PPRuNe Forums - View Single Post - Liability to remain strict under civil aviation regulations
Old 4th Nov 2003, 07:04
  #56 (permalink)  
Join Date: Nov 2000
Location: Salt Lake City Utah
Posts: 3,052
You ask some important questions, Bill
1. Is it easier to get a conviction under strict liability?
The answer is that, all factual circumstances being equal, it is generally easier to get a conviction for a strict liability offence than for a ‘mens rea’ offence, and it is generally easier to get a conviction for an absolute liability offence than for a strict liability offence. Try to comprehend what Drummond J was suggesting in the link above, and count your lucky stars that you got strict instead of absolute liability.
2. Is there anything in it for the accused?
Yes. The prosecution will be heard in a lower court and you generally won’t risk going to gaol; whereas ‘mens rea’ offences are usually prosecuted in higher courts, with correspondingly higher costs, and generally attract penalties of imprisonment.
3. Why does CASA want it so?
CASA doesn’t want any regulatory powers or any particular kind of offence regime. However, when the Parliament gets the Seaview Report and the Monarch Report and the Plane Safe Report and sets up a regulatory regime that confers specified administrative powers and functions on CASA, within the broader context of the Cth prosecution policy and regime, don’t be surprised that CASA feels duty bound to work with the deck of cards it’s dealt.

As to the Minister’s Office giving the “two fingers” on the strict liability disallowance, my understanding is that the decision to withdraw was based on an undertaking by the Minister that the issue of strict liability would be properly reviewed (with AOPA input) and, if necessary, acted on. I suspect that one of the factors weighing in favour of giving the undertaking was that the government wanted to avoid the calamitous mess that flowed from the Part 47 disallowance. That mess taught the government a very good lesson: the folks who got that disallowance up were’nt too interested in the ‘collateral damage’ caused by the disallowance.

So now AOPA will put it’s case to the Minister. The Minister may, in not so many words, give AOPA’s submission the “two fingers”. Then again, faced with succinct, rational arguments from a sophisticated and respectful AOPA board, the Minister may respond in kind.

But here’s the key point Bill: you’ve got to come to grips with the fact that the parliament is entitled to decide whether an offence should or should not be one of strict liability. If the parliament decides that offences in the civil aviation regulations are intended to be strict liability, then it’s no use yelling at AOPA about it, or the Minister about it, or any one else. It’s the law.

If you don’t agree with strict liability in the civil aviation regulations, I suggest you:
-Work out exactly what strict liability means in practice;
-Don’t yell at AOPA and expect the liability regime to change;
-Don’t yell at the Minister and expect the liability regime to change;
-Don’t yell at CASA and expect the liability regime to change;
-Get a whole bunch of mates to write a nice, succinct, rational argument against Strict Liability to each senator in their state
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