Bring on the marauding Mongol Hordes! The TRANSPORT SAFETY INVESTIGATION BILL 2002 is before Parliament right now.
It brutally slaughters the protection that should be accorded to CVRs (now to be known as OBRs).
Section 55 says "
OBR information ... is not admissible in evidence in criminal proceedings against a crew member (other than proceedings for an offence against this Act)."
Section 18(1) says "
If a responsible person has knowledge of an immediately reportable matter, then the person must report it to a nominated official as soon as is reasonably practicable and by the means prescribed by the regulations. Maximum penalty: Imprisonment for 6 months.".
Regulation 2.3(2)(l) defines it as an "immediately reportable matter" if you run low enough on fuel that company procedures require you to declare an emergency (see
www.airsafety.com.au/trinvbil/c619regs.pdf if you wish).
How it might work is this. Flight XB777 is low on fuel on the way into Sydney. It gets held for a very long time at Bindook. F/O Lingquison urges Captain Porridge to declare an emergency, because company SOPs require it if landing fuel drops below 4 tons and they are now looking at 3.9 tons when they land. Captain Porridge says no thanks, it's a nice clear day and he can see the airport so he'll wait a little longer before calling Mayday. They are engaged in that discussion when they are released from the hold, and they proceed to Sydney without incident and land with 4.1 tons aboard because an unexpected runway change from 16L to 07 saves them 0.2 tons. Then ...
Scenario 1. They think no more about the conversation at Bindook and go to their hotel, not having erased the CVR. Unknown to either Captain Porridge or F/O Lingquison, what happened at Bindook was an "immediately reportable matter" under Reg 2.3. Later on, Inspector Genghis from ATSB storms the aircraft "with such assistance, and by such force, as is necessary and reasonable" (Section 23) and seizes the CVR under 36(3)(b) looking for evidence of a completely different occurrence.
When he plays the CVR a few days later he finds no evidence of the occurrence he was looking for, but to his great glee he hears the conversation that occurred in the hold at Bindook.
Genghis then charges both Captain Porridge and F/O Lingquison under the TSI ACT Section 18(1) with failing to report an immediately reportable matter (penalty 6 months jail). He may use the CVR as evidence because of Section 55 of the TSI Act.
Scenario 2. After reaching the gate Captain Porridge instructs F/O Lingquison to erase the CVR. They then go their hotel and, in the bar, congratulate themselves on having negotiated the runway change that saved 0.2 tons of fuel. Inspector Genghis overhears them and goes out to the airport, boards the aircraft and seizes the CVR but finds it blank. He then requires Captain Porridge and F/O Lingquison to attend an interrogation under Section 32. He knows how to use that section, and he interrogates them in separate rooms. He asks each of them whether the other person erased the CVR. They cannot refuse to answer because that would be hindering an investigation (worth six months in jail under Section 24), and the answer that each gives can be used against the other one. So in a moment he has evidence against each of them for hindering an investigation by erasing the CVR. And a few moments later, using the same technique, he has evidence about the discussion at Bindook. Note that Section 24 makes it an offence to hinder an investigation that has not even commenced! F/O Lingquison and Captain Porridge do 12 months in jail - six months on each charge. They are convicted solely on the basis of answers they were forced to give by the Transport Safety Investigation Act (but only if this Bill passes).
It gets worse. The new Bill gives ATSB power to declare that an OBR is not an OBR - and thus allow its use in evidence. Section 49 says
"
OBR ceasing to be an OBR under Executive Directors declaration
(1) The Executive Director may, by published notice, declare that a recording, or a part of a recording, identified in the notice is not to be treated as an OBR on and after a date specified in the notice. ...
(4) The Executive Director cannot revoke or vary a notice published under this section."
So while the hapless Porridge and Lingquison in Scenario 1 are doing their 6 months in jail, ATSB can declare that their OBR is no longer an OBR, thus allowing CASA to prosecute them and their company to discipline them.
Understand what has happened here. No harm was done, the aircraft landed with more than minimum fuel, and the Scenario 1 offences would never have come to light were they not recorded by the CVR and then uncovered during an unrelated fishing expedition. Yet the crew become eligible for jail on the basis of the CVR evidence alone.
Also understand the threat posed by Section 49. ATSB can declare that an OBR is no longer an OBR. It is still subject to limitations on disclosure but it
can be used in evidence.
I urge anyone interested in this to refer to
www.airsafety.com.au and email us on
[email protected] to demand amendments to this Bill before it is too late. The Shadow Minister for Transport, Martin Ferguson, wrote to AIR SAFETY AUSTRALIA two weeks ago saying that Labor plans to support this bill without amendment. He pointed out that not one single other organisation had contacted him expressing concern about this Bill so, if you belong to a union, urge your union to contact Mr. Ferguson.
There are many other search, enter, seize, demand answers etc. provisions in the Bill. The powers it gives to ATSB are as extreme as the penalties imposed on pilots. If the TSI Bill passes in it present form it will create yet another marauding Mongol Horde to ride roughshod over Australian pilots. We have one too many of those already.
ATSB has, at present, a generally better reputation than CASA. In no small measure that's because it does not have CASA's extreme powers. This Bill, unless it is amended, will give ATSB extreme powers. At some stage those will extreme powers will inevitably be used very harshly.
Boyd Munro
AIR SAFETY AUSTRALIA
Phone:08 8357 9596 Fax:02 9225 9127
