CASA FLOT Conf identifies major risk to airsafety!

[triadic]

The CASA FLOT conference held this week in Sydney seems to have been an outstanding success from all feedback. Certainly many of the issues associated with the rewrite of Parts 61, 91, 121B, 141, 142, 133/13/137 were reviewed by the 300 or so industry representatives there plus many who logged on to the web broadcast. CASA seemed to be quite serious in wanting to get it right. I guess the proof will be in what happens next.

An interesting view was put forward in that it was considered by representatives of industry that the greatest hazard to air safety was in fact the Attorney's General Department in demanding the rules fit a use all template in style and format and that Strict Liability offences be attached to many (read most) of the rules. It was suggested that this had the potential to destroy safety management systems and occurrence reporting and as a result reduce the levels of safety that many have worked for by causing a 'dry up' of reporting.

[601]

Maybe instead of all this legal bu**** CASA through its Board/CEO should send a letter to all AOC holders, pilots, etc along the lines of the letter we all received from D.G Anderson all. thise years ago.

For all those "wet behind the ears" the letter allowed a person, who put their hand up for an error, to do so without fear of any action against them.

[Woomera]

601

I remember, but there is/was a bit of a difference between now and then in that they/we were even then, still writing the rules and most of the aircraft were then but mere children with the factory "liquid paper" stuff still intact on the engines and stuff.

Triadic, says it all, there is now an even more urgent need for this "proactive attitude" to be applied, given that the said "liquid paper" is a long gone memory and the "corporate memory" of the "way we were" (which actually worked) is a long gone memory for the oldies and a "never was" for the youngsters like RHS and others.

Otherwise it is just as futile as rearranging the deck chairs on the "Titanic".

Sir Donald has a lot to answer for, most of it very good to excellent.

His shadow towers over the strolling adventurers who would presume to "know", because they can indulge their hobby without the usual let or hindrance that ordinary mortals actually "know".
These "knowees" decided, unilaterally, that we needed to throw the baby and everything else that looked like the past, out with the bathwater.

Someone in these halls suggested that we need to go waaaaay back, throw everything out and start again from where we actually knew where we were, circa early 1980's or pre RHS.:rolleyes:

It then, worked a whole lot better than it does now.

It was suggested that this had the potential to destroy safety management systems and occurrence reporting and as a result reduce the levels of safety that many have worked for by causing a 'dry up' of reporting.

If nothing else but that came out of FLOT then it was worthwhile.

[dingo084]

Could it be that the penny has started to drop!

As the national regulatory authority (ICAO definition), CASA has simply one role, that is, to regulate. CASA can never be accused of being an Authority on Safe Civil Aviation. They are regulators pure and simple. Lawyers in the Attorney Generals Legislative Drafting Branch and dear old CASA's Office of Legal Counsel know the regulations must be written so as to be enforcable and with a bit of luck (the small print) carry a punitive measure. Safety has nothing to do with it. All of us can point to some Law/Reg that complied with 100% adds nothing to safety, even in some cases being actually unsafe (New Flight Manuals for some aircraft).

All the huffing and puffing on some other threads about parliament making the laws etc is true in simplistic terms, what really happens is some happy chappy in DoT&RS swans off to Montreal and commits us to some obsure ICAO accorde/annex/whatever, and returns to the relevance! of Canberra. Then the 'system' takes over and we at some time later finish up with a new law/reg or whatever. The changes to the Flight Manual are a recent case in point (again). ICAO 'told' us to change the Manuals, not some CASA 'safety' expert having a bright idea.

I certainly understand where TRIADIC is coming from. Any regulation that "had the potential to destroy safety management systems and occurrence reporting and as a result reduce the levels of safety that many have worked for" is a truely sad indicment on regulation as a means of achieving safety. It is another sad fact that both the AG's LDB and CASA's OLC persist in seeing enacted regulations that whilst beatifully written in a legal sense, mean diddly squat to me as a safety manager and operating pilot.

As I said at the start "Could it be that the penny has started to drop!"

ding

[Creampuff]

Interesting theory.

But all offences under the current regulations are strict liability!

[Paul Phelan]

This is a plea for help. I'm told that yesterday the transcript of the entire conference was on the CASA web site. Today it isn't. Maybe it will reappear, and it would be educational to compare the final with the original. Did anyone download it? If so an e-mail to [email protected] would be very much appreciated.

[SafetyPromo]

The conference materials will be updated on the CASA website on Monday 10 March to include the closing plenary slides.

Getting the technology setup so that video replays are available takes a little longer to arrange - I'm aiming to get them online the week commencing 18 March.

By the way - I saw some of your comments coming through - and would like to thank you for participating in our on-line event.

[Creampuff]

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/cth/federal_ct/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.

[triadic]

Whilst Creampuff has wisdom and knowledge which I will not argue with, I believe the point of the post was the "way" or the "method" in which the new rules are been written. Having a strict liability clause at the bottom of most every rule, inserted I might add by the AG's Dept and with penalty's that seem to have no relation with the "crime" is not conducive to having a system of rules which PROMOTE safety.

It is obvious that the AG does not realise that compliance with rules does not ensure safety.

If we are to have a system which promotes safety and compliance then we must have
a) rules that are simple to understand
b) practical
c) reflect established international convention

If these simple criteria are used then it is likely that those that need to will read and understand the rules and as a result the level of compliance will be good. That been the case there really is no need to attach a pointed gun to each and every rule. It really has a very strong negative effect. Obviously there must be a system in place to address those that choose to cross the line, but it should not be at the risk of promoting sound safety practice.

Safety Management Systems rely on having a good reporting system as we can only fix things if we know about them. If there is any significant threat to the individual by reporting then you can bet that the chances of someone self reporting an occurrence that may place him/her in the sights of the pointed gun will be close to nil.

If that happens, you can say goodbye to most of the safety systems that we now have in place. And who's fault is that? Certainly not CASA, but the AG's Dept and maybe the Govt of the day, but then look at the influence that AGs has on Govt Policy and how it is all written.... hmmmm!

[Creampuff]

Triadic – well put. I suspect you’re wiser than I by a long shot.

The concern as you describe it seems to be not so much the concept of strict liability, but of being constantly reminded of it.

If what everyone wants is the removal of the repetitive penalty provisions from the regulations, all that needs to be amended is one sentence in one piece of legislation. It’s section 4D of the Commonwealth Crimes Act 1914, which section contains the magic word “foot”.

Here we see a far bigger problem writ large. Arguing with CASA about this is an utter waste of time and energy. Yet a steady stream of self-appointed experts will engage in the activity, thereby demonstrating (or re-confirming) that they really don’t understand what they’re talking about. Not a good way to impress the people who actually control the direction of regulatory reform.

[Foyl]

CP, thank you for your clear explanation.

The strict liability the issues were not discussed by the "rapporteur"(?! why not facilitator?) in the terms your post sets out. It was implied that CASA ALSO had issues with regard to the widespread inclusion of the strict liability provisions, and it was said that the issue was being taken up with the AG's Department. So if there was milage to be made, it was validated by acknowledgement from the rapporteurs that the strict liability issue was a matter which could and would be contested by CASA.

That aside, the feedback that I've heard from the conference was generally positive. The general impression I get is that people went away feeling that at last the voices of the wider aviation community were not only being sought, but actually listened to.

[Creampuff]

Foyl

Thanks for that. Your final point is a very important one. It would be unfortunate if the conference had been for nought.

On the strict liability point, I wonder to what extent the opinions of the CASA hired help reflect the actions of the CASA management.

Assuming CASA management do not want breaches of the proposed regulations to continue to be strict liability offences, my point has greater validity: any argument with CASA on the issue is a waste of time and energy.

But let's not be fooled by peas and thimbles. We're talking about two related but different issues here. One is who has decided that strict liability will apply to breaches of the proposed regulations; the other is the ubiquitous penalty provisions.

Are you sure CASA was blaming AG's for the former?

[Foyl]

Sorry to say that was my impression CP. Not as a whole, as it was acknowledged that in some parts it was there to stay, but the impression I got was it was still under discussion in others (Triadic did you get this impression too?). Strict liability already being in force was mentioned, but only briefly.

Mind you it did allow the session to move on to other issues which might have otherwise been rushed through due to time constraints. Not being able to discuss other issues would have severely devalued the process.

[triadic]

The very clear impression I obtained was that CASA has no choice from the AG or the OLD. All the draft rules they say must be in the prescribed format with SL clauses inserted. I was also given the impression that rules that did not meet this requirement were either rejected (back to CASA) or the OLD inserted/amended the draft rules to suit. Many rules were returned with double negatives and exclusion wording (amongst other things) that made them very difficult to understand. As a result the rules are not written to promote safety but as we know to ensure prosecution.

This is the problem that the AG obviously does not understand, nor perhaps care about as they are just following Government policy on this matter (which I think they probably wrote?). Obviously the only fix is with the Minister and Government.

There were a number of media reps at FLOT and one can only hope that they also start asking questions. As far as promotion of safety is concerned the answers so far are all WRONG.

The risk to having successful safety management systems and a sound reporting culture is at risk unless the rules in both what they say and how they are written actually promote safety first.

The alternative is untenable.

[Foyl]

We were told that CASA were again going to raise these issues with the AG's department, and that they hadn't dropped it. Mind you at the end of the day it's a moot point, if the AG's department are going to insist on it then the aviation community and CASA will be in the same boat anyway.

Rather than getting the posts bogged down on just this issue, there were a lot of other things discussed at the conference. I will await with interest the results of the conference as a whole when "the NPRM following the next NPRM" is released. I still believe that the conference was productive in giving the aviation community a stake in the process.

[Creampuff]

Hang on a sec’. The waters are getting muddier again, at least from my perspective.

Let’s get crystal clear who is attributing what decisions to whom.

AG’s will insist that the penalty for breach of a provision be at the “foot” of the provision irrespective of the category of the offence. AG’s hands are tied by 4D of the Crimes Act. If – repeat if – an offence is strict liability, AG’s will insist the corresponding note required by the Criminal Code be included.

But that is not the same as saying AG’s have insisted that all the offences be strict liability.

Did anyone hear CASA say that AG’s have insisted that all offences in the proposed regs be strict liability?

Perhaps all CASA said was that AG’s have insisted that the strict liability note be included after each provision, but CASA forgot to finish AG’s sentence by saying “because CASA told us the offences are to remain strict liability”.

Let’s not confuse effect for cause.

[Disco Stu]

Hang On a Second

Lets get back to triadics original post and the worrying effect of (any) regulation.

The appropriate response to any incident/accident is to find out how NOT to repeat the incident/accident again in the future. With the potential (and proven in practice by history) of the regulator to get all legal about an incident/accident, IS, a real threat to an open and even frank reporting culture. Without such a culture 'things' will happen that go unreported, to the detriment of all. How can we learn to avoid and set up systems to monitor our flying environment without such an open and frank reporting culture.

Wonderfully written legislation, strict liability and all the other legal motherhood terms will count for absolutely nothing if the ultimate effect of any legislation is to reduce (even completely dry up) the reporting culture that is the real heart of Safety Management Systems.

I hope Prof's Reason and Hudson are not reading any of this.

Disco Stu

[gaunty]

Disco Stu

I think you really mean "you hope they are", as they have more than a little bit of influence around that set of traps.:D

[Disco Stu]

gaunty

Yes and No

Yes, if they are reading this they may be able (certainly better than I) to influence the piliaks that can ony see the 'legal' view and not its effect.

and

No,I hope they aren't reading this for the angst it would cause for them to see all their hard and valuable work being threatened by 'legislators'.

Disco Stu

[I Fly]

I had a private conversation with Alister Polkinghorn. Perhaps I misunderstood him. But the way he explained it to me was. The AG tells CASA which offences ARE strict liability and which offences ARE NOT.

[Foyl]

And the impression that I got was that CASA was still talking to the AG's department about the application of strict liability to every section.

[Creampuff]

Disco Stu

You’ll notice that I have not expressed a view one way or the other about whether strict liability is a good or bad thing.

The two simple points I am trying to make are:
- make sure you know what it is before you decide it’s a bad thing;
- if you want it to go away, have your argument with the person who can make it go away.

If the impression given to folks like foyl and I Fly is accurate, CASA did not decide that strict liability would apply under the proposed regs. Apparently, AGs has made that decision. If that’s true, arguing with CASA about it is pissing into the wind. I am not aware of Professors Reason and Hudson ever having advocated pissing into the wind as a means by which to enhance safety.

[Disco Stu]

Creamy, I haven't decided 'strict liability' or any other components are good or bad thing. I included the term 'strict liaibility' not as a single or only cause affecting open reporting, but as part the total effect of any legislation/reg/rule has on that reporting.

Talking to CASA can, as you describe be "like pissing into the wind", but it can sometimes be fruitfull. CASA are the people we must deal with in aviation, if they have a problem (identified by us in the industry) with the AG's ideas, then that problem is between CASA & the AG. We can of course help CASA in their 'discussions' with the AG by making our views very clear to CASA. It has worked this way previously and I see no reason why it can't again work in the future.

The most important part of a Safety Management System is as I pointed out earlier, the free and open flow of information to allow all of us to learn from mistakes made in the past so as to design systems and practices to avoid repeating those mistakes in the future.

Why would anybody willingly contribute to a reporting system that then turned around and shafted them for the report ?

When was the last time you, me or anyone we know conducted a totally 100% compliant flight ?

If you are normal like me and pretty well most aircrew I know the honest answer is never!

Be assured I am not flaming you, just asking you the same questions I have asked myself.

I am not aware of Reason or Hudson advocating 'pissing into the wind'. Far from it, I interpet both advocate systems that encourage open & frank reporting so as to enhance safety across the board whether it be in aviation, petroleum or any number of other industries that have benefited from their great work.

Any impediment to such a reporting system (culture) demands our attention.

Disco Stu

[Creampuff]

Stu – point well made. I can’t recall walking away from any flight thinking I’d made no mistakes.

By the same token, I also can’t recall being scared of being prosecuted for making those mistakes, notwithstanding that I understand that the liability regime under the proposed rules – if they come into force in their existing form - will simply make explicit what is almost certainly implicit under the existing rules.

Strict liability does not mean automatic liability. And I’d like to think that my mistakes have been honest and reasonable.

Nevertheless, people are entitled to object to any aspect of any of the proposed rules. If a rule has no safety nexus, or is antithetical to the interests of safety for whatever reason, then it’s a bad idea.

That said, I’m getting a whiff of rodent in the suggestion that AG’s have made the decision about the category of offences under the proposed rules. The whiff is becoming increasingly noisome.

[WalterMitty]

If at present all offences are strict liability and the judge quoted by creampuff considered the possibility that some things have absolute liability then is not making all offences strict liability a good thing? I like the possibility that if I break a rule and it is due to a reasonable or honest mistake, then I can hopefully avoid punishment ie. I have a defence. Absolute liability is a real bummer.

Again, if the proposed rules are in effect no different in liability to the current then how can this affect reporting systems? At the moment dont the CASA choose to not prosecute? I remember some time ago where the police raided some building to get CAIR reports. The current reporting system is a long way from freedom from prosecution because you have to put your ARN on it! What if a civil case were made against you by someone versed in aviation
based upon absolute liability?

Disclaimer: I really dont know what all these terms mean. Read it in a book.I'm like most pilots-bush lawyer.

[Foyl]

If you are worried about supplying information which may or may not tend to identify you WalterMitty, I seem to remember AOPA publishing an article in their magazine some time back re what information you are and aren't legally required to supply when an accident or incident occurs. You might want to contact them for further info (I had a quick look through the pile of aviation magazines but couldn't locate it!)

[triadic]

At the risk of repeating myself.... well... yes I am!

I think the issues here are really about "how" the rules are written.

Firstly the rules must be clear and easy to understand. They must reflect established practice and be soundly based to reflect industry expectations. If this is done, then the chances that the aviation community will understand and whats more comply with the rules are significantly increased. That been the case, perhaps all the penalty stuff need not be highlighted they way it is.

The new rules and the old rules may have similar application of strict liability, but the new rules have it at the bottom of almost every individual rule with a penalty points included. The message that this sends out is that is what it is going to "cost" you should you cross the line and be caught.

Every safety management system has as its core the facility to have open reporting without fear of penalty unless the occurrence was the result of a deliberate or malicious act.

If there is even a remote chance that the reporting culture within the aviation industry will chance for the worse as a result of these rules and how they are written then it is clearly WRONG and what more as highlighted at the FLOT conference a risk to air safety due to the potential for the "drying up" of reporting.

It is another issue altogether to talk about immunity as we have seen in years gone by under DCA etc. The decision to prosecute is one that usually rests with CASA and the DPP however there are cases (I understand) where the DPP has gone against a CASA recommendation. Certainly there is need for some clarification of policy in this area.

The whole issue of how the rules may effect safety reporting, safety management systems and safety culture must be closely examined at the highest level removed from the AGs Dept and the CASA Legal people who obviously by default now run CASA.

If this needs to go public and to the Minister, then that is where it will have to go.

[Creampuff]

Suggest that anyone who wants to mount a well-informed and coherent argument on this subject read the ALRC’s most recent report – released yesterday – dealing with Civil and Administrative Penalties in Australian Federal Regulation.

Copy at: http://www.austlii.edu.au/au/other/alrc/publications/reports/95/

Copy of the Executive Summary at: http://www.austlii.edu.au/au/other/alrc/publications/reports/95/00.Summary_of_Recommendations.html