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

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

Old 1st Aug 2015, 09:17
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Strict Liability.... a hazard to air safety?

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.
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Old 1st Aug 2015, 09:57
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Strict Liability and Absolute Liability

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".
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Old 1st Aug 2015, 10:18
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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.
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Old 1st Aug 2015, 10:22
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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.)
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Old 1st Aug 2015, 10:48
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Thumbs down

It completely contradicts Just Culture......
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Old 1st Aug 2015, 11:01
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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...
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Old 1st Aug 2015, 12:39
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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
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Old 1st Aug 2015, 13:46
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It completely contradicts Just Culture......
Yep


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

And we all know where that ends up. Our entire system is wrong. Simple as that.
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Old 1st Aug 2015, 15:00
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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.

Last edited by LeadSled; 1st Aug 2015 at 15:17.
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Old 1st Aug 2015, 22:36
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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.
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Old 1st Aug 2015, 23:04
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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 etcÖ..

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

JabaÖsnap out of it lad!
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Old 1st Aug 2015, 23:30
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Mmmm, Jaba I remember that there were two interprets of the craziness the pilot performed that day.
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Old 1st Aug 2015, 23:42
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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!!
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Old 2nd Aug 2015, 01:12
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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.
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Old 2nd Aug 2015, 03:50
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Very strict...

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.

We need a revolution...and then some.
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Old 2nd Aug 2015, 07:24
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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".
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Old 2nd Aug 2015, 08:22
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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.
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Old 2nd Aug 2015, 10:10
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. 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
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Old 2nd Aug 2015, 20:24
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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 itís bad to convict people for something they physically did, but didnít intend to do, then thatís a different justification for opposing strict liability. Thatís not a safety argument: itís a general policy argument. If AOPA wants to put that argument to the Parliament, then AOPAís 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, itís no defence to say you didnít intend to. Why should aviation be different?
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Old 2nd Aug 2015, 20:26
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Note...I am not trying to verbal Creampuff. He was quite clear that SL was always part of ALL regs.
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