JUST CULTURE AND ACCOUNTABILITY FOR FLIGHT SAFETY EVENTS IN AUSTRALIA AND NEW ZEALAND

摘要

The purpose of this article has been to examine the extent to which the notion of Just Culture is or might be accommodated within the frameworks of law that apply to both civil and military aviation in Australia and New Zealand. In that respect, it identifies two streams of Just Culture. The first stream requires appropriate evidential separation between FSE investigations and enforcement investigations. The second represents an aspiration that prosecutorial discretion be exercised sparingly in aviation cases. There is little doubt that international aviation law already places significant impetus behind the first stream. This is reflected in Australian and New Zealand law to a very large degree. The second stream of Just Culture is more problematic as current law and policy stands. As has been indicated, it cannot be applied in the case of New Zealand military aviators without an amendment to the Armed Forces Discipline Act.120 For the remainder of the Australian and New Zealand aviation community, the matter turns on the exercise of prosecutorial discretion by the relevant enforcement authority. There are already policy indications, particularly from the CAA in New Zealand, that an approach akin to Just Culture may now be viewed with favor in at least some official quarters. On the other hand, both countries still have a number of minor aviation offenses in their statute books which would not be required in that form if their Parliaments were committed to the application of Just Culture. It may be that the evolution of not prosecuting for certain offenses is more palatable at this point than the revolution of repeal. There are parallels here with some other areas of the criminal law that have gradually faded from use. Perhaps the time has come for a parliamentary re-examination of the use of infringement offenses for minor aviation offenses as an alternative to prosecution on both sides of the Tasman Sea.