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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 31st Oct 2003, 07:56
  #41 (permalink)  
 
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The proposed regs would make it a "Strict Liability" offence for the cabin crew not to stow baggage. The guilty party is the Captain. He does not have to even know about it. Thank you Creampuff, yes I know that he has "defences", but he is on the back foot. Over and Out.
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Old 31st Oct 2003, 08:49
  #42 (permalink)  
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Bill – a good and accurate point. The pilot will be ‘on the back foot’ because the onus will be on her to establish a defence.

The point I have been trying to make all along is this: The pilot was in exactly the same position under the ‘old’ rules. She might have been blissfully ignorant of the fact, but that did not change the nature of the offence.

And BTW: there is nothing “proposed” or “would be” about this. Strict liability is here, now. The withdrawal of notice of motion to disallow sets in concrete, at least until gaunty’s nebulous “we” identify the “agreed” (by whom?) SL amendments. (I would have thought that if the Government “agreed” that there was any offence in the regulations that should be a ‘mens rea’ offence rather than strict liability, the Government would have made it so.)
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Old 31st Oct 2003, 09:40
  #43 (permalink)  
 
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There isn't any doubt that the stupidity of the proposed regulations is what makes Strict Liability such an evil more than the concept itself. (F/O goes supersonic in a supersonic airliner without ATC permission, Capt asleep in the bunk is guilty of an offence.) The difference, as you know Creamy, is at present the Court determines whether or not an offence should be Strict Liability. CASA propose that they decide, and that all offencesl should be. Creamy, all b/s aside, it is easier to get a conviction under SL and that is all CASA is about. Safety? Don't make me laugh, why is a farmer flying across to his neighbours property any safer if he carries his licence? I agree with you though, the Govt moved this legislation despite all of AOPA's opposition. I was at a meeting when the objections to SL were raised by AOPA to the Minister and his Chief of Staff, yet it has been tabled nevertheless. Gaunty is in my opinion off with the fairies if he believes that now that they have it they will hand it back, mebbe a token here and there at best. (Wonder if this was a "core" or "non core" undertaking?) AIPA and AFAP have been disturbingly silent on the issue.
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Old 31st Oct 2003, 11:27
  #44 (permalink)  
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Bill

You and I seem to be in different time/space continua.

In my time/space continuum, the regulations are already the law – there’s nothing ‘proposed’ about them.

In my time/space continuum, courts exercising federal jurisdiction no longer apply the old interpretational rules to work out the nature of an offence created by statute. That question is now determined by the Commonwealth Criminal Code Act 1995. That Act was passed last century, and has already come into effect (at least in my time/space continuum).

The changes to the civil aviation regulations were made so as to ensure that what was (before the Criminal Code Act) continues to be (after the Criminal Code Act).

The simple point that the President of AOPA appears to have been trying to make is that, in her view, some (still to be specified) offences in the regulations would have been found by a Court to be ‘mens rea’ offences rather than strict or other liability offences, through application of the common law rules of interpretation.

The President’s view is all very interesting, but we’ll never know because the question is now academic: the Criminal Code Act supersedes all of the old interpretational rules.

What we do know is that the legislature has had the opportunity to change each and everyone one of the offences in the regulations to something other than strict liability, and the legislature chose to change none of them. That choice seems to me to be consistent with my view that each and every one of the offences under the old regulations was intended to be a strict liability offence. As I have said on other threads relevant to this issue, the only question in my mind was not whether a court would have found an offence to have required ‘mens rea’ rather than being one of strict liability, but whether the court would have found an offence to have been one of absolute rather than strict liability. See Drummond J’s comments at 31(3) of: http://www.austlii.edu.au/au/cases/c.../2000/848.html

I attribute more weight to Drummond J’s comments than those of the President of AOPA.

Whatever might have been under the old rules, and whatever esoteric points we want to make, there is now no doubt that each and every offence that is specified to be strict liability, is intended by the legislature to be a strict liability offence, and will be interpreted by the courts to be a strict liability offence.

I think the ‘evil’ about which we are complaining boils down to the fact that by spelling strict liability out in the regulations, we’ve denied some people the bliss of ignorance.

And finally, to inject a bit of reality into the discussion, you might want to find out exactly how many people are actually prosecuted by those evil doers in CASA each year. Granted: the number of prosecutions recommended by CASA may dramatically increase in the near future, but that’s only because that’s what ‘the industry’ asked for.
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Old 31st Oct 2003, 12:37
  #45 (permalink)  
 
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Political reality.

A little exam on politics for you all.

1. Do we have a viable opposition.

If you want to vote against a 'user pays' system you vote for
a) Liberal
b) Labor
c) none of the above.

The Dems didn't have Labor support because Labor doesn't understand the issues. You can't just move a disallowance, it goes to a vote. If LabLib don't support it (Libs supported the Part 47 Disallowance to teach CASA a lesson) it don't get up.

AOPA (Jane Errey) nearly got the support, but we ran out of time. The lack of support had more to do with how things looked than reality. But that's life.

But we do have a WRITTEN guarantee that the Minister will look at the issues we flagged and amend them. (This guarantee was another reason Lab wouldn't support).

Creampuff is right, strict liability exists now. What we are doing is making sure it is only applied where warranted. We are also making sure CASA can no longer be judge jury and executioner by supporting a demerit based system.

Mind you, getting political support is as easy as buying an ice cream if you read some posts on the 'other' forum, and all this is an AOPA conspiracy because Gary Gaunt wants to be the Prince of Wales.

Pity 'that mob' wouldn't know a disallowance if it bit them on the bum, and the only one that ever did bite them on the bum wasn't achieved by them but by astute AOPA members and actually overturned a comfy deal they had made with CASA (Part 47).

Perhaps that's what all the whinging is about

AK
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Old 31st Oct 2003, 12:43
  #46 (permalink)  
 
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Creamy,
Hidden in the bumpf, there is truth in what you say. Simply put, the bureaucrats like the simplicity of Strict Liability and the legislature has given it to them. You are perfectly correct so far. Me, I don't like it one little bit. If ATC give an instruction that is not obeyed, such as perhaps even a red light at an airport, not seeing the light is not a defence. Not hearing the overtransmitted radio call is probably an offence. I don't like it at all. It might be the wave of the future, I still don't like it. Far more seriously though, I really don't like the underlying proposed regulations. I especially am fond of the one that says in effect that if you get lost you must de facto have not made sure that you didn't get lost, therefore "gone". Or the one that says that a pilot must obey any rule set down by the Airport Operator, safety related or not!!
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Old 31st Oct 2003, 13:06
  #47 (permalink)  
 
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Snarek, I see you post quite frequently on www.agacf.org. It was only a few weeks ago we all received an email from AGACF written by you in regards to the support of NAS. It is actually not a bad forum and it was great to see your full support for AGACF via the NAS email from yourself & AOPA.
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Old 31st Oct 2003, 14:34
  #48 (permalink)  
 
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Drover

I like some of the people there, I hate at least one and am not sure about another.

If it is a useful forum I will engage with it, if it again becomes a rotting soapbox for useless hasbeens I will ignore it.

Simple really.

AK
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Old 1st Nov 2003, 13:24
  #49 (permalink)  
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I actually think AOPA has managed this issue very well, at least so far as the relationship with the government and parliament is concerned. The approach they’re using is a much more sophisticated and efficient way to skin the cat.

Perhaps people wouldn’t object so much to strict liability, if they understood what it was. If their posts are anything to go by, LeadSled, C182 Drover and Bill Pike don’t actually understand what strict liability is.

LeadSled seems to think that strict liability means that there is no defence (see his recent post on the NAS thread.).

C182 Drover seems to think that strict liability means that the regulator has no discretion but to recommend prosecution for each and every breach (see his musing on AGACF, at the link above).

Bill Pike seems to think that strict liability means that:
If ATC give an instruction that is not obeyed, such as perhaps even a red light at an airport, not seeing the light is not a defence. Not hearing the overtransmitted radio call is probably an offence.
No wonder they object to it: they don’t understand what it is!
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Old 1st Nov 2003, 17:17
  #50 (permalink)  

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Creampuff

Thanks for that, we are committed to constructive, meaningful and informed dialogue. It may not get headlines but that is exactly the point.

The Government and CASA are to be applauded for their participation and I am greatly encouraged by Mr Byrons comments in the press, in regard to the handling of the GA end of town.

I'll say it again, a new day dawns, we've got a way to go yet, but with goodwill all round we'll get there real soon.

The fairies at the bottom of my garden tell me that if you don't believe you can change anything then you wont.

I'm also a little, no a lot tired of being lectured ad nausea, that CASA will never ever change, that we are just being humoured and stroked to sleep, whilst they (whoever "they" are) get on with the business of "destroying" GA.

GA has as much to answer for, as does the regulatory system for the current state of GA.

There, that's bound to get me burn't at the AOPA stake.

Sorting the regs is a relatively small part of the problem, the "real biggie" is rebuilding an industry that has been on its a&se for over 20 years.

That's the other side of the AOPA coin.

It is going to take a lot of proactive engagement with industry by CASA.

It's why we are busy planning the "Be a Pilot" campaign to get the grass roots bit going again with people pouring through the flight schools and getting involved with just plane flying, this is where the big money and the knock on efect will come from.

More work for instructors more new aircraft just plane more money in the system.

Also "business" clinics for operators to help them operate their business as a real business.

EDUCATION about what this business is really all about.

People havng fun messing about in 'planes.

Whilst you dominate the headlines with woe and betides, why would anyone want to invest in a pilot licence or an aircraft.

Been down to your yacht club lately, there is more money parked in just ONE of the bigger clubs than the whole of the fleet at your local secondary. The money is there we just have to give people a good enough reason to spend it.

IMHO it's not just because of the regs.
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Old 3rd Nov 2003, 05:41
  #51 (permalink)  
 
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Snarek
I like some of the people there, I hate at least one and am not sure about another
Hate is such a negative emotion Andrew, may I suggest you get over it and grow up. Hate is not the hallmark of a good leader.

Bart
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Old 3rd Nov 2003, 12:28
  #52 (permalink)  
 
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Creamy,
You are clouding the issue with semantics old son. I am a simple pilot. I have listened to two barristers debating the subtle points of "mens rea" and "knowledge" and "the fault element" ad nauseum. Regardless of how much I understood, it was clearly not being introduced/expanded in its application/whatever, for my benefit.
Answer me three questions please.
"1. Is it easier to get a conviction under strict liability?"
"2. Is there anything in it for the accused?"
"3. Why does CASA want it so?"

(Please not, "The Attorney General made us do it.!")

Yes I know that there are "defences" but me, I would rather not be on the defensive. I prefer innocent until proved guilty.

Gaunty,
That is all warm and wonderful fuzzy stuff, but didn't we just see the Minister's Office, with which you have such a close and productive relationship, give you two fingers and file the Strict Liability Bill while you were still talking to them? There is no doubt that while something is being achieved, negotiation is preferable to warfare, but wouldn't you agree that it is exactly this type of high handed, arrogant even dishonest behaviour that caused previous AOPA Boards to lose their patience (and cool)?
However unproductive warfare might be, if it comes to it, I would rather put the boot in than bend over.

Last edited by Bill Pike; 3rd Nov 2003 at 12:58.
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Old 3rd Nov 2003, 20:33
  #53 (permalink)  

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Amongst other things in the Ministers letter was an undertaking re CASR Part 91 on which AOPA has a submission in progress with CASA;

"CASR Part 91 will not progress until such time as CASA has fully addressed this submission"

Pretty fair bona fides I would think.

I do not personally believe that what you so ineloquently call the "two finger exercise", was intended nor constructed as "high handed, arrogant even dishonest behaviour".
The person responsible actually owned up, apologised for what was an honest error and bent over backwards, not forwards as you would have it, to remedy the matter.

I don't recall anyone ever actually "winning" a war and of course we all know you win the hearts and minds by putting the boot in. You should know how succesful that has been and anyway if that fails you can always run away.

Warfare? Geeez, what a sad bunch of bulls hit is that as a concept when dealing with people.

Regulator person;
"Of course I'd love to consult with you re this Reg so that we can move on, but a little admin matter first, now which nut would you like to kick this time?
I would actually rather you have a go at the right one as you really did the left one in last time.

OK,? you agree then, the right one it is, then let's get on with it shall we, I know, it's not personal .........."
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Old 4th Nov 2003, 03:55
  #54 (permalink)  
 
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prioritise

Actually

Speaking as a regulator person, some bend over for the kicking, say thank you sir, (in accordance with the APS Code of Conduct - which was obviously written by the UN) and then get obstructive to get you back.

Others tell you to "get stuffed" and pre-empt your Ministerial by telling the Minister you are "a bunch of unhelpful d!ckheads".

However there are those in industry (and it doesn't matter which one) who push a hard case but always act with honour and integrity.

Guess who gets my attention and best meeting times

AK
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Old 4th Nov 2003, 04:08
  #55 (permalink)  
 
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Maybe AOPA can learn from this this little lesson of acting with honour and integrity too?
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Old 4th Nov 2003, 07:04
  #56 (permalink)  
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You ask some important questions, Bill
1. Is it easier to get a conviction under strict liability?
The answer is that, all factual circumstances being equal, it is generally easier to get a conviction for a strict liability offence than for a ‘mens rea’ offence, and it is generally easier to get a conviction for an absolute liability offence than for a strict liability offence. Try to comprehend what Drummond J was suggesting in the link above, and count your lucky stars that you got strict instead of absolute liability.
2. Is there anything in it for the accused?
Yes. The prosecution will be heard in a lower court and you generally won’t risk going to gaol; whereas ‘mens rea’ offences are usually prosecuted in higher courts, with correspondingly higher costs, and generally attract penalties of imprisonment.
3. Why does CASA want it so?
CASA doesn’t want any regulatory powers or any particular kind of offence regime. However, when the Parliament gets the Seaview Report and the Monarch Report and the Plane Safe Report and sets up a regulatory regime that confers specified administrative powers and functions on CASA, within the broader context of the Cth prosecution policy and regime, don’t be surprised that CASA feels duty bound to work with the deck of cards it’s dealt.

As to the Minister’s Office giving the “two fingers” on the strict liability disallowance, my understanding is that the decision to withdraw was based on an undertaking by the Minister that the issue of strict liability would be properly reviewed (with AOPA input) and, if necessary, acted on. I suspect that one of the factors weighing in favour of giving the undertaking was that the government wanted to avoid the calamitous mess that flowed from the Part 47 disallowance. That mess taught the government a very good lesson: the folks who got that disallowance up were’nt too interested in the ‘collateral damage’ caused by the disallowance.

So now AOPA will put it’s case to the Minister. The Minister may, in not so many words, give AOPA’s submission the “two fingers”. Then again, faced with succinct, rational arguments from a sophisticated and respectful AOPA board, the Minister may respond in kind.

But here’s the key point Bill: you’ve got to come to grips with the fact that the parliament is entitled to decide whether an offence should or should not be one of strict liability. If the parliament decides that offences in the civil aviation regulations are intended to be strict liability, then it’s no use yelling at AOPA about it, or the Minister about it, or any one else. It’s the law.

If you don’t agree with strict liability in the civil aviation regulations, I suggest you:
-Work out exactly what strict liability means in practice;
-Don’t yell at AOPA and expect the liability regime to change;
-Don’t yell at the Minister and expect the liability regime to change;
-Don’t yell at CASA and expect the liability regime to change;
-Get a whole bunch of mates to write a nice, succinct, rational argument against Strict Liability to each senator in their state
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Old 5th Nov 2003, 11:52
  #57 (permalink)  
 
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Gaunty,
I know that I see things more simply than you and Creamy, but if someone really made an error in filing the Bill why didn't he tiptoe down and remove it? It is I understand that easy. Far easier and far less embarrassing than amending it later I would have thought. I'm afraid I think that you are being finessed. Whether that is with or without your consent I cannot say.
Creamy,
The idea that CASA is meekly sitting there dealing whatever cards they are dealt is as preposterous as some of Gaunty's self backpatting. My opinion, (and the opinion of Lord Raglan I think, maybe Jefferson) is
"All bureaucracies tend towards tyranny"
(Apologies to the author )
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Old 5th Nov 2003, 13:02
  #58 (permalink)  
 
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Bill,

SL is not a complex concept, and it is applied to many areas of the law. I fear, and I say (type?) this with the greatest respect, that Creamy was spot on when Creamy stated that you may not understand what SL is. It is quite simple - there is no need for the prosecution to prove intent on the part of the accused, and the accused has a defence of having held, at the relevant time, an honest and reasonable mistake of fact. Yes, we lawyers can spend a lot of time debating these issues but that basic explanation probably is sufficent for the purposes of this debate and forum.

In any event, why is aviation such a holy cow? Do you object to SL applying to most motor vehicle traffic law? I would bet you spend more time driving a car than flying an aircraft, and the Police Services and roads authorities have vastly more resources than CASA could ever hope to have.

Lets look at two very similar situations, and I am not going to look up the CARs or traffic regs - I will make up two factual situtations. Assume under the CARs it is an offence to fly at more than 250kts in Class G airspace. Assume under the Road Transport legislation it is an offence to drive at more than 40 kph in a school zone. I drive in excess of 40kph in the school zone near my home and I then fly in excess of 250 kts in the Class G airspace near my home airport. In both cases my breaches were the result of oversight (although more coreectly sloppy flying/driving), there was no outside influence that caused my excess speed, and my excess speeds did not have an adverse impact on anyone. Why, in those situations, should the driving offence be SL but not the fliying offence?

Granted, there may be argument that a particular offence that is, was or is proposed to be an SL offence should not be, but I don't see how it can be said that SL is, of itself, evil.
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Old 18th Nov 2003, 02:44
  #59 (permalink)  
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It seems the cat’s got Bill’s typing finger. While he’s struggling to extract it from the cat’s apparently vice-like grip, I’ll take the opportunity to note that a thread on strict liability has been started on the AGACF. That thread includes a very good short explanation on the key elements and effect of the current federal criminal liability regime. However, the explanation is wrong in one very important respect.

Prior to the Criminal Code Act 1995 coming into effect, offences under the Civil Aviation Regulations 1988 were offences of strict liability (or perhaps absolute liability - see above). They did not have a fault element.

The President of AOPA agrees with me, at least to the extent of the many offences that in her publicly stated view would have been found to be offences of strict liability. Further, and decisively, the parliament intended all of them to be offences of strict liability. If the parliament did not intend them to be offences of strict liability, it would not have allowed them to continue to be so.
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Old 18th Nov 2003, 03:51
  #60 (permalink)  
 
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Talking Strict Liability-explained in context of Australian aviation–Nov. 2003 www.agacf.org

"That thread includes a very good short explanation on the key elements and effect of the current federal criminal liability regime."

It is a reasonable description regarding "strict liability". Maybe the AOPA Magazine (and their web site too) and the Australian Flying Magazine could out line in detail what "strict liability" means to pilots and operators, instead of being kept in the dark.
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