Two recent cases provide equally important judicial insights into how certain important aspects of aviation regulation and the policies underpinning them are to be treated – albeit in two very different circumstances, and disparate jurisdictions.

Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2

First, and perhaps of greatest import for Australian aviation purposes, is the High Court of Australia decision in Work Health Authority v Outback Ballooning Pty Ltd & Anor [2019] HCA 2, which was published on 6 February 2019.

In this case the High Court, by majority, allowing an appeal from the Court of Appeal of the Supreme Court of the Northern Territory, held that ss 19 and 32 of the Work Health and Safety (National Uniform Legislation) Act (NT) (NT WHS Act) are not inconsistent with the body of Commonwealth civil aviation laws which includes the Civil Aviation Act 1988 (Cth) (CA Act).

Lower court history

The Authority 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, 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. By grant of special leave, the WHA appealed to the High Court.

High Court decision

By majority the High Court held that, as a matter of construction, the NT WHS Act is not inconsistent with the Commonwealth civil aviation law.

The majority held that the CA Act in relevant respects is designed to operate within the framework of other State, Territory and Commonwealth laws. The NT WHS 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.

Aviation operators will be familiar with the Civil Aviation Safety Authority (CASA), which is charged with monitoring and enforcing the Commonwealth’s aviation safety laws. WHS laws, or Occupational Health and Safety (OHS) laws, are designed to protect workers and other persons from harm by requiring workplaces to eliminate or minimise risk. They are regulated by the various state and territory bodies such as SafeWork NSW, WorkSafe ACT, and Workplace Health and Safety Queensland.

Both the civil aviation law and the WHS/OHS laws provide methods of enforcing safety requirements including both civil and criminal penalties.

What aircraft operators need to be more cognisant of are their additional obligations under the WHS/OHS laws and complementary requirements to comply with the various state and territory regulators.

What does this mean for aircraft passengers?

The upshot of this kind of decision is that it will hopefully prompt carriers to exact more care with their facilities under the pressure of potentially closer scrutiny by WHS authorities than some might have previously thought was relevant. It also, in effect, provides another government regulator (albeit state based) for aggrieved passengers to bring a complaint to.

Read the full judgment here.

BBC & Press Association v. Secretary of State of Transport & others [2019] EWHC 135 (QB)

In this case, which was brought on for hearing before the jury in a criminal trial had been able to view cockpit footage taken with a Go Pro camera by pilot Andrew Hill in the Shoreham Airshow crash on 27 August 2015 in the UK, the Crown Prosecution Service and the chief constable of Sussex police were concerned about whether footage from the cockpit could lawfully be released to the press after it had been played to a jury.

The claim was brought during the trial of the criminal proceedings under some pressure because the jury would see the footage fairly soon. Justice Edis had to decide:

… am I satisfied that disclosure of the Go Pro cockpit footage to the media will produce benefits which outweigh the adverse domestic and international impact which might have on any future safety investigation? In answering that question, I must take into account the fact that the film is being used in the public court as evidence in support of 11 manslaughter allegations and has already been played to the jury in open court. It is therefore the additional adverse fact of disclosure to the media which I am required to weigh against the benefits of disclosure.

The court was required to review the provisions in the EU (EU regulation 996 which has direct affect in the UK, and has its origin in Annex 13 to the Chicago Convention). The judge made a distinction between this proceeding which was in relation to disclosure to the media, and the trial on indictment of Mr Andrew Hill – the Crown Court criminal proceedings against the pilot.

The judge reviewed the principle of just culture and summarised it as a system which enabled people involved in air accidents to cooperate with the (investigation) freely and without fear and to encourage them to provide accurate information promptly and without obfuscation.

The particular part of regulation 996/the UK version of Annex 13 prohibits from disclosure unless the High Court determines that disclosure or use outweigh the likely adverse domestic and international impact such action may have on that or any future investigations and relates to “cockpit voice recordings and airborne image recordings and any transcripts from such recordings… “ (para 5.12, emphasis added). In a provision which was inserted in 2016, (paragraph 5.12.5), it appears to now be an absolute obligation in the UK to take measures to prevent disclosure to the public:

States shall take measures to ensure that audio content of cockpit voice recordings as well as image and audio content of airborne image recordings are not disclosed to the public. (emphasis added)

No external aids to construction were brought to the Court’s attention oddly, and so the Court proceeded with its analysis merely on the plain meaning of the regulations.

The court had to examine and balance priorities and presumptions in the criminal courts in favour of open justice and the release of material produced and evidence to the media for the purposes of fair reporting with the issues of the adverse domestic and international impact which the disclosure to the media might have on safety investigations to which the record related or any future safety investigation.

Ultimately the Court found that there was a clear distinction between disclosure to a competent authority (prosecution authority) and disclosure to the public.

The situation was such that there was an international convention to which the UK was a party to support the concerns expressed by BALPA and the investigation authority (AAIB) about the impact of disclosure to the public.

The court recognised that responsible media reporting including use of the footage which was played at trial to the jury probably would make the case clearer to the public than it would be without it, but not by very much. There was already sufficient material/footage already available of the disaster which created an abundant impact when viewed so that it would not be difficult to attract and retain the attention of the vehicle when reporting on the trial, which was the concern of BALPA (many websites demonstrate this if you Google the crash).

For these reasons the judge was not satisfied that the benefit of disclosure to the media outweighed the adverse impact on future safety investigations, and concluded:

It is a matter of real importance that the international air investigation world accepts that the UK complies with its obligations under Annex 13, and treats those obligations seriously. For these reasons, I refuse the Press Association and BBC [their] claim for disclosure under Regulation 25(5) of the 2018 Regulations.

Read the full judgment here.

More information

If you have any queries about these cases or what they may mean commercially or operationally for you, please do not hesitate to contact us at [email protected].