On 6 February 2019, the High Court (by majority), allowed an appeal from the Court of Appeal of the Supreme Court of the Northern Territory (Outback Ballooning Pty Ltd v Work Health Authority and Bamber  NTCA 7 (19 October 2017)).
The majority of the Court held that s 19 (Primary duty of care) and s 32 (Failure to comply with health and safety duty – Category 2) of the Work Health and Safety (National Uniform Legislation) Act  (NT) (the “Act”) are not inconsistent with a body of Commonwealth civil aviation laws which includes the Civil Aviation Act 1988 (Cth) (the "CA Act").
The respondent, Outback Ballooning Pty Ltd, (“the Respondent”) operates a business in Alice Springs which provides rides in hot air balloons. In July 2013, an incident occurred during embarkation of one of the hot air balloons, which resulted in the unfortunate death of a passenger.
The Work Health Authority (WHA) (“Appellant") filed a complaint against the Respondent under s 32 of the Act, in which it was alleged that the Respondent failed to comply with the duty imposed on it by s 19(2) of that Act to ensure, so far as is reasonably practicable, that the health and safety of persons was not put at risk from work carried out as part of the conduct of its business.
The Appellant argued that the Respondent had failed "to eliminate or minimise risks to embarking passengers that arose from the use of a fan to inflate the hot air balloon”. [at para 4].
A recentreports that in 2014, the WHA (NT) took the matter to court, accusing Outback Ballooning Pty Ltd of failing to comply with its duty under the Work Health Safety Act, claiming the company did not adequately warn passengers about loose clothing, scarves and long hair; nor ensure those hazards were eliminated while boarding the balloon. The WHA also alleged the company had failed to isolate the inflation fan by setting up an exclusion zone or barrier.
The Northern Territory Court of Summary Jurisdiction dismissed the complaint as invalid on the basis that the subject matter of the complaint was within the field covered by the Commonwealth regulatory scheme with respect to aviation. Magistrate Bamber considered that the scheme extended to pre-flight operations affecting the safety of passengers on the ground.
The Appellant sought an order in the nature of certiorari in the Supreme Court of the Northern Territory, which was granted on the basis that embarkation procedure (being the subject of the complaint), is not so closely connected with safety in flight as to be exclusively regulated by the Commonwealth civil aviation law. The Court of Appeal allowed an appeal against that decision on the basis that the Commonwealth civil aviation law was a complete statement of the relevant law, which extended to the embarkation of passengers.
The Appellant then appealed to the High Court, and by majority, their Honours held that, as a matter of construction, the CA Act is not inconsistent with the Commonwealth civil aviation law. The CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT Act is one such law, the CA Act does not contain 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 embarkation of passengers.
In the judgment, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, said at [para 57]:
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Work Health Authority v Outback Ballooning Pty Ltd & Anor  HCA 2 (6 February 2019)
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