RAAus stopping membership

[Captain]

I hadn't picked up the "strict liability" - that would be a very interesting thought for the thousands of lazy members - maybe they should look it up and see what it means to them!!!!!!!!

Below is what Wikipedia says about "Strict Liability" .......... but before you read it, ask yourself how your paid advocates in the RAA could possibly be representing YOUR best interests by trying to bring in such a treatment for Members who end up with a problem arising from their flying.

 

While it might be argued that this is appropriate for those that fly without a licence or in unregistered aircraft, just consider the hundreds of grey areas of the Regs and Ops Manual where such a suggestion will mean that members will or may be screwed by the system ..... as "strict liability is the imposition of liability on a party without a finding of fault (such as negligence........)".

 

QUOTE from Wiki....

 

In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability (including fault in criminal law terms, typically the presence of mens rea). Strict liability is prominent in tort law (especially product liability), corporations law, and criminal law. For analysis of the pros and cons of strict liability as applied to product liability, the most important strict liability regime, see product liability.

 

In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous.[1] It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases.

 

A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable. Another example is a contractor hiring a demolition subcontractor that lacks proper insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs.

 

In strict liability situations, although the plaintiff does not have to prove fault, the defendant can raise a defense of absence of fault, especially in cases of product liability, where the defense may argue that the defect was the result of the plaintiff's actions and not of the product, that is, no inference of defect should be drawn solely because an accident occurs.[2] If the plaintiff can prove that the defendant knew about the defect before the damages occurred, additional punitive damages can be awarded to the victim.

 

UNQUOTE

 

 

[kaz3g]

Torts are civil wrongs; we are really interested in criminal matters.

 

Strict liability as it has been allegedly discussed by Messrs Tizzard and Co. is about removing the need to prove intention in criminal or quasi-criminal matters. They seem to want to extend this to contraventions of the RAAus rules covering those areas where the exemptions apply.

 

Offences against the CAR's or CASR's are strict liability offences. It doesn't matter whether you intended to commit the offence, the mere fact that you did it makes you guilty.

 

An example would be arriving at your destination with less than the mandated reserve of fuel onboard (sound like the Pel-Air decision?). The fact that the winds were stronger than forecast and the cloud base was one tenth of that forecast doesn't save the pilot responsibility for running out of fuel...strict liability applies.

 

It seems that the Tizzard group would like to have their own set of regs or similar and the ability to enforce them in the courts. They also appear to want to deal with disciplinary processes directly without the need to involve the Board...a frightening prospect after this latest fiasco.

 

Kaz

 

 

[eightyknots]

Below is what Wikipedia says about "Strict Liability" .......... but before you read it, ask yourself how your paid advocates in the RAA could possibly be representing YOUR best interests by trying to bring in such a treatment for Members who end up with a problem arising from their flying.While it might be argued that this is appropriate for those that fly without a licence or in unregistered aircraft, just consider the hundreds of grey areas of the Regs and Ops Manual where such a suggestion will mean that members will or may be screwed by the system ..... as "strict liability is the imposition of liability on a party without a finding of fault (such as negligence........)".

 

QUOTE from Wiki....

 

In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability (including fault in criminal law terms, typically the presence of mens rea). Strict liability is prominent in tort law (especially product liability), corporations law, and criminal law. For analysis of the pros and cons of strict liability as applied to product liability, the most important strict liability regime, see product liability.

 

In tort law, strict liability is the imposition of liability on a party without a finding of fault (such as negligence or tortious intent). The claimant need only prove that the tort occurred and that the defendant was responsible. The law imputes strict liability to situations it considers to be inherently dangerous.[1] It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying and thereby expediting court decisions in these cases.

 

A classic example of strict liability is the owner of a tiger rehabilitation center. No matter how strong the tiger cages are, if an animal escapes and causes damage and injury, the owner is held liable. Another example is a contractor hiring a demolition subcontractor that lacks proper insurance. If the subcontractor makes a mistake, the contractor is strictly liable for any damage that occurs.

 

In strict liability situations, although the plaintiff does not have to prove fault, the defendant can raise a defense of absence of fault, especially in cases of product liability, where the defense may argue that the defect was the result of the plaintiff's actions and not of the product, that is, no inference of defect should be drawn solely because an accident occurs.[2] If the plaintiff can prove that the defendant knew about the defect before the damages occurred, additional punitive damages can be awarded to the victim.

 

UNQUOTE

The most common strict liability criminal law matter is the road rules. Mens rea doesn't come into it. If you're speeding, you're guilty of the offence and you must pay the fine. Of course, this is always subject to judicial review but even in Court it will always be held a strict liability event.

 

 

[Guest Andys@coffs]

The most common strict liability criminal law matter is the road rules. Mens rea doesn't come into it. If you're speeding, you're guilty of the offence and you must pay the fine. Of course, this is always subject to judicial review but even in Court it will always be held a strict liability event.

And yet the first thing the police do when they pull you over and explain the situation is to ask if you have a reason for speeding. If the approach was strict liability then that whole "why were you" would seem a sharade.

 

Or have I missunderstood?

 

Andy

 

 

[shags_j]

Read speed cameras

 

 

[djpacro]

... police ..... ask if you have a reason for speeding.

We could postulate some fair reasons but generally - if you answer then you have admitted to breaking the law - just something to remember when responding to police questions but for speeding (especially in Victoria) just smile for the camera and pay the fine.

[Captain]

While we are giving consideration to the fantastic performance & member advocacy of the CEO of the RAA, I note that he has not included a CEO's Report in this month's magazine.

 

The CEO used to provide a regular report to the members in the Mag, but I don't recall seeing one for a while.

 

Does anyone know how long that has not been going on ............ and why?

 

Has he been on leave in the leadup to the latest magazine or does he perhaps no longer worry about reporting to the 11,000 financial members?

 

Regards Geoff

 

 

[turboplanner]

Just in case anyone has missed the point and at this stage is about to post asking who's going to Ausfly.

 

If you are members of RAA, these people are your EMPLOYEES, employed by you to look after your interests in a Self Administering association.

 

I'd ask you to pause and give that some consideration for a minute.

 

Now, do you, or did you want to reduce your democratic rights, which you have had for centuries from being innocent until proven guilty to strict liability?

 

Did you give your employees any authority to advocate this on your behalf?

 

If the answers are no, then the next question is what are you going to do about this?

 

Since these employees appear to have been given no direction to stop this trend, I'd suggest this has to be done in days, not weeks.

 

 

[kaz3g]

The most common strict liability criminal law matter is the road rules. Mens rea doesn't come into it. If you're speeding, you're guilty of the offence and you must pay the fine. Of course, this is always subject to judicial review but even in Court it will always be held a strict liability event.

That's absolutely true, 80kn...the criminal mind doesn't come into play in strict liability. The case still has to be proven but the circumstances no longer may constitute a defence. At best, the circumstances now only go to mitigation of penalty.

 

As I pointed out in my earlier post, most offences against the CAR and, more importantly, all those against the CASR'S are already framed as strict liability matters. As we all know, CASA enforces these pretty rigorously and the penalties are severe. But there are a few things to consider when making a comparison with the apparent desire of some to bring a similar regime to RAAUS specific stuff:

 

1. CASA often chooses to proceed by administrative action (for example by suspending licences) rather than by filing charges. In my view, this is quick and dirty...quick because it gets a blatant cowboy out of the air, but dirty because it denies the basic rights to the presumption of innocence and to have guilt or innocence determined by a court;

 

2. Balancing CASA's enforcement actions is their oversight by very experienced legal counsel acting in-house, the not insignificant training given to those who carry out the enforcement, and the obligation imposed on CASA as a Commonwealth body to always act as a model litigant (a very contentious issue for some); and

 

3. When CASA does file charges, they are prosecuted by DPP and their determination is by a properly constituted court. Granting enforcement and prosecutorial powers to a private entity which is an incorporated association is fraught with potential disasters. This is the role of the State, not private individuals.

 

I note that access to CASA' as the enforcement body is already available to RAAus in regard to most issues affecting flying safety. The ops bloke or whomever only has to pick up a telephone and their particular expertise as well as their credibility (presumably) will ensure an almost immediate response involving an investigation and charges. RAAUS only misses out on the immediacy of administrative action if it fails to put a proper system into place.

 

So I don't really follow the reasoning unless it is about individuals' power trips.

 

Kaz

 

 

[Admin]

Naturally being involved in this massive resource Recreational Flying (.com.au), every week I receive many phone calls, emails and even letters by snail mail on many things to do with RAAus, issues experienced by members, thoughts and ideas, rumours and gossip etc etc etc. One recent phone call I was told of a rumour (NOTE RUMOUR ONLY and NOT CONFIRMED BY ME) that RAAus was looking into implementing a CASA style Points and Fines System. Is this what you guys are referring to with "strict liability"...this rumour needs to be verified first though otherwise it is all hypothetical

 

 

[Guest ozzie]

how the hell can the RAAus get the power to issue fines and points? More frigging egos.

 

 

[turboplanner]

No, frigging laziness by thousands of members and deliberate spoiling by a few people supporting the ones doing it.

 

 

[shags_j]

No, frigging laziness by thousands of members and deliberate spoiling by a few people supporting the ones doing it.

I wouldn't go that far Turbo. There are a lot of people that just want to be a member to fly and do not want to get involved in the politics of it all. I think the majority of the people on this site (qualified statement) are more politically minded.

I wouldn't call this laziness. There are some who have been through all of this before in other associations and just don't want the hassle anymore.

 

Not having a go, just something to keep in mind.

 

 

[David Isaac]

The risk for all us has and always will be apathy. Until the average member realises how some of the actions of a few at the top can significantly impact on the freedoms and privileges of all, most will just say this is all political stuff and I just want to fly.

 

To that I will say wake up and smell the roses; how do we think we obtained the right to fly ultralights in the first place ... it was ALL by political activity by a few good people and all it will take is apathy and few people with not so good intentions to potentially take our freedoms away.

 

So to that end, all of us be warned ... we need to take an interest in what is happening and get involved in our associations affairs.

 

The start of this is to support the first of the constitutional reforms, that will get us a second general meeting at Natfly and the ground to promote appropriate constitutional reform to sort out the governance issues.

 

The Constitution is the legal instrument by which we are fundamentally governed, if anyone moves outside of what the constitution permits they can be stopped. The constitution needs a lot of work and that is a process. There have been a few changes to the constitution over the years that have clearly lacked legal and professional input and By-Laws have been used by the board for governance where arguably constitutional change would have been a more professional and prudent route.

 

To start that work effectively and sort some governance issues out the four special resolutions before us at the Heck Field AGM need to get up as the first stage.

 

Lets not turn this into a 'witch hunt' let us make sure we follow proper process and deal with the issues in a proper and professional manner. The real power is in the members hands if the members understand the issues.

 

Please don't just dismiss the goings on as 'Political' and take no interest ... this is our organisation, proper governance is in our hands.

 

To dismiss all this activity as 'Political' and not take an interest, is to potentially do so at our mutual peril.

 

Regards,

 

 

[shags_j]

Preaching to the choir David. Problem is deisseminating that idea to the general community. The ones that are least likely to be proactive are the ones least likely to be on a site like this participating in these conversations.

 

 

[turboplanner]

Preaching to the choir David. Problem is deisseminating that idea to the general community. The ones that are least likely to be proactive are the ones least likely to be on a site like this participating in these conversations.

Well there's a job for you Shafs in your circles because 90% of the people you fly with don't read this forum and won't know. Remember Aldinga got 5000 people motivatedf in a very short time to help save their airport.

 

 

[Guernsey]

Let us not forget that our President will not be attending the AGM.

 

Alan.

 

 

[turboplanner]

There's not a lot of significance in that; he's in the military and if he's been ordered elsewhere that's not his fault.

 

Getting your Proxy in is the most urgent matter; If the Constitutional changes are passed that's the start of getting more regular meetings where you can vote on the issues of the day.

 

 

[Guernsey]

Agreed, however some members may be attending thinking that they would be able to ask him questions directly..

 

I have voted,

 

Alan.

 

 

[ExJourno]

May I make some observations and then ask a question about this incident?

 

The letter written back regarding Ian's application, on the face of it, doesn't appear to me to be as out-of-line as it is being made 0ut (note, I am new to RAAus and do not come with an already-formed cynical view of the organisation or its execs).

 

The letter, to me (ignoring the statements of fact not being phrased as allegations), gave the reasons for referring the application to the board and invited submission. It could have been worded, shall we say, in a manner which was more politically correct, but the core message wouldn't have changed. And while the writer may have had a known personal grievance, for reasons below, I can see how he may have had the resonsibility to be the signature on such a letter - let's say there was a genuine reason to refuse Ian (not saying there is or isn't, just posing hypothetical for my own purpose here) and there is a conflict, the writer would still have had to refer it to the board - then it would have gone, "I can't defer your application due to conflict of interest so I have petitioned the board to decide whether this application should be referred to the board for consideration".

 

For the board to excercise its constitutional ability to refuse a membership, it needs to consider the application prior to the membership being granted - ie, the provision doesn't apply once you are a member.

 

Certainly, the argument raised regarding freedom of speech is very valid (in rebutting the claims Ian's comments bring RAAus into disrepute) as is the request for complaints etc to be provided for proper reply.

 

But I would have thought the process would have been to make a submission to the board and then involve lawyers if there was no joy and the application had actually been refused.

 

Unless I am missing something, the application was never refused, but rather only deferred to the next board meeting.

 

Naturally, a quick solution is good. However, a great many questions posed here may have been answered by waiting for the board to consider the application.

 

Now, it can't be known what the board would have done had this situation been seen on an official agenda. I can see where there would be opportunity to assert the stated conflict of interest, but because the board didn't end up considering the application, again, you will never know whether anyone on the board would have declared a conflict and removed themselves from the process.

 

From Ian's point of view, I can understand him wanting the fastest result possible and his being incredibly pissed off - I would have too, admittedly.

 

But and this is what leads me to my question, I don't actually see what was so wrong with the process taken by RAAus in delaying the decision and defering it to the board - personal feelings and stress-caused, aside.

 

I see comments regarding unilateral decision-making, but that would come from a standing order deferring responsibility to a staff or board member to alert the board of potential applications refusals may apply to, wouldn't it?

 

Raising the health issue posed a prime opportunity for RAAus to backpeddle - my reading of the constitution shows a very different method to kick members out than it does for refusing initial membership. Raising the health reasoning for lapsed membership effectively gave rise to an argument which was as much emotional as it would be legal, but regardless the reason was one which had the potential to be a PR snafu for RAAus. As it stands, I can see how this smacks of an opportunistic ploy to be rid of a person who may not quite qualify for disiplinary action of a member, but might have simply copped being refused membership (try to think like YOU were trying to oust Ian for whatever reason).

 

What I can't see, outside a poorly thoughtout letter, is how the process was any more unfair (in strickly operational terms) than any other process in which you can be vindicated at the end (in which case you should not have been subjected to it - an inccocent man should never have even been tried, but was, type thing).

 

So, can some-one explain to me what it is I have missed when I read through the reply to the application, the solicitor's letter/email and the reply? Because what I see (rightly or wrongly) is an extremely stressful situation that was set in motion but which was never seen through (ie. the board didn't get to make a decision).

 

 

[Thirsty]

The last part of your last statement is the problem as I see it - why didn't the board see it through? Either there is an issue or there isn't and Ian letting his membership lapse because he was crook has nothing to do with the other supposed reasons for referring his application to the board.

 

I read the two letters to my wife (who is a lawyer) and she too immediately picked up on the missing issues in the second letter granting Ian membership. Very strange backflip if there really is an issue with Ian and the RAA!

 

 

[Admin]

The thing you have to remember is my health has absolutely nothing to do with any of this...my solicitor said as a part of her email that this was the reason why I let my membership lapse but the reason why I let my membership lapse has nothing to do with my application to join RAAus

 

 

[turboplanner]

Adam the central issues here were quite concise but that's not reflected by the very wide gambit of comments and emotions throughout this thread and others.

 

Kaz in a couple of posts gave a very clear explanation of the legal issues.

 

If you are not a lawyer, I'd suggest you could be guided by what Kaz says because that's the core of what occurred.

 

If you are a lawyer, then obviously there are no issues with a different opinion, but it would be better if it directly related to the case rather than the side chat which went on, because that has no ending.

 

 

[ExJourno]

Turbo, I'm not sure I've put a different opinion to kaz. And all the emotive stuff is precisely why I've asked a question. It seems at odds with the actuality of the letters.

 

Much of my comment is more about organizational process than law... If you reread my post you'll see that (along with some rather annoying typos).

 

A less politically correct way for me to have said the same thing may have been: "how are you guys arriving at these comments and views? There's nothing in the letters that indicates much of what is being said".

 

 

[David Isaac]

Adam you have made some interesting observations and I like to hear others perspectives.

 

This is how I see what happened leaving out the personalities; and I am no lawyer.

 

IMHO By-Law 12 was improperly created; the power that allows the Board to create By-laws is vested in them by the constitution and is limited to those matters to allow the Board to manage their affairs and the day to day affairs of the association (loosely). I would argue that the power granted in By-Law 12, which directly affects the membership of RA Aus, goes beyond the intended purpose of day to day provisions and as it directly involves membership must be a direct constitutional provision approved by a special resolution voted on by the members. I would argue that a number of By-Laws have been inappropriately created over the years and a number of people smarter than me also agree that a number of Constitution provisions have significant legal issues.

 

I would also argue that since there is no provision in By-Law 12 for an appeal process, that By-Law 12 would be unlawful as it would fail to provide 'procedural fairness' in the 'Natural Justice' provisions of which the RA Aus is bound to comply.

 

IMHO enacting this controversial By-Law in this manner lacked professional prudence as there could not possibly be any beneficial outcome to the members.

 

IMHO the unsubstantiated written allegations of the President were inappropriate and unprofessional and left his actions open to challenge under procedural fairness.

 

IMHO the President inviting the aggrieved person to submit a response to the Board to the alleged unsubstantiated allegations is absurd in the extreme. How can a person offer a defense to allegations that have not been substantiated or detailed?

 

IMHO the fact that the President made these allegations independent of any Board discussion indicates he was acting independent of the Board which is contrary to the authority that the constitution affords the President or the Executive. The President and the Executive must carry out the wishes of the Board, they are the Board representatives at an executive level. The President is not 'the Boss'.

 

IMHO given the Board has an online forum through which they conduct day to day business it becomes a reasonable conclusion that this matter could have been rapidly dealt with before writing to the aggrieved person involved. Therefore it could be argued that the delay was used as a means to deprive the person the ability to nominate for a Board position, (whether he intended to or not) further compounded by the fact that membership was eventually granted the same day as nominations closed for the vacant Victorian Board position.

 

IMHO the fact that the President required all written responses from the aggrieved person to be directed to the President personally and not via the secretary to the Board is entirely inappropriate leaving an unfortunate perception of personal involvement

 

And now lets look at the personalities involved in this case. It is widely known in RA Aus circles that the aggrieved person is vocally critical of certain Board, Executive and Management decisions and that the aggrieved person has publicly criticised the CEO's behaviour on several occasions. It is also widely known that the CEO instructed Slater and Gordon to write a legal letter to the aggrieved person at RA Aus expense without Board approval to do so, the letter was of a nature to threaten the aggrieved person with legal process if he continued to criticise the CEO.

 

IMHO the CEO is complicit in the President's actions against the aggrieved person because there is no way ordinarily that the President would be aware of any particular individual applying for membership. Given what I see as a personal conflict of interest the CEO and President have with the aggrieved person, this whole action on the part of the President is a mater that should be subject to scrutiny.

 

You could put forward a view point that reasonable process was followed, however, I would use the above discussion to put forward the view that what was done was inappropriate, unprofessional, has the smell of a personal vendetta, a perceived conflict of interest and could only bring the RA Aus credibility under scrutiny.

 

There were and are absolutely no winners here and I would just love to listen to the reasons the individuals involved would give to the members to justify their actions.

 

EDIT: 11/9/12 - Grammar corrections and added words to clarify some issues.

 

Regards,