CASA’s Associate Director of Aviation Safety, (ADAS) Dr Jonathan Aleck, explains the concept of strict liability.
Breaches of most of the provisions of the Civil Aviation Regulations and the Civil Aviation Safety Regulations, and a few of the provisions appearing in the Civil Aviation Act, are offences of strict liability.
Dr Aleck says there is an unfortunate misunderstanding about what this means. ‘Many people believe that “strict liability” somehow involves a presumption of guilt, as opposed to the presumption of innocence that is central to our system of justice; and that it also involves a reversal of the burden of proof, shifting that burden from the prosecutor to the person charged with the offence. This is simply not so,’ he says.
The difference between strict liability offences and other ‘fault-based’ offences has to do with the mental element, the Associate Director says.
‘There is no requirement for (and hence no need to prove the existence of) a mental element, that is a particular state of mind—intent, knowledge, recklessness or negligence—on the part of a defendant charged with a strict liability offence. This is the norm for a wide range of legislative requirements involving public health and safety matters.’
The parallel is in traffic law, where most ordinary road traffic offences are offences of strict liability. ‘So, for example, if a driver decides to dispute a charge of driving without a seat belt, the prosecutor need not prove that the driver intended not to wear, knew they were not wearing, or simply forgot to wear, their seat belt. All that needs to be proven is that, in fact, the driver was not wearing their seat belt,’ Dr Aleck explains.
Importantly, however, strict liability does not reverse the burden of proof, and there are no provisions in any CASA legislation (current or proposed) that do so. ‘Every element of a strict liability offence must be proven by the prosecutor, and proven beyond a reasonable doubt. It is not and has never been the case that the defendant must prove that they did not commit the offence.’
Moreover, the defence of ‘reasonable mistake of fact’ is always available to a person charged with a strict liability offence under the civil aviation legislation. Section 9.2 of the Commonwealth Code Act expressly provides that a ‘person is not criminally responsible for an offence that has a physical element for which there is no fault element if: (a) at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted an offence.’
If, for example a driver charged with a strict liability traffic offence was able to show that their vehicle’s speedometer had suddenly begun reading wrongly, or a pilot charged with a strict liability offence involving unauthorised low flight was able to show that the altimeter had, without reasonable warning, begun to read incorrectly, that would be a ‘reasonable mistake of fact’ because belief based on the mistaken readings of the instruments would be reasonable (provided the driver had no other reason to believe they were driving too fast or the pilot had no other reason to believe they were flying too low.)
The fact that the breach of a regulation constituting a strict liability offence, will not necessarily mean that CASA must pursue the matter on that basis, Dr Aleck says: ‘In keeping with CASA’s regulatory philosophy, the responsible exercise of discretion by CASA decision makers (and those who advise them) will, in many cases, obviate the need to progress a matter to enforcement action based on the apparent commission of a strict liability offence.’
Dr Aleck also points out that making the breach of a safety requirement set out in the civil aviation regulations an offence of strict liability is entirely consistent with long-standing Commonwealth criminal justice policy. ‘This is and has been the norm for the vast majority of the Civil Aviation Safety Regulations, the Civil Aviation Regulations and the Air Navigation Regulations that preceded these,’ he says.
‘CASA’s regulations are made by the Governor General, not “by CASA”, Dr Aleck says, ‘and they are subject to disallowance by the Parliament. They are drafted by the Office of Parliamentary Counsel and, as with all Commonwealth regulations involving criminal offences, they must be acceptable to the criminal law branch of the Attorney-General’s Department before they are finalised.’
Consistent with the Government’s response to the recommendations of the Aviation Safety Regulation Review, CASA is reconsidering the nature and propriety of the offences and the penalties imposed for breaches of the civil aviation legislation. In the meantime, however one may feel about the substance of the regulations, they cannot be said to have been developed or drafted in anything but complete fidelity to all applicable legal requirements, and in strict accordance with the protections that are the hallmarks of our system of justice, Dr Aleck concludes.