[Peetwo]

Embuggerance comes cheap under strict liability -

According to KC, in his excellent and informative article in AMROBA's latest newsletter (see HERE); CASA's legal eagle's Dr Aleck & Anastazi are saving time and ATP money thru strict liability embuggerances of wayward criminal industry participants... 

But seriously - read & absorb the following for a better understanding on why strict liability offences and reverse onus of proof should have no place in aviation regulations...

2. Why do Aviation Regulations Reverse the Onus of Proof?

When I started in aviation the burden of proof, when "safety" was jeopardised, was on the regulator to prove by identifying an unsafe practice then finding the non-compliance or breach of the Act, regulations or Order requirement. Justifying that "safety" had been jeopardised in the "opinion of the Inspector" was only upheld in AAT if the Inspector had the expertise to convince the courts – not always easy. What we now need is a Minister to direct that there should be no reverse onus of proof in the Act and Regulations (something that was once "normal legislative form") or that "strict liability" shall not be used where any measure of pilot/LAME decision making is involved, because it violates the definition of "strict liability" in the Criminal Code.

"Strict liability" applied to regulations removes the legitimate rights of pilots/LAMEs and takes precedence for administrative convenience and perceived cost savings in program administration.

The ALRC (Australian Law Reform Committee) does not support new torts imposing strict liability. Strict liability leads to liability regardless of fault. If the cause of action were one of strict liability, then the defendant would be held liable even though they were not at fault, that is, the defendant’s actions were not intentional, reckless or negligent.

Mr Spencer Ferrier has written an excellent article on this subject in the latest AOPA magazine. This industry is being conned by CASA who are directing the use of strict liability to save their resources and to use the infringement notices for breaches of badly written regulations that are not harmonised, especially in the Pacific region.

In tort law (a tort is a civil wrong), strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behaviour and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases.

Obviously, politicians, public servants, including CASA, think aviation is inherently dangerous when it is one of the safest means of transport due to the professionalism of the flying and engineering fraternity.

If an honest review of regulations that have been implemented since 2005 was carried out, there would be very few requirements that could be classified as addressing a situation that is inherently dangerous.

The imposition of strict liability can be both unfair and unjust. There are many problems with the way that strict liability is currently imposed. Problems with strict liability include:

• It may not succeed in raising standards as people often do not realise that they are party to any wrongdoing.
  
• Decisions are often unjust and unfair.
  
• The courts often face difficulty identifying strict liability offences and are inconsistent with their attitude and decisions.
  
• There is often a marked lack of clarity in judgements. Decisions with regard to strict liability can sometimes lead to outcomes that are the opposite of what was intended by the law.
  
• A criminal conviction and the possibilities of massive penalties are imposed on the defendant for an offence that he/she may not have foreseen/intended or been able to prevent.
  

The Senate Committee Report states in Chapter 7, Application of absolute and strict liability offences in Commonwealth legislation:

• the process of deciding whether to introduce strict liability for an offence should recognise that this may have adverse effects upon those affected. The legitimate rights of these people should be paramount and take precedence over administrative convenience and perceived cost savings in program administration;
  
• agencies should acknowledge that there may be areas where existing strict liability offences, or the way they are administered, may be unfair. In these cases, agencies should review the offences under the general coordination of the Attorney-General’s Department; 
  
• strict liability should not be implemented for legislative or administrative schemes that are so complex and detailed that breaches are virtually guaranteed regardless of the skill, care and diligence of those affected. Any such scheme would be deficient from the viewpoint of sound public administration; 
  
• strict liability offences should be designed to avoid the likelihood that those affected, particularly by the issue of an infringement notice, will pay the lower penalty simply because it is easy and convenient to do so, rather than spend the money and time to pursue what might be a legitimate defence. Any agency that encouraged this tendency would be acting improperly; 
  
• strict liability should depend as far as possible on the actions or lack of action of those who are actually liable for an offence, rather than be imposed on parties who must, by necessity, rely on information from third parties in Australia or overseas. Offences that do not apply this principle have the potential to operate unfairly; 
  
• strict liability has the potential to adversely affect small and medium enterprises. Steps should be taken to ameliorate any such consequences arising from the different compliance and management resources of smaller entities; 
  
• any potential adverse effects of strict liability on the costs of those affected should be minimised to the extent that this is possible. In particular, parties who are subject to strict liability should not have their costs increased as a consequence of an agency reducing its costs; 
  
• external merit review by the Administrative Appeals Tribunal, or other independent tribunal, of relevant decisions made by agencies is a core safeguard of any legislative or administrative scheme. Every agency that administers strict liability offences should review those provisions to ensure that this right is provided; new and existing strict liability schemes should have adequate resources to ensure that they are implemented to maximise safeguards. A lack of proper resources may result in the inadequate operation of those safeguards; 
  
• strict liability should not be accompanied by an excessive or unreasonable increase in agency powers of control, search, monitoring and questioning. Any such increase in powers may indicate that the legislative and administrative scheme has structural flaws; 
  
• there should be a reasonable time limit within which strict liability proceedings can be initiated. It would be unfair to those affected if they were to be charged perhaps years after an alleged breach; 
  
• as a general rule, strict liability should be provided by primary legislation, with regulations used only for genuine administrative detail. It would be a breach of parliamentary propriety and personal rights for regulations to change the basic framework or important aspects of a legislative scheme; and 
  
• the use of strict liability in relation to the collection of personal information about members of the public from third parties has the potential to intrude into the legitimate rights of the people whose details are being collected. In such cases the entire process should be transparent, with all affected members of the public being notified of their rights and remedies under the Privacy Act.
  

Adherence to these principles would see many aviation strict liability provisions being removed as they certainly do not adhere to these principles.

Reference link for the SSC Scrutiny of Bills 2002 report: Chapter 7 - Application of absolute and strict liability offences in Commonwealth legislation

Once again KC, the key for the Tim Tam cupboard is in the mail...


MTF...P2