BHS Law exposes aircraft operators to substantial penalties for safety breaches

The High Court of Australia has decided that aircraft operators must comply with Work Health and Safety Law in addition to aviation safety standards under the Civil Aviation Act 1988 (Cth)

The case is Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 (6 February 2019) (by majority – Kiefel CJ, Bell, Keane, Nettle and Gordon JJ (jointly) and Gageler J; Edelman J dissenting).

The decision turned on s 109 of the Constitution of Australia which provides that:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

The Facts

On the morning of 13 July 2013, Outback Ballooning took a tourist group for a hot air balloon flight at sunrise at a location some distance away from Alice Springs. It was cool, and beanies, scarfs and gloves were recommended. During inflation, the basket to hold the passengers was laid on its side pointing towards the balloon.

The 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. As she did so, the long lightweight tassels on her scarf were sucked into the inflation fan causing her to be dragged towards the metal guard and causing the scarf to be pulled tightly around her neck. Ms Bernoth later died from the injuries she sustained.

In its final report of 9 December 2015, the Australian Transport Safety Bureau (ATSB) found that the passengers on Ms Bernoth's flight were warned twice of the dangers associated with the fan, but criticized the method by which passengers were loaded into the ballooning basket which brought them into "close proximity" with the fan and found the mesh and steel tubing guard around the inflation fan's blades was ineffective. In short, the boarding procedure was unsafe.

The dispute

Work Health Authority (Northern Territory) prosecuted Outback Ballooning under ss 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the ‘WHS law’) for breaching its duty of care that the health and safety of other persons is not put at risk because of a failure to eliminate or minimise risks to embarking passengers that arose from the use of a fan to inflate the hot air balloon at a workplace (which is defined to include an aircraft). The penalties are substantial - $150,000 for an individual, $300,000 for a person conducting business and $1,500,000 for a body corporate.

Outback Ballooning held an Air Operator’s Certificate issued by the Civil Aviation Safety Authority (CASA) which authorised it to operate four classes of balloon for passenger charters in Australia including the balloon in question, a Kavanagh E-260 balloon, registered VH-FSR. A balloon is a lighter-than-air aircraft for these purposes.

An Air Operator’s Certificate is subject to conditions. The breach of a condition may lead to the suspension or cancellation of the Certificate or a term of imprisonment, but not financial penalties. One condition is a duty to conduct flights with a reasonable degree of care and diligence under s 28BE(2) Civil Aviation Act 1988 (Cth) (the ‘Commonwealth law’) (which implements the Chicago Convention on International Civil Aviation).

Outback Ballooning contended that the WHS law did not apply because it was inconsistent with the Commonwealth law, and was therefore invalid under s 109 of the Constitution of Australia.

The High Court decision

In their joint judgement, Kiefel CJ, Bell, Keane, Nettle and Gordon JJ adopted the two approaches to s 109 referred to by Dixon J in Victoria v The Commonwealth (“The Kakarini”) [1937] HCA 82, namely:

  1. Whether the State law has a “direct inconsistency” with the Commonwealth law so as to undermine the State law;
  2. Whether the Commonwealth law expresses an intent to “cover the field” (or subject matter) with which it deals.

In this case, Outback Ballooning argued that the Commonwealth law dealt exclusively with the subject matter, i.e. the “cover the field” approach. It argued that the Commonwealth law was a “regulatory scheme with respect to the safety of aviation”.

The High Court rejected that approach because the Commonwealth law does not convey an intention to state exhaustively the extent of care to be taken by the holder of an Air Operator’s Certificate, for the health and safety of those who are at risk by reason of the conduct of aviation operations. In particular, s 28BE(5) states:

(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 High Court concluded that: The Civil Aviation Act 1988 … is designed to operate within the framework of other State, territory and Commonwealth Laws. The NT WHS Act is one such law.


Aircraft operators owe a duty of care to conduct flights safely. That duty of care is found in the WHS Law and in the Commonwealth Aviation Law.

The Commonwealth Aviation Law does not exclude State or Territory WHS law from applying to the safety of persons affected by operation of aircraft including boarding.

Therefore, aircraft operators need to comply with WHS law in the operation of their aircraft, not only for their employees but also for their passengers.

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