Many Masters: CASA not the only Agency Responsible for Safety

Just a short post today* about a recent High Court of Australia decision on the topic of which safety agency should prosecute safety breaches involving an aviation organisation preparing for a flight. Quick answer: it could be an agency other than the Civil Aviation Safety Authority (CASA) depending on the circumstances of the breach.

The Facts & Case History

In the Northern Territory (NT), a hot-air ballooning company was preparing for a charter flight from an off-airport location. Flight preparations involved the use of a mechanical fan that was helping to inflate the balloon. In the process of boarding the basket, a female passenger passed close to this fan and her scarf was sucked into it. The fan dragged her into a metal guard and she later died from of injuries sustained in the incident.

This is a truly tragic event and while the remainder of this post all becomes about some, almost, abstract legal process, we shouldn’t forget that someone died for this legal question to be answered. 

The NT Work Health Authority initiated proceedings against the ballooning company under the NT Work Health & Safety Act 2011 (WHSA) for failing “to eliminate or minimise risks to embarking passengers that arose from the use of a fan to inflate the hot air balloon“ (at [2] for my fellow law nerds). The ballooning company sought to dismiss the case saying that regulation of this activity was covered by federal legislation - the Civil Aviation Act 1988 and associated legislation and regulation. That court, the Court of Summary Jurisdiction agreed.

The NT Supreme Court did not.

The NT Court of Appeal did.

And here we are at the High Court of Australia.

The Result

To cut to the chase, the high court agreed with the Work Health Authority (and the NT Supreme Court) and found that the Civil Aviation Law does not “cover the field”. Therefore, the NT WHSA is not inconsistent with Civil Aviation Law and may be applied in this case.

The Impact

Good airport operators are already familiar with working in the safety space occupied by their relevant occupational/workplace health and safety legislation. There are vast areas of airports where it is clear that these laws apply.

But, perhaps if there was any doubt in our minds or even a mistaken belief that at the boarding gate or the airside boundary or at some other point on the aerodrome, it became CASA’s sole jurisdiction, that is clearly not the case. Civil aviation law and occupational law, as they apply in Australia, are much more intertwined than we may have previously thought. 

The Conclusion

It appears to me that this case will return to the Court of Summary Jurisdiction for the original complaint to be heard.  The wheels of justice do indeed move slowly as when this hearing is heard it will be close to, if not more than, six years after the passenger died. 

* I don’t want to became an aviation law blog. Really, I don’t but I do enjoy ready this stuff.