PPRuNe Forums - Liability to remain strict under civil aviation regulations

Recent events at the top of AOPA have goaded the usual rabble of ratbags into a feeding frenzy. Perhaps we should pause to objectively analyse, so far as possible, what we know about what happened, and why, in relation to the strict liability issue.

The divergent views all boil down to some simply-stated questions.

First, were any offences strict liability under the 1988 regulations prior to the Criminal Code Act 1995, and if so, which?

This is a very important question, because there is a substantial difference between imposing strict liability under the rules where none existed before, on the one hand, and on other hand maintaining strict liability through complying with new requirements as to how a strict liability offence is to be structured.

Secondly, and irrespective of whether it was or wasn’t strict liability under all, some or none of the rules before, what is the basis of the objection to strict liability now?

This also is a very important question, because if the objection is on the basis that strict liability will have some undesirable effect, the undesirable effect must be articulated, and some causal connection between it and strict liability demonstrated.

The first question is an argument about the law.

The second is primarily an argument about policy, but turns to some extent on the answer to the first question. If offences under the 1988 regulations were strict liability from the start, it follows that any claimed undesirable effects of strict liability should have manifested themselves in the last 15 years.

Some facts. Let’s recall exactly what the immediate past President of AOPA said in her September 2003 President’s report:

Quote:

…there are a substantial number of [offences] 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.

[bolding added]

So there you have it: the immediate past President of AOPA took the view that “a substantial number” of offences were already strict liability, and she had “no objection” to them remaining so.

On AGACF, Spud alludes to a “Learned friend” who, according to Spud, considers that at least one offence would certainly have been found not to be an offence of strict liability. Spud omits to state his Learned friend’s view as to the nature of all the other offences.

There is literally no expert in this field who claims that none of the offences under the 1988 rules was strict liability before the Criminal Code Act.

Now put yourself in the shoes of the Senate. It’s got the Attorney-General telling it that all of the offences under the 1988 regulations were strict liability before the Criminal Code, and the amendments are intended to ensure that the Criminal Code requirements cart follows the strict liability horse. Meanwhile, the President of AOPA says she has “no objection” to “a substantial number” of offences remaining strict liability. Further, the Minister has given AOPA a written undertaking to the effect that he will consider AOPA’s objections to strict liability in specific regulations, both new and proposed (if and when AOPA actually specifies exactly to which regulations it objects.)

The notice of motion to disallow had a snowflake’s hope in hell of getting up. AOPA, who prompted the motion, had “no objection” to the effect of a substantial number of the amendments as they stood, and had a written undertaking from the Minister to consider in good faith the ones to which AOPA objected, if and when AOPA identified them and why.

As to the policy of strict liability, I have yet to see a sustainable argument as to why the air rules should be different from the road rules. Most objections are on the ground of the claimed evil effects that will flow from strict liability. The patently fatal flaw in those arguments is that it’s been strict liability under the civil aviation regulations (or at least “a substantial number” of them) since 1988, yet so far as I can tell those evils have not manifested themselves. Either that, or there’s no demonstrable causal link between the two.

Nonetheless, AOPA now has the opportunity to put up or shut up. It must, as a matter of urgency:

- nominate exactly which of the 1988 regulations was not, in AOPA’s view, strict liability as a matter of law prior to the Criminal Code Act 1995, and why it takes that view;

- nominate exactly which of the 1988 regulations should not, in AOPA’s view, be strict liability as a matter of policy, and why it takes that view;

- nominate exactly which of the existing or proposed 1998 regulations should not, in AOPA’s view, be strict liability as a matter of policy, and why it takes that view.

There’s a difference between motherhood statements to rally the rabble, and objective analysis of specific regulations.

Finally, I note that one of the main reasons AOPA had ceased to have any substantial impact on government decision-making, at least at the federal level, was that it ceased to have any substantial credibility and therefore relevance. For almost every atrocity alleged or forecast by some representatives of AOPA over the last 6 or so years, there’s been a short and fatal answer: the representative was wrong or selective on the relevant facts or the relevant law.

That’s changed. AOPA has commenced the very difficult work of re-establishing its credibility with the federal government, and the Minister’s response and undertaking in relation to the strict liability issue demonstrates that the work has started to pay off. Pressing the motion for disallowance would have undone that work. Don’t let the hotch-potch of nude emperors, bruised egos, and bitter has-beens out there convince you otherwise.