PPRuNe Forums - View Single Post - Liability to remain strict under civil aviation regulations
Old 14th Aug 2003, 13:31
  #18 (permalink)  
BrianG
 
Join Date: Nov 2001
Location: NSW, Australia
Posts: 58
Gaunty,

I think Creampuff is spot on. To my knowledge (which is limited to NSW, but we do have the Australian Road rules, which are adopted with minor modification from state to state) there are few driving offences where intent must be proven ie most driving offences are SL offences. So, if the argument is that aviators (a term I threw in to keep Algerhorn happy, as he/she seems to like JAG) shouldn't be treated differently to motorists will not, to use a pun, fly as there are many SL driving offences.

The presumption of innocence still applies to SL offences - it just means the prosecutor doesn't have prove intent to prove guilt. SL makes it easier, in most cases, to prove guilt because there is no need to prove a guilty mind, just the guilty action.

It would seem, with respect, that AOPAs strongest argument against SL aviation offences is the broad policy argument Creampuff has suggested - although I think you will have buckleys chance as there are few prosecuting authorities that want to make prosecutions harder.

If you really want to understand how SL and othe rissues inter-relate, take the time to read He Kwaw Teh v The Commonwealth, arguably the current high water mark on criminal intent from the High Court - the link is below:

http://www.austlii.edu.au/cgi-bin/di...kaw+teh%22+%29

Am I concerned about SL avaiation offences? No, because I don't them as being different to what I have to worry about when I drive. I would prefer AOPA and other lobby groups to press for easier to read regs - as a lawyer and pilot I can understand the regs BUT they are one of the more difficult pieces of subordinate legislation I have had to read. If CASA made the legislation easier to read (which doesn't, in my opinion, necessarily make it harder to enforce) then compliance would probably improve.

Dingo,

I agree with you in part.

SL does not directly improve safety, but it makes it easier to prosecute someone and so should make at least some people modify their behaviour so they don't act unlawfully. If flying lawfully and flying safely are one and the same thing (which in some cases they are and in some cases they are not) then SL may indirectly improve safety.

I don't see how removing SL offences from the regs improves safety unless it is argued that worrying about complying with all these SL provisions distracts a pilot from controlling the aircraft. It is a similar argument to the adverse effect of strictly enforced speeding laws, where people focus on their speedometer rather than the road.

Would you still have a problem with SL If there were a robust self reporting procedure that would, if strictly complied with, operated as a bar to prosecution for certain safety related SL (and perhaps non-SL) offences?

Algerhorn,

One more JAG comment - did you see that appalling episode set in Sydney. Appalling. You would have just missed LT COL Sarah McKenzie (aka Catherine Bell) topless (because all Australian women sunbathe topless apparently), all advocates wear barristers garb, and we all talk like "I wouldn't wrestle a dingo". Dingo, did you have a part in that script?
BrianG is offline