If the story told by Triadic is accurate - and I've no reason to doubt it is - I fear the Great Hope of AOPA has about as much chance of influencing the direction of regulatory reform as some of her current and erstwhile colleagues. I am not sure whether the shibboleth of strict liability was invoked merely to take advantage of the ignorance of her potential constituency, or whether the proponent genuinely believes the point to be a substantial one. (It's usually hard to tell with AOPA directors.) Either way, tilting at the strict liability windmill will merely confirm, in the minds of those who actually determine the direction of regulatory reform, what little weight, if any, should be attributed to AOPA's views these days.
Please do not waste your energy tilting at the strict liability windmill, unless you either have an understanding of all the facts and issues or you don't mind looking like a patsy.
First, the category of an offence as 'full' mens rea' or 'strict liability' or 'absolute liability', has got nothing - repeat
nothing to do with the question whether a person may be given 'immunity' from prosecution or administrative action for committing the offence. Categorising an offence as 'strict liability' does not - repeat
does not - have the effect that action must always be taken against a person who commits the offence.
On the question as to granting 'immunity' from prosecution, CASA does not have power under the existing legislation to 'grant immunity' from prosecution - irrespective of the category of the offence. CASA can have a policy not to recommend prosecution in specified circumstances, but the DPP can nevertheless decide to pursue the prosecution and indeed a private individual can launch a private prosecution.
Nothing in the proposed legislation would change the status quo on that point. CASA can also have a policy not to pursue administrative action in specified circumstances.
Nothing in the proposed legislation would change the status quo on that point.
Secondly, there is little doubt that under the
current regulations and probably under the Act, offences are
strict liability. Before anyone seizes on the equivocal words 'little doubt' and 'probably', to make the otherwise valid point that under the proposed regulations the matter would be put beyond doubt, let me make an important point that I will explain in greater detail. The only doubt in my mind is
not whether the existing offences under the regulations are 'full ' mens rea offences instead of strict liability offences, but whether they are
absolute liability offences instead of strict liability offences.
strict liability
Let's get clear what 'strict liability' means. It means the offence is proved once the physical element is proved - the car you were driving exceeded the speed limit; the plane you were flying entered controlled airspace without an airways clearance. The prosecution does not to prove a mental element – e.g. that you subjectively intended to exceed the speed limit or enter controlled airspace without a clearance – as an element of the offence.
However, with strict liability offences you can raise a defence of honest and reasonable mistake of fact - someone tampered with my speedo and I honestly thought I was travelling at the indicated, legal speed; I did my navigation and calculations and I honestly thought I was outside controlled airspace.
If the defendant leads sufficient evidence to support the defence prima facie, the onus then shifts to the prosecution to prove beyond reasonable doubt that the defendant did not make an honest and reasonable mistake of fact - how reasonable could it have been for you to believe your allegedly bogus speedo reading of 15 mph, when you were in fact travelling at 100mph; how reasonable could it have been for you to believe you were outside controlled airspace, when you had a radio conversation with ATC who repeatedly warned you that your track would take you through controlled airspace.
So strict liability offences in effect have a 'mens rea' element: It's the
absence of an honest mistake that is objectively reasonable.
’full’mens rea offences
Offences that include a mental element that must be proved by the prosecution beyond reasonable doubt along with the physical element are sometimes referred to as 'full' mens rea offences. The mental element is usually something like subjective intention (e.g. the defendant pulled the trigger with the intention to kill) - or was reckless as to the outcome (e.g. the defendant drove a truck into the side of a bar full of people, knowing they were there, with the intention of injuring them).
See if you can find the word “intentionally” or “recklessly” in any of the existing offences in the Act or regs.
absolute liability
Like strict liability offences, absolute liability offences are established once the physical element is established. However, there is
no defence to an absolute liability offence. It doesn't matter how honest or reasonable your mistake or actions were in the circumstances. Someone might have pulled the speed limit sign out of the ground - doesn't matter; someone on the ground might have transmitted a bogus airways clearance to you - doesn't matter.
So if you think strict liability is bad, absolute liability is whole new world of pain.
what’s the status quo?
What category are offences under the existing regs and Act? When those sorts of questions are asked, I find out what judges have to say. After all, judges have ultimate authority to determine these questions.
In RQAC v CASA (judgment available at:
http://www.austlii.edu.au/au/cases/c.../2000/848.html ) CASA argued among other things that a defence of honest and reasonable mistake of fact would be available to a person prosecuted for breach of regulation 282 or section 20AB of the Act. Here is what the court said about that submission in its judgment:
CASA submits that an honest and reasonable belief that a person had passed a valid test and had, in consequence, a valid licence or rating would provide a good defence to such a prosecution. That reg 282 and s 20AB of the Act should be construed as incorporating the element of mens rea is not, however, self-evident, given CASA's own insistence in argument that air safety considerations dictate the conclusion it says flows from the lapse of Mr Harris' instructor rating in the period 1 May 1998 to 6 April 1999. If air safety considerations require ratings issued by Mr Harris in this period to be treated as invalid, the innocent ignorance of the holders cannot be sufficient to obliterate the risk to air safety created by Mr Harris' unauthorised issue of those ratings. The prohibitions in reg 282 and s 20AB of the Act, which are intended to be sanctions against putting air safety at risk, may be absolute.
[my emphasis]
Notice that although the judge did not determine the question one way or the other, he did not even entertain the possibility that these were 'full' mens rea offences. His response to the submission that an honest and reasonable mistake would be a defence was the observation that they may be absolute liability offences! The competing interpretations were strict liability and absolute liability.
If you think I am exaggerating or misconstruing this, have a look at the Aviation Legislation Amendment Bill (No. 1) 2001 that popped up after RQAC v CASA. (It’s been gathering dust in the Parliament ever since. You'll find a copy in the Old Bills list at this link:
http://www.aph.gov.au/bills/index.htm). Among other things, the Bill adds the following magic words to some of the offences in the Civil Aviation Act:
the person knows of, or is reckless as to, the matter or matters...
You’ve been flying with strict liability – and possibly absolute liability - for a long time. Notice the sky hasn’t fallen in.