New Australian legislation allows CVR evidence to be used against foreign aircrew

[Boyd Munro]

A Bill is before the Australian Parliament which will allow CVR evidence to be used in criminal proceedings against foreign aircrew.

It is the Transport Safety Investigation Bill. It re-names a CVR to an OBR. Then 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 on the way into Sydney from Singapore. It gets held for a very long time at Bindook and landing fuel finally drops to the seven-ton minimum allowed by XB Airlines SOPs. F/O Lingquison urges Captain Porridge to declare an emergency (as required by company SOPs), because are now looking at 6.9 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 because he does not want to do a heap of paperwork after they land. They are engaged in that discussion when they are released from the hold, and they proceed to Sydney without incident and land with 7.1 tons aboard because an unexpected runway change from 16R to 07 saves them 0.2 tons. They think no more about the conversation at Bindook and go to their hotel. Unknown to either Captain Porridge or F/O Lingquison, what happened at Bindook was an "immediately reportable matter" under Reg 2.3 and their failure to report it is punishable by six months jail.

Meanwhile, a passenger from XB777 has reported a fake injury claim to XB airlines. The passenger boarded the flight with a bad back, injured while riding a horse on the morning of departure. The passenger makes a fake claim on arrival at Sydney, alleging that his back was injured by the rough landing in Sydney.
After taking details of the claim, the Station Manager calls the Australian Transport Safety Bureau as he is required to do by Section 18(1) of the TSI Act. He calls the crew at their hotel but they are out visiting friends in Sydney.

Inspector Genghis from ATSB arrives at the aircraft and seizes the CVR and the FDR under Section 36(3)(b) looking for evidence of the hard landing.

When he plays the CVR he finds no evidence of a hard landing, 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 XB Airlines is delighted because the CVR and the FDR completely exonerate the airline from the allegation of a hard landing and its potential liability under the fake claim.

Ordinarily, XB Airlines could not use the CVR and FDR evidence to exonerate themselves. But the new Australian Bill contains an amazing provision, Section 49, which allows ATSB to declare that an OBR is no longer an OBR. So XB Airlines approaches ATSB to do just that. Once ATSB has done so, XB Airlines can use the evidence to defeat the false claim against it. However, sadly for the crew, now that the OBRs are no longer OBRs the evidence on them can be used against the crew to support other charges - and can be used by XB Airlines for disciplinary proceedings against them.

Understand what has happened here. No harm was done, the aircraft landed with more than minimum fuel, and the crew's 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.

All of the above sounds preposterous, I know. Sadly it is not. It is fully documented and explained at airsafety.com.au/trinvbil/ Note that Sections 24 (Hindering ...) and Section 32 (Interrogations ...) also have great potential for misuse. If this Bill passes, aircrew operating in Australia will be entirely dependent on reasonable use of the law by the bureaucrats who operate it. Some of us would prefer that the law itself be reasonable!

Neither IFALPA nor any non-Australian Airline was consulted about this Bill (see airsafety.com.au/trinvbil/consult.htm ).

I urge any pilot who is concerned about this to contact his association such as ALPA, BALPA or HKALPA to give them a heads-up about this proposed legislation. There is no time to lose. The Bill will probably be debated by the Australian House of Representatives on 16th September. As things stand at present, it will pass both Houses because the Opposition supports it.

There is a good chance, though, that if even one foreign union writes to the Australian Minister for Transport expressing reservations and asking for clarification, it will be reconsidered. The Minister is The Hon John Anderson, MP, Parliament House Canberra Australia - fax number [phone], e-mail [email protected]



Boyd Munro
AIR SAFETY AUSTRALIA
Phone:[phone] Fax:[phone]