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Liability to remain strict under civil aviation regulations

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Liability to remain strict under civil aviation regulations

Old 13th Sep 2003, 15:28
  #21 (permalink)  
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The President’s report in the September 2003 Australian AOPA magazine discusses the issue of strict liability under the Australian 1988 Regulations. The AOPA President states among other things:
[The Civil Aviation Amendment Regulations have] the effect of deeming the entirety of the [1988] regulations (insofar as offence provisions are concerned) subject to the doctrine of strict liability. The argument which I note has been put forward by some ill-informed web-site scribes is that, because the preamble says the action is necessary to conform with the Criminal Code (Commonwealth), then it is unavoidable, and in any event, innocuous.

Alas, such comments show little understanding either of the Code or our justice system. I have examined the existing regulations, and have found that very few were designated as strict liability offences. However, there are a substantial number of them which would, if challenged, properly be found to be offences of strict liability by a court, and to those being the subject of the deeming amendment, I have no objection.

However, there are others which ought not be rounded up and dumped into this category, simply for administrative and prosecutorial convenience. …
Unfortunately, the President does not provide any particulars of the “web-site” or the “ill-informed scribes” to whom the President refers, as I too would like to take to task any one silly enough to put the Criminal Code cart before the strict liability horse.

I note - and am comforted by the fact that - the President agrees with me and the drafters of the amending regulations, at least in relation to the “substantial number” of old regulation offences which the President believes “would…properly be found to be offences of strict liability by a court….”. That, I assume, is the President’s long way of saying that in her opinion it was strict liability under at least “a substantial number” of the old regulations. The President therefore has “no objection” to those offences remaining strict liability. (Note the name of this thread.) Up until the relevant President’s report, I was not aware that AOPA’s objection to strict liability related only to a limited number of, rather than all, offences under the regulations.

Also unfortunately, the President does not provide any particulars of the “very few” offences she found that were “designated” as strict liability under the old regulations. So far as I could tell, none of them was “designated” or otherwise labeled as any category of offence, the question being left to the usual rules of interpretation. Presumably it was the application of those rules that led the President to form the view that “a substantial number” of offences were strict liability, notwithstanding that “very view” were “designated” as such.

Most unfortunately, the President does not identify the specific offences which in her opinion were not strict liability under the old regulations. No doubt the drafters of the amending regulations will explain to the President (via the Minister’s office) what the weight of expert opinion and any relevant judicial decisions say about the nature of those offences.

[edited for typos and dislexicos!]

Last edited by Creampuff; 14th Sep 2003 at 04:28.
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Old 16th Sep 2003, 19:00
  #22 (permalink)  
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And of course, prosecuting someone on the basis that it doesnt have to be proven that they intented to commit an offence but just commited the offence, helps air safety how???.

Or maybe it just helps the dismal amount of succesfull court actions look good because they are able to nail people with far less effort.

sound very much like people being given the power to control the industry by revokation of licences and AOC's........ regardless of the intent of the people doing the prosecuting.
how very 1800s.
but I spose they have to have the power to control it.......... otherwise people they dont like might be making a living from the industry or something.
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Old 23rd Sep 2003, 15:45
  #23 (permalink)  
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Will the regulations be disallowed?

Senator Allison gave notice on 16 September 2003 that she intends to move that the Civil Aviation Amendment Regulations 2003 (No. 5) be disallowed.

If Senator Allison moves the motion on 27 October 2003 in accordance with the notice, and if the motion is not resolved by 25 November 2003 (15 sitting days from 16 September 2003), the regulations will cease to have effect.

Should be an interesting debate, and I’ll keep you posted.

Will also be interesting if the disallowance gets up. As with the famous aircraft registration rules disallowance, there’s some regulatory baby amongst the strict liability bathwater!
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Old 24th Sep 2003, 06:54
  #24 (permalink)  
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so what can we do to support Senator Allison notice?
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Old 27th Sep 2003, 09:54
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1. you think strict liability is a bad thing; and

2. you think that disallowance of these regulations will change the nature of offences under the ‘old’ regulations from strict liability to some other or ‘better’ form of liability,

then you should:

3. contact all the Senators who represent the State or Territory in which you vote, and urge them to support the disallowance motion; and

4. urge all like-minded voters to do 3.

Don't count on number 2, though.
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Old 27th Sep 2003, 16:19
  #26 (permalink)  
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I have just caught up with this post and note that Creampuff expected an early response, however as Dingo84 said, I was “cruising” (in a ship) at the time and monitoring PP was not high on my list of things to do.. than spend US50cents a min on the internet!.. But the cruise was great and highly recommended

The real issue as I see it is “how” the regulations are written and what’s more how easy they are to understand. The insertion of strict liability on almost every page of the regs is a gross turn off to anyone reading them.

Unlike other industries, those in aviation work with the regs “in their face” so to speak. An example of this is that most of us drive a car but I suggest the only time we get involved in the motor car (or whatever) Act is when we have been a bad boy and have to enlist one of Creamy’s mates to help us out. When we learn to drive there is a choice of books we can obtain from the local newsagency which give us all the good gen and I suggest enough to make it very clear what is the lawful way to drive a car etc. In aviation however, we are in the regs from almost day one as there is no “inbetween” type publication to make it simple and easy to understand. And besides, many examinations are based on a knowledge of the regs etc which it would be difficult for a coverall publication to handle.

Having said that .. I suggest that if we had ….
Simple and easy to understand rules,
Aviators would (a) read them, and (b) understand them..

That been the case then I would suggest that compliance would be very high and the need to have zillions of words including ‘strict liability within the regs would (in practical terms) be minimal, and of course if compliance is good, then the need to use is minimal.

Unless of course someone can publish an “Idiots guide to the aviation regs”

At the bottom of all this is the fact that…..

Compliance does not necessarily mean SAFE

You can be compliant, but not SAFE


You can be SAFE but not necessarily compliant.

As one of the speakers at the FLOT conference held in Sydney in March said… the biggest risk to air safety was the Attorney’s General Department … for the way they wrote the regs (with obviously no interest or concern in the outcomes).

Fix that, and you fix most of the problems….regardless of SL.

As CASA is the "SAFETY" Authority and not the "REGULATORY" Authority, then they would be doing a better job promoting SAFETY if the regulations were drafted and worded with that in mind.... something wrong somewhere!

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Old 27th Oct 2003, 14:53
  #27 (permalink)  
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The notice of motion of has been postponed

Senator Allison today postponed moving the motion of disallowance until 29 October.

And triadic: if there are any aviation rules the compliance with which has no effect on safety, they should be repealed and in any case are constitutionally invalid. Heaven’s knows you could afford to get rid of a few: Australia is now in the laughable situation in which it has 2 sets of civil aviation regulations, each of which sets is more complicated and convoluted than the one set they replaced, supposedly in the interests of simplification!
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Old 28th Oct 2003, 06:34
  #28 (permalink)  
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There are a hell of a lot of SL offences in a wide range of areas of law - they are, in my experience, the rule rather than the exception. And (if my memory is correct) it is very 1700's and goes back to trying to make it easier to convict mill owners for treatment of children employed in, and often dying in, mills.


Spot on re: your request to the Prez of AOPA. It is hard to understand exactly what she, and her organisation, are saying. Is she Triadic?
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Old 28th Oct 2003, 17:54
  #29 (permalink)  
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Senator Allison has withdrawn her notice of motion!

However, her notice of withrawal was followed by a rather curious notice of motion from the government. I have no particulars, but my guess (note: guess) is that the government has made some promise on the basis of which Senator Allison has agreed to withdraw. Snarek: any inside goss??

Brian G: I will be extraordinarily surprised if triadic and the current president of AOPA turned out to be one and the same.
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Old 29th Oct 2003, 03:00
  #30 (permalink)  
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Here’s the proof Hansard, hot off the press:
Senator ALLISON (Victoria) (3.31 p.m.)—
Pursuant to standing order 781, I give notice of my intention at the giving of notices on the next day of sitting to withdraw business of the Senate notice of motion No. 3 standing in my name for Wednesday, 29 October for the disallowance of the Civil Aviation Amendment Regulations 2003 (No. 5), as contained in Statutory Rules 2003 No. 201 and made under the Civil Aviation Act 1998[sic].
I think the Hansard will be corrected to 1988.

The subsequent government notice does not affect this.

Looks like liability is to remain strict under the Civil Aviation Regulations.
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Old 29th Oct 2003, 11:16
  #31 (permalink)  
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Tell me this is a Joke!!!

There is a good strong Rumour out in the aviation community that AOPA have sold their members down the tube on VEU's as a result of caving in on the legitimising Strict Liability.

Could someone enlighten Pilots and Operators on what is going on behind our backs without consultation?
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Old 29th Oct 2003, 11:30
  #32 (permalink)  
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Funny, I heard something along the same lines. Please, tell me there is no truth in it.
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Old 29th Oct 2003, 13:04
  #33 (permalink)  
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Is it true that AOPA are supporting “Strict Liability”?

Is this true or a rumour that AOPA have sold us down the river on VEU's as a result of caving in on the legitimising Strict Liability?

The VEU's are the dangerous bit; strict liability exists in most Regulation Acts, even in the Irrigation Regulation Act.

Does anyone know any more regarding this issue of “Strict Liability” and AOPA's stance on this?
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Old 29th Oct 2003, 19:27
  #34 (permalink)  

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It's simple and hell will freeze over first, we don't support its blanket use.

I don't know where you got the "caving in, or legitimising" bit from either.

If you are talking about the CAR1988 Regs disallowance withdrawal we have a deal that gives all the parties the time to get it right properly.

Perhaps you may be able to assemble a dangerous selection of the facts here to promote an agenda, but the simple fact remains we dont and never will, except where the court rules that an offence is so.

AOPA are doing business with the Government and Regulator in a professional and business like manner and if that doesn't produce sensationalist, "they done us in" headlines I'm sorry to have to disappoint you.

We would much rather "we worked it out together and we all won, isn't it great" headlines

Pray tell which one would you rather.

It gets a bit complicated from here, in that if you want to have the new demerit points system and enlightened enforcement regime that has just been passd into law and supported by most including us, then you have to have, as far as I understand it, those demerit offences the subject of strict liability.
The question is on what criterion and which ones, we are working closely with Government on that.
You always have the right to law if you want.

Thank God I have not been afflicted by a law degree, so I'm sure there will be someone out there who will instruct me about the number of angels who can dance on the head of a pin, however lets just make sure we get the facts right first.

Yes, but officer I was only doing 160 in a 100 zone I hadn't intend to and anyway there wasn't any body else about and no one got hurt............................

So there is your answer, or do we want to continue this thread just for the fun of it.

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Old 29th Oct 2003, 19:45
  #35 (permalink)  
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Been to choir practice have we boys?

Lets keep it all in one place shall we?

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Old 30th Oct 2003, 03:49
  #36 (permalink)  
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I have missed much of the debate in the past few weeks due to attending choir boy training.

However, my last understanding - I think from the Mag editorial - was that the the Pres (and VP?) had single handedly (or double handedly as appropriate) convinced the Democrats of the logic of the AOPA position - so all would be well for the future.

I certainly don't disagree with that logic, however, it seems political reality may be overtaking the editorial hopes?

Ah well, last time promises to the Pres and VP were made the promiser resigned forthwith and his replacement has just been appointed. Perhaps Senator Allison will be the next to go!

Snarek, you are our political expert - any thoughts on whither now?
Brian H
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Old 30th Oct 2003, 09:24
  #37 (permalink)  

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The Democrats in Sen. Allison did not need much convincing on the logic of our cause and agreed to assist us, for which we thank them mightily and will be writing so.

As a result of their help, we achieved a result with Government in writing, that is, in the circumstances and the context of other legislation a win/win for all parties in the grand scheme of things, which will allow us all to go forward with our strict liability agenda. Hence the withdrawal.

I think we all understand that the art of politics is that of the possible.

We were elected on a "reform by negotiation" platform and that is the way it is working.
The Government and Regulator have embraced that as a smart and efficient way of working.
It doesn't mean we have rolled over as some would have, it does mean that we are working effectively together towards meaningful results, without the negative "stand out" headlines and "shouting matches" we had become used to as a matter of form

The uninitiated may not understand the huge commitment in time and resources required from the lawyers and other elves on our Board, especially Marjorie and Ron L, in reviewing the Acts for the appropriate application of strict liability, it takes time and time is something we do not have in abundance. And that on top of all of our other duties.

We would be delighted to have your input on Part 91 or any other part under review.

It is not appropriate for me to discuss the details here, but be assured we are going forward.
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Old 30th Oct 2003, 13:13
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I saw this extract elsewhere (slightly modified by me for tidiness)

"The real scary thing with VEU's and strict liability is the way the act is set up in respect to "Proof" as it currently stands the statement by a duly authorised CASA officer that CASA is "satisfied" that an offence has occurred is proof enough, there is no requirement in the act for proof to meet normal evidentiary requirements.

Being "Satisfied" can mean an awful lot of things, it is subjective and in its common form relies only on circumstantial styled evidence.

Being "satisfied" also opens pandora's box of dirty tricks some officers may use to settle scores or exercise plain mischief whilst under the protection of the Act.

If you sit and think about the potential for malfeasance on the part of CASA if this were to become black letter law you will be like myself, quite disturbed, even ASIO and the Tax Office have to rely on Evidence.

Also elsewhere

"If I am reading the new Act correctly, it is worse than "being satisfied", I am looking for it, but the words " is of the opinion" were used, scary stuff. Scary stuff that you can loose your license if "an officer of CASA is of the opinion" about some circumstance that happened at another time and place, and his source of information is a third party that gives rise to the "opinion"."

Are you suggesting that we have somehow managed to have this gross breach of civil liberties overturned?
If not, where is the win/win?
Brian H
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Old 30th Oct 2003, 15:07
  #39 (permalink)  

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I am going to go where angels fear to tread OK.

This disallowance issue in and of itself does not mean that anyone has rolled over or anything has or has not been overturned.

There is the issue of strict liability with which no one here has any other than your view of the negative possibilities.

Then there is the process and the way of its application.

The Civil Aviation REGULATIONs 1988 Amendment that has just gone through, was in relation to the Governments policy that ALL Commonwealth Legislation be harmonised with the Criminal Code.
Inherent in this is the requirement that offences which operated as strict liability offences prior to the Criminal Code becoming effective are to be amended to stipulate that they are strict liability offences. This package of amendments was made in accordance with the Government's not CASA policy and on advice with the Attorney Generals Dept.

We were advised that CASA liaised extensively with the Attorney General throughout this process and that the amendments meet the Governement requirements in regard to harmonisation.
And that these amendments were not designed to create new strict liability offences.

Note: this a Regulation not a Bill.

That is, it, the Amendment to these Regs, was part of a tidy up of ALL Govt. Regs (Ardvark handling to Zoo licensing regs) on the books and they are now I believe way past the "Cs".

The amendment to the 1988 Regulations was made and became law from the moment the GG signed them.
They are then placed on the table for 15 days in the Senate, within which time a Member or Senator, has the opportunity to raise a Notice of Motion to Disallow the Regulation or amendment to them. There is then a 15 day period within which to resolve or withdraw.

Resolve means putting the Motion and having the numbers to win it against the Govt., or negotiating a resolution acceptable to all parties and withdrawing it.
There are political risks for all participants in either direction in this process.

Contrary to a previous assurance that we would be consulted on any and all legislative activity before it was taken, this one slipped through the net, being considered by Government to be just part of the routine "strict liability" harmonisation tidy up.

We disagreed strongly, hence the action.
Having said that, there are many offences within the Regs that are strict liability, have always been, or have been deemed by the courts to be.
The problem as always, was the time needed by AOPA to go through the whole of the Regs 1988 to properly identify which ones were already and how many, or could, or shouldn't be.

Huge amount of work for Marjorie and Ron Lawford starts on top of everything else, but somehow as usual they find the time.

It was offered that this amendment was part of the recent CASA reform package in regard to the new infringement notice scheme/demerit sytem etc which could not operate effectively without it and seriously reduce the ability of CASA to apply a middle-ground approach to enforcement, forcing it to rely disproportionately on potentially draconian licence action and undermine the enforcement reforms in the Civil Aviation Amendment Bill 2003, which we support.

We still have a big problem with blanket strict liability, for example; one proposal to try and unlock the impasse in the short term, that of automatically accepting SL for offences with a low number of penalty points would, we were advised by CASA, have "caught" offences that were not now SL. What to do.
CAR1988 is being progressively moved into the new package, what to do in the meantime?

Horns of a dilemma for both, Government policy on one hand, we were offered a remedy in good faith, we needed time to negotiate this internally as well as with Government, we keep the pressure on with Dems notice, more negotiation with CASA, who were very cooperative, and a final resolution offer from Government.

Not perfect, but in good faith from both sides.

CASA, have assured me that any investigations or prosecutions raised within CAR1988 will, without prejudice of course to their right to do so, be done so with best endeavours in relation to the AOPA CAR 1988 SL concerns on foot. It was suggested to me that the risk of any actions being taken during the period of our CAR 1988 review was low, given the annual number.

Your "pandoras box of dirty tricks" routine may rouse the rabble and drive them onto the guns, but it is my understanding that ALL investigations and prosecutions have to go through HO and be justified prior, to prevent that very thing occuring.
I think those days are over, in any event I think Mr Byron might have something to say about that too.

CASA can now properly implement the new middle-ground approach,

Agreed SL amendments to the CAR1988 wil be made by the Australian Government as soon as we can identify them,

CASR Part 91 will not progress until such time as CASA has fully addressed AOPAs submission on it.

And we have it in writing.

I'd say that was a win/win.

Do you want to give us a hand?

The cooperation and good will shown throughout the whole process by The Minister, his Dept and CASA was entirely in keeping with the spirit of our mutual commitment to reform by negotiation.

I'm sure Byron will continue this process.

None of us can afford for him not to.
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Old 31st Oct 2003, 03:43
  #40 (permalink)  
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So, may I say again?

Liability is to remain strict under the Civil Aviation Regulations.

And Gaunty, this is a LeadSledism:
Agreed SL amendments to the CAR1988 wil be made by the Australian Government as soon as we can identify them.
I thought the President of AOPA had already identified the offences that in her view weren’t strict liability. The word “Agreed” is exquisitely placed and deliciously ambiguous.
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