CASA FLOT Conf identifies major risk to airsafety!
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.
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.
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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
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
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.
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.
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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.
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.
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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!)
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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.
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.
Last edited by triadic; 16th Mar 2003 at 21:23.
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/a...ns/reports/95/
Copy of the Executive Summary at: http://www.austlii.edu.au/au/other/a...endations.html
Copy at: http://www.austlii.edu.au/au/other/a...ns/reports/95/
Copy of the Executive Summary at: http://www.austlii.edu.au/au/other/a...endations.html
