Sir Owen Dixon Essay Writing - Commonwealth Blimp Aviation Authority Case Study - Law Assessment Answer

Assessment Task:

Sir Owen Dixon Essay Writing Law Assessment Answer

Instructions:

This assignment comprises two sections: 
a.    Part A is an essay-style question.
b.    Part B is a problem question.

Part A

On being sworn in as Chief Justice, Sir Owen Dixon stated that ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism’. 

Critically evaluate this statement with reference to relevant course content from Weeks One to Four, including the various approaches to constitutional interpretation as appropriate.  

There is no need to go beyond the material covered in Weeks One to Four. 

Part B

In the 1990s, there was a resurgence in the use of blimps. To ensure safety in this booming industry, and to ensure compliance with Australia’s obligations under the International Convention on Blimp Aviation, the Commonwealth Parliament passed the Blimp Aviation Act 1995 (Cth). The main object of the Blimp Aviation Act 1995 (Cth) is to ‘establish a regulatory framework for maintaining, enhancing and promoting the safety of blimp flight in Australia, with particular emphasis on preventing blimp accidents and incidents’. 

Pursuant to section 20 of the Blimp Aviation Act 1995 (Cth), individuals and companies engaging in blimp flight must hold a Blimp Flight Licence (BFL) issued by the Commonwealth Blimp Aviation Authority. 

The Blimp Aviation Act 1995 (Cth) imposes a wide-ranging set of standards on all BFL holders. This includes a ‘catch all’ safety requirement in section 25. Section 25 states:

(1)    The holder of a BFL must at all times take all reasonable steps to ensure that everything done in connection with the holder’s flight of blimps is done with a reasonable degree of care and skill. 
(2)    No action lies, for damages or compensation, in respect of a contravention of this section. 
(3)    This section does not affect any duty imposed by, or under, any state or territory law, to the extent that they can operate concurrently. 

Notwithstanding subsection 25(2), the Commonwealth Blimp Aviation Authority can suspend or cancel a BFL for a breach of subsection 25(1). 

Apart from this general ‘catch-all’ provision, no other provision of the Blimp Aviation Act 1995 (Cth) relates to on-ground activities connected to blimp flight, such as the embarkation or disembarkation of passengers.   
 
Subsection 45(1) of the Blimp Aviation Act 1995 (Cth) empowers the Commonwealth Blimp Aviation Authority to set standards or give directions in relation to blimp flight. Subsection 45(2) goes on to state that ‘such standards or directions are not to be taken to be inconsistent with state or territory law, to the extent that they can operate concurrently’. 

The Commonwealth Blimp Aviation Authority can suspend or cancel a BFL for a breach of a standard or direction issued pursuant to subsection 45(1). 

The Commonwealth Blimp Aviation Authority has not issued any standards or directions relating to on-ground activities connected to blimp flight, such as the embarkation or disembarkation of passengers.  

Paul Hindenburg lives in Port Douglas, Queensland. He got into the blimp business during the boom in the 1990s. Since then, he has been running blimp flights for tourists around Port Douglas through his company, Hindenburg Blimp Tourism Pty Limited (HBT). HBT holds a BFL. As HBT holds a BFL, it is not necessary for Paul to hold one himself. 

In June 2018, a group of tourists were given an on-ground safety briefing prior to leaving the HBT terminal and boarding the blimp waiting on the tarmac. During the briefing, the tourists were told to avoid the exposed steering propellers on the side of the passenger car that would be running while they were boarding to ensure a quick departure and maximum time in the air.     

James Page, an English tourist and blimp enthusiast, disregarded this direction. While boarding, he approached the steering propeller nearest to the entrance to the passenger car so he could sneak a closer look. As he did so, his camera strap got caught in the propeller and he got sucked into the spinning blades. He died instantly. 

After Mr Page’s accident, the Queensland Work Health Authority (WHA) filed a complaint against HBT in the Queensland Magistrates Court at Cairns pursuant to the Work Health and Safety Act 2009 (Qld). In the complaint, WHA alleges that HBT failed to comply with the duty imposed by section 7 of the Work Health and Safety Act 2009 (Qld). Section 7 states:

A person conducting a business must ensure, so far as is reasonably practicable, that the health and safety of persons are not put at risk from work conducted as part of that business.           

A ‘person’ for the purposes of the Work Health and Safety Act 2009 (Qld) includes corporations like HBT.  

The definition of ‘business’ in the Work Health and Safety Act 2009 (Qld) is such that it clearly covers the tourism enterprise being run by HBT.    

The breach of duty HBT was alleged to have committed was a failure to eliminate or to minimise risks to embarking passengers, like Mr Page, arising from the steering propellers. If proven, HBT will be guilty of an offence pursuant to the Work Health and Safety Act 2009 (Qld) and it is likely the Court will impose a substantial fine and compensation payment to Mr Page’s estate.   

Paul comes to you for assistance in defending the WHA’s complaint against HBT. Advise Paul on any arguments arising from section 109 of the Constitution that could be used to defend the complaint. 

Please restrict your response to the analysis of issues arising from section 109 of the Constitution. You may assume the Blimp Aviation Act 1995 (Cth) is constitutionally valid and the Work Health and Safety Act 2009 (Qld) is within the plenary power of the Queensland Parliament.        

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