Breaches of most of the civil aviation rules are offences of strict liability. Strict liability is not new and has been used in legislative schemes and applied by the courts for many years- well before it first appeared in civil aviation legislation in the late 1990s.
What it means
If you're charged with a strict liability offence it doesn’t matter whether you meant to break the rules or knew you were doing the wrong thing. The prosecution doesn’t have to prove these things, it generally only has to prove that you did the thing which the legislation proscribes.
Why we have strict liability
Strict liability is used where the benefit to the community in enforcing certain kinds of behaviours or conduct, overrides any disadvantage to the person being charged in terms of whether their contravention was deliberate or accidental. In other words, where it’s in the public interest that you know what the rules are and take all reasonable steps to follow them.
That’s why strict liability applies to most road rules. It also applies to a range of other laws involving public health, safety, the environment and financial or corporate regulation.
It’s common in aviation, too. Almost every civil aviation rule in Australia is a strict liability offence.
You're innocent until proven guilty
If you're charged with a strict liability offence, you aren’t automatically guilty.
It’s not up to you to prove your innocence, but up to a prosecutor to prove that you have broken the rules. This needs to be proven beyond a reasonable doubt.
You can defend yourself
You can successfully defend yourself against a strict liability offence by showing that you made an honest and reasonable mistake of fact. This means that you knew the rule, thought you were doing the right thing, but were reasonably relying on a belief in the existence of facts which turned out not to be the case.
An example is a pilot who committed an offence of low flying. If the pilot could show that they believed that they were flying at a lawful altitude based on the readings on the aircraft altimeter, but it is discovered that the altimeter was faulty and they neither knew nor had any reason to know of the fault, that would be a defence.
In an emergency, a pilot’s main responsibility is for the safety of their flight. Breaking a rule in the case of a sudden and unexpected emergency may also be a defence.
Our just culture
Under our regulatory philosophy, we use a ‘just culture’ approach when applying and enforcing rules.
We won’t punish you for actions or decisions that correspond with your experience, qualifications and training. But we won’t tolerate gross negligence, or people deliberately breaking the law or being reckless.
For most people, that means that if you unintentionally or mistakenly break a rule, it’s unlikely you’ll be referred for criminal prosecution.