July 25, 2020

Thank you, Richard and the organising committee for the honour of addressing the conference and thank you for your very gracious introduction.

David Boughen was first and foremost a talented Barrister with a broad commercial and common law practice. He was a senior practitioner and to put things in perspective would, in the ordinary course, have taken silk well before now.

He was also an accomplished pilot who often flew himself and instructing solicitors (and sometimes even expert witnesses with whom he conferenced en route), to regional courthouses.

In aviation matters, David usually acted for plaintiffs in civil proceedings and Defendants in criminal proceedings. Any lawyer in the know in the Queensland (and often elsewhere) would immediately contact David if an aviation matter hit their desk. So his record of acting for plaintiffs was more a product of timing – which side retained him first – than necessarily, preference.

Like many connected to general aviation, he railed against the sometimes capricious administration of complex regulations by aviation police whose object appeared to be catching out otherwise diligent aviators for the slightest omission. Yet he gave no support for the reckless or cowboy operator that put lives or property unnecessarily at risk.

David’s last contribution to the ALAANZ curriculum was at a branch dinner meeting at the Royal Queensland Aero Club where he and Peter Ilyk of the then Civil Aviation Authority spoke to a large group of pilots, operators and lawyers on the topic “CAA Investigations – Your Rights and Obligations”.

It is this area, “regulation and enforcement” that I will cover in this address today.

It is also worth noting that at the ALAANZ national conference on Hamilton Island in 1994, the last conference David attended, papers were delivered by both Jonathan Alek and Peter Ilyk of the CAA on regulation and enforcement. None of us apart from perhaps those speakers could really have appreciated the extent of the transformation that was to occur.

These changes have culminated in the “New Enforcement Procedures” implemented by CASA as of February 2004 are well known to many of you.

For a comprehensive review I commend you the paper delivered by Dr Alek at the Sydney Conference last year titled “Effective Enforcement Strategies for Aviation Safety”.

The thrust of the change in policy since February 2004 is that enforcement action taken in the case of mere oversight with no specific risk to others should be treated differently to a case of blatant disregard for regulation or safety. Measured response to minor breaches rather than prosecution is also a feature of the new regime.

Whereas previously, and certainly in the early 1990s, it appeared to be the case that a prosecution was launched merely if there was sufficient evidence available to justify it, now the issues and expense, seriousness (or conversely the triviality) of the alleged conduct, any mitigating or aggravating circumstances are all effectively taken into consideration under the new regime.

To illustrate the effectiveness of the changes, I would like to compare the outcomes of a couple of cases.

In one of them in 1992, David Boughen defended a central Queensland grazier from a charge of low flying in Rockhampton Magistrates Court.

It was unusual to be able to retain counsel of David’s seniority in the Magistrates Court. He nevertheless attacked the challenge with his usual passion, and flew his 310 with the client, an instructing articled clerk and a former tower controller as an expert witness to the grazing property for a view and the next day on to Rockhamton for the case.

The defence was successful on the basis that the ground observers (who were lay persons) could not be relied upon as having necessary skill to estimate the height of the aircraft as being less than 500 feet above ground level.

Significant costs were awarded against the Authority but these obviously only went part way to meet the real costs for the client, not to mention the personal costs, months of preparation and the considerable resources employed by the Commonwealth.

Now compare that with the situation under the new regime which includes the Aviation Self Reporting Scheme, infringement notices, the de-merit point scheme and the Enforceable Voluntary Undertaking (EVU) scheme.

Not long after the new enforcement procedures were introduced, a client came to see me with a low flying scenario that was disposed of in an entirely different and far more efficient and effective way.

This was a case, where arguing the inaccuracy of lay ground eyewitnesses was not an option. The client had flown an ultra-light under the Sydney Harbour Bridge and had been captured in the act by a news photographer lunching out at a Circular Quay restaurant.

After much discussion, we decided to give the new policy a try out.

The act had involved several possible offences. There were two restricted areas that had been violated as well as the low flying.

The penetration of the restricted area on the eastern side of the harbour had in fact been unintentional – she was a Queenslander doing a ‘scenic’ and was unfamiliar with the area.

We therefore decided she should report the inadvertent infringement under the Aviation Self Reporting Scheme. The procedure for this requires:-

  • It must be made to the ATSB within ten days of its occurrence on its approved form;
  • It must detail the breach and state the regulation that has been breached.
  • The occurrence must not fall within the stated exceptions, which includes deliberate acts
  • A person can only benefit from this scheme once every 5 years.

If the ATSB accepts the report then the receipt they issue can be used as a complete defence to any CASA prosecution.

The report was lodged and accepted but this did not deal with the penetration of the restricted area in the centre of the harbour (where the bridge is) nor with the low flying.

There had been considerable press over the incident. In a sensational way, the story in the papers was that she faced two years in jail that being the maximum penalty under Section 20A: “reckless operation of an aircraft: a person must no operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person”.

We decided to approach CASA and while making it clear to enforcement section that she would not go quietly on a Section 20A charge, she would accept infringement notices for whatever else they decided was reasonable.

She was breached with infringement notices, paid the substantial fines and incurred a substantial number of demerit points.

Just to explain the de-merit point scheme:-

  • If you accrue 12 or more in any three years, your flight authorisation will automatically be suspended for up to 150 days.
  • You then get only six more available demerit points for the next three years and six more each three years after that.
  • If you have had an automatic suspension under the scheme on two previous occasions then your license or certificate will be automatically cancelled on the third occasion and you will be prevented from applying for a new license or certificate for three years.
  • You can apply for reinstatement in cases of serious hardship and a refusal by CASA can be appealed to the AAT.

The Sydney Harbour Bridge case is an example of the new system working and working well. Although the press may have lost out on a good story, the expense, anxiety and personal cost and public resources associated with a prosecution were avoided.

The pilot has nevertheless suffered a significant penalty. In addition to the fines, she must be hyper-vigilant over the next three years so as not to incur further breaches otherwise she will lose her flight authorisation.

Realistically, the pilot would never have been convicted under Section 20A and she would have been fined by a court about the same for low flying which is a regulatory offence. Looking back through some cases to prepare for today, I noted low flying penalties set by courts from $200 to $1,500.

The only loser in the process was perhaps the media. They were denied hundreds of column inches of copy through the investigation, committal and trial processes. I have heard that the pilot did participate in media interviews later – so if they are considered, even the media did all right out of the exercise after all.

I hasten to add that the pilot was consistently contrite and acknowledged her imprudence. Her youth as well as the urging of her passenger were contributing factors in the incident. Notwithstanding her 15 minutes in the spotlight, she was always respectful of the system and personally grateful of the opportunity of a ‘second chance’.

The other innovation that came into force last year relates to Enforceable Voluntary Undertakings.

The scheme is modelled on Section 87B of the Commonwealth Trade Practices Act that affords corporations the opportunity to make amends for anti-consumer or anti-competitive conduct by offering undertakings.

EVUs :-

  • can only be given by holders of Civil Aviation Authorisations
  • they must be in relation to an aspect of aviation safety.
  • it is up to the pilot or flying organisation to propose the terms of the undertaking
  • The maximum term is 6 months but a subsequent undertaking can be given.
  • They may not be withdrawn after they have been accepted except the consent of CASA.
  • The person giving the undertaking must acknowledge that CASA will publish details of the undertaking on its website.

CASA guidelines refer to EVUs as an important enforcement tool for use “in situations where there is evidence of a breach or potential breach of the aviation law by the holder of a Civil Aviation Authorisation which may justify regulatory action but remedial action by that holder is in the best interests of aviation safety.”

I have recently submitted a proposal for an EVU to CASA on behalf of a fairly substantial flying training and charter organisation in relation to a regulatory matter which also has enforcement issues. The matter is still pending so I cannot add how effective this exercise will prove to have been.

There are several past and current EVUs that can be found on the CASA website for practitioners to examine for the purpose of couching an EVU that they wish to offer on behalf of their clients.

Apart from aviation enforcement policy, there has, over the last 10 years been significant change in the Act and regulations concerning “strict liability”.

I worked with David Boughen a bit over 10 years ago on a case relating to the contravention under s 29 by the owner of an aircraft in respect of the breaches of rules of the air committed by an unidentified pilot ie the low flying.

It was another low flying incident, this time at Teewah just over the Noosa River to the north. The defendant company owned a Piper Cub in a shed at Noosa airstrip where the keys were left to allow several people to use it. The aircraft was sighted flying low over the beach and a prosecution launched.

The identity of the pilot was never uncovered so the company was charged under Section 29 (1) (b) as owner. The charge was defended on the basis that the defendant company had no knowledge of the flight and that the statute could not have created an offence of strict liability without specifically stating that knowledge or “mens rea” had been specifically and intentionally excluded. The Magistrate decided the point, which was the only one in dispute, in favour of the prosecution and it was taken on appeal to the Queensland District Court.

The conviction was over-ruled and the appeal upheld on the grounds that:-
(a) Firstly, that the words “to permit” and act or cause of conduct includes an element of “knowledge”;
(b) The prosecution must prove “mens rea” before a Court will record a conviction unless the Court is satisfied that the legislature had displaced such concept.

His Honour applied the leading High Court Case of He Kaw Teh v R [1985] 157 CLR 523 ruling “that there is nothing in the nature and purpose of the Civil Aviation Act 1988 which would point to a legislative intent to exclude “mens rea” whether considered as a whole or in the light of any of its component provisions.”

Subsequently however, Section 29 was amended to specifically state:-
“Strict liability applies to the various preceding sub-paragraphs” and that for a definition of “strict liability”, the Criminal Code is referred to.

Strict liability is now a feature of other Civil Aviation Act offences: s 23 (2A) (carrying or consigning Dangerous Goods) and several Civil regulatory offences: CAR 301 (failure to produce documents to CASA on demand); and CAR 302 (failure to produce licences on demand).

Although the strict liability nature of such offences is consistent with many regulatory schemes designed to protect public safety and welfare, this remains an area of controversy for many in general aviation. It should be noted however, that even for these matters, defences of “reasonable mistake of fact” and “unavoidable cause” are available and need only be established on the balance of probabilities.

In conclusion, there have been significant recent improvements in enforcement and regulation – both in policy and law. Most are good for the general aviation pilot and operator and ones which would have been greeted with enthusiasm and excitement had we been able to see ahead from that point 10 years ago.

I would like to think that ALAANZ has offered a forum for dialogue among lawyers from both sides of the fence, that has been able to contribute to such positive changes.

Thank you for your interest and the opportunity of addressing you today.