The Outback Ballooning Case: What It Means for Aviation Work Health and Safety

The Outback Ballooning case is a landmark decision by the High Court of Australia that was handed down in 2019.

The case confirmed that Commonwealth aviation law does not comprehensively regulate all aspects of aviation safety to the exclusion of state and territory work health and safety (WHS) laws.

In particular, the case confirmed that it applies to aspects of flight operations that were previously believed to be solely governed by Commonwealth aviation laws.

This ruling has significant implications for aviation work health and safety, requiring aircraft /   airport operators and maintainers to ensure compliance with both aviation safety regulations and WHS laws, including during the conduct of flight operations.

The tragic facts of the Outback Ballooning case

The case arose from a tragic incident in July 2013, when a woman named Stephanie Bernoth lost her life after her scarf was drawn into an inflation fan while she was boarding a hot air balloon operated by Outback Ballooning Pty Ltd in Alice Springs.

Despite being given a safety briefing, the accident occurred as she stepped into the balloon.

Following the incident, the Northern Territory’s WHS regulator, the Work Health Authority (WHA), sought to prosecute Outback Ballooning under section 19(2) of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT)

The section required businesses to ensure, as far as reasonably practicable, the health and safety of their workers and others (including passengers).

However, the case became a protracted legal battle over whether the WHA had jurisdiction to prosecute under state-based WHS laws when aviation safety is primarily regulated by federal law.

WHS regulator allowed to prosecute air balloon company

Simply put, Outback Ballooning initially argued that Commonwealth aviation laws – such as the Civil Aviation Act 1988 (Cth) and the Civil Aviation Regulations 1988 (Cth) – comprehensively applied to the exclusion of work health and safety legislation when it came to the conduct of air navigation and air operations.

While the magistrate at first instance ruled in favor of Outback Ballooning, finding that the Commonwealth’s aviation regulatory framework was exhaustive, the WHA successfully appealed to the NT Supreme Court. The NT Court of Appeal then overturned that ruling, siding with Outback Ballooning.

Ultimately, the High Court of Australia settled the matter in favor of the WHA, holding that Commonwealth aviation law does not preclude state and territory WHS laws from applying to certain aviation-related activities.

This ultimately meant that WHA were allowed to move forward with their prosecution of Outback Ballooning for their alleged failure to comply with Northern Territory’s WHS legislation.

Impact of decision on aviation work health and safety

The decision in Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2 has reinforced the requirement for aviation operators to comply with both Commonwealth aviation safety laws and state-based WHS legislation.

Aircraft and airport operators must take all steps as far as reasonably practicable to ensure the safety of their passengers, in accordance with WHS legislation. Failure to do so may lead to prosecution by state WHS regulators.

Indeed, WHS regulators retain the authority to prosecute aviation operators for safety breaches under state-based WHS laws, even in areas where aviation safety regulations may also apply.  Under state and territory WHS legislation, if a person has a health and safety duty, and the person fails to comply with the duty, an offence may be committed.

Ensure compliance with Avlaw Aviation Consulting’s Work Health and Safety service

Navigating the complexities of aviation safety and WHS compliance can be challenging.

Avlaw Aviation Consulting provides expert guidance on work health and safety obligations for aviation businesses, ensuring compliance with both Commonwealth and state-based regulations.

Contact us today to safeguard your operations and minimise your legal risks.

This article does not constitute legal advice. Avlaw Aviation Consulting is not a law firm, and you should always seek independent legal advice to ensure you understand your legal obligations.