status of a Territory law has the result that where it is inconsistent with a Commonwealth law the Commonwealth law will prevail. It is not necessary in this case to further consider the effect of the inconsistency on a Territory law. There is no dispute that cases concerning s 109 inconsistency may be applied by analogy to a case involving a Territory law. In Victoria v The Commonwealth ("The Kakariki"), Dixon J referred to two approaches which might be taken to the question whether an inconsistency might be said to arise between State and Commonwealth laws. They were subsequently adopted by the Court in Telstra Corporation Ltd v Worthing, Dickson v The Queen and Jemena Asset Management (3) Pty Ltd v Coinvest Ltd. The first approach has regard to when a State law would "alter, impair or detract from" the operation of the Commonwealth law. This effect is often referred to as a "direct inconsistency". Notions of "altering", "impairing" or "detracting from" the operation of a Commonwealth law have in common the idea that a State law may be said to conflict with a Commonwealth law if the State law in its operation and effect would undermine the Commonwealth law. The second approach is to consider whether a law of the Commonwealth is to be read as expressing an intention to say "completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed". This is usually referred to as an "indirect inconsistency". A Commonwealth law which expresses an intention of this kind is said to "cover the field" or, perhaps more accurately, to "cover the subject matter" with which it deals. A Commonwealth law of this kind leaves no room for the operation of a State or Territory law dealing with the same subject matter. There can be no question of those laws having a concurrent operation with the Commonwealth law. The question whether a State or Territory law is inconsistent with a Commonwealth law is to be determined as a matter of construction. In a case where it is alleged that a State or Territory law is directly inconsistent with a Commonwealth law it will be necessary to have regard to both laws and their operation. Where an indirect inconsistency is said to arise, the primary focus will be on the Commonwealth law in order to determine whether it is intended to be exhaustive or exclusive with respect to an identified subject matter. It is not to be expected that a Commonwealth law will usually declare that it has this effect. In some cases the detailed nature or scheme of the law may evince an intention to deal completely and therefore exclusively with the law governing a subject matter. It may state a rule of conduct to be observed, from which the relevant intention may be discerned. Any provision which throws light on the intention to make exhaustive or exclusive provision on the subject matter with which it deals is to be considered. A provision which, expressly or impliedly, allows for the operation of other laws may be a strong indication that it is not so intended. The essential notion of indirect inconsistency is that the Commonwealth law contains an implicit negative proposition that nothing other than what it provides with respect to a particular subject matter is to be the subject of legislation. Whether the laws are inconsistent The first respondent submits that, properly construed, the Commonwealth aviation law discloses an intention exhaustively and exclusively to deal with the subject matter which it describes as "the prescription and enforcement of the standards of safety in the conduct of air navigation or air operations" in Australia. These are very broad descriptions. Nonetheless it is common ground that the aircraft operations regulated by the Commonwealth law in question encompass all matters preparatory to and subsequent to an aircraft flying and include the embarkation and disembarkation of passengers. The first respondent had contended before the Court of Appeal that there were direct inconsistencies in the operation of the Commonwealth aviation law and the NT WHS Act. The Court of Appeal did not consider it necessary to address that argument in view of the conclusion it reached that the Commonwealth aviation law covered the field. In this Court the first respondent, by Notice of Contention, sought to contend that the Court of Appeal should also have found that the NT WHS Act alters, impairs or detracts from the operation of ss 28BD and 29(1) of the CA Act, reg 215 of the CARs and CAO 82.7. During the course of argument on the hearing of this appeal that course was abandoned. The only questions which remain are whether the Commonwealth aviation law can be construed as dealing exclusively with the subject matter identified, or whether it is to be read as permitting other laws including the NT WHS Act to operate, as the WHA contends. It is not contended that the Commonwealth aviation law should be construed as dealing exclusively with some more limited aspect of the embarkation and disembarkation of passengers so as impliedly to exclude the operation of the NT WHS Act in relation to that particular aspect of air navigation. In argument on the appeal the first respondent went to some lengths to chart the historical development of Commonwealth aviation law in its implementation of the Chicago Convention and its later Protocols. No doubt what was sought to be conveyed is that Commonwealth aviation law expanded to become a regulatory scheme with respect to the safety of aviation. But even accepting that there may be aspects of the CA Act which could be so described, it could hardly be said that it purports to lay down an entire legislative framework covering all aspects of the safety of persons who might be affected by operations associated with aircraft, including on-ground operations. In many areas the CA Act must operate within the setting of other laws with which aircraft operators and their staff are obliged to comply. Adapting what Dixon J said in Ex parte McLean, the CA Act was intended to be "supplementary to or cumulative upon" State or Territory law. The example his Honour gave in that case was of a Commonwealth award which expressly prohibited shearers from injuring sheep whilst shearing. It would not reasonably follow, his Honour said, that a shearer who unlawfully and maliciously wounded a sheep that he was shearing could not be prosecuted under the State criminal law. The fact that a Commonwealth statute makes certain conduct an offence is not conclusive of exclusivity. There is no presumption that a Commonwealth offence excludes the operation of other laws. The Crimes Act 1914 (Cth), in providing that a person cannot be punished twice, recognises this. If there were a rule or standard of conduct imposed by the CA Act directed at the safety of persons affected by aircraft operations, gross breach of it could result in a conviction for manslaughter. The first respondent concedes as much and accepts that offences of this kind cannot be said to be within the exclusive preserve of the CA Act. The first respondent suggests that the CA Act might be seen to leave the proscription and punishment of conduct which negligently and intentionally endangers life as a separate matter for the operation of other Commonwealth, State and Territory laws. It points to the Crimes (Aviation) Act 1991 (Cth), which creates offences relating to aviation terrorism or security, as indicative of this. But the submission simply confirms what is otherwise evident, namely that the CA Act is intended to operate within the setting of other laws. One such law is the Work Health and Safety Act 2011 (Cth), which was enacted to promote the system of nationally harmonised laws of which the NT WHS Act is a part. It imposes the same duty as the NT WHS Act with respect to the risk to persons from the conduct of businesses or undertakings, albeit those conducted by a public authority, and creates an offence for breach of that duty. The place where a business or undertaking is conducted includes an aircraft. It could hardly be suggested that when this statute was enacted the legislature intended that it would be read down to accommodate the CA Act. The first respondent also accepts that the CA Act is not concerned with civil liability for death, personal injury or damage to cargo arising out of air operations associated with aircraft. These are the subject of the Civil Aviation (Carriers' Liability) Act 1959 (Cth). The first respondent points to ss 28BD and 29 of the CA Act as the key provisions which would be attracted if there were to be a Commonwealth prosecution arising out of the events in question. Section 28BD, it will be recalled, requires the holder of an AOC to comply with all the requirements of the CA Act, the CARs and any CAOs which are applicable. In Ex parte McLean, Dixon J explained that when the Commonwealth and State Parliaments each legislate on the same subject matter "and prescribe what the rule of conduct shall be", they make laws which are inconsistent and s 109 applies. That is so because, by providing a rule to be observed, the Commonwealth statute evinces an intention to cover the subject matter and provide exclusively what the law upon that subject matter should be. When a Commonwealth law discloses such an intention, it is inconsistent with that law for the State law to govern the same subject matter. In Ex parte McLean an award made by the Commonwealth Court of Conciliation and Arbitration required the applicant, a shearer, to abide by the terms and conditions of an employment agreement between him and his employer. Non-fulfilment of the terms of the agreement would result in a penalty under the Commonwealth Conciliation and Arbitration Act 1904 (Cth) for breach of the award. A State Act contained somewhat different penal sanctions for the same conduct. An information was brought under it alleging that the applicant neglected to fulfil the contract in the manner of his shearing. The Commonwealth Parliament was held to have given awards made by the arbitrator under the Commonwealth Act exclusive authority. That Act gave the arbitrator power by the award to prescribe completely and exclusively what are the industrial relations between employer and employee. It commanded performance of the contract as an industrial duty according to the sanctions it imposed. The difficulty with the first respondent's argument is that neither s 28BD nor any other section of the CA Act referred to above prescribes a rule of conduct to be adhered to in carrying out aircraft operations of the kind here in question. Section 20A(1) imposes only a general duty on a person not to be reckless so as not to endanger the life of another person and that duty arises only in the context of operating an aircraft. Section 28BE(1) also imposes a general duty on a person to carry out activities with a reasonable degree of care and diligence. The scheme of the CA Act permits CASA to set standards or give directions through the CARs and CAOs with respect to matters of safety. But even when it does so, s 98(7) states that the CARs are not to be taken to be inconsistent with a Territory law to the extent that that law is capable of operating concurrently with the regulations. A provision of this kind is effective to avoid inconsistency by making it clear that the law which is the source of the standards or directions is not intended to be exhaustive or exclusive of State or Territory laws. It makes clear that it is not intended to cover subjects dealt with by the regulations and that it leaves room for the operation of other laws. The only qualification is that the other laws do not operate so as to conflict directly with the Commonwealth law. The foregoing may be sufficient for a conclusion that, properly construed, the CA Act does not contain the negative proposition that it alone is intended to state the law relating to the conduct of aircraft operations which may put the health and safety of persons at risk, for which the NT WHS Act also provides. In particular, the CA Act does not convey an intention to state exhaustively the extent of care to be taken by the holder of an AOC, for the health and safety of those who are at risk by reason of the conduct of aviation operations. Section 28BE(5) puts this beyond doubt. It will be recalled that s 28BE(1) 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". Sub-section (2) extends that duty to company directors and sub-s (3) provides for what evidence may amount to non-compliance by directors with that duty. Sub-section (4) says that no action for damages or compensation lies for contravention of the section. Section 28BE(5) provides that the section does not affect any duty imposed by, or under, any other Commonwealth, State or Territory law, or under the common law. It operates in a way similar to s 98(7), which has been discussed above. In its terms s 28BE(5) recognises the continuing operation of other laws concerned with the taking of care in the conduct of activities by the holder of an AOC. The recognition is subject to the necessary qualification that a Commonwealth law might be paramount in cases of direct inconsistency in the operation of the respective laws. The first respondent substantially adopts the approach taken by the Full Court of the Federal Court (Moore, Stone and Flick JJ) in Heli-Aust, which was to read s 28BE(5) as having a narrow operation. Section 28BE(1) was seen to apply only to AOC holders and in that capacity. Moore and Stone JJ considered that s 28BE(5) is therefore to be understood to recognise that an AOC holder may have a duty when acting in some other capacity, such as when driving a car. An AOC holder might come under a common law duty of care in that capacity just as she or he might be subject to statutory regulation as a director. Their Honours said that "[t]he subsection clearly has work to do in fields removed, and potentially far removed, from the maintenance of safety in civil aviation". The joint judgment in Heli-Aust misapprehended the scope of s 28BE(1)'s operation. An AOC permits aircraft flights with passengers. The duty imposed by the sub-section is expressed to apply to every activity covered by the AOC and anything done in connection with it. It would extend to conduct in carrying out almost every task associated with aircraft operations including what is undertaken pre- and post-flight. It imposes on a holder of an AOC a duty additional to what is otherwise required by the CA Act, the CARs and CAOs. But s 28BE(5) makes plain that that further duty does not exclude other laws concerned to require the taking of care by the holder of an AOC in the conduct of air operations. The Court in Heli-Aust regarded it as significant that s 28BE does not purport to confine the operation of any other aspect of the CA Act. The first respondent likewise submits that whilst s 28BE(5) is a statutory indication that s 28BE(1) is not to be construed as exclusive, it says nothing about the scheme of the CA Act. The opening words of sub-s (5) refer only to what "[t]his section" does not affect. On the first respondent's case, it cannot be inferred from sub‑s (5) that the balance of the statutory scheme is intended to operate exclusively of other laws. The Court in Heli-Aust and the first respondent approach s 28BE(5) on the basis of an assumption - that the CA Act can otherwise be read as exhaustive or exclusive on the topic of the safety of aircraft operations. The joint judgment expressed the view that not only is the regulatory regime of the CA Act a comprehensive one, but "the safety of civil aviation is, by its very nature one that would seem to cry out for one comprehensive regulatory regime". The first respondent points to what s 28BE(5) does not say, namely that "the entirety of what otherwise appears to be the most comprehensive exclusive scheme is simply to operate [supplementarily] upon State or Territory law". But in relevant respects, that is how the CA Act operates. For the reasons given above, the CA Act does not evince an intention to operate exclusively of other laws. True it is that s 28BE(1) provides the occasion for what appears in s 28BE(5). Without the imposition of the additional duty by s 28BE(1), no question would arise about the operation of other laws imposing similar duties. Having added that duty it was necessary to confirm, consistently with the balance of the CA Act, that other State and Territory laws and the common law were to continue to operate. The drafting technique employed in s 28BE(5) has an effect similar to that of s 98(7). The breadth of operation of s 28BE(5) is confirmed by the Explanatory Memorandum to the Bill which introduced s 28BE. Relevantly it explains that whilst the section does not create a new cause of action, it does not 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". As the Explanatory Memorandum shows, s 28BE(5) reflects the fact that the CA Act is intended to operate within the framework of other laws, including the common law of negligence. Conclusion and orders The CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT WHS Act is one such law. And it has not been suggested that the CA Act contains an implicit negative proposition that it is to be the only law with respect to some particular aspect or aspects of the embarkation of passengers. It cannot be said that the CA Act contains an implicit negative proposition that it is to be the only law with respect to the safety of persons who might be affected by operations associated with aircraft, including the embarkation of passengers. The appeal should be allowed with costs, the orders of the Court of Appeal of the Supreme Court of the Northern Territory set aside and in lieu thereof it be ordered that the appeal to that Court be dismissed with costs.
GAGELER J. The legislative power conferred on the Legislative Assembly of the Northern Territory by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth), which "gives life to and sustains" laws enacted for the peace, order and good government of the Territory, is insufficient to sustain the operation of a Northern Territory law to the extent that the law is inconsistent with or repugnant to a Commonwealth law. The test of inconsistency or repugnancy for the purpose of that implicit limitation is the same as the test of inconsistency between a State law and a Commonwealth law for the purpose of s 109 of the Constitution. Of little more than historical interest in light of the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986 (Cth), and unnecessary to consider for present purposes, is the unresolved question of whether the same test of inconsistency or repugnancy applied to the determination of repugnancy between a colonial law and an imperial law for the purpose of ss 2 and 3 of the Colonial Laws Validity Act 1865 (Imp) (28 & 29 Vict c 63). Of potential contemporary significance, but likewise unnecessary to consider for present purposes, is the unresolved question of whether the consequence of inconsistency or repugnancy between a Northern Territory law and a Commonwealth law is that the Territory law is beyond the legislative power of the Legislative Assembly of the Northern Territory, or, as with the consequence of inconsistency for a State law under s 109 of the Constitution, that the Territory law is rendered inoperative to the extent of the inconsistency. Together with Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, I conclude that there is no inconsistency or repugnancy between ss 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ("the NT WHS Act") and the Civil Aviation Act 1988 (Cth) ("the CA Act") insofar as those sections of the NT WHS Act operate to impose on, and to enforce against, the holder of an air operator's certificate ("AOC") issued under the CA Act an obligation to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk in the course of air operations covered by the AOC. The path of reasoning by which I reach that conclusion is in summary as follows. My reasoning proceeds on an acceptance of the view taken by the Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill, which was followed by the Court of Appeal of the Northern Territory in the decision under appeal, that there is a large area within which the CA Act operates to the exclusion of State and Territory laws. The area of exclusive operation of the CA Act can be sufficiently described as encompassing the prescription and enforcement of standards for the safe operation of aircraft. My principal disagreement with the Full Court in Heli-Aust, and consequently with the conclusion reached in the Court of Appeal, is with the Full Court's view that the subject-matter of the exercise of reasonable care and diligence in the operation of an aircraft falls within the area of exclusive operation of the CA Act. My own view is that s 28BE(5) of the CA Act makes plain that this subject-matter does not fall within that area of exclusive operation. The more detailed reasons set out below need to be read with the description of the CA Act and the Civil Aviation Regulations 1988 (Cth) ("the CA Regulations") in the reasons for judgment of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. They also need to be read with the description of the legislative history of the CA Act and the history of the Convention on International Civil Aviation (1944) ("the Chicago Convention") in the reasons for judgment of Edelman J. I am grateful to their Honours for not having to repeat those descriptions or to recite the facts and procedural history of this matter. The test of inconsistency Matters involving s 109 of the Constitution have been described as the "running-down jurisdiction of the High Court". The suggestion implicit in that description is that issues raised in determining whether a State law, or by analogy a Territory law, is inconsistent with a Commonwealth law are easily resolved in the application of well-understood principles. There is an element of truth in that suggestion. The basic test of inconsistency has been repeated and applied too often to be doubted. The canonical exposition is that "inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience" but "depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed". A State or Territory law is inconsistent with a Commonwealth law to the extent that the State or Territory law, if operative, would "alter, impair or detract from the operation" of the Commonwealth law. If the Commonwealth law "was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State [or Territory] law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent". However, as illustrated by the difficulties encountered in decisions on fairly straightforward questions of whether a State law creating one criminal offence is inconsistent with a Commonwealth law creating another criminal offence, the suggestion that questions of inconsistency are easily resolved has not been borne out by experience. A recurring source of difficulty has been a conceptually problematic but stubbornly persistent perception of the need to classify some State or Territory law detractions from, or impairments of, a Commonwealth law as "direct" inconsistency, and to classify other State or Territory law detractions from, or impairments of, a Commonwealth law as "indirect" inconsistency. That perception has been accompanied at times by a corresponding perception of the need to classify a Commonwealth law either as operating "cumulatively" upon the corpus of State and Territory laws (so as to admit of only "direct" inconsistency) or as "covering a field" (so as to admit also of "indirect" inconsistency). At times, where a particular Commonwealth law could not be fitted neatly into either classification, an obviously conflicting State law has been said to be inconsistent with the Commonwealth law "on both grounds". The reality of Commonwealth legislation is more complex than this conceptual dichotomy admits. Few Commonwealth laws are framed to operate cumulatively upon the entire corpus of State and Territory laws. Most Commonwealth laws will have a definite area of affirmative operation which will admit of the concurrent operation of some, but not all, State and Territory laws. The analysis of Dixon J (albeit in dissent) in Stock Motor Ploughs Ltd v Forsyth provides a useful illustration. Having reiterated the basic test of inconsistency, Dixon J there stated a consequence of that basic test to be that "except in so far as the law of the Commonwealth appears otherwise to intend, enjoyment of a right arising under it may not be directly impaired by State law". Applying that approach to hold the Moratorium Act 1930 (NSW) inconsistent with the Bills of Exchange Act 1909 (Cth), Dixon J first identified the intention informing the enactment of the Bills of Exchange Act. The identified intention was to undertake: "the definition of what shall be bills of exchange, promissory notes and cheques, the statement of what special properties they shall possess, and the description of some of the consequences which ensue from their use, yet [to leave] generally to State law authority to prescribe when and under what conditions, by what persons and subject to what qualifications they may be employed". Despite the extensive room which it left for the operation of State laws, his Honour's opinion was that the Bills of Exchange Act "does not contemplate the legislative extinguishment [or] suspension of a right to enforce payment which has been obtained under [it]". The Moratorium Act, if operative, would have done just that. Australian Mutual Provident Society v Goulden provides another illustration. There the Court held that the Life Insurance Act 1945 (Cth), although "framed on the basis that it will operate in the context of local laws of the various States and Territories of the Commonwealth", "should be understood as giving expression to a legislative policy that the protection of the interests of policy holders is to be achieved by allowing a registered life insurance company to classify risks and fix rates of premium in its life insurance business in accordance with its own judgment founded upon the advice of actuaries and the practice of prudent insurers". In its application to regulate the life insurance business of a registered life insurance company, the prohibition in the Anti-Discrimination Act 1977 (NSW) of "discrimination against a physically handicapped person on the ground of his physical impairment in the terms or conditions appertaining to a superannuation or provident fund or scheme" was held to be inconsistent with the Life Insurance Act because the prohibition would "effectively preclude such companies from taking account of physical impairment in classifying risks and rates of premium and other terms and conditions of insurance in the course of their life insurance business in New South Wales" and would thereby "qualify, impair and, in a significant respect, negate the essential legislative scheme of the Commonwealth Life Insurance Act for ensuring the financial stability of registered life insurance companies and their statutory funds and the financial viability of the rates of premium and other terms and conditions of the policies of insurance which they write in the course of their life insurance business". References to "direct" and "indirect" inconsistency have been described as "tests for discerning whether a 'real conflict' exists between a Commonwealth law and a State law". Notably, however, "direct" inconsistency and "indirect" inconsistency do not appear as distinct concepts in the canonical formulation of the basic test. Rather, on the premise that a State or Territory law is inconsistent with a Commonwealth law if it would "alter, impair or detract from the operation" of the Commonwealth law, the case of a State law which would regulate or apply to a matter on which a Commonwealth law was "intended as a complete statement" is an instance of a State or Territory law that is "regarded as a detraction from the full operation of the Commonwealth law". The more complete explanation is that offered by Aickin J in Ansett Transport Industries (Operations) Pty Ltd v Wardley: "The two different aspects of inconsistency [ie direct and indirect inconsistency] are no more than a reflection of different ways in which the Parliament may manifest its intention that the federal law, whether wide or narrow in its operation, should be the exclusive regulation of the relevant conduct. Whether it be right or not to say that there are two kinds of inconsistency, the central question is the intention of a particular federal law." To adopt the language of Mason J in New South Wales v The Commonwealth and Carlton, no matter how wide or narrow the operation of the Commonwealth law, "the more general test" of inconsistency is: "Does the State [or Territory] law alter, impair or detract from the operation of the Commonwealth law?" Using "object" or "purpose" in the commonly employed sense explained in subsequent cases to refer to the intended practical operation of the law or to what the law is designed to achieve in fact, his Honour went on in that case to explain: "That test may be applied so as to produce inconsistency in two ways. It may appear that the legal operation of the two laws is such that the State law alters, impairs or detracts from rights and obligations created by the Commonwealth law. Or it may appear that the State law alters, impairs or detracts from the object or purpose sought to be achieved by the Commonwealth law. In each situation there is a case for saying that the intention underlying the Commonwealth law was that it should operate to the exclusion of any State law having that effect." Associated with the persistent perception of some distinction between "direct" and "indirect" inconsistency, another longstanding source of difficulty in determining whether a State or Territory law is inconsistent with a Commonwealth law has been a tendency to overlook the need to determine at the first stage of analysis the extent, if any, to which the Commonwealth law is intended to operate as a complete or exhaustive statement of the law on a subject-matter. Only once the intended legal and practical operation of the Commonwealth law is determined can the extent, if any, to which the other law, if operative, would alter, impair or detract from that operation be determined. That point was made strongly by Gummow J in APLA Ltd v Legal Services Commissioner (NSW) and in Momcilovic v The Queen. Contributing to the overall difficulty in more recent times has been a tendency to downplay the centrality of legislative intention to the determination of the operation of the Commonwealth law. The tendency can be seen to have been the outworking of emergent scepticism about the very existence of legislative intention. That scepticism cannot be allowed to distort the understanding or application of established constitutional doctrine. "Those who regard the search for 'intention' as fictitious must content themselves with an acceptance that it is the function of the courts, ultimately this Court, to specify what the purpose and effect (and hence the imputed intention) of the competing legislation is." Groups acting deliberatively according to established procedures can meaningfully be seen to have intentions, distinct from the subjective intentions of their constituent individuals, both as to what collectively they seek to achieve and as to how collectively they seek to achieve it. Legislative assemblies in representative democracies are the paradigm of groups acting deliberatively, as courts in representative democracies have for the most part done well to recognise when construing legislative output. "[O]ne of the surest indexes of a mature and developed jurisprudence" is "to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning". The responsibility of a court performing its constitutionally mandated function of authoritatively attributing meaning to a legislated text, to the extent necessary to resolve a dispute as to legal rights or legal obligations, is correspondingly "to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have". That a finding of purpose can involve a "contestable judgment" only heightens that responsibility. "The words 'intention', 'contemplation', 'purpose', and 'design' are used routinely by courts in relation to the meaning of legislation" and "are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked". Each is appropriate to be used by a court to acknowledge the indisputable and foundational fact that legislated text is the product of deliberative choice on the part of democratically elected representatives to pursue collectively chosen ends by collectively chosen means. To reduce legislative intention to a label for the outcome of a constructional choice made by the court itself, is to miss the point of the traditional terminology. It is to ignore that the responsibility of the court, in making a constructional choice, is to adopt an authoritative construction of legislated text which accords with the imputed intention of the enacting legislature. Worse, it is to use a constructional methodology which fails to give full expression to "the constitutional relationship between courts and the legislature". The extent, if any, to which the Commonwealth Parliament intends a law enacted in an area of concurrent legislative power to operate as a complete or exhaustive statement of the law on a subject-matter is often left by the Commonwealth Parliament to emerge inferentially by reference to the nature of the subject-matter and the express or apparent purpose of the Commonwealth law. However, the Commonwealth Parliament can, and not infrequently does, make the intended operation of the law express, either by stating that the law is to operate on a subject-matter to the exclusion of State or Territory laws or a category of State or Territory laws, or by stating that the law is to operate on a subject-matter concurrently with State or Territory laws or a category of State or Territory laws. True it is that any such statement of legislative intention must be construed in context, and that the generality of the language in which such a statement is cast might, on a proper construction, be qualified by some contraindication in the legislative scheme of which it forms part. But once the statement of legislative intention has been properly construed, fidelity to the constitutional relationship between courts and the legislature requires that the statement be given effect in determining the scope of the operation of the Commonwealth law. The test of inconsistency applied Having regard to the expression of the main object of the CA Act as being "to establish a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation", having regard to its evident purpose of facilitating implementation of Australia's obligation under Art 37 of the Chicago Convention 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", and having regard to the obvious impracticality in the modern world of attempting to separate the regulation of domestic aviation from the regulation of international aviation, I see no reason to gainsay the view taken in Heli-Aust that the CA Act has an operation as an exhaustive statement of the law in Australia on a subject-matter there described as "the safety of civil aviation in Australia" or "the safety of air operations in Australia". The subject-matter can be described with more precision for present purposes, in language drawn from Annex 6 to the Chicago Convention, as encompassing the prescription and enforcement of standards for the safe operation of aircraft in, to and from Australia, noting that a "standard" for the purpose of the Chicago Convention is a "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". Confirming the ambition of the CA Act to provide a single regulatory framework for the prescription and enforcement of standards for the safe operation of aircraft in, to and from Australia is the regulation-making power conferred by the CA Act. The power is expressed to allow for the making of regulations "for the purpose of carrying out and giving effect to the provisions of the Chicago Convention relating to safety", the making of regulations in relation to safety of air navigation in, to and from a Territory, and the making of regulations in relation to safety of air navigation, where the regulations are with respect to interstate and international trade and commerce or with respect to any other matter with respect to which the Commonwealth Parliament has power to make laws. The evident intention is that the regulations made under the CA Act are to operate as comprehensively as the legislative power of the Commonwealth Parliament permits. There is no reason to consider the reach of the CA Regulations to be less ambitious than is permitted under the CA Act. To the contrary, the CA Regulations are expressed at the outset to have comprehensive application in relation to air navigation throughout Australia and to and from Australia. The CA Regulations are then structured to make detailed prescription in relation to subject-matters relevantly identified to include qualifications of flight crew (the subject-matter of Annex 1 to the Chicago Convention), rules of the air (the subject-matter of Annex 2 to the Chicago Convention), airworthiness of aircraft (the subject-matter of Annex 8 to the Chicago Convention) and air operations (the subject-matter of Annex 6 to the Chicago Convention). Whilst there may be exceptions, each regulation should be read as intended to lay down the sole rule to the precise topic with which it deals. Take, for example, the regulation which sets at 500 feet the minimum height at which aircraft can be flown over areas other than cities, towns or populous areas. Accepting that the CA Act and the CA Regulations accommodate the prospect of a State or Territory law penalising the dangerous operation of an aircraft, it is impossible to see how the CA Act and the CA Regulations can be interpreted as accommodating the prospect of a State or Territory law setting a different minimum height of say 700 feet. That is so even though it would obviously be possible for the pilot of an aircraft to comply with the minimum height set under the CA Act by flying at or above the height set by the State or Territory law. The point is that, in setting the minimum height at which aircraft can be flown, the CA Regulations are specifying a physical requirement for the operation of aircraft the uniform application of which the CA Act treats as necessary for the safety and regularity of international air navigation. Section 98(7) of the CA Act does not, in my opinion, indicate that regulations made under the CA Act are to have some less pervasive application. In providing that 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", s 98(7), in my opinion, does no more than to provide for the consequence of inconsistency between a Territory law and a provision of the regulations to be that the Territory law is inoperative to the extent of the inconsistency. And in going on to provide that "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", s 98(7), in my opinion, does no more than to confirm that the test of inconsistency between a law of a Territory (not being a law of the Commonwealth) and a provision of the regulations is whether the Territory law, if operative, would "alter, impair or detract from" the operation of the regulation. Section 98(7) has nothing to say about the extent to which the CA Regulations are intended to operate as a complete or exhaustive statement of the law on any subject-matter. Moreover, the section has nothing to say about the relationship between the CA Regulations and any State law. The section is rather framed to leave no doubt that a Territory law is either to stand with or yield to a regulation in precisely the same way as would a State law by force of s 109 of the Constitution. To resolve the question of inconsistency in the present case, I do not think it is necessary to attempt to describe the area of operation of the CA Act with any greater precision than the prescription and enforcement of standards for the safe operation of aircraft. That is because, contrary to the ultimate holding in Heli‑Aust, I am unable to construe the CA Act as including the subject‑matter of s 28BE within the area in which that operation is exhaustive in light of the statement in s 28BE(5) 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". Section 28BE(5) makes plain that, irrespective of precisely how the area of operation of the CA Act might be described, the particular subject-matter of s 28BE is not within its exclusive operation. The subject-matter of s 28BE can be sufficiently described as the general requirement to exercise reasonable care and diligence in the operation of an aircraft. Of course, the CA Act itself prescribes, and permits the prescription of, standards for the safe operation of aircraft which incorporate some requirement for the exercise of some measure of care and diligence. An example is the requirement in reg 215(2) of the CA Regulations that an operator ensure that an 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 regulation must be taken to be a definitive statement of all that an operator has an obligation to include in an operations manual. The standard which reg 215(2) prescribes nevertheless coexists within the scheme of the CA Act with the obligation imposed on the operator by s 28BE(1) to exercise reasonable care and diligence in the operation of an aircraft, and the standard can also coexist with a similar obligation imposed on the operator by a State or Territory law. Some degree of overlap between a specifically prescribed standard and the general obligation imposed on the operator by s 28BE(1) accordingly does nothing to detract from the operation of s 28BE(5), which enables a State or Territory law to impose an enforceable obligation on the operator of an aircraft to exercise reasonable care and diligence in the operation of an aircraft - an obligation which is cumulative upon all of the obligations that the operator has as the holder of an AOC under the CA Act. To construe s 28BE(5) as an express acknowledgement of the cumulative or concurrent operation of State and Territory laws requiring the exercise of reasonable care and diligence in the operation of an aircraft is not to overlook the point made in Heli-Aust that s 28BE(5) is addressed in terms only to the non-exclusive operation of s 28BE itself. What is important to recognise is that s 27(2) prohibits the operation of an aircraft in Australia except, relevantly, by the holder of an AOC and that the obligation imposed on the holder of an AOC by s 28BE(1) 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" is necessarily cumulative upon the obligation imposed on the holder of an AOC by s 28BD(1) to "comply with all requirements of [the CA Act], the [CA Regulations] and the Civil Aviation Orders that apply to the holder". By making clear that a State or Territory law can impose a duty which coexists with the obligation imposed on the holder of an AOC by s 28BE(1), s 28BE(5) makes equally clear that a State or Territory law can impose a duty on the holder of an AOC which exists cumulatively upon the obligation imposed on the holder of an AOC by s 28BD(1) to comply with the other requirements of the Act, with the CA Regulations and with applicable Civil Aviation Orders. Nor is to construe s 28BE(5) as an express acknowledgement of the cumulative or concurrent operation of State and Territory laws requiring the exercise of reasonable care and diligence in the operation of an aircraft to overlook another point made in Heli-Aust, that s 28BE(5) "has work to do in fields removed, and potentially far removed, from the maintenance of safety in civil aviation". That point may be accepted, but it does not mandate a construction of s 28BE(5) which would confine the section's operation to duties other than duties to exercise reasonable care or diligence in the operation of an aircraft. Such a construction does not sit comfortably with either s 28BE(5)'s reference to "[t]his section" or the generality of its references to "any other law" and "any duty". Such a construction, moreover, runs counter to the stated legislative purpose of inserting s 28BE(5) into s 28BE. The purpose recorded in the Explanatory Memorandum accompanying the Bill for the amending Act was to clarify that although s 28BE imposes by s 28BE(1) an obligation on the holder of an AOC to exercise reasonable care or diligence in the operation of an aircraft, a contravention of this obligation will not, by reason of s 28BE(4), give rise to an action for damages or compensation. The Explanatory Memorandum notes that s 28BE does not "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 potential scope of the "other legal proceedings against the AOC holder" to which reference was made in the Explanatory Memorandum is worth noting. The Chicago Convention has taken its place in international law alongside first the Warsaw Convention and then the Montreal Convention, each of which has regulated the civil liability of international carriers. In the same way, the CA Act has taken its place within the Commonwealth statute book alongside the Civil Aviation (Carriers' Liability) Act 1959 (Cth), which regulates the civil liability of international carriers. The CA Act has done so against the background of complementary State statutes and of the common law, which together regulate the civil liability of domestic carriers. And just as the CA Act now sits within the Commonwealth statute book alongside the Work Health and Safety Act 2011 (Cth), so the latter Act has come to be mirrored in complementary legislation in each State (other than Victoria and Western Australia) and Territory, of which the NT WHS Act is an example, imposing general obligations on persons conducting businesses or undertakings to "ensure, so far as is reasonably practicable", that health and safety is not put at risk. Provided the qualification "so far as is reasonably practicable" takes as given the obligation to comply with the standards imposed by or under the CA Act, the application of those general statutory obligations to air operations conducted by the holder of an AOC creates no legal impediment and no obvious practical impediment to the prescription or enforcement of standards for the safe operation of aircraft within the framework established by the CA Act. To draw a mundane terrestrial analogy, the relevant distinction between the exclusive and non-exclusive areas of operation of the CA Act is akin to the distinction between, on the one hand, the statutory duties of the driver of a motor vehicle to be licensed and to obey the rules of the road, and, on the other hand, the common law and statutory duties of the driver of a motor vehicle to exercise reasonable care for the safety of other persons in the operation of the motor vehicle. Far from being in conflict, the two sets of duties are complementary. There is nothing in the argument that the CA Act does not contemplate the intrusion into aircraft operations of a regulator other than the Civil Aviation Safety Authority ("CASA") and therefore does not accommodate investigative or enforcement action by the Work Health Authority under the NT WHS Act. Section 28BE(5)'s acknowledgement that the holder of an AOC can be subject to a duty imposed by or under another law carries with it an acknowledgement that the holder can become subject to investigative and enforcement action by a regulatory authority having responsibility for the administration of that other law. To the extent that particular administrative action taken by such a regulator might have the potential to impair or detract from the operation of the CA Act or action taken by CASA under the CA Act, the question of whether the action of the regulator might give rise to "operational" inconsistency would appropriately be addressed if and when the question arose. There is no such question in this case. The mere potential for inconsistency to arise in practice as a consequence of the exercise of one or more statutory powers is no reason for holding the statutes conferring those powers to be inconsistent in all of their potential applications. For these reasons, I would allow the appeal and make the consequential orders proposed by Kiefel CJ, Bell, Keane, Nettle and Gordon JJ.
EDELMAN J. A. Introduction Every day, aircraft pilots in Australia operate flights consistently with the rules of the air, making decisions that could affect the safety of themselves and their passengers. Those decisions must be made consistently with Commonwealth legislation and legislative instruments, collectively described on this appeal as the Civil Aviation Law. The Civil Aviation Law provides a comprehensive, uniform scheme for regulating safety of air navigation. It gives effect to the Convention on International Civil Aviation (1944) ("the Chicago Convention"), the "highest obligation" of which was to secure uniformity of aviation practices with the object of safety and orderly growth of civil aviation. 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. The Attorney‑General of the Commonwealth gave this answer "without hesitation". The first respondent, Outback Ballooning Pty Ltd, described it as "self-evident". The appellant Work Health Authority and the Attorney-General for the State of Western Australia described that circumstance as one that might "cry out for one comprehensive regulatory regime". As an example, 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. In order to avoid jeopardy to safety, since aircraft cross State and Territory boundaries, there must be "uniform standards for personnel training and licensing, rules of the air, units of measurement, certification of airworthiness, aeronautical communications, characteristics of airports, aircraft operation and many other aspects". The essential issue on this appeal is whether this zone of exclusivity of the Civil Aviation Law includes standards concerning safety in the process of boarding an aircraft in s 19(2) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ("the WHS Act"). The Court of Appeal of the Northern Territory held that it does. To determine whether that conclusion is correct requires characterisation of the zone of exclusivity. The Work Health Authority submitted that the Court of Appeal erred because the Civil Aviation Law was exclusive only with respect to "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 this did not apply to safety in the course of boarding an aircraft. If the Work Health Authority's submission were correct, the result in this appeal would differ depending upon whether the breach of a safety standard occurred in the moments immediately before take-off or the moments immediately after it. That submission should not be accepted. The Court of Appeal was correct to conclude that the zone of exclusivity extended to the circumstances of this case. The exclusive subject matter of the Civil Aviation Law extends to the prescription and enforcement of standards of safety in the conduct of air navigation in, or from, Australia. That subject matter is not limited to the period commencing when an aircraft leaves the ground. It includes, at least, the period before flight when passengers are boarding, especially if an aeroplane engine or hot air balloon inflation fan is running. There are, of course, some subject matters which are outside the exclusive regime of air safety. These include the general criminal law, air security, and torts to individuals. No party to this appeal submitted that any of these matters was the subject matter of s 19(2) of the WHS Act. No party supported, and the Commonwealth denied, any analogy with the law of torts, which falls outside the exclusive regime, that the subject matter of s 19(2) was the protection of individual rights. That approach was correct. There is a fundamental conceptual gulf between the protection of individual rights by the law of torts and laws concerning the general regulation of safety of the community. The subject matter of the WHS Act concerns the prescription and enforcement of standards of safety of all persons in a business. None of the parties to this appeal submitted that the WHS Act could be construed to exclude from its application the safety of air navigation. Hence, the exclusivity of the Civil Aviation Law over the same subject matter where the business involves air navigation has the effect that s 19(2) of the WHS Act is invalid insofar as its terms purport to establish concurrent regulation over the safety of air navigation, including the process of boarding an aircraft. The appeal should be dismissed. B. The context of the issue on this appeal Outback Ballooning provides hot air balloon flights to the public. On 13 July 2013, the pilot in command was supervising the boarding of a balloon by passengers. The inflation fan, a standalone piece of equipment used to inflate the balloon, had been started. A passenger, Ms Bernoth, was directed to board the balloon from the side where the inflation fan was operating. Ms Bernoth was wearing a scarf around her neck. As she boarded the balloon, her scarf was sucked into the fan. She was severely injured and later died in hospital. Outback Ballooning was charged by the Work Health Authority under s 32 of the WHS Act for failing to comply with its duty under s 19(2) to 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 its business. The complaint issued against Outback Ballooning in essence alleges that Outback Ballooning failed to eliminate or minimise risks to the health and safety of persons as far as was reasonably practicable because it would have been reasonably practicable to take the following steps: (i) warn passengers about the danger of having loose clothing around the inflation fan, and check passengers while giving such a warning; (ii) set up an exclusion zone and physical barrier around the fan; and (iii) direct passengers not to walk past the fan while in operation or supervise passengers to ensure they kept a safe distance if there was a need to walk past the fan. The Court of Appeal, following the decision of the Full Court of the Federal Court of Australia in Heli-Aust Pty Ltd v Cahill, held that the Civil Aviation Law exclusively regulated the subject matter of the safety of civil aviation in Australia and that this extended to the boarding or loading of passengers onto the balloon in the circumstances of this case. The Court of Appeal therefore concluded that s 19(2) did not operate in relation to the boarding of a balloon by passengers. That conclusion was correct. C. The structure of these reasons The remainder of these reasons is structured as follows: D. The concept of inconsistency|[104]-[107]| E. The subject matter exclusively covered by the Civil Aviation Law|[108]-[142]| (i) The dispute about the extent of exclusivity|[110]-[112]| (ii) The consistent international goal of uniform safety rules for air navigation|[113]-[118]| (iii) The international goal was a basis for the Civil Aviation Law|[119]-[121]| (iv) The textual basis for exclusivity of safety of air navigation in the Civil Aviation Act|[122]-[129]| (v) Territorial self-government provisions do not detract from exclusivity|[130]-[135]| (vi) The 1995 amendments to the Civil Aviation Act did not alter its exclusivity|[136]-[142]| F. Subject matters not exclusively covered by the Civil Aviation Law|[143]-[157]| (i) Workplace health and safety unconnected with safety standards for air navigation|[144]-[149]| (ii) The general law duty of care and torts generally|[150]-[152]| (iii) The general criminal law and air security|[153]-[157]| G. The WHS Act and the subject matter of s 19(2)|[158]-[164]| H. Section 19(2) of the WHS Act is inconsistent with the Civil Aviation Law in its application to air navigation|[165]-[173]| I. Conclusion|[174]-[178]|
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.
Work Health Authority
Outback Ballooning Pty Ltd
Appeal allowed. Orders of the Court of Appeal of the Supreme Court of the Northern Territory made on 19 October 2017 and 28 March 2018 set aside and, in their place, order that the appeal to that Court be dismissed with costs. First respondent to pay the appellant's costs of the appeal to this Court.