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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 8th Aug 2003, 04:43
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Liability to remain strict under civil aviation regulations

There was, and continues to be, considerable wailing and gnashing of teeth at the proposal for strict liability to apply to offences under the “new” regulations.

I tried to explain that strict liability applies to offences under the “old” regulations, and was ridiculed from some quarters for pointing out that the sky hadn’t fallen in.

For those who did not believe me, I note the Civil Aviation Amendment Regulations 2003 (No. 5), the explanatory statement to which says among other things that:

The purpose of the Regulations is to ensure that the existing offence provisions in the Civil Aviation Regulations 1988 continue to operate in the same manner as they did prior to the application of the Criminal Code Act 1995 (the Criminal Code) to all Commonwealth legislation on 15 December 2001.

The [Civil Aviation Amendment Regulations 2003 (No. 5)]:
specify that an offence is one of strict liability;
• separate defences from offences and identify the evidential burden in relation to the defence;
• restructure offence provisions to clarify that provisos are elements of the offence;
• clarify the physical elements of an offence;
• omit general offence provisions;
• clarify the actor for an offence;
• remove fault elements to attract Criminal Code default fault elements;
• clarify the meaning of phrases relating to time period;
• substitute more appropriate expressions for less clear ones, to give greater clarity to the offence provision;
• omit offence or defence provisions that have equivalent Criminal Code provisions;
• introduce numbering for, or renumber, certain provisions;
• place or reword the applicable penalty after each offence provision;
• provide a definition for "engage in conduct"; and
• substitute references to repealed provisions of the Crimes Act 1914 with equivalent Criminal Code provisions.
The Criminal Code harmonisation process has received prior approval of the Office of Regulation Review (ORR). In respect of those amendments that are beyond the harmonisation process, the ORR has determined that they are mechanical and minor in nature, do not have a direct or significant impact on business and do not restrict competition, and therefore a Regulation Impact Statement is not required.
[bolding added]

One also has to wonder why they are going to all this trouble, when the “old” regulations are “soon” to be replaced with the shiny new simple harmonised regulations.
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Old 8th Aug 2003, 18:44
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Creampuff

I am but a normal person, not a lawyer.

This sort of thing does not appear to have any relevance to my cockpit, therefore it is irrelevant twaddle. A bit like the OLC...................bunch of pilyaks.

ding
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Old 9th Aug 2003, 06:57
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It wasn’t me that started a thread titled (if my memory serves me correctly) “strict liability a threat to air safety” a while ago.

And it isn’t me that’s running a campaign, on behalf of the membership of a well-known pilot association, to remove strict liability from the “new” regulations.

Evidently at least the starter of that thread and the management of that association believe the issue of strict liability is relevant to your cockpit Ding.

I actually share your conclusion as to relevance to the cockpit, but for reasons different from yours. It’s irrelevant to you because you’re blissfully ignorant. It’s irrelevant to me because I’m informed but not scared of it.

The point I continue to press is this: The people who are arguing that there should be no strict liability under the “new” regulations, on the basis that it will pose a threat to air safety, have a formidable (and in my view fatal) fact in the way of their argument – it’s been strict liability for a long time, yet the sky hasn’t fallen in. If strict liability continues under the “new” regulations, there will be no objective change in the risk (if any) arising out of strict liability. Everyone will continue (like you) to be blissfully ignorant of it, or (like me) to be informed but not scared of it
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Old 9th Aug 2003, 18:17
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Perhaps I played "Dumb" to well.

I might better have commented that these changes (and the exsisting) strict liability fluff do not offer let alone provide any additional safety in flight operations.

I seem to remember when that was supposed to have been part of the test for exsisting and proposed legislative/regulatory changes. If they didn't add to safety then they didn't get through, or something along those lines.

I will say this again though,

I am a normal person, not a lawyer.

ding
so normal that I can't spell....
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Old 10th Aug 2003, 07:11
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I think, Creamie, you need to explain what you are trying to say, in simple one syllable words. Not all who view PPRuNe have the benefit of a legal degree and experience in OLC.
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Old 10th Aug 2003, 13:11
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Perhaps more material from the Explanatory Statement (at: http://scaleplus.law.gov.au/html/ess...0030806201.htm) would help:
Chapter 2 [of the Criminal Code Act 1995] adopts the common law approach of subjective fault based principles. It clarifies the traditional distinction of dividing offences into actus reus (the physical act, now referred to as the physical element) and mens rea (what the defendant thought or intended, now referred to as the fault element).

The prosecution bears the onus of proving each of the elements of an offence. Each offence must contain at least one physical element, and for every physical element of an offence, the prosecution must also prove a corresponding fault element. If legislation containing an offence provision does not specify a fault element for a physical element of the offence, the Criminal Code applies a default fault element under Section 5.6 of the Criminal Code.

In relation to an offence that operates as a strict liability offence, a fault element can only be dispensed with in relation to the offence (or in relation to a particular element of an offence) if the offence specifies that it is a strict liability offence (or that a particular element is a strict liability element). Strict liability offences are offences where proof of a fault element is not required. The defence of mistake of fact is available for a strict liability offence (or a strict liability element of an offence).
[bolding added]

Short point: In order to convict you for doing something that attracts strict liability, the prosecution does not have to prove you intended to do that thing. E.g In a prosecution of someone for going around the circuit in the wrong direction, the prosecution does not have to prove that you intended to go around the circuit in the wrong direction.
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Old 10th Aug 2003, 14:54
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I really do have a problem here.

I cannot see what relevance this 'legal' waffle has to do with the safety of flight.

It may have allot to do with safety regulation, but it has sweet F all to do with the safety of flight.

What am I missing?

ding
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Old 10th Aug 2003, 15:41
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I was hoping that by now triadic and a representative of AOPA (gaunty?) would have posted an explanation as to why they think it's relevant to the cockpit.
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Old 10th Aug 2003, 16:58
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I'm not really adding much to this but Creampuff, I know at least one of the above mentioned ppruners is not in country at this time.

Quite probably completely incommunicado (cruise boat) through his normal means.

Disco Stu
Strikes me it could be legal, but that doesn't mean it's safe.
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Old 10th Aug 2003, 17:53
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Stricty Lible

Hello Creampuff

I do understand what you are saying, but not from the LEGAL manner in which it is presented.

In other words I can see that you are saying

SL has been with us for ages and IS included in the current regs, and

why is AOPA (among others) now presenting an argument why it should not exist.

Am I close ?


I am in no position to answer for AOPA (not a member) but I can understand that after seeing SL in action in court (or at least threatend to be used as I know of no actual cases where it has been used) that some in the industry don't think it is a good idea.
They therefore are lobying a case to have it removed, good on them if that is what they want.

But is it the highest and most important item that needs tackling /resolving in CASA. Well NO it is not. I am sure we would all have our own ideas/agendas as to what that would be.


To me it is to simplify ( make them readable and understandable) in common(non legalease) english so that all those that want to comply can do so without all the wishy washy what ifs that are so common with our current regs.

Sure from your point of view they are easy to understand, and from your background with CASA and your legal training of how many years?, it probably is.

But MATE I don't have that training, and I do wish to make my flying SAFE and COMPLIANT. The current regs make that job just a little more difficult than I and MANY others belive it shoud be.

You are a smart and educated man, and it would appear you are intersted in making things better. You can clearly see (and often let us know) that we pilots generally have a VERY POOR understanding of the legal manner and meaning of the regs.

So help us, present things in a manner which we, the want too's, have a chance of understanding without the uncertainty or misinterpretation.

Now someone that could get CASA and the regs to do that would be someone worth respecting.

Salt Lake City, MY ASS.
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Old 10th Aug 2003, 18:35
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I seem to be able to manage

LIFT and WEIGHT
&
THRUST and DRAG

without there being any 'strict liability' clauses in that law!

But then I am only a NORMAL person, not a lawyer

There is a difference.

ding
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Old 12th Aug 2003, 18:45
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You have a bank manager and a lawyer, who do you shoot first?.....

the bank manager, business before pleasure!

As a pilot/lawyer I prefer to watch re-runs of JAG and dream of cross-examining LTCOL Catherine Bell, rather than peruse barren CASA regulatory amendments. I'll look when I need to. Res Ipsa loquitor.

New JAG episodes this Thurs at 830!!
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Old 13th Aug 2003, 17:14
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Ding,

You are correct - you are playing dumb just fine (joke).

SL is relevant to your operations as a pilot. If you do something that is a breach of the regs CASA don't have to prove you intended to do it, only that you did it. It makes it easier for CASA to succeed in a prosecution.

SL has application in a range of other areas - some environmental crime is SL. For example, in NSW if you are observed littering the prosecutor (the EPA or a council) does not have to prove you inteded to litter - only that you dropped you lunch wrapper in a public place.

Creampuff,

I think you are correct in your opinion. I can't see how SL affects air safety, although an argument could be put forward that if people are aware that they are more easily prosecuted (because offences are SL) then they are more likely to comply with the law (which might be a different thing to flying in a safer manner).


Algerhorn,

Not too sure about Mac - just can't warm to her. However, Harm's first female JAG offsider (the blond one), now that... At least Mrs G is happy having a perve at Harm.
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Old 13th Aug 2003, 19:01
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BrianG you've got it in one........
QUOTE>>
It makes it easier for CASA to succeed in a prosecution.
UNQUOTE>>

SL has nothing to do with encouraging or even forcing (ie legal coercion (sic)) a safe operation. I does infact have the opposite effect, ie drying up any form of open, free and willing reporting culture not only by individuals, but organisations as well. Who is going to fess up to a boo boo with the potential for retribution from an organisation that acts as regulation writer, policeman, prosecutor, judge, jury and finally the hangman.

Aviation Regulation in this country has nothing to do with safe flight operations, it's all to do with gaining a prosecution with punitive measures attached.

And to think, aviation does not even rate a mention in the Australian Constitution.

ding
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Old 13th Aug 2003, 19:40
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Noodle – see my 0308100511 above.

Richo – Salt Lake City my “ass”. Don’t you mean “arse”?

I’ve tried to help AOPA by giving it as many free hints as I can. On the strict liability issue, I keep telling AOPA (via this forum) that it’s pointless trying to convince the Parliament that strict liability under the “new” rules poses any different a threat to air safety than it posed under the “old” rules.

If the argument is that strict liability is simply bad policy, because it’s bad to convict people for something they physically did, but didn’t intend to do, then that’s a different justification for opposing strict liability. That’s not a safety argument: it’s a general policy argument. If AOPA wants to put that argument to the Parliament, then AOPA’s 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, it’s no defence to say you didn’t intend to. Why should aviation be different?

Christ: If I had a dime for every post I’ve made about the Holy Grail of clear rules……

Again, I’ve tried to help AOPA and all the other “clear rule” pilgrims by pointing the way to the least messy route back to the least unclear rules you’ve ever had: repeal the traincrash, and start again with the 1988 CARs.

Alas, to no avail…..

At last - Ding reveals the reason for rubbishing the thread while reading and responding repeatedly.

Ding: should pilots be treated differently to car drivers? If so, why?

Ding: is television mentioned in the Constitution? If it's not mentioned in the Constitution, how did the Federal Parliament get power to regulate it?
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Old 13th Aug 2003, 23:03
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Creampuff

Me old.

Thank you, your "free" hints have not gone unnoticed.

And yes it is being fought on the bad policy argument.

And indeed the argument is that there is no;

convincing reason for treating participants in aviation differently from participants in (e.g.) driving.
quite apart from the presumption of innocence until proven guilty by the courts.

I've got a bit on my plate just at the moment, but you will hear from me soon.
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Old 14th Aug 2003, 05:10
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Guanty. Long time no chat!

I’m afraid the writing’s on the wall (and in the regs): you’re not going to get strict liability removed from the regs. Have a look at the regulations at the link above. The only thing that’s happened while AOPA’s been arguing to have strict liability removed is that the government has reinforced it!

Nonetheless, I look forward to seeing the detail of AOPA’s argument, and to understanding the way in which AOPA says the car driving analogy supports a shift from the current regulatory regime.

On the occasions on which I have been fined for speeding, the accumulation of which fines at one point lead to a ‘show cause’ on my licence, I don’t recall any judge being involved, and I don’t recall the “I’m innocent until you’ve proved me guilty” argument getting very far. Indeed, I think the response to that argument entailed sex and travel.

I could have elected to contest the matters in court, but as they were strict liability offences all the policeman had to was tell her, and her radar’s, story. Game over, unless you want to commit perjury. By the way, the law requires judges to take judicial notice of the accuracy of police speed measuring devices, and if you want to challenge the reading, you have to tell the other side before the hearing and you have to pay the other side’s (very expensive) expert’s costs if you lose.

There seems to be a naïve view among some in the aviation community to the effect that electing to be prosecuted is a no-risk holiday watching the prosecution trying to discharge an impossible evidential burden. Ask any lawyer about the rule in Jones v Dunkel. And then ask her about how serious the crime of perjury is.
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Old 14th Aug 2003, 13:31
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Gaunty,

I think Creampuff is spot on. To my knowledge (which is limited to NSW, but we do have the Australian Road rules, which are adopted with minor modification from state to state) there are few driving offences where intent must be proven ie most driving offences are SL offences. So, if the argument is that aviators (a term I threw in to keep Algerhorn happy, as he/she seems to like JAG) shouldn't be treated differently to motorists will not, to use a pun, fly as there are many SL driving offences.

The presumption of innocence still applies to SL offences - it just means the prosecutor doesn't have prove intent to prove guilt. SL makes it easier, in most cases, to prove guilt because there is no need to prove a guilty mind, just the guilty action.

It would seem, with respect, that AOPAs strongest argument against SL aviation offences is the broad policy argument Creampuff has suggested - although I think you will have buckleys chance as there are few prosecuting authorities that want to make prosecutions harder.

If you really want to understand how SL and othe rissues inter-relate, take the time to read He Kwaw Teh v The Commonwealth, arguably the current high water mark on criminal intent from the High Court - the link is below:

http://www.austlii.edu.au/cgi-bin/di...kaw+teh%22+%29

Am I concerned about SL avaiation offences? No, because I don't them as being different to what I have to worry about when I drive. I would prefer AOPA and other lobby groups to press for easier to read regs - as a lawyer and pilot I can understand the regs BUT they are one of the more difficult pieces of subordinate legislation I have had to read. If CASA made the legislation easier to read (which doesn't, in my opinion, necessarily make it harder to enforce) then compliance would probably improve.

Dingo,

I agree with you in part.

SL does not directly improve safety, but it makes it easier to prosecute someone and so should make at least some people modify their behaviour so they don't act unlawfully. If flying lawfully and flying safely are one and the same thing (which in some cases they are and in some cases they are not) then SL may indirectly improve safety.

I don't see how removing SL offences from the regs improves safety unless it is argued that worrying about complying with all these SL provisions distracts a pilot from controlling the aircraft. It is a similar argument to the adverse effect of strictly enforced speeding laws, where people focus on their speedometer rather than the road.

Would you still have a problem with SL If there were a robust self reporting procedure that would, if strictly complied with, operated as a bar to prosecution for certain safety related SL (and perhaps non-SL) offences?

Algerhorn,

One more JAG comment - did you see that appalling episode set in Sydney. Appalling. You would have just missed LT COL Sarah McKenzie (aka Catherine Bell) topless (because all Australian women sunbathe topless apparently), all advocates wear barristers garb, and we all talk like "I wouldn't wrestle a dingo". Dingo, did you have a part in that script?
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Old 14th Aug 2003, 18:25
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!

Creamy, sorry if I appear to be "rubbishing the thread while reading and responding repeatedly". Perhaps you will need to prove I intended to.........nar don't bother.

I am not interested in the treatement of car drivers or television either. We are ( I thought) talking about aviation here.

BrianG

It's a long time since I have been involved in any film/tv script, a fellow dingo blotted our collective cv's a few years ago at a certain Rock

Sorry if I seem to harp on the subject but I feel I must say this again.
Aviation Regulation in this country has nothing to do with safe flight operations, it's all to do with gaining a prosecution with punitive measures attached.

BrianG has said as much "SL does not directly improve safety, but it makes it easier to prosecute someone and so should make at least some people modify their behaviour so they don't act unlawfully. Proper training and airmanship "should" achieve the same thing.


"If flying lawfully and flying safely are one and the same thing (which in some cases they are and in some cases they are not) then SL may indirectly improve safety". BrianG, I take it that statement is one of those choice "lawyer" statements that can't be proven or disproven!

A colleague has demonstrated to my satisfaction that being compliant doesn't necessarily mean it is safe. The matter related to Flight Manuals but I will say no more that that.

Quite frankly when I am flying I am only interested in safely and efficiently completing the (flying) task at hand. Monday morning quarterbacks will always find something to bitch and scream about and then beat their chests in indignation at the affront of it all.

I am a normal person, not a lawyer.

ding
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Old 15th Aug 2003, 11:25
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Dingo,

I agree with you to the extent that being flying in a compliant manner doesn't mean you are flying safely. My "choice lawyer statement" was in fact an attempt to make that point in plain english, as opposed to legal terms.

I think the link between regulation and safety is complex - perhaps more so than it should be. But it is not correct for you to say "Aviation Regulation in this country has nothing to do with safe flight operations, it's all to do with gaining a prosecution with punitive measures attached" - there are some regulations that do have an obvious safety purpose. There are also a large number of regulations that are administrative in nature that have little or nothing to do with safety.

I agree with you that airmanship and training should result in safe flight. The problem with relying on airmanship and training alone is those things are not universal - just read the pages of PPRuNe to see how many different and strongly held opinions there are on fundamental things. The other problem is there are people who, for whatever reason, will not do the correct thing even if it is safer.

I see training and airmanship as the carrot and regulation the stick. I think you need both a carrot and stick. At the moment there is too much of the stick and not enough of the carrot - if I speak with older pilots they talk of "the Department" (I assume the Department of Aviation) as being very helpful to pilots, adopting a brotherly rather than adversarial role.

I discussed these issues with a friend who has worked with CASA. He is a lawyer (I used to employ him) and a psychologist, and his interest is human factors in safety with a focus on avaiation (but also looking at the mining industry). He is much more up to date on this stuff than I am. His comment was regulation alone cannot guarantee safety.

The television comments are intended to bring a bit of light relief to an otherwise dry subject. If my reference to JAG offends, then I am sorry. I guess I am not as serious as others on this thread.

The driving comments are made to illustrate a point - that is, the role of SL in other areas that most people reading this thread would understand. Because the current and proposed regs are so complicated, it is easier to draw comparison to driving, where the rules are better understood (although the road rules themselves are less than perfect). I didn't see the comments as being off topic.

I forgot to comment about something you said in an earlier post. I agree 100% that CASA shouldn't be fufilling all the roles it is asked to fufil. At the risk of upsetting you further by mentioning driving again, we have the RTA to register vehicles and monitor licensing/training/vehicle design, and we have the police to enforce road rules. I would like to see the administrative, safety and enforcement aspects of CASA seperated. But that is an issue for a different forum.

Basically, and with respect (which is lawyer speak for I am about to say something you won't like), I think you have a number of good points but your position that regulations do nothing for safety is too simplistic.

But then again, I am a lawyer, not a normal person.

no time to proof read, so please ignore typos
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