Intent and Normalised deviance.
For the legal eagles who operate in the higher atmosphere a single word can form the base for a pivotal part of a case; a word like ‘reckless’ for example. The word, standing alone, can be defined may ways – a simple, quick Google search provides reams of explanation.
Wiki “The precise definition of recklessness has been contested and has evolved. It generally involves a person pursuing a course of action while consciously disregarding that the action gives rise to a substantial and unjustifiable risk”.
You may, if you’ve a mind to, persist with the search and be no better informed from that search than the ‘Wiki’ explanation – which brings ‘mens rea’ and ‘actus rea’ into play and touches on ‘strict liability’. This is the word world the James ‘case’ (Norfolk ditching) has landed in.
The ‘law’ however works both ways – and is applicable in this case to all parties; i.e. ATSB, CASA, Pel-Air and James. The TSI Act mentions ‘reckless’ in part 24 where conduct likely to adversely affect on investigation etc. is raised. If we take the spotlight off James and his actions and turn it onto the ATSB and CASA to look closely at their actions – in the context of ‘reckless’ and ‘adversely affecting such an investigation’, we see a remarkably different picture emerge from the gloom.
No one in their right mind would mount the prosecution of ATSB and CASA in relation to their actions in this matter; the cost in time alone would be incredible, not to mention the money. The agencies involved know this; and, rightfully, believe they are 'safe': placed above the law by the cost, outside of the law by the time required to get to the first appeal and protected by ‘the government’ which would be harmed if the case against was proven. In short, they are, to all practical intent and purpose, untouchable. Hells bells – even Aleck publicly admits that ’the Act’ is unconstitutional.
But then, in simple terms, what has been done not only to James, but others is wrong. Plain, pure and simple – wrong. We keep screaming for the regulator to be reformed, for there is little which can be done about ‘the law’. The ditching of the Pel-Air West-wind off Norfolk Island could serve the nation very well – if it was managed the right way. The incident provides a perfect ‘snap-shot’ of all that is wrong with the legislation, the way CASA choose to interpret those laws to suit and the way in which the ATSB can be utilised to support the CASA edicts and judgement. A long hard look at the ‘case’ shows James to be more sinned against than sinning; but then so does examination of several other ‘cases’, such as Airtex on a ‘company’ level and Quadrio on a personal level.
In a fair world, these matters examined and compared would shock the nation. A government that was genuinely concerned about the health and well being of an industry would call for an inquiry into the actions of it’s ‘watch dogs’ and take positive action when they discovered that the sheep killers were their very own animals. But why bother when the safety of the travelling public is so well protected by the ‘law’ that no case, no matter how blighted, can ever be brought home to a government agency. Well it should be; those involved in the Pel-Air scandal should be dragged (metaphorically) by the scruff of the neck into a court and prosecuted, we know who they are, so does Carmody. I can’t and he won’t so why have I just wasted ten minutes of my life and of those who may read my twiddles?
Be buggered if I know – but I feel better now for doing it.
Selah,
For the legal eagles who operate in the higher atmosphere a single word can form the base for a pivotal part of a case; a word like ‘reckless’ for example. The word, standing alone, can be defined may ways – a simple, quick Google search provides reams of explanation.
Wiki “The precise definition of recklessness has been contested and has evolved. It generally involves a person pursuing a course of action while consciously disregarding that the action gives rise to a substantial and unjustifiable risk”.
You may, if you’ve a mind to, persist with the search and be no better informed from that search than the ‘Wiki’ explanation – which brings ‘mens rea’ and ‘actus rea’ into play and touches on ‘strict liability’. This is the word world the James ‘case’ (Norfolk ditching) has landed in.
The ‘law’ however works both ways – and is applicable in this case to all parties; i.e. ATSB, CASA, Pel-Air and James. The TSI Act mentions ‘reckless’ in part 24 where conduct likely to adversely affect on investigation etc. is raised. If we take the spotlight off James and his actions and turn it onto the ATSB and CASA to look closely at their actions – in the context of ‘reckless’ and ‘adversely affecting such an investigation’, we see a remarkably different picture emerge from the gloom.
No one in their right mind would mount the prosecution of ATSB and CASA in relation to their actions in this matter; the cost in time alone would be incredible, not to mention the money. The agencies involved know this; and, rightfully, believe they are 'safe': placed above the law by the cost, outside of the law by the time required to get to the first appeal and protected by ‘the government’ which would be harmed if the case against was proven. In short, they are, to all practical intent and purpose, untouchable. Hells bells – even Aleck publicly admits that ’the Act’ is unconstitutional.
But then, in simple terms, what has been done not only to James, but others is wrong. Plain, pure and simple – wrong. We keep screaming for the regulator to be reformed, for there is little which can be done about ‘the law’. The ditching of the Pel-Air West-wind off Norfolk Island could serve the nation very well – if it was managed the right way. The incident provides a perfect ‘snap-shot’ of all that is wrong with the legislation, the way CASA choose to interpret those laws to suit and the way in which the ATSB can be utilised to support the CASA edicts and judgement. A long hard look at the ‘case’ shows James to be more sinned against than sinning; but then so does examination of several other ‘cases’, such as Airtex on a ‘company’ level and Quadrio on a personal level.
In a fair world, these matters examined and compared would shock the nation. A government that was genuinely concerned about the health and well being of an industry would call for an inquiry into the actions of it’s ‘watch dogs’ and take positive action when they discovered that the sheep killers were their very own animals. But why bother when the safety of the travelling public is so well protected by the ‘law’ that no case, no matter how blighted, can ever be brought home to a government agency. Well it should be; those involved in the Pel-Air scandal should be dragged (metaphorically) by the scruff of the neck into a court and prosecuted, we know who they are, so does Carmody. I can’t and he won’t so why have I just wasted ten minutes of my life and of those who may read my twiddles?
Be buggered if I know – but I feel better now for doing it.
Selah,