More power to your bull**** detector, Mick. I appreciate the content of all your posts. But you do need to recalibrate your fact versus opinion valve (in my opinion). Different opinions as to the characterisation of the same facts doesn’t turn opinions different to yours into bull****.
Anyhooo…
CASRs which confer positive authority on PIC’s to deviate from the rules in emergency circumstances do not exist. There is no equivalent to FAR 91.3(b) or CAR 145 in CASR. I’m happy to stand corrected if someone can find and quote one. But I’m not interested in stuff that isn’t law.
There are now provisions which, when they operate, are exceptions or defences to what would otherwise be offences. Those provisions are sprinkled inside CASR, there are generally-applicable ones in the Criminal Code and there’s a long-standing one in the CA Act. However, as I’ve noted before, an authority conferred by the rules is not the same as an exception or defence to what would otherwise be an offence.
I said I would provide a ‘Part 2’ to my earlier post that focussed on the existing provisions requiring clearances and operations in accordance with clearances for entry/operation within controlled airspace and landing/taking off from a controlled aerodrome. Again, this is merely ‘big hands; small maps’ stuff and will contain errors and omissions.
Let’s just take two examples out of my emergency scenario:
1. Entry into controlled airspace without a clearance.
2. Failure to comply with the clearance and instruction to join right downwind RWY 30.
Entry into controlled airspace without a clearance
As we’ve seen, entry into controlled airspace without a clearance is a bog standard strict liability offence under CASR 91.255(3). The offence is committed as soon as I enter controlled airspace without a clearance, and is made out if the prosecution proves that fact beyond reasonable doubt (BRD).
Unlike non-compliance with an ATC clearance or instruction, there is no exception or defence ‘built in’ to CASR 91.255. Therefore, it’s off to sections 10 and 13 of the Criminal Code and section 30 of the CA Act.
Section 10.3 (quoted earlier) is the immediately obvious provision of the Criminal Code that could absolve me from criminal responsibility in the circumstances:
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
Before we get to the bit about who bears what onuses and burdens about all that – dealt with in section 13 - note the following:
Although there appear to be only 3 – cumulative – criteria for the application of the section, there is actually another overriding one: That the PIC “reasonably believes” that each of the listed criteria exist. That imposes an objective as well as subjective state of mind test. Did the PIC actually believe the 3 criteria existed and would a reasonable pilot in the same circumstances have that belief?
To make the point with an absurd example, a pilot might subjectively believe, on the basis of having just read an astrologer’s predictions, that the aircraft must be landed immediately to avoid a disaster, but no reasonable pilot would form that belief on that basis. So note that just because you actually and earnestly believed something doesn’t mean your belief was “reasonable”.
The PIC has to reasonably believe that the emergency is “sudden” or “extraordinary”. To tease this one out, think about fuel situations and orbiting just outside a CTR boundary only 5nms from the runways waiting for a requested clearance (as in my scenario). I would argue that a PIC then calculating that the aircraft will land with 1 minute less than the required final reserve fuel is not a “sudden” or “extraordinary” emergency, justifying an immediate entry into controlled airspace and immediate landing without a clearance, even though the PIC is required to broadcast a “MAYDAY”. It’s an artificial emergency that’s neither sudden nor extraordinary, and nobody’s in immediate danger in the circumstances (in my opinion). If I haven’t been given a clearance to enter 15 minutes later…
The PIC has to reasonably believe that the conduct constituting to offence is the “only” “reasonable” way to “deal with the emergency”. If there was a nice uncontrolled aerodrome for GA aircraft near Black Mountain in Canberra – oh how we wish – some might argue that I should have immediately landed there rather than YSCB. I might argue that I chose YSCB because of the immediate availability of the RFFS.
Many variables here, and that “only” word has real consequences. And to tease out a further point with an absurd example, if I decide to do a quick diversion to ‘buzz’ my mate’s house on the way to my emergency landing – low flying is another offence – I’m not absolved from criminal liability for that offence. The diversion to ‘buzz’ my mate’s house was not dealing with the emergency.
The PIC has to reasonably believe that the conduct is a “reasonable response” to the emergency. Again, many variables.
Remember: A bunch of ‘Monday morning quarterbacks’ will be helping to bury you by speculating, on PPRuNe, about what you could and should have done instead of what you did do, and why you shouldn’t have been in the situation in the first place.
Now we need to look at section 13 of the Criminal Code, because there’s good news and bad news in it. The bad news is that you (usually) bear the onus in relation to the matters listed above; the good news is that the burden is comparatively ‘low’ and not BRD.
Here are the more important bits of section 13 (quoted earlier):
13.3 Evidential burden of proof—defence
(1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 [ which includes all that stuff in section 10 ] (other than section 7.3) bears an evidential burden in relation to that matter.
(3) A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter. The exception, exemption, excuse, qualification or justification need not accompany the description of the offence.
(4) The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5) The question whether an evidential burden has been discharged is one of law.
(6) In this Code:
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
13.4 Legal burden of proof—defence
A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:
(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
13.5 Standard of proof—defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
Section 13.3 is directly relevant to the application (or not) of section 10.3 and, therefore, my offence under CASR 91.255(3) for entry into controlled airspace without a clearance. (I included the rest because it’s relevant to s 30 of the CA Act.)
I have to adduce or point to evidence that suggests a reasonable possibility that I reasonably believed:
- circumstances of sudden or extraordinary emergency existed; and
- entry into controlled airspace without a clearance was the only reasonable way to deal with the emergency; and
- entry into controlled airspace without a clearance was a reasonable response to the emergency.
Fortunately for me, the burden of ‘adducing or pointing to evidence that suggests a reasonable possibility’ is not very onerous. I reckon my emergency scenario would be sufficient to discharge the burden, but that would be – or should be - a decision of a judge.
(I say “should be” a decision of a judge because all of these judgments can effectively be made by CASA in the course administrative decisions, without ever going anywhere near a court. And that is one of the more insidious aspects of the regulatory regime to which many object, and why the difference between positive authority in the law to deviate from the law, on the one hand, and an exception or defence to criminal liability, on the other, is important.)
(Note also that it’s possible that the prosecution’s case will, in itself, include evidence that discharges the burden, if the matter goes to court. That’s what s 13(4) is about and why I said we’ll ‘usually’ bear the onus.)
However, I may not be in the clear yet. If I discharge the evidential burden, the prosecution can still prove that one or more of the 3 criteria is/are not satisfied, but has to do so BRD. If I crash and burn on any 1 or more, I crash and burn on the application of s 10.3. Offence committed; criminally responsible (because I doubt s 30 of the CA Act would save me in those circumstances).
Section 30 of the CA Act has been there a long time and provides a general defence in proceedings for an offence against the Act or regs. I don’t know if it’s ever been used successfully, because it has quite narrow application and the defence burden on the defendant is higher than what’s in s 13.3 of the Criminal Code:
CIVIL AVIATION ACT 1988 - SECT 30
Weather etc. to be a defence
(1) In any proceedings for an offence against this Act or the regulations, it is a defence if the act or omission charged is established to have been due to extreme weather conditions or other unavoidable cause.
(2) Any defence established under subsection (1) need only be established on the balance of probabilities.
The word “unavoidable” is what makes its application so narrow. I think the generally accepted interpretation is that the word “other” has the effect of limiting “extreme weather conditions” to unavoidable extreme weather conditions. So, for example, breaches of the rules in response to some emergency arising from choosing to fly into forecast extreme weather, or pressing on into extreme weather when there’s an available, safe ‘Plan B’, probably won’t ‘cut it’.
As can be seen, the burden imposed on us by s 30 is the ‘balance of probabilities’, which is ‘lower’ than BRD but ‘higher’ than ‘adducing or pointing to evidence that suggests a reasonable possibility’. My fire scenario would probably discharge the ‘balance of probabilities’ burden. But again, having discharged the burden, it’s still open to the prosecution to disprove BRD. If the fire behind my instrument panel was caused by me doing some illegal, dodgy wiring modifications, was the emergency “unavoidable”?
Failure to comply with the clearance and instruction to join right downwind RWY 30.
The offence here includes a ‘built in’ exception:
91.257 Air traffic control clearances and instructions
(1) The pilot in command of an aircraft for a flight contravenes this subregulation if, during the flight:
(a) air traffic control gives the pilot in command an air traffic control clearance or air traffic control instructions; and
(b) the pilot in command does not comply with the clearance or instructions.
(2) Subregulation (1) does not apply if:
(a) it is not practicable to seek authorisation for the non compliance before it occurs; and
(b) the non compliance is necessary for the safety of the aircraft or the persons on the aircraft; and
(c) the pilot in command informs air traffic control about the non compliance as soon as practicable after the pilot in command is unable to comply with the clearance or instructions.
(3) A person commits an offence of strict liability if the person contravenes subregulation (1).
Penalty: 50 penalty units.
Note: A defendant bears an evidential burden in relation to the matters in subregulation (2): see subsection 13.3(3) of the Criminal Code.
Note that the 3 criteria for the operation exception are – like the criteria in s 10.3 of the Criminal Code – cumulative, but – incoherently – different from the criteria in s 10.3 of the Criminal Code.
But the good news is the criteria in CASR 91.257(2) are less ‘PIC unfriendly’ than the ones in s 10.3 of the Criminal Code. The non-compliance does not have to be in circumstances of “sudden or extraordinary emergency” and the non-compliance does not have to be the “only” reasonable way to deal with the circumstances, in order for the exception to operate.
As with the entry without clearance offence, I bear the burden of ‘adducing or pointing to evidence that suggests a reasonable possibility’ of the existence of circumstances satisfying each of the criteria in CASA 91.257(2) and, if I discharge that burden, it’s still open to the prosecution to disprove the existence of those circumstances, but BRD. I reckon my emergency scenario would be enough.
Section 30 of the CA Act also applies in principle, as set out earlier.
An earlier poster asked the rhetorical question: Do we all just roll over and give up? The poster used the word “scaremongering”.
I’m just trying to explain how the regulatory regime works (and stay sane), in response to the OP's 'simple' question. Nearly 40 years in, none of the above has ever bothered me when I’m flying. As the earlier poster said: “I have no hesitation in confidently exercising the full privileges of a PIC”. None of the above matters. Until it does.
Regards and safe flying.