brianh
I am going to go where angels fear to tread OK.
This disallowance issue in and of itself does not mean that anyone has rolled over or anything has or has not been overturned.
There is the issue of strict liability with which no one here has any other than your view of the negative possibilities.
Then there is the process and the way of its application.
The Civil Aviation
REGULATIONs 1988 Amendment that has just gone through, was in relation to the Governments policy that ALL Commonwealth Legislation be harmonised with the Criminal Code.
Inherent in this is the requirement that offences which operated as strict liability offences prior to the Criminal Code becoming effective are to be amended to stipulate that they are strict liability offences. This package of amendments was made in accordance with the Government's not CASA policy and on advice with the Attorney Generals Dept.
We were advised that CASA liaised extensively with the Attorney General throughout this process and that the amendments meet the Governement requirements in regard to harmonisation.
And that these amendments were not designed to create new strict liability offences.
Note: this a Regulation not a Bill.
That is, it, the Amendment to these Regs, was part of a tidy up of ALL Govt. Regs (Ardvark handling to Zoo licensing regs) on the books and they are now I believe way past the "Cs".
The amendment to the 1988 Regulations was made and became law from the moment the GG signed them.
They are then placed on the table for 15 days in the Senate, within which time a Member or Senator, has the opportunity to raise a Notice of Motion to Disallow the Regulation or amendment to them. There is then a 15 day period within which to resolve or withdraw.
Resolve means putting the Motion and having the numbers to win it against the Govt., or negotiating a resolution acceptable to all parties and withdrawing it.
There are political risks for all participants in either direction in this process.
Contrary to a previous assurance that we would be consulted on any and all legislative activity before it was taken, this one slipped through the net, being considered by Government to be just part of the routine "strict liability" harmonisation tidy up.
We disagreed strongly, hence the action.
Having said that, there are many offences within the Regs that are strict liability, have always been, or have been deemed by the courts to be.
The problem as always, was the time needed by AOPA to go through the whole of the Regs 1988 to properly identify which ones were already and how many, or could, or shouldn't be.
Huge amount of work for Marjorie and Ron Lawford starts on top of everything else, but somehow as usual they find the time.
It was offered that this amendment was part of the recent CASA reform package in regard to the new infringement notice scheme/demerit sytem etc which could not operate effectively without it and seriously reduce the ability of CASA to apply a middle-ground approach to enforcement, forcing it to rely disproportionately on potentially draconian licence action and undermine the enforcement reforms in the Civil Aviation Amendment Bill 2003, which we support.
We still have a big problem with blanket strict liability, for example; one proposal to try and unlock the impasse in the short term, that of automatically accepting SL for offences with a low number of penalty points would, we were advised by CASA, have "caught" offences that were not now SL. What to do.
CAR1988 is being progressively moved into the new package, what to do in the meantime?
Horns of a dilemma for both, Government policy on one hand, we were offered a remedy in good faith, we needed time to negotiate this internally as well as with Government, we keep the pressure on with Dems notice, more negotiation with CASA, who were very cooperative, and a final resolution offer from Government.
Not perfect, but in good faith from both sides.
CASA, have assured me that any investigations or prosecutions raised within CAR1988 will, without prejudice of course to their right to do so, be done so with best endeavours in relation to the AOPA CAR 1988 SL concerns on foot. It was suggested to me that the risk of any actions being taken during the period of our CAR 1988 review was low, given the annual number.
Your "pandoras box of dirty tricks" routine may rouse the rabble and drive them onto the guns, but it is my understanding that ALL investigations and prosecutions have to go through HO and be justified prior, to prevent that very thing occuring.
I think those days are over, in any event I think Mr Byron might have something to say about that too.
CASA can now properly implement the new middle-ground approach,
Agreed SL amendments to the CAR1988 wil be made by the Australian Government as soon as we can identify them,
and;
CASR Part 91 will not progress until such time as CASA has fully addressed AOPAs submission on it.
And we have it in writing.
I'd say that was a win/win.
Do you want to give us a hand?
The cooperation and good will shown throughout the whole process by The Minister, his Dept and CASA was entirely in keeping with the spirit of our mutual commitment to reform by negotiation.
I'm sure Byron will continue this process.
None of us can afford for him not to.