High Court of Australia decides that State & Territory Work Health & Safety laws apply to civil aviation operators.

Published: 23 February 2019.


This month, the High Court of Australia has decided that while civil aviation is typically governed only by Commonwealth Aviation Law, State and Territory occupational health and safety laws may also apply to aviation operators.

What happened:

Outback Ballooning Pty Ltd (Outback Ballooning) operates a business in Alice Springs in the Northern Territory of Australia which provides hot air balloon rides.

In July 2013, a very unfortunate incident occurred where during boarding of the hot air balloon, a passenger’s scarf was sucked into an inflation fan causing the passenger to be dragged towards the metal guard and the passenger later died from the injuries sustained.

The legal lead up:

The Work Health Authority (WHA) filed a complaint against Outback Ballooning under the Northern Territory Work Health and Safety (National Uniform Legislation) Act (NT WHS Act).

The WHA alleged that Outback Ballooning failed to comply with its duty under the NT WHS Act to ensure 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 WHA claimed that Outback Ballooning failed to eliminate or minimise risks to boarding passengers that arose from the use of a fan to inflate the hot air balloon.

The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction because it decided that the subject matter of the complaint was within the field covered by the Commonwealth aviation regulatory scheme. E.g. the Air Navigation Act 1920, Civil Aviation Act 1988 and the Civil Aviation Regulations 1988 (Cth) (Civil Aviation Law).

What was the final issue to be decided?

In short, this case was appealed all the way to the High Court of Australia (Australia’s highest court) who had to decide whether preparation for take-off, including the boarding procedure, 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) OR whether the NT WHS Act could also apply.

Note that the Civil Aviation Law imposes its own very specific regulatory regime for the safety of air navigation.

An important side note: under section 109 of the Australian Constitution, when a State law is inconsistent with a Commonwealth/Federal law, the Commonwealth law prevails.

What the High Court said:

By majority, the High Court held that the NT WHS Act is not inconsistent (yes an annoying double negative) with the Commonwealth Civil Aviation Law.

What does this mean for me and what does this have to do with drones?

The legal term is “shit bricks”. In short, more law to worry about.

That is, both the NT WHS Act and the Civil Aviation Law may apply. Or more broadly, aviation operators, including drone operators, may be subject to the Civil Aviation Law as well as State and Territory occupational health and safety laws.

The Civil Aviation Act definition of ‘aircraft’ is very broad and includes hot air balloons as well as drones (technically Remotely Piloted Aircraft as would not cover land and sea faring drones).

The only way this can be changed is if the Civil Aviation Law is amended to explicitly cover the field in respect of the safety regulation of air navigation in Australia.

The full case can be accessed here.

It is important to note that each case is decided on its own facts and while this decision does create precedent, whether it applies in a later case must be decided based on the facts of any later case.

Fly Free!

The Drone Lawyer

23 February 2019

Please note: this is information only and does not constitute legal advice. However, if you would like legal advice, please be in touch.