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

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

Old 2nd Aug 2015, 21:02
  #21 (permalink)  
 
Join Date: Aug 2004
Location: Melbourne, Australia
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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.
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Old 3rd Aug 2015, 05:13
  #22 (permalink)  
 
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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.
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Old 3rd Aug 2015, 06:20
  #23 (permalink)  
 
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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.
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Old 3rd Aug 2015, 07:47
  #24 (permalink)  
 
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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.
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Old 3rd Aug 2015, 10:14
  #25 (permalink)  
 
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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.
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Old 3rd Aug 2015, 10:33
  #26 (permalink)  
 
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The good news and the bad news from Australian Law Reform Commission Interim Report.


14. Strict and Absolute Liability | ALRC
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Old 3rd Aug 2015, 10:59
  #27 (permalink)  
 
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Section 14 is worthy of a study by itself.

In particular, this section
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Old 3rd Aug 2015, 11:20
  #28 (permalink)  
 
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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.
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Old 3rd Aug 2015, 12:04
  #29 (permalink)  
 
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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.
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Old 3rd Aug 2015, 14:47
  #30 (permalink)  
 
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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!!
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Old 3rd Aug 2015, 22:25
  #31 (permalink)  
 
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Leadsled, agree wholeheartedly.
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Old 3rd Aug 2015, 23:51
  #32 (permalink)  
 
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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!!
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Old 4th Aug 2015, 02:35
  #33 (permalink)  
 
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[QUOTE]former head of Office of Legal Counsel for CASA[/QUOTE
They would have to have been a pillock would they not!

Tipsy
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