CVR recordings to lose protection under new legislation

[Boyd Munro]

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
http://airsafety.com.au/images/logo.gif (http://airsafety.com.au/trinvbil/)

[cribble]

:( To the barricades!!
Seriously, don't treat this as a mere bureaucratic aberration.
This is bloody dangerous. We had a similar problem when the NZ cops were trying to stitch up the captain of an aircraft that crashed on approach.
Get your union reps mobilised and lobbying, if they are not already working on it. Write to the newspapers, MPs, mother of ten, anyone who can help get this major threat to open reporting and improved flight safety stopped in its tracks.
Good luck

[Tinstaafl]

Use an 'Etcha-sketch' for contentious conversations.

[*Lancer*]

Boyd,

Not sure about the requirement to declare an emergency in your example... the aircraft had enough fuel to reach a suitable airport (in this case RWY 07), and so wouldn't they only have a requirement for that runway?

Having said that, it certainly looks like the Reg needs a lot more drafting!

Lancer

[clutchcargo]

Looks as though someone has been following the NZ Dash 8 accident and subsequent court actions by the police in being able to get hold of and use the CVR transcript/tape for criminal prosecution/evidence fairly closely and has decided to try for new depths.

Maybe it should be suggested to these people that we put voice recorders into their offices and workplaces and then listen to them on the grounds they may be hiding (or worse, thinking)criminal intent.

Is this not going against the ICAO recommendation that CVR's be only used for accident investigation??

Dark times indeed if this is allowed through.

[LeadSled]

Lancer

Be careful, and know the possibilities.

JAR-OPS 1 rules require any operator subject to their rules to declare an emergency if the estimated fuel remaining in tanks, ON BLOX, is going to be less than 30 minutes “calculated by the prescribed method” or some such suitably legalistic words.

CASA proposed Parts 121A and Parts 121B have a similar requirement for fuel IN TANKS ON BLOX, and the various bumpf in the DP/NPRMs referred to “taxi in” fuel. Undoubtedly it will be a "STRICT LIABILITY OFFENCE", with the usual draconian penalties.

The draft rules call for an incident report to be filed in such a case.

The fuel remaining is 30 min. for jets, 45 min. for piston, calculated as prescribed in the regulations.

I trust you all noticed this and the many other things CASA has dreamt up in these lulus, to make life miserable for pilots, haven’t you.

But have no fear, CASA has solved the CFIT problem, they have made it illegal, see Parts 121A/121B.395. Too easy, I wonder why we didn’t think of that before.

Remember the slogan ---

“CASA, We Put The Harm in Harmonisation”

Tootle pip !!

[Boyd Munro]

To BIK_116.80

Well I was talking about your home town of Bindook so it's no surprise you responded. You are absolutey right, my circuit breakers are popping. Here we see a horrible piece of legislation in the offing. The poor benighted Minster (John Anderson) is utterly subservient to his bureaucrats, and on this issue Labor has been hoodwinked too.

Please call your Federal MP and say that he/she is throwing you to the bureaucratic wolves with this Bill. And if you are a member of a Union or an Association, get that organisation to object to the Bill, too.

And please join AIR SAFETy AUSTRALIA unless you are already a member - it's free.

And tell me a bit more about Bindook, please. I have spent more time circling over BIK than most living creatures, but all I have been able to see down there is a VOR.

To Cribble

Good on you. Please join AIR SAFETY AUSTRALIA unless you are already a member - it's free.

To Lancer

Thanks for your note. The scenario I envisaged was where company SOPs required declaration of an emergency if the foreseen fuel on landing dropped below 4.0 tons. The foreseen fuel was 3.9 tons with an approach to runway 16L. I am personally very familiar with Bindook and holding patterns and Sydney airport. Frankly I can't think of an aircraft type that would need 4 tons reserve and would save as little as 0.2 tons because of a runway change from 16L to 07 after holding it Bindook (BIK 116.80).

To Clutchcargo

I could not agree more. The NZ accident showed what OBRs can do to flight crew. I hold ATPLs both fixed and rotary but I have never used them - in real life I am a computer programmer, and have never flown professionally but I have demonstrated that I can meet professional standards. I cannot believe that you professional pilots have allowed these CVRs into your workplace except where all crew are dead. That's offensive, I know. But would I allow recording devices in my company's offices - absolutely not.

It is absurd that a mere Private Pilot is leading the charge against this Bill. The charge should be led by the pilots' Unions, and I still hope it will be.

[Bhing]

Thanks for the info' - and I aggree that many will elect to disable the CVR. My problem is how to do it. Many of us fly aircraft where the C/B's are not in the cockpit. In my case they are down in the E&E compartment and not redily accessible. Any suggestions short of retiring to manage the situation as I don't trust management to look after our interests.

[Planned Root]

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.

Boyd ...

I am sure that your concerns are shared by most who read your post and it is appreciated that you brought this to our attention.

However, if you want credibility for what you post then don't lay this sort of crap onto us regarding the ATSB.

My experience with these guys is that they are about the only good ones left in the circus of government bureacracy.

They NEVER HAVE, DO NOT AND NEVER WILL play a prosecuting role. CASA have within their own a department that deals with any prosecutions.

[Cherokee6]

Thanks for your views, Planned Root. But are you saying that Section 18(1) of the proposed Act will never be enforced, or that it will be enforced by some one other than the ATSB?

If it will never be enforced then why is it in the Act? It certainly
provides good ammunition for those who oppose the Act. If it will be enforced by some one other than the ATSB, what difference does that make to our "Captain Porridge as he languishes in jail?"

Cheers, Cherokee6

[Torres]

Planned Root. Face reality. I too agree BASI/ATSB are a good bunch of guys and my dealings with them were most professional.

I could almost say the same thing about DCA prior to 1989.........

It only needs ATSB to employ some pilik of a lawyer and create an Office of Legal Council empire (with another 40 odd lawyers who would never get work in private enterprise) and the trouble would start. ATSB can't play CASA type games with the AOC so they target pilot freedom.

Regardless of the ATSB intentions, now or in the future, why give them the legislative power in the first place? If they have the power one day, somewhere, someone will use it.

[*Lancer*]

Thanks leadsled, valid point. I think in any case you would have to be unlucky for something like that to actually occur, but the fact remains, you're in a legal 'coffin corner'!

The ATSB seems to have always been the traditional good guy in the defacto CASA relationship. Having said that though, if the public/media were crying for a 'head' for an overpublicised breach - they could cough up.

Lancer

[LeadSled]

Folks,

For those of you who seem to be skeptical because of the Munro name, look beyond the name, look at what is being said, for goodness sake, there is nothing in it for him.

If it passes, he will never be subject to any of the draconian powers.

Bad legislation is bad legislation, and this Government is becoming the undisputed all time champion producer of bad legislation, and it is not confined to the aviation field.

Trite but true:

Power corrupts, absolute power corrupts absolutely.

ATSB does not need the power potentially conferred by this legislation to be a good ATSB.

What ATSB really needs is to be taken out of the DoTRS completely, and become a creature of the Parliament, in the same form as the NTSB in the US.

Only then will it’s activities be as insulated from the political problems and pressures of Government, as it is possible to be, in the real world.

Tootle pip!!

[Elk McPherson]

Well I can see my AFAP dues are wasted yet again. Maybe we should all go and join the CFMEU or the TWU?

Thanks Boyd for watching our backs.

[clutchcargo]

The problem with this legislation which should be considered, as the NZALPA and AIA found in their investigation/stand against it, is that it not only applies to the country's registered aircraft operating in domestic airspace - but also to the respective country's aircraft operating in foreign airspace.

The New Zealand legislation (or attempt at it) would have also applied to foreign registered aircraft operating in Domestic NewZealand Airspace, even on a transit with no stopover.

I have not read the proposed rule that is in your "neck of the woods", but I suggest a contact to the various ALPA's of the world to give them a heads up - this might get some political pressure applied (especially if it becomes a safety issue as the NZ one did).

Good luck on the battle....

[dogcharlietree]

At one time, I too thought that the BASI/ATSB people were "good guys".

That was until I survived an accident.

You soon find out that they are well and truly sleeping with the "mermaids".

Why let fact get in the way of a good old licence suspension?

Beware!

[Boyd Munro]

From the ABC news Posted: Fri, 13 Sep 2002 0:20 AEST

QUOTE

CASA to investigate light plane recorders after 'ghost flight'

The Civil Aviation Safety Authority (CASA) says it will investigate the feasibility of installing flight recorders in all small aircraft in Australia.

It follows recommendations from the Western Australian coroner investigating a plane crash, which killed seven mine workers and a pilot.

The plane, heading for the Goldfields town of Leonora, flew across the country on autopilot before crashing on a remote Queensland property.

Coroner Alastair Hope says if there had been some sort of inflight recording device, many answers about the crash could have been available.

CASA spokesman Peter Gibson says fitting all light aircraft with the devices would be expensive.

"Currently these small aircraft are not built with flight recorders in them," Mr Gibson said.

"They are not certified by the manufacturer or in Australia to need them, so these would be one-off special modifications that obviously would attract higher costs.

"What we need to do is investigate to weigh the safety benefits against those costs."

UNQUOTE

In other words, all light aircraft may soon be forced to install video cameras like those in Sydney taxis. The Transport Safety Investigation Bill, if it passes, will rob the resulting tapes of the protection they ought to have. Looking at them after all the occupants have died is one thing. Looking at them when nothing has gone wrong except for an anonymous, malicious and false report of a non-existent irregularity is quite another

Why do we Australians allow ourselves to be assaulted like this?

[Creampuff]

From pages 6686 to 6689 of the proof Hansard of the House of Representatives for 19 September 2002, available at: http://www.aph.gov.au/hansard/reps/dailys/dr190902.pdf

Mr SECKER (Barker) (11.49 a.m.)—I rise today to join the debate on the Transport Safety Investigation Bill 2002 and the Transport Safety Investigation (Consequential Amendments) Bill 2002, which have been designed to streamline, maintain and improve transport safety in Australia. In joining this debate, I have to say that I have been quite surprised by the concerted campaign that Air Safety Australia has run against this legislation. I have been contacted by a small number of my constituents expressing their concerns about this legislation after receiving material from Air Safety Australia.

I would like to take this opportunity to set a few things straight and hopefully allay some of my constituents’ fears. An urban myth has been put out by certain people that this piece of legislation has suddenly appeared in the House for debate. I want to make it very clear to my concerned constituents that that is just that—an urban myth. In September 2001—and we are talking about 12 months ago—an exposure draft of this bill was released. All major operators, organisations and associations in the aviation industry were invited to attend a multimodal consultation. Workshops were held on 21 September, only two days less than 12 months ago and stakeholders, including those associations and Air Safety Australia, were invited. There was also an open invitation to meet separately for those stakeholders who wished to discuss further aspects of the bill and I understand that this resulted in further consultation.

Additionally, all stakeholders were provided with a copy of the bill, the explanatory memorandum and the second reading speech a few days after the bill was introduced into parliament on 20 June 2002, some three months ago. At the same time, we advised these groups that the bill would be scheduled for debate during the spring 2002 sittings which, of course, are the current sittings. The bill, and associated documentation, was put on the Australian Transport Safety Bureau Internet site shortly after that time. I take this opportunity to express my surprise at Air Safety Australia’s claims that this bill has suddenly appeared on the House list because that is clearly quite nonsensical.

My constituents also expressed their concern that this bill will change the ATSB from a cooperative agency to a combative one like CASA. I have to say that this bill contains provisions which are very little changed from current legislation. I am referring to Part 2A of the Air Navigation Act 1920. I have sought briefing with regard to this claim and I have been assured that the ATSB intends to continue to pursue a cooperative approach with the aviation industry, particularly with respect to investigating aviation accidents and incidents.

The objects clause, along with several other provisions within this bill, specifically enshrines the practice of cooperation in legislation. The ATSB is only concerned with future safety and, as such, these powers are not able to be used against individuals or specific companies for any role that they play in safety in the transport industry.

I would also like to mention that many of the powers in this legislation would not need to be used routinely. However, these powers need to be available to the bureau to allow it to access information in a capacity which matches that of the potential to possible tampering of evidence in the event of a major transport disaster which involves loss of life and could result in the loss of millions of dollars. These provisions within the bill will also provide greater certainty with regard to the protection of information provided by persons to ATSB. I think it is very important that we provide that protection of information provided by those persons.

I have to say that the letter sent out on behalf of Air Safety Australia by Mr Boyd Munro has created quite a stir amongst the aviation community. It angers me to think that I now have to justify to my constituency why I want to support this piece of legislation purely because Mr Munro has incorrectly interpreted this bill and never to my knowledge sought to clarify his understanding of the bill or voice his concerns with the legislation to the ATSB. I think this is very irresponsible behaviour from someone who holds a very important position within the aviation community.

As I said previously, I have received a few phone calls from concerned constituents and, as of yesterday, six of those people have again contacted me voicing their concerns with the bill. I put it on record that I thank these people wholeheartedly for doing so. Without their input, I may not have been aware of the incorrect information that is currently being circulated throughout the community. I do take their concerns on board; they are genuine concerns from people within the industry. However, I am sure that if they discuss the issue further with the ATSB their fears may very well subside. I might add that there are many pilots who are very happy to see changes being made to the current legislation and see this piece of legislation as a step forward.
...

I would now like to spend some time addressing the specific concerns which have been raised with me this morning. I am advised that there is a very real concern that this legislation will give the ATSB the power to enter any aircraft at any time. This is simply not true. The powers, as set out in clause 33, can only be exercised in relation to the investigation of an accident or incident, not at any time, as some people would believe.

The power is also limited to special premises, such as accident sites and vehicles.

The correspondence has also raised doubt as to the protection afforded to cockpit voice recordings. I received calls on that issue yesterday. It would appear that Air Safety Australia has incorrectly interpreted the provisions that relate to the treatment of cockpit voice recordings. The provisions that cover the confidentiality and the use of such recordings give more robust and less ambiguous protection in this bill than under current legislation. I also point out that it is not the ATSB’s role to regulate for mandatory installation of cockpit voice recorders. This role falls under CASA’s jurisdiction, and we all know this bill deals with only the ATSB. So that is another red herring that has been brought into this debate. However, were CASA to impose such a regulation, the TSI bill would afford operators with considerable protections, far better than they have now, as I mentioned.

Another concern raised with me has been about the supposed powers to interrogate operators that the TSI bill provides to the ATSB and other groups. I feel that this is a rather extreme interpretation, given that this bill is consistent with current legislation which gives the ATSB the power to interview people. We must remember that the role of the ATSB is to provide recommendations on safety, and I am not sure how they can do this if they are unable to interview parties who are involved. It simply has to be. It is true that matters could be referred on to the police, CASA and other organisations if the ATSB thought it necessary. However, these agencies
would then conduct their own investigations independently of the ATSB investigation. TSI clause 32 clearly states that any information gathered in an interview by the ATSB cannot be used for litigation or prosecution.

I think that bears repeating: any information gathered in an interview by the ATSB cannot be used for litigation or prosecution. It is simply to be used for fact-gathering to ensure that ATSB can make the best possible safety recommendations. Their interviews require interviewees to answer every question asked of them to ensure that ATSB collect the best evidence possible to provide those safety recommendations. As I have said previously, the interpretation that this legislation gives power to the ATSB to interrogate people is simply not correct. The points to remember are that this bill is consistent with current legislation and that any information gathered from any interviews at the ATSB cannot be used for the purpose of litigation or prosecution.

I am also concerned about the hysteria floating around about the so-called ‘imprisonment’ sections contained in the bill. I would like to make it clear that all penalties within the bill have been included on the advice of the Attorney-General’s Department and comply with Commonwealth criminal law policy. All of the six callers who rang me today had serious concerns about Mr Munro’s claims that to copy a draft report could result in two years imprisonment. I advise that in relation to this concern subclause 26(2) refers specifically to a draft investigation report produced by the ATSB. To use an analogy, we have the same sorts of penalties in a coroner’s report. Obviously, we do not want those draft reports printed and circulated in the community before they are accepted.

Subclause 26(4) provides instances where you can copy or disclose the report where you need to prepare a submission on the draft report or take steps to remedy safety deficiencies that are identified in the draft report. So there are a number of areas where you can copy the report but we certainly need some sort of penalty where it may be misused. No-one would think that for some inadvertent reprinting of a draft report you would get two years imprisonment. But you have to have some sort of penalty. If you have it at two weeks, for example, instead of two years, obviously it is not going to be any sort of deterrent. Two years is a maximum amount, not a minimum amount. It is not a mandatory amount.

Under the bill, only individuals or organisations that are considered to be directly involved or who had a direct influence on the circumstances of the occurrence or those whose reputation could be affected by the public release of the report’s findings will be provided with a draft report. This is to ensure that those parties have an opportunity to ensure that the report is factually correct. It is necessary for us to indicate within this legislation just how important confidentiality of such a report is. That is why, in order to ensure that these reports are treated with the utmost sensitivity and confidentiality, the bill includes the necessary considerable penalties.

Australia’s contracting to annex 13 to the Chicago Convention on International Civil Aviation provides the principles in relation to confidentiality which are adhered to by this bill.
...

Constituents have also raised their concerns at the supposed ability of the executive director of the ATSB to seize an aircraft without the consent of the owner. I can certainly understand their concern. However, if we think a bit deeper about this assertion, we will determine that the only time this would ever happen would be in the event of an investigation into an accident or an incident. Clause 36 provides powers to the ATSB to seize a craft only in relation to an investigation into an accident or an incident. Clause 36(1)(g)(ii) indicates that these powers are to be used primarily to allow the retrieval of records and physical evidence at premises other than accident sites, and they apply only if it is not practicable to obtain the consent of the owner of the material to be collected as evidence. In addition, clause 36(3) indicates that these powers are limited to circumstances where important evidence for future safety may otherwise be concealed, lost, deteriorate or be destroyed. I am sure that even those who have contacted me with regard to these concerns would understand the necessity to be able to accurately assess what went wrong, with a view to recommending a safer transport future.

Airservices[sic] Australia is also concerned that the extension to include rail investigations will create enormous potential for conflict because the ATSB is federally aligned and the state rail departments fall under state jurisdictions. I have to say that this extension is entirely constitutional and is consistent with government policy.

We expect the relationship between the Commonwealth, states and territories on rail issues to be no different from the Commonwealth, states and territories relationship on marine issues where the ATSB currently investigates accidents and incidents.

The ATSB and the Rail Safety Consultative Forum recently progressed a memorandum of understanding between the ATSB and the state and territory rail regulators to address issues of cooperation, including the reduction
or elimination of duplication of activities. This is a positive step towards ensuring that the relationship in the rail industry is as workable and amicable as the relationship in the marine industry.

The ATSB is totally, as it should be, impartial in respect of determining the underlying factors that contribute to an accident or incident. I have mentioned previously that the role of the ATSB is not to apportion blame but rather to discover what happened and to make recommendations to ensure safer transportation in the future.

The role of the ATSB is about learning from its mistakes and seeing that it does not reproduce those mistakes in the future. It is not the ATSB’s role to determine whether the regulator or the service provider contributed to
the incident; its role is simply to report the facts of the incidents as they occur and to assess and recommend better and safer practices for future reference.

Previously, I have made it clear that whatever evidence the ATSB collects during interviews cannot be used to prosecute or litigate. These recommendations are then assessed by CASA, Airservices and the Department of Transport and Regional Services for decisions to be made regarding implementation. This is the exact process that has occurred with previous recommendations, such as safety recommendation R20000285—that the ATSB recommends that CASA consider widening its skill base within the compliance branch to ensure that CASA audit teams have expertise in all relevant areas, including human factors and management processes.

However, I spend today justifying to constituents why I want to support this bill. Earlier, they informed me in no uncertain terms of their displeasure regarding my support for this bill. I want to support this bill in the interests of safer travelling; safer travelling for all of those people who own planes and who contacted me today; safer travelling for their children, loved ones and friends; safer travelling for my staff who are required as part of their job to travel to Canberra; and safer travelling for all of us who fly, sail and travel by rail. I commend this bill to the House.


A lot of misinformation with regard to this bill has been put out to the community. This has unfairly created some concern with and distrust of what the government is trying to achieve. I hope that the previous part of my speech has served to address some of the concerns which my constituents have raised with me. However, other issues still need to be addressed. The independence of the ATSB has been questioned by Air Safety Australia and this serious issue now deserves some attention. The claim has been made that, if the ATSB were to be independent, the executive director would have to be appointed by someone outside the department for a fixed, non-renewable term. I am concerned with this claim and I want to take a few moments to address it.

This bill is simply concreting in law what is now current practice in operation. The ATSB is operationally independent—and I refer to clause 15 of the bill—and neither the minister nor the secretary can influence the executive director in respect of the manner or depth to which an investigation is conducted nor the contents of the final report. This bill, therefore, reinforces the level of independence in current legislation.

Contrary to Airservices[sic] Australia’s suggestion, the term of board members of the USA’s NTSB may be renewed after a five-year term. In fact, some board members have shown an interest in not only extending their term but also being appointed to a higher office. It is only the judicial officers and the Auditor-General who have a fixed term of appointment unless the appointment is terminated by an agreement by both houses of parliament.

[Boyd Munro]

Mr. Secker's speech made it very clear who is lobbying against this Bill and who is not. If does not clarify anything else because it is riddled with errors. A few pages further on in Hansard, at page 6695, there is this.

Mr KATTER (Kennedy) (12.51 p.m.)—I will be very brief, with time pressing. P.J. O’Rourke, the famous American humorist, in a very humorous manner referred to the ‘safety Nazis’. They have been at work in the Transport Safety Investigation Bill 2002—there is no doubt about that. Proposed subsection 26(2) provides for two years imprisonment for copying a bill! This is really extraordinary stuff. Two years in jail—in a steel cage, like an animal—for making a copy of a bill!

There is another provision—it is probably less provocative— which allows for the search of any vehicle without a search warrant. Even in the case of murder, it is difficult to get the right to invade a person’s privacy. Very sadly, for a lot of people in Australia today, their motor vehicle is their home. We have all run into those sorts of situations. A number of aspects of the bill are deeply disturbing. In my 10 or 12 years—whatever it was—on the back bench in the state house in Queensland, not on one single occasion did we allow through a provision such as proposed subsection 26(2). We were supposed to be a bit of a right-wing, redneck government in Queensland, yet for 12 years not one single clause of that nature got through that parliament. I do not have time to go into the details of that.

When travelling, I would do $30,000 worth of charter work a year, at $200 an hour. In an hour, you can do 200 or 300 kilometres, so I do very many millions of kilometres a year in light aircraft—more than anyone else in this place. Four of the six aircraft that I used regularly over a two-year period went down, with everyone on board being killed, and they were all people that I knew. So I am probably more conscious of light aircraft safety and far more at risk than anyone else in this place.

I am absolutely appalled at two of the provisions in the bill. One is the right to search without a search warrant. Without any clause in the criminal codes in each of the states, they do have a right to search, but there is an onus upon the person exercising that right to have a reasonable belief that a very serious crime—a murder— is about to be committed. Yet in this draft, it is after the event; what has happened has happened. In most cases where this body goes in, it is not authorised to go in until afterwards. Enormously unfettered powers are allowed.

I strongly back up my Independent colleague in expressing very grave reservations about a couple of clauses in this bill. The rest of the bill seems reasonable in its content.

I conclude by referring to the famous raconteur and thinker, Malcolm Muggeridge, who was the editor of Punch for about 20 years. Malcolm Muggeridge said that the giant armadillo, with each successive wave of evolution, covered itself in more and more protective armour plate until eventually it became impervious to attack from any other creature on earth. However, it was so heavy it could not forage for food and it rapidly became extinct. That is the sort of phenomenon that we are seeing here today.

[Creampuff]

Proposed subsection 26(2) provides for two years imprisonment for copying a bill! This is really extraordinary stuff. Two years in jail—in a steel cage, like an animal—for making a copy of a bill! … In my 10 or 12 years—whatever it was—on the back bench in the state house in Queensland, not on one single occasion did we allow through a provision such as proposed subsection 26(2). We were supposed to be a bit of a right-wing, redneck government in Queensland, yet for 12 years not one single clause of that nature got through that parliament. I do not have time to go into the details of that.

Mr Katter’s contribution to the debate appears to have been to his usual standard, and is another manifestation of the robustness of the Australian democracy.

Let’s break with PPRuNE tradition, and ascertain the facts and debate the substantial merits, or lack of them, of the Bill. Let’s start with clause 26.

Clause 26 of the Transport Safety Investigation Bill 2002 (copy available at: http://www.aph.gov.au/bills/index.htm actually says:26 Draft reports
(1) The Executive Director may provide a draft report, on a confidential basis, to any person whom the Executive Director considers appropriate, for the purpose of:
(a) allowing the person to make submissions to the Executive Director about the draft report; or
(b) giving the person advance notice of the likely form of the published report.
(2) A person who receives a draft report under subsection (1) or (4) must not:
(a) make a copy of the whole or any part of the report; or
(b) disclose any of the contents of the report to any other person or to a court.
Maximum penalty: Imprisonment for 2 years.

Note that the prohibition upon copying and disclosure relates to draft reports.

According to the Explanatory Memorandum to the Bill, the Division of the Bill of which section 26 is a part provides among other things for…the release of confidential draft reports, and protection of the draft report from further release including disclosure for the purposes of legal proceedings or disciplinary actions. The Bill clarifies that draft reports are not admissible in evidence in civil or criminal proceedings, including coronial inquiries. The same provision applies to final reports (with the exception of coronial inquiries).

In my view, clause 26 of the Bill is beneficial to pilots and other persons whose interests might be affected by the contents of a factually inaccurate draft report.

Let’s imaging you’re the PIC of an aircraft involved in an accident. The ATSB sends a copy of the draft investigation report to you, your employer and CASA, for the purpose of giving each of you an opportunity to correct, clarify or supplement any information it contains. Your employer jumps for joy and gives the draft report to the press, because it implicitly attributes sole responsibility for the accident to you, but based on information that you know and can prove is inaccurate and incomplete. The headlines the next day will be much bigger than the correction printed two months later. The draft report turns up as evidence in a negligence action taken against you. It must be probative: it was produced by the experts at the ATSB.

I’d prefer there to be a very onerous obligation upon recipients of draft reports not to copy or disclose them to anyone.

I hope that anyone who disagrees with my interpretation will explain their reasons, by reference to what the Bill actually says.

[U2]

Australia has one of the best commercial accident records I can think of. So, why are we trying to make it more complicated. We have ageing fleet, dwindling industry economy and still we are overregulated.

Soon CASA will make it illegal to have "old" aircraft and send some one to jail it it falls apart in flight.

I would like to know who recommended this OBR amendment in the first place.

U2

[Northern Chique]

As much as I agree with the need for the thorough restructuring of this proposed legislation before it is set in concrete, I will add one minor detail..

In the dealings I have had over the years with CASA and BASI, no-one has gone to jail, even when a fatality was involved. The industry seems hell bent on saving its proverbial collective butt, and usually fines, restrictions and counselling are the order of the day.

I have seen pilots charged for offenses much worse comparitively than this piece of proposed legislation, continuing to fly in the same way as they did before charges were laid. Their argument was "Its a financial hardship issue."

Which ever way you look at it, money and a good lawyer win on the day.

[Boyd Munro]

Copying or disclosing ... all in the same breath.

Creampuff, in your example no harm at all is done by the act of copying a draft report. The harm is done by disclosing it. It matters not whether the material a journalist receives is the original or a copy - it is the fact that the information is disclosed that does the harm.

There are frequent circumstances where documents are copied routinely, innocently, and harmlessly. For example, it is just good corporate governance for a company to have a procedure under which every item of incoming mail is copied.

Likewise, a draft report may be received when the addressee is on the other side of the world, and it may make simple good sense to fax it to him - thereby making a copy. How can it possibly be to a pilot's advantage to be prohibited from getting a draft report faxed to him instead of being sent by the post?

I'm unable to think of an example where just copying a draft report without disclosing it would cause harm. There may be such examples, in which case subsection 26(2)(a) needs to be re-drafted so that it prohibits harmful copying but not harmless copying.

One thing which needs to be remembered is that there are serious legal consequences which flow to a person convicted of a crime punishable by more than a year's imprisonment, even if the sentence imposed is merely a good behaviour bond. Amongst other things, one's right to be a member of various professions (such as Architecture) is affected.

This Bill is clearly in need of genuine - i.e. public - consultation with those affected so that it achieves its objects without trampling on individual freedoms.

[Creampuff]

Boyd

Very good points, put somewhat more lucidly than Mr Katter.

I agree that harm is done by disclosure. However, I don’t agree with the categorical nature of your observation that “no harm at all is done by the act of copying a draft report”. [My emphasis]

Every copy increases arithmetically the risk of disclosure, inadvertent or otherwise. And that increases a person’s reticence to supply full and frank information.

I also think we should carefully note to whom the prohibition applies, and the exceptions to the prohibition.

The prohibition applies only to a person who receives a draft report under “subsection (1) or (4)”. If a draft report is sent to you by the ATSB under subsection (1) so as to allow you to make a submission on the draft, you are the only recipient of that particular document in terms of the prohibition. If one of your highly efficient administrative staff spots the document in the ‘in tray’ and copies it in accordance with standard office practice before it gets to you, I don’t see how that member of staff has received the document in terms of the prohibition. I would in any case expect that the ATSB would be very careful to ensure draft reports are delivered to the intended recipient personally.

More importantly, note subsection 26(4). It says:(4) Subsection (2) [i.e. the prohibition on copying or disclosure] does not apply to any copying or disclosure that is necessary for the purpose of:
(a) preparing submissions on the draft report; or
(b) taking steps to remedy safety deficiencies that are identified in the draft report.[my emphasis]

If you receive a draft report under subsection (1), you are allowed to copy or disclose for the purposes set out in subsection (4), and your highly efficient staff may do the same. But that far, and no more.

[Boyd Munro]

Creampuff, by now I expect no-one apart from you and me is reading this thread, but please drop me an e-mail on [email protected] if you are a practising lawyer. You have a fine eye for a loophole and I may need that skill if this Bill goes through without amendment.

But tell me this. If my secretary is free to copy a draft report because she is not the recipient under 26(1) or 26(4), why is she not also free to disclose the draft report? If she is, does not 26(2)(b) then need amendment?

Doesn't all this point to the fact that there should be public consultation on this Bill so that those who will be affected by it have the opportunity to understand what is proposed and why?

[Creampuff]

Boyd

If the person did not "receive a draft report under subsection 26(1) or (4)", I don't see how the prohibition upon copying or disclosing in subsection 26(2) can apply to the person. Quite often, provisions are interpreted to mean what they say.

But how did the person get the draft report in the first place? As I said above, I think you will find that the ATSB will be very careful to ensure that these kinds of documents are delivered direct to the recipient, with big red confidential stamps all over the envelope. Any disclosure or copying from then on would be prima facie a consequence of an act or omission on the part of a person to whom the prohibition applies.

I'll lend a hand when the first prosecution for contravention of the section is launched.;)

As to consultation, could you point out which bits of Mr Secker's speech you think are inaccurate or incomplete?... In September 2001—and we are talking about 12 months ago—an exposure draft of this bill was released. All major operators, organisations and associations in the aviation industry were invited to attend a multimodal consultation. Workshops were held on 21 September, only two days less than 12 months ago and stakeholders, including those associations and Air Safety Australia, were invited. There was also an open invitation to meet separately for those stakeholders who wished to discuss further aspects of the bill and I understand that this resulted in further consultation.

Additionally, all stakeholders were provided with a copy of the bill, the explanatory memorandum and the second reading speech a few days after the bill was introduced into parliament on 20 June 2002, some three months ago. At the same time, we advised these groups that the bill would be scheduled for debate during the spring 2002 sittings which, of course, are the current sittings. The bill, and associated documentation, was put on the Australian Transport Safety Bureau Internet site shortly after that time. I take this opportunity to express my surprise at Air Safety Australia’s claims that this bill has suddenly appeared on the House list because that is clearly quite nonsensical.

[Boyd Munro]

Hello Creampuff,

You don't seem to have answered this question

Doesn't all this point to the fact that there should be public consultation on this Bill so that those who will be affected by it have the opportunity to understand what is proposed and why?
What you quote the Member for Barker as saying about AIR SAFETY AUSTRALIA is not only wrong but is contradicted by what the ATSB says at www.airsafety.com.au/trinvbil/consult.htm Amongst the errors made by the Member for Barker, he has confused AirServices with AIR SAFETY AUSTRALIA.

Back, then, to my question about public consultation (above). What is your answer?

Meanwhile, if this Bill passes, CVR information will be able to be used as evidence in prosecutions under the Transport Safety Investigation Act. I urge each and every pilot in Australia to call for public consultation on the Transport Safety Investigation Bill.

[Creampuff]

Boyd

What you call a question was in substance a motherhood statement:Doesn't all this point to the fact that there should be public consultation on this Bill so that those who will be affected by it have the opportunity to understand what is proposed and why?Indeed: there should be. And in my view there was adequate public consultation on this Bill and those who will be affected have been given, and continue to be given, a reasonable opportunity to understand it. Perhaps we should merely agree to disagree on this score.

You are correct when you observe that flight recorder information may be used in a prosecution of a pilot for an offence against the Act.OBR information, and any information or thing obtained as a direct or indirect result of the use of OBR information, is not admissible in evidence in criminal proceedings against a crew member (other than proceedings for an offence against this Act).

The quid pro quo for the extraordinary protection that will be provided by the Act when you provide information is that you’ve got to tell the truth. There’s no point in encouraging people to cover up what happened in an accident or incident, by giving protection to false information and giving no penalty for lying. One of the most dangerous things in contemporary aviation is a person who refuses to accept she makes mistakes.

I don’t see how the interests of safety will be served if people can give whatever false information they like in the course of an investigation, without fear of penalty.

[TwinNDB]

Just to prove that you guys aren't the only ones reading this forum.

As a relatively young member of the aviation community I have a great interest in anything that may affet my future career and those of others that follow behind. I just have one question with regard to what I have been reading here.

If the ATSB is investigating an 'incident' of which, say you were the PIC, and during the investigation you answer all of their questions fully and truthfully and subsequent investigation of the CVR finds you were telling the truth, does that mean you are immune from presectution by CASA (or any other relevant body)?

HOWEVER

If the ATSB is investigating an 'incident' of which, say you were the PIC, and during the investigation you answer all of their questions fully but NOT always truthfully and subequent investigation of the CVR uncovers some of these errors in your statements, does that mean that CASA (or other relavent body's) are now able to prosecute you?

I am not a lawyer, but do have an interest in this area but I am a bit confused as to what some of the statements around here are trying to say.

Twin

[Blue Hauler]

Creampuff,

You are correct when you observe that flight recorder information may be used in a prosecution of a pilot for an offence against the Act.

The days of prosecuting just the pilot were formerly altered by Commissioner Moshansky following his comprehensive inquiry into the F28 crash at Dryden, Canada. The Commissioner identified systemic failures within the management of the airline as well as the regulating authority. Such failures simply identify the corporate culture under which pilots are obliged to perform their duties. Pilots who are making decisions under conditions of urgency and in compliance with the policy that the regulator and the company boardroom have imposed.

So perhaps we may see the prosecution of upper management decision-makers rather than the pilot, simply doing his job as expected.

Boyd,

If you represent Air Safety Australia would you not be in favour of equipment that assists investigators determine accident causation – particularly if a future accident is prevented?

We live in a great society - if we stuff up, pass the blame onto someone else - hopefully an insured party who can cough up big bucks! What ever happened to chivalry?

[Creampuff]

Twin. You ask:If the ATSB is investigating an 'incident' of which, say you were the PIC, and during the investigation you answer all of their questions fully and truthfully and subsequent investigation of the CVR finds you were telling the truth, does that mean you are immune from presectution by CASA (or any other relevant body)?

The short answer is no: you are not, and will continue not to be, immune from prosecution.

However, neither the CVR/FDR nor your input to the ATSB’s report may, under the Bill in the circumstances you describe, be used as evidence in a prosecution.

Let’s say it’s offence for you to enter controlled airspace without a clearance. Let’s say you asked for a clearance and you were told - clearance not available, remain clear of controlled airspace. You enter any way. (Let’s make it simple by assuming that there was no emergency but you had an attack of ‘get home itus’ because you were worried your boss would get angry if you were late.) The CVR recorded all the RT, as well as your aside to the Copilot – ****** this, I’m going in.

ASTB gets a CAIR, you get the call. You tell ATSB the truth, the whole truth and nothing but the truth, which is corroborated by the CVR. In those circumstances, the Bill prevents any of what you said to the ATSB or the CVR being those used as evidence against you in a prosecution.

BUT, if the ATC radar and radio tapes recorded all of this any way, and, for example, your copilot is prepared or is made to give evidence, the offence may well be established independently of anything you said to the ASTB and of anything that was recorded on the CVR/FDR. You might not like that, but the Bill does not make your position any worse than it would otherwise have been. The ATC radar and radio tapes, and your copilot, existed and will continue to exist independently of this Bill.

You go on to ask:If the ATSB is investigating an 'incident' of which, say you were the PIC, and during the investigation you answer all of their questions fully but NOT always truthfully and subequent investigation of the CVR uncovers some of these errors in your statements, does that mean that CASA (or other relavent body's) are now able to prosecute you?

The short answer is that under the Act (if it gets through), the CVR can be used as evidence that you committed an offence against the Act by lying.

Let’s say that in the above scenario, instead of being completely candid with the ATSB investigation, you decide that you’re going to claim that you got your clearance. You say that the response from ATC to your request was to clear you as requested, you asked the copilot to confirm, and she confirmed that you had been cleared. In that scenario the CVR can be used as evidence to prove that you gave false information to the ATSB in the course of its investigation. But it still can't be used against you in prosecution for busting controlled airspace.

Blue hauler. You hope that:we may see the prosecution of upper management decision-makers rather than the pilot, simply doing his job as expected.

I don’t think this Bill increases or decreases the range of obligations imposed upon “upper management” in the circumstances you describe. I think the chronic problem is that the regulator has insufficient competence and integrity to rigorously enforce those obligations when they should be.

[TwinNDB]

Thankyou for your answer.

If I am not mistaken...FDR and CVR recordings can NEVER be used as evidence to secure a conviction or to lay charges against someone but they could be used to prove that you may have lied??

Thanks again

Twin

[Creampuff]

Twin

You are mistaken. FDR/CVR (in the Bill "OBR") information can be used to prosecute you for giving false information.

[TwinNDB]

Thanks again.

If that is the case I am unabe to see what the problem is regarding CVR and FDR recordings in this new legislation. The recordings cannot be used to prosecute you for an offence (but other material like tower tapes could be), but they could be used to presecute you for not telling the complete truth.

Dont lie - and you wont have problem - not with the CVR and FDR anyway. I am still not up to date with the rest of the legislation though.

Twin.

[Crash & Burn]

Twin NDB - This piece of legistlation does give the executive director of the ATSB the power to deem information gained from an OBR to no longer be legally classified as an OBR recording.

Section 49 of the legislation
49 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.Now have a look at sections 54 & 55.
54 OBR information no ground for disciplinary action

A person is not entitled to take any disciplinary action against an employee of the person on the basis of OBR information.

55 OBR information not admissible in criminal proceedings against crew members

OBR information, and any information or thing obtained as a direct or indirect result of the use of OBR information, is not admissible in evidence in criminal proceedings against a crew member (other than proceedings for an offence against this Act).To me, this means that if the executive director invokes section 49 on your OBR then you are no longer covered by section 54 or 55 as your OBR is no longer legally classified as an OBR. Thus, bringing in the possiblility of a FDR/CVR recording being used against you.

It's an unlikey case I grant you, but still possible.

[Creampuff]

Subsection 49(1) should not be read in isolation. The next two subsections say:
(2) If the Executive Director decides not to investigate the transport safety matter to which an OBR relates, the Executive Director must, by published notice, declare that the OBR is not to be treated as an OBR on and after a date specified in the notice.

(3) If:

(a) the Executive Director decides to investigate the transport safety matter to which an OBR relates; and

(b) the Executive Director is satisfied that any part of the OBR is not relevant to the investigation;

the Executive Director must, by published notice, identify that part and declare that part is not to be treated as an OBR on and after a date specified in the notice.

Nonetheless, an interesting question arises as to whether subsections (2) and (3) describe the only circumstances in which the power under subsection (1) is exerciseable, or whether there is a residual discretion in other than those circumstances. That's a toughy. But whatever the answer to that question, it appears at least that if, for instance, the ED decides not to investigate something, he must make a declaration and the CVR/FDR information ceases to be the subject of the prohibitions upon disclosure and use in criminal proceedings.

Hmmmmm. Boyd might have something to say about that........

[Pass-A-Frozo]

So in laymans terms...

When can they listen to the CVR?? What constitutes an incident (read here, how minor a thing are we talking - I'd rather know if I need to write my MP or not!) ??? Boyd,what is the problem for me as a pilot having ATSB listen to a CVR recording with me on it, if I have been honest to the best of my ability / memory?