PPRuNe Forums - View Single Post - Liability to remain strict under civil aviation regulations
Old 31st Oct 2003, 11:27
  #44 (permalink)  
Join Date: Nov 2000
Location: Salt Lake City Utah
Posts: 3,052

You and I seem to be in different time/space continua.

In my time/space continuum, the regulations are already the law – there’s nothing ‘proposed’ about them.

In my time/space continuum, courts exercising federal jurisdiction no longer apply the old interpretational rules to work out the nature of an offence created by statute. That question is now determined by the Commonwealth Criminal Code Act 1995. That Act was passed last century, and has already come into effect (at least in my time/space continuum).

The changes to the civil aviation regulations were made so as to ensure that what was (before the Criminal Code Act) continues to be (after the Criminal Code Act).

The simple point that the President of AOPA appears to have been trying to make is that, in her view, some (still to be specified) offences in the regulations would have been found by a Court to be ‘mens rea’ offences rather than strict or other liability offences, through application of the common law rules of interpretation.

The President’s view is all very interesting, but we’ll never know because the question is now academic: the Criminal Code Act supersedes all of the old interpretational rules.

What we do know is that the legislature has had the opportunity to change each and everyone one of the offences in the regulations to something other than strict liability, and the legislature chose to change none of them. That choice seems to me to be consistent with my view that each and every one of the offences under the old regulations was intended to be a strict liability offence. As I have said on other threads relevant to this issue, the only question in my mind was not whether a court would have found an offence to have required ‘mens rea’ rather than being one of strict liability, but whether the court would have found an offence to have been one of absolute rather than strict liability. See Drummond J’s comments at 31(3) of: http://www.austlii.edu.au/au/cases/c.../2000/848.html

I attribute more weight to Drummond J’s comments than those of the President of AOPA.

Whatever might have been under the old rules, and whatever esoteric points we want to make, there is now no doubt that each and every offence that is specified to be strict liability, is intended by the legislature to be a strict liability offence, and will be interpreted by the courts to be a strict liability offence.

I think the ‘evil’ about which we are complaining boils down to the fact that by spelling strict liability out in the regulations, we’ve denied some people the bliss of ignorance.

And finally, to inject a bit of reality into the discussion, you might want to find out exactly how many people are actually prosecuted by those evil doers in CASA each year. Granted: the number of prosecutions recommended by CASA may dramatically increase in the near future, but that’s only because that’s what ‘the industry’ asked for.
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