Strict Liability.... a hazard to air safety?

[triadic]

Most readers would have noted that our regulations have strict liability clauses scattered through most legislation. This not only adds to the size of the document/s but makes them harder to read and/or understand.

As far as aviation regs are concerned, the standard for even the most minimal offence (?) as far as I can find is 50 penalty units.

Again, as far as I can tell, the 'value' of a penalty unit now is $170. This would mean that a basic penalty under this arrangement would be $8500.

Are these numbers correct? It would seem somewhat outrageous that a fine for a simple misdemeanour that may well be unintentional is that high.

If this is correct then it confirms that the AG's Dept has little knowledge of our industry and indeed is not promoting safety.

[Weapons Grade]

Triadic

I certainly do not support your argument that by adding "absolute" or "strict liability" as a adjunct to any section of the CAA or CAR adds to the "size" of it.
As for understanding the significance of "absolute" or "strict" liability, one needs to refer to Criminal Code Act (C'wlth) 1995, Section 3, Division 3.

Perhaps it is reinforcing the notion that the pilot in command will be held accountable for his/her actions; and depending on the offence, some defences to such offence will not be available if there is absolute or strict liability stated.

"Unintentional" would not be a defence under "strict" or "absolute" liability. For example, unintentionally (ie. didn't know medical certificate was not valid) flying without a valid medical certificate (CAR 5.06) - strict liability; 50 penalty units = $8500.00 (maximum). Another: reckless endangerment (CAR 5.04 - strict liability; 7 years imprisonment.

It is called "accountability".

[triadic]

I certainly do not support your argument that by adding "absolute" or "strict liability" as a adjunct to any section of the CAA or CAR adds to the "size" of it.

To clarify... At least one sub para at the end of each section plus a line to say the Penalty units equals a significant increase in the size (number of pages) and the readability of the document.

[Lead Balloon]

WG

There are plenty of ways to hold people accountable without making them criminals.

Your example shows why the point of the rules has been almost completely lost on the rulemakers. Or do you make the mistake of assuming that someone without a valid medical certificate is, thereby and automatically, unfit to fly?

(BTW: A Penalty Unit is now worth $180.)

[Duck Pilot]

It completely contradicts Just Culture......

[awqward]

It is a fundamental difference between Australian regulations (and culture) and U.S. Or European regulations.....it is largely why Australia could not just adopt the FARs as-is...

[ForkTailedDrKiller]

Seems to me that the potential big fines are there mainly to scare the punters into coping it sweet.

I have told this story before. A number of years ago I flew the V-tail a couple of times over one or two days after a mandatory rudder pedal inspection was due. As soon as I realised my mistake the inspection was done - all good, nothing found. As I understand it, Oz is the only country that requires this annual inspection on Bo's.

Months later my error was picked up by CASA in a random MR check during an audit of my maintenance org. I was threatened with potential $40k in fines and up to 8 years gaol for multiple breaches of the CARs/CAOs etc - but all would be forgiven if I paid a $500 admin. fine.

I whimped out and paid the fine - and have regretted doing so ever since.

If nobody stands up to a bully - the bullying just continues.

Dr :8

[Jabawocky]

It completely contradicts Just Culture......

Yep :ok:


And had Forky realised the two day error and just fudged the books…..he would have avoided the BS. Instead, you get the culture of creating negative safety culture. :ugh:

And we all know where that ends up. := Our entire system is wrong. Simple as that.

[LeadSled]

If this is correct then it confirms that the AG's Dept has little knowledge of our industry and indeed is not promoting safety. Triadic,
The penalty points are set by CASA, not the AGs.

The offenses that are strict liability are set by CASA, not the (now) Office of Parliamentary Counsel, OPC ---- all matters legislative drafting are no longer handled by OLDP/A-Gs.

The impenetrable drafting style is to the instructions of the customer agency, ie: CASA, don't blame the OPC. Have a look at a lot of other Commonwealth Legislation to see examples that look absolutely nothing like aviation regulation, indeed, to see real "plain English" and outcome based. You will also find lots of examples of civil law, the whole aviation book does not have to be criminal law, that it is is, once again, CASA choice.

It is said that making every offense 50PP is to maximize the fines under the administrative penalty scheme, one fifth the maximum.

In the dim distant past a joint CASA/Industry body recommended penalty points, based on the agreed importance of the alleged offense -- I know, I sat one one for flight operations ---- the original Part 91. Such cooperation with industry has been barred for the last 6/7 years --- after Byron went.

I certainly do not support your argument that by adding "absolute" or "strict liability" as a adjunct to any section of the CAA or CAR adds to the "size" of it.Weapons Grade,
Of course it does, a common and far better way is to have a separate Part with all the penalties listed, but Commonwealth policy and the Criminal Code now precludes that. As of the rest of your post, you would make a great recruit to CASA --- penalties are the answer to air safety, more penalties make more safety --- whatever the heck "more safety" means.

.it is largely why Australia could not just adopt the FARs as-is... Awqward,
That is not legally true, either, CASR Part 21 is FAR 21 modified (originally more flexible than FAR 21, but the CASA of recent years have "fixed" that) CASR 23-35 are FAR 23-35 by reference. Far more efficient would be to adopt the NZ regs., which can largely be characterized as the FARs cleaned up, with a lot of accumulated rubbish removed.

Tootle pip!!

PS: The Commonwealth of Australia has a long and generally satisfactory history of adopting legislation by reference, with only minor changes, we have been doing it since 1901.

[Sunfish]

Leadsled neatly summarises the issues.

However what is perhaps more important is that strict liability inclusions automatically destroy, not just "just culture" but the possibility of any form of partnership between industry and regulator because our laws at bedrock level depend on the Two principles of fairness and equity.

What strict liability does is remove the requirement for Mens Rea to get a conviction:

Under the traditional common law, the guilt or innocence of a person relied upon whether he had committed the crime (actus reus), and whether he intended to commit the crime (mens rea).

The inclusion of strict liability denies pilots and engineers the right to use their common sense.

The use of the criminal code makes transgressors into felons, automatically limiting their freedom to travel internationally among other things.

The combination dramatically changes the power balance between regulator and the regulated in favour of the regulator.

The net result as far as I can tell is that there is a tendency for pilots and engineers to minimise contact with the regulator and sweep anything that even looks like a possible transgression of the rules as well as incipient safety issues under the carpet. Safety suffers as a result.

To put that another way, it would be a brave pilot these days who would commit the details of a "close call" to paper for the edification of their colleagues. Even a Youtube video can now destroy your career, ask John Quadrio.

I could speculate, judging from my own limited experience of RAAF engineering officers (who with Two exceptions I found to be rigid thinking a****holes) that the strict liability frame of mind was inherited from somo RAAF little Hitler, but this is irrelevant.

[Jabawocky]

Even a Youtube video can now destroy your career, ask John Quadrio.

Which when the facts came to light, using science and proper professional analysis, it has been proven not only were the flight angles in spec, the pilot was not the one persecuted!

Azaria Chamberlain of the Oz Aviation world. :=

To be brutally honest, in the absence of subcontracting the lot to the kiwis, we would be better scrapping CASA and the rule set, have all new licences tested electronically by the kiwi's, issued under a DOT office and just have a safety promotions team who gather and prepare world class educational video's on youtube. The requirement to have a flight review/test would also include your ARN number being logged in to said educations branch where you can be seen to have enjoyed a high quality presentation. Then go do your renewal or AFR.

Same thing for LAME's.

More people doing more right things safely and no need for FOI's AWI's CASA lawyers, etc etc…..

I bet safety would not plummet and the sky would not fall in. :ok:

Jaba…snap out of it lad! :8

[Eddie Dean]

Mmmm, Jaba I remember that there were two interprets of the craziness the pilot performed that day.

[LeadSled]

Folks,
There was nothing really wrong with the Australian Law Reform Commission report recommendations that gave us a clear statement of the proof condition for each criminal offense in the aviation regulations.

However, by definition, any matter where there is an element of judgement involved cannot be a matter of strict liability, where the only defense is "honest and reasonable mistake", a very high test, effectively what you did had to be caused by something/somebody else, a VCA because you misread the map is not an "honest and reasonable mistake". In the aviation law there are many examples where this is ignored.

In the FTDK case, that would probably have swung on who made the arithmetic error. That an "honest" arithmetic error can create such a major criminal penalty gives a whole new meaning to "over the top".

Of course, for absolute liability, there is no defense.

I could, but I won't (can't afford the defo.) outline just how we got to the present situation by serious and deliberate misapplication of government policy, but suffice to say, it was NOT the ex-military element in CASA.
You can blame them for lots of things in CASA and its predecessors, but not this.

CASA transgresses just about every recommendation by just about every government or parliamentary body, in the way it has gone about formulating regulations and penalties since about 1999, and then blandly tells us is it government policy.

If people really understood the ramification on international travel restrictions of having even been charged (generally, USA for one, you don't even have to be convicted) under aviation war, there would rightly be a civil was, but it is just a few individuals each year find, to their very great embarrassment, who find themselves denied entry to the US, when they were taking the family to Disneyland.

The CASA definition of "just culture" does not, unsurprisingly, look much like the ICAO version, any more than Australian SMS looks anything like the ICAO/FAA/EASA activity by the same name.

The effect, deteriorating air safety outcomes, is clear in the records.

Tootle pip!!

[Mr Brewster]

Strict liability is lazy regulation.

Look at an example from communications regulation where that regulator, the ACMA, has adopted 'strict liability'.

When a masthead TV amplifier goes faulty it radiates a broad signal over the adjacent mobile phone bands.

So, a 92 year old wheelchair bound lady has one that does this.

She is guilty, and subject to X penalty units despite not even knowing it was there.

Stupid, lazy, destructive......

You can thank an appropriately named ex CASA lawyer P Illyck for that peice of junk regulation.

[aroa]

While all us mug punters get "strict liability" even for minor non safety issues.....the CAsA persons that cause mayhem, behave illegally and destroy livelihoods and businesses are safe and well, sheltered from any action by the CAsA policy of strictly NO accountability and NO liability, and backed up by a bottomless taxpayer purse. :mad::mad::mad:

We need a revolution...and then some.:ok::ok:

[Sunfish]

Even worse when Bronwyn takes a chopper the pollies scream"natural justice and procedural fairness" while her poor old pilot has to make do with "strict liability".

[OZBUSDRIVER]

Go to the search feature...strict liability as key words...creampuff as posted by. Study and learn from history.

2004 was a very interesting year in aviation in Australia.

PS You can also use Gaunty as posted by.

[kaz3g]

. Most readers would have noted that our regulations have strict liability clauses scattered through most legislation....

Are these numbers correct? It would seem somewhat outrageous that a fine for a simple misdemeanour that may well be unintentional is that high.



Unfortunately, misdemeanours can be anything but simple. What is now a minor indictable offence can attract significant gaol terms: Crimes Act 1900 s580 E.

Our legislators should be ashamed of themselves for allowing more and more strict liability offences to be legislated for little reason other than that compliance people appear to be generally ill-equipped or insufficiently skilled to gather compelling evidence.

Strict liability offences operate harshly because there is no need to prove the guilty mind and a person may be found guilty even where they are not at fault or have taken reasonable care. This leads to injustices and harsh outcomes where the matters concerned are criminal offences and operates against the common law presumptions of innocence and that mens rea is a necessary element of proof in the criminal law.


An honest AND reasonable mistake is a defence but both limbs must be present and the onus is on the accused to prove it.

Kaz

[OZBUSDRIVER]

Yes, but once SL is on the books, it is impossible to remove.

How can you mount a case to parliament to disallow? What grounds do you use? It is like creampuff said eleven years ago-

If the argument is that strict liability is simply bad policy, because it’s bad to convict people for something they physically did, but didn’t intend to do, then that’s a different justification for opposing strict liability. That’s not a safety argument: it’s a general policy argument. If AOPA wants to put that argument to the Parliament, then AOPA’s going to have to come up with some convincing reason for treating participants in aviation differently from participants in (e.g.) driving. If you exceed the speed limit or the prescribed blood alcohol level in a car, it’s no defence to say you didn’t intend to. Why should aviation be different?

[OZBUSDRIVER]

Note...I am not trying to verbal Creampuff. He was quite clear that SL was always part of ALL regs.

[Sunfish]

To be fair (for once) strict liability is not all CASAs problem - it is a lazy politicians crutch and defence against media attacks.

The Two easiest stories journalists learn to write pander to our worst instincts.

The first story is: "Mr movie star millionaire comes to town, but doesn't help local starving homeless children". (no logical connection)

The second is: " Drunken man runs over woman pedestrian and only gets Three months jail".

In this story the reader is not told the details of the case nor the judges reasoning. It may be that the "drunk" blew .051 and the woman was trying to commit suicide by car.

Another example, I know someone who drove a hundred metres while over the limit to extract herself from domestic violence - didn't matter. Drive a suspected heart attack victim to hospital while over the limit? Think again.

So what chance have you got when you try and explain a miscalculation of zero fuel weight to a journalist as the reason you ran out of fuel? No one cares.

……And that is also what will happen to CASAs regulations in the end, no one will care. They will become so huge, confusing, contradictory, unfair and simply awful that no one will do more than outwardly try to comply and pray that they don't come to the attention of the authorities. This is what a whole class of car owners and drivers are already doing.

It doesn't affect airlines like Qantas because CASA doesn't have the capability to regulate them anyway.

To put that another way, when CASA talks of "enhanced safety" you think they mean for you and your passengers? They don't. They mean the enhanced safety of their careers and their masters political backsides.

[Aussie Bob]

And that is also what will happen to CASAs regulations in the end, no one will care. They will become so huge, confusing, contradictory, unfair and simply awful that no one will do more than outwardly try to comply and pray that they don't come to the attention of the authorities. This is what a whole class of car owners and drivers are already doing.


Its already happened Sunny, you either chuck the rule books in the corner and go flying or you give it away. I have chosen the former, the latter is currently unthinkable.

[LeadSled]

It doesn't affect airlines like Qantas because CASA doesn't have the capability to regulate them anyway.Sunny,
Not true, since what CASA did to Ansett, and more recently almost destroying Tiger.
CASA's mad dog approach to going public with a baseball bat labeled "safety", has got the airlines bluffed, they are very wary of dealing with "the regulator" in a way that I didn't see in all my years in the RPT business.
Particularly in engineering, quite unbelievably silly "new" interpretation of regulations have been costing them a motza.
All to the benefit of foreign carriers.
Tootle pip!!

PS: Mind you, CASA has got a couple of non-ICAO "was invented here" lulus lined up for FAAOC holders. Nothing like spreading the misery.

[Derfred]

I think I agree with you LS... the number of suits in Coward St working day in and day out purely on regulatory compliance (pilots and non-pilots) is staggering.

[Sunfish]

Leadsled, I'm sure you and others are correct about airline lawyers doing the CASA dance and ensuring legal compliance. My Qantas pilot spies tell me that at the cockpit/operational level CASA has NFI.

To put that another way: A pilot can tell a CASA inspector about the thronomister and the CASA guy just says "Yeah, right!". iPads seem to really throw them.

Having said that, I find it hard to believe myself.

[Frank Arouet]

The good news and the bad news from Australian Law Reform Commission Interim Report.


14. Strict and Absolute Liability | ALRC (http://www.alrc.gov.au/publications/14-strict-and-absolute-liability)

[OZBUSDRIVER]

Section 14 is worthy of a study by itself.

In particular, this section (http://www.alrc.gov.au/publications/justifications-imposing-strict-and-absolute-liability)

[LeadSled]

My Qantas pilot spies tell me that at the cockpit/operational level CASA has NFI.Sunny,
How many of us wish that was so, but the inspired lunacy that has infected GA FOIs for so long is now creeping into airlines --- as I am sure you will agree, as the "Government's appointed air safety experts" CASA know far more about "safe operations" than either the manufacturers or operators.

To quote a long time colleague and friend, not entirely unassociated with standards on the A-380, "We have allowed a monster to be created".

Interestingly, CASA not having suitably rated and experienced FOIs for the larger aircraft was the major FAA complaint at the last audit, Australia came very very close to losing its Cat.1 rating, which would have been a commercial disaster for Qantas and Virgin.

I have no numbers, but I gather that there is a steady stream of suitably qualified people join, but most don't stay long, as they can't cop the internal bullsh1t and the "company culture".

Sadly, nothing has changed with Mr. Skidmore.

Tootle pip!!

Frank, pleased to see some facts intruding into the "strict liability" debate.

[Sunfish]

Leady, it was related to me how she had shown her iPad qantas flight planning stuff to the CASA guy and he didn't even know what he was looking at.

[LeadSled]

Sunny,
That I can believe, but the serious problem is much bigger. CASA simply ignores CAR 138, and as far as I have been able to determine, CAR 138 has disappeared in the new operational Parts.

Re. S14.83 of the report referred to, and a number of more recent documents, including rule making guidelines from A-Gs, and similar documents from other bodies, CASA functionally breaches every one of the guidelines for regulation making with a strict liability penalty.

In particular:
It should not be imposed, where schemes are so complex and detailed that breaches are virtually guaranteed, or where parties must by necessity rely on information from third parties.

The creation of the "inadvertent criminal" as it is termed in a previous report into a predecessor of CASA.

The simple fact is that most of aviation criminal law should not be criminal law at all.

Criminal law should be confined to behavior that " a reasonable man" would recognise as criminal behavior, not for breaches of a fundamentally administrative nature, and certainly not where there is a mental element to the matter in question.

Tootle pip!!

[Sunfish]

Leadsled, agree wholeheartedly.

[LeadSled]

Folks,
Not to be forgotten in all this is that where CASA have written many regulation, that do not have strict liability penalty, the regulation has a reverse onus of proof.

That is, the evidential burden is on the accused to prove that they didn't commit the offense, of which they are accused.

A complete reversal of the two fundamental principles:
1) Innocent until proven guilty, and;
2) The Crown must prove its case, beyond a reasonable doubt.

"Air Safety" is such a sacred cow (in reality the bureaucrats are exercising "the mystique of aviation safety") that the normal standards of criminal law and natural justice does not apply to those committing aviation.

And, as a former head of Office of Legal Counsel for CASA so eloquently put it:

" Aviation law is for lawyers and judges, for the safe conviction of pilots and engineers", and;

"Pilots are just criminals who haven't been caught yet".

Tootle pip!!

[tipsy2]

[QUOTE]former head of Office of Legal Counsel for CASA[/QUOTE
They would have to have been a pillock would they not!:ok:

Tipsy:E