The CAR and CASR refers to "strict liability" on a significant number of regulations, often pilots wonder exactly what this means. The following article is reproduced from Flight Safety Magazine (Sep 07) and explains what the term strict liability means.
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What is Strict Liability?
Because most offences under the Civil Aviation Regulations 1988 (CAR) and Civil Aviation Safety Regulations 1998 (CASR) are offences of strict liability, it is important to understand just what this means – and what it does not mean.
All offences require proof of one or more ‘physical elements’ – the fact that someone did, or failed to do, something, or that something did or did not, in fact, happen. Most offences also require proof of a ‘fault element’, or what is sometimes called the ‘mental element’, in relation to a person’s conduct. This refers to the state of mind of the person charged with the offence.
Fault elements include intention, knowledge, recklessness or negligence. To be convicted of an offence involving both physical and fault elements there needs to be proof beyond a reasonable doubt of all of those elements.
The Commonwealth Criminal Code Act 1995 expressly states: ‘If a law that creates an offence provides that the offence is an offence of strict liability, there are no fault elements for any of the physical elements of the offence (Section 6.1). The Criminal Code treats strict liability as liability ‘without fault’. No proof of intention, knowledge, recklessness or negligence is required.
Many offences impose strict liability with respect to one or more physical elements. A significant number of relatively minor offences impose strict liability with respect to all physical elements, dispensing with any requirement of proof of fault. Proof ‘beyond a reasonable doubt’ of the physical elements is still required for a conviction, however.
A typical example of a strict liability offence is in the Civil Aviation Regulations is CAR 157 (‘Low Flying’). CAR 157(1) provides that a person must not fly an aircraft over a city, town or populous area at a height lower than 1,000 feet. CAR 157(2) provides that ‘an offence against subregulation (1) is an offence of strict liability’.
This means that, although there must be proof beyond a reasonable doubt that the particular person charged with the offence of low flying did, in fact, fly an aircraft at a height of less than 1,000 feet over a city, town or populous area (the ‘physical elements’), there is no need to prove that he or she did so intentionally, knowingly, recklessly or even negligently.
Why strict liability?
Our legal tradition strongly supports the principle that people should not generally be subject to criminal action in the absence of at least some blameworthy mental state, ranging from the deliberate intention to do what they have done, to the negligent failure to take care that their actions are not criminally offensive.
At the same time, however, a corresponding principle recognises that certain kinds of offences – particularly those concerned with public safety and health – should not require that there be proof of any ‘blameworthy’ mental state.
There are at least two good reasons for this. Firstly, because one of the major functions of the criminal law is to deter certain forms of misconduct, and to make it clear that conduct jeopardising public safety and health may be punishable in the absence of any blameworthy mental state, it sends a strong deterrence message.
Secondly because, as a practical matter, it would be so extraordinarily difficult to prove that a person actually intended to act so as to jeopardise public safety or health, successful prosecutions would be so unlikely that the law would be meaningless.
One of the most common forms of strict liability offences of this kind are simple motor vehicle laws. These are intended to underpin public safety, and their utility depends upon the absence of a need to prove ‘fault’ when they are contravened.
Civil aviation safety regulations are strict liability offences for essentially the same reasons.
Strict liability does not mean absolute or automatic liability
Beyond the requirement that a court must be satisfied that all of the physical
elements of a strict liability offence have been proven beyond a reasonable doubt, there are several other protections available under the Criminal Code Act to prevent what might result in, or appear to involve, the unfair application of the law.
Significantly, there will be no criminal liability at all in the following circumstances, which may frequently arise in connection with aviation-related activities:
- The physical element was brought about by the occurrence of some external event (including the conduct of another person) over which the person charged with the offence had no control and could not reasonably have been expected to guard against.
- The conduct constituting the physical element was carried out in response to circumstances of sudden or extraordinary emergency, in which that conduct was a reasonable response to the emergency and there was no other lawful response reasonably available at the time.
Other circumstances involving external factors that will eliminate criminal liability are set out in Division 10 of the Criminal Code Act.
The defence of reasonable mistake of fact
The absence of a requirement to prove fault, does not mean that there is no defence to an offence of strict liability – even if the physical elements have been proven. Section 9.2 of the Criminal Code Act expressly provides that a person is not criminally liable for a strict liability offence if:
- at or before the time of the conduct constituting the physical element, the person was under a mistaken but reasonable belief that certain facts existed
- had those facts existed as the person believed they did, the conduct would not have constituted an offence.
Using the example of low flying in contravention of CAR 157, if the pilot were to have flown below 1,000 feet over one of the areas specified in the regulation because he or she simply neglected do the things a pilot should responsibly do in order to ensure he or she was flying at the correct altitude, that would not be a
defence to the conduct. However, if:
- the pilot took into account all of the factors a pilot would normally consider in determining the aircraft’s height above the ground (including, amongst other things, reference to the altimeter)
- the altimeter incorrectly displayed the altitude as something greater than 1,000 feet (over flat terrain the pilot knew to be at sea level)
- the pilot had (a) no reason to believe the altimeter was not functioning correctly; and (b) no other reason to believe he or she was actually flying below 1,000 feet, then the pilot would almost certainly be in a position to avoid criminal liability for the offence on the basis of the defence of ‘reasonable mistake of fact’.
There are sound and sensible reasons why many provisions of the civil aviation legislation are (and have long been)
offences of strict liability. Properly understood, it should be clear that strict liability effectively ensures that the interests of safety are secured and the rights of those governed by the regulations are protected.