The ‘Rule Of Law’?

[Lead Balloon]

I note that low flying, like rape, is a criminal offence (CAR 157).

In response to suggestions by AOPA, to the effect that CASA was beasting a pilot for low flying allegations which the pilot ‘strenuously denies’, Mr Carmody (then CEO of CASA) said to a Senate Committee on 20 November 2020:

“"That's not what the instruments on his aircraft say, Senator. They say he was at 125'."

Mr Carmody wasn’t in the cockpit of the aircraft or at a console in Centre at the time of the alleged low flying. Indeed, no one from CASA was in the cockpit of the aircraft or at a console in Centre at the time of the alleged low flying. None of them saw the ‘instruments’ to which Mr Carmody referred. Their ‘evidence’ as to what the instruments ‘said’ would be inadmissible hearsay in a prosecution of the pilot for alleged low flying.

Mr Carmody’s opinion about the height of the aircraft would also be inadmissible. Even if he was ‘there’, watching the aircraft fly, his evidence would be confined to the facts - what he saw or heard etc - and not his opinion as to the height of the aircraft.

The readings of instruments are themselves hearsay. (A prosecution for a ‘drink driving’ offence recently collapsed because the end of a fundamentally-relevant 2 hour period was measured in a hospital by reference to a clock on the wall, the accuracy of which on the day in question was not proved.) What someone in Centre saw on his or her screen, sourced from e.g. an SSR transponder or ADS, is also hearsay.

Expert evidence would have to be led as to the accuracy (and inaccuracy) and tolerances and lags etc in the aircraft’s equipment and Centre’s ground equipment, in order for evidence as to what someone in Centre saw on his or her screen to be admissible evidence, in a criminal prosecution, as to the height of the aircraft from which the signals were sent.

Ditto for the GPS altitude recorded in memory in on-board avionics.

Someone standing on e.g. a 500’ hill could give admissible evidence as to the relative position of an aeroplane the person saw fly past. But good luck using that witness’s evidence to prove, beyond reasonable doubt, that the aircraft was within 600 metres horizontally of the person’s location. Easy to prove the height of a location on which a person is standing and whether the aircraft was above or below that location. Not so easy to prove the horizontal distance of a fast moving object from that person’s location.

But why would CASA bother with the hard work of admissible evidence when it can destroy someone administratively? CASA just has to bundle all of the stuff which would be inadmissible or difficult to prove beyond reasonable doubt in criminal proceedings and ask the pilot to show cause why CASA should not find the pilot did fly in breach of CAR 157 and, if that finding were to be made, why the pilot’s licence should not be revoked.

The pilot can refuse to respond or could say: “It just did not happen”, but it is still open to CASA to find that the pilot was low flying in breach of CAR 157 and revoke his or her licence.

The person could, of course, seek review of the revocation decision in the AAT - if the person has a lazy $50K or so lying around. But even with a lazy $50K or so lying around, the person is up against a well-oiled fear-mongering machine.

Chances are it’s game over and flying career over for the person. Even if the person ‘wins’, the money spent and the income lost in the interim are unrecoverable.

Career-ending findings that a person is not a fit and proper person to perform the duties of a particular position are made frequently as a matter of administrative law, absent any finding by a criminal court that the person committed any offence.

Seems odd to me that the ease with which a person’s career can be lawfully destroyed is inversely proportional to the seriousness of the crime alleged against the person.

We should of course be kept safe from low flying pilots (and them from themselves), and that - apparently - is the justification for administrative powers that may lawfully be exercised without meeting the criminal law evidentiary standards and burdens. But shouldn’t we be kept safe from rapists, too, and wouldn’t the supposed justification be valid, with even greater force, in the case of more heinous allegations?

I know with whom I’d prefer my daughter be left alone in a room.

The ‘Rule Of Law’ seems to be a very flexible concept. I suppose it’s because aviation is ‘special’.