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Legal Effect of CAR’s

From the RAA web-site – Legal effect of the CARs and regs:

A note from RAA in: Some noteworthy sections of the Civil Aviation Act 1988, the CAR 1988 and the CASR 1998

Sport and recreational pilots and aircraft owners are not exempt from any part of the CAA 1988.

In the Act, ‘aircraft’ is defined as ‘any machine or craft that can derive support in the atmosphere from the reactions of the air, other than the reactions of the air against the earth’s surface [e.g. hovercraft]’.

A notable facet of the CAA 1988 is that it specifies imprisonment for some specific offences related to aircraft operation; for example, up to two years imprisonment for flying an unregistered aircraft.

Chapter 2 of the Australian Criminal Code applies to all offences created by the Civil Aviation Act 1988.

So, if charged by State or Federal police (for example) with an offence created under the Civil Aviation Act the penalty is likely to be more significant than if charged with an offence created under the CARs or CASRs.

For example, CAA Section 20A states: ‘(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.

Penalty: Imprisonment for 5 years.’

If charged under state legislation the penalty could be higher; for example, the Victorian Crimes Act states:

‘A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.

Penalty: Level 5 imprisonment (10 years maximum)’ .

(Note: RA-Aus registered aircraft were re-classified as ‘Australian aircraft’ in a September 2004 amendment to the Act, thereby removing an anomaly where RA-Aus aircraft were legally ‘neither Australian aircraft nor foreign aircraft, but were effectively treated as foreign aircraft that were allowed to operate in Australia but did not have the nationality of any ICAO contracting state’. Thus since 2004 persons flying RA-Aus registered aircraft are clearly subject to the penalties specified in CAA 1988 and the regulations.)

The penalties in the CARs and CASRs are generally fines expressed in terms of ‘penalty units’ — a convenient method for State and Federal governments to index their income from fines.

The monetary value of one penalty unit in the Commonwealth legislation is adjusted from time-to-time by the Federal Treasurer and is currently around $110, so a 50 penalty unit offence (the maximum) may result in only a $5500 fine rather than a term of imprisonment.

The words appearing under some CARs or CASR’s:

‘An offence against regulation … is an offence of strict liability’ imply that the offence is such that it is not necessary to show a criminal intent in order to prove a breach of the regulation — much the same as the road traffic regulations.