Strict Liability - explained in context of Australian aviation:
Published November 2003
1. CASA in the Civil Aviation Amendment Regulations 2003 has in no uncertain terms introduced the notion of making most offences, offences of strict liability. It first started to do so as it drafted the new Regulations (now known as Parts), I have heard, on the basis that the Criminal Code Act 1995 (the Code) said it had to make all new offences, offences of strict liability. This is not what the Code said. In lay terms the Code merely said that when drafting new laws after 15 December 2001 that involved creating an offence, it is a requirement to state what the fault element to the offence should be.
2. There are four possible fault elements, namely “intention”, “knowledge”, “recklessness” and “negligence”. However, the Code also makes provision for the drafting of an offence that does not require a fault element, and now we see “strict liability”.
3. Under the Code an offence is made up normally of two elements (I say usually because remembering that fault can be excluded). The physical elements and the fault elements. A physical element is conduct, a result of conduct, or a circumstance in which conduct or a result of conduct occurs. The Act defines conduct to mean an act, an omission to perform an act or a state of affairs. The Act also defines “engage in conduct” to mean, do an act or omit to perform an act.
4. If an offence does not specify a fault element, the Code deems one of two fault elements to apply (s.5.6 of the Code). They are either where the physical element is conduct, “intention” is required or secondly if the physical element is circumstance or a result, then “recklessness” is the fault element. This deeming provision covered most of the pre 15 December 2001 aviation offences, which of course then did not need to specify a fault element. CASA introduced a new Regulation that came into effect on 6 August 2003 whereby most offences in the previously existing Civil Aviation Regulation 1988 were reworded not requiring a fault element, hence were stated to be offences of strict liability. (See the Civil Aviation Amendment Regulations 2003 (No.5). There was strictly speaking, no need for this amending Regulation given the deemed fault elements, which a Court would be required to determine after 15 December 2001.
5. “Intention” is defined in the Code as “a person has intention with respect to conduct if he or she means to engage in that conduct.” As to circumstances, “a person has intention with respect to circumstances if he or she believes that it exists or will exist.” As to result, “a person has intention with respect to a result if he or she means to bring about or is aware that it will occur in the ordinary course of events.” The bottom line on all these definitions is the fact that a person must have the intention of doing the conduct, or knows the circumstances, or means to cause the result. In conclusion, if intention is the fault element, the mere fact that an event occurred does not mean you have breached the law. Unlike that which applies if it is a strict liability offence.
6. “Recklessness” is defined as if “he or she is aware of a substantial risk that the circumstance exists or will exist and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.” As to a result, you are reckless with respect to a result if you are “aware of a substantial risk that the result will occur and having regard to the circumstances known to him or her, it is unjustifiable to take the risk.” Interestingly, if the fault element is said to be recklessness, proving of intention or knowledge will also satisfy the fault element of recklessness. For completeness I should add that the definition of “knowledge” is “a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.”
7. Would you not think recklessness would be the preferred fault element for an aviation offence? Of course a prosecutor, being required to show more than the mere event took place, has more to do. Whereas an offence that is said to be one of “strict liability” has no fault element and thus no need to show more than the physical element of the offence. Easier for the prosecution I hear you suggest. Of course it is. However, we might be grateful for the fact that CASA did not make aviation offences one of “absolute liability!” Offences that are said to be one of “strict liability” at least have the defence of “mistake of fact.” Which is not available in offences of “absolute liability.”
8. You can argue a mistake of fact (and thus avoid a conviction) if “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 had those facts existed, the conduct would not have constituted an offence.” (s.9.2). Put another way, if it was reasonable for you to believe that X was the case and you did in fact believe it, then you have successfully avoided a prosecution. You of course have the onus to show all this. An example might be, you are flying along and carefully reading your map as to controlled airspace boundaries. You penetrate controlled airspace. However, where you were at the time was shown on the map to be out side controlled airspace.
9. One should add that there is another defence available and it is to all offences regardless of their fault element, and whether they are offences of “strict liability” or “absolute liability”, and that is the defence of sudden or extraordinary emergency. (s.10.3 of the Code). You are not criminally responsible if you carry out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. You have to reasonably (thus an average person in your situation also has to believe) those mentioned sudden or emergency circumstances exist, and that committing the offence is the only reasonable way to deal with the emergency and (not to make it too easy for you), the conduct is a reasonable response to the emergency.
10. All that said, should aviation offences be ones of “strict liability”? In my opinion, if an offence is not dependent upon the actions of others in any way, or upon interpretation of other facts, then strict liability might apply to that offence. For example if you incorrectly fill out a form. You alone are effectively (but you might have the mistake of fact defence) responsible for filling out that form. It’s a simple clear-cut error on your part. However, when you fly a plane there are any number of events that might cause the particular conduct that is said to be an offence. There are other forces at play instead of merely signing a document.
11. Here is an example of an aviation Regulation that in my opinion should not create an offence of strict liability. Reg. 234 has been on the books since at least 1995, it was not an offence of strict liability, but it is now, following the 2003 mentioned amendments to the Regulations. It deals with fuel requirements. Instead of being clear cut, there are at least eight considerations that a court is said to be required to consider when determining whether an aircraft has sufficient fuel and oil. That’s not fair on a pilot. This particular Regulation gets even worse; the Court has to consider any guidelines issued from time to time by CASA for the purpose of this Regulation. Good grief I hear you cry. Is it fair to make this regulation an offence of strict liability? So you didn’t see that guideline issued by CASA? “No the dog must have cleared the mailbox the day it arrived.” Too bad, it is an offence of strict liability and you could be found guilty if it is proved that any one of the eight variables in the Regulation is relevant. Also, to determine the variables an expert would most likely have to be called for example, to tell the Court what are the metrological conditions the aircraft may have been required to fly in. Would it not be more appropriate to keep a fault element even say of “recklessness”, instead of abolishing the fault element by making it an offence of strict liability?
© C. P. McKeown - November 2003