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/ (http://www.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 (http://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 +61 2 6273 4126, e-mail [email protected]


http://airsafety.com.au/images/logoC905.gif
Boyd Munro
AIR SAFETY AUSTRALIA
Phone:08 8357 9596 Fax:02 9225 9127 (http://airsafety.com.au/trinvbil/)

[Smokie]

NIGHTMARE !:(

[SOPS]

Looks like its time for a new addition to the Shut Down Check List...CVR erased.

[Boyd Munro]

Unfortunately, SOPS, in Australia it's worth another 6 months in the Bluestone College to erase the CVR in those circumstances.

If our bizarre new legislation gets through, and barring very quick action by people smarter than me it will pass the Representatives on 16th September, erasing the CVR on shutdown would have earned Captain Porridge another six months! Section 24 is long but it provides for 6 months imprisonment for a person who hinders an investigation ... that could be conducted at a later time into an immediately reportable matter. (See www.airsafety.com.au/trinvbil/c619tsib for the full text of Section 24.)

Don't imagine ATSB can't find out that you erased the CVR, either. ATSB can call F/O Lingquison in for an Interrogation under Section 32. He cannot refuse to answer questions on the grounds of self-incrimination. He has no right to be accompanied by a legal or Union representative (or even a mate) during the Interrogation. So ATSB will ask Lingquison whether the CVR was erased. What does he say? Of course, in the real world, he is very frightened and alone and sees his career crashing in front of him so he says yes the CVR was erased. When asked he says Porridge did it. See www.airsafety.com.au/trinvbil/c619tsib.htm for the full text of Section 32 on Interrogations).

A safer course might be to pull the CVR circuit breaker when entering Australian airspace. I am personally ashamed that my own country can consider introducing such ill-considered legislation.

[canberra]

since when have civilian authorities done interrogations, do you mean interviews under caution? only people who do interrogations are the military or the intelligence services, i hope!

[SOPS]

What has bought all this on? And what if i write into my companys SOPS (which I can), "at shut down Pilots must erase the CVR". And this was approved (which it would be) by our authority (ie our CAA, FAA or what ever its called in Oz). What is the next step. shoot the pilots before stopping at the gate?

And what about QF, are they excempt from this?

[Boyd Munro]

To Canberra

Under Section 32 of the proposed TSI Act, officials of the ATSB will be able to conduct Interrogations without caution. Section 47(1) provides that "A person is not excused from answering a question or producing evidential material in response to a requirement under this Part on the ground that the answer, or the production of the material, might tend to incriminate the person or make the person liable to a penalty".

[Raw Data]

Two points:

If you pull the CB before you go flying, you are highly unlikely to be "hindering an investigation", which by definition can only take place if there is an accusation of wrongdoing.

If the ATSB question you, simply refuse to answer. The worst that can then happen is that you will be arrested for non-compliance- however it is then a police investigation and the rules have changed regarding "interrogation".

Obviously, the unions need to sort out a response (hopefully a vigorous one), and if they, and the airlines, refuse to co-operate, the legislation is a dead duck.

Having said that, this has been coming down the pike for a long time now- ever since the Ansett NZ Dash 8 crash- and it is unforgiveable that the unions have not already covered this.

So much for the safety culture then... :rolleyes:

[Boyd Munro]

SOPS, Australian law overrides company SOPs. So your pilots are guilty if they obey your company SOPs and erase a CVR at the end of a flight and thereby impede an Investigation - even an Investigation which has not yet commenced (see Section 24).

You ask whether QANTAS is exempt. I can only imagine it is. Unless there is some secret MoU (Memorandum of Understanding) or suchlike which restricts the way this legislation will be applied to QANTAS and its crews, they would be screaming. Perhaps a QANTAS pilot can tell us?

I am not a lawyer but I think the safe course is to turn off your CVR before entering Australian airspace.

However you should be aware that you are still liable to 6 months' jail if you do not turn the CVR back on immediately there has been an "immediately reportable incident". Why not? Because Section 24(5) says "In this section, conduct includes omission". Neat, huh?

In Australia, the CVR is going to become a fully-fledged weapon of attack against crew members if this Bill becomes law.

[Nightrider]

There are countries, India comes to mind beside some others, where CVRs are altered before installation, you can press the button as long as you like...erasing is disabled...

[Boyd Munro]

Hello Raw Data,

I can see how completely I have failed to explain what this new Australian legislation does.

You do not "Hinder an Investigation", as far as I can see, if you pull the CB before you fly. But you DO "Hinder an Investigation" if you fail to push the CB back in the moment something happens. Under Section 24(5), "conduct" includes an omission.

If the ATSB questions you, you CANNOT refuse to answer, even if the answer incriminates you. See Sections 32 and Section 47.

The essential point is this. If the Transport Safety Investigation Bill becomes law, our conventional freedoms have gone, as far as aircrew in Australian Airspace are concerned.

[reynoldsno1]

I was under the impression that most CVRs only recorded on a 30 minute continuous loop - or do the newer digital models increase this?

[vmommo]

Pull the CB on the before start checklist, and then push it back in again on the shutdown checklist!

[Raw Data]

Boyd,

No, you explained it fine, it's just that in your haste to denounce this (admittedly foolish) proposed legislation, have missed a couple of important points.

First is that you can always refuse to answer, even under Aussie law. Unless of course you are suggesting that the ATSB will employ hot lights, rubber coshes and truth drugs. The worst that can happen if you refuse to answer, as I understand it, is that you can be accused of committing an offence under this new (proposed) legislation, in which case you may be arrested. You are now in the custody of the Aussie police, and they most assuredly will have to allow a lawyer to be present. BTW, I am pretty sure that the right to silence is one of the fundamental human rights that the Aussie government has signed up to (as have most civilised nations).

Second, if you leave the CVR off until after an event has occurred (as you suggest), the CVR is unlikely to have anything incriminating on it, is it?

Thirdly, most legal systems recognise the concept of "reasonableness", as in "reasonable doubt" or "reasonable grounds". It would be a simple matter to show that it is not "reasonable" to expect a crew to turn on a CVR when in the midst of an emergency (unless doing so is part of an SOP).

Lastly, a foreign aircraft flying over (or landing in) Australia is still the sovereign territory of the nation in which it is owned and/or registered, and it is very, very difficult to enforce sanctions against foreign nationals (ie pilots), unless you can show criminal intent.

All the above is of course open to correction by an Australian lawyer, who may know better than me!

It's a crap (proposed) law, for sure, but lets not get too carried away...

[MTOW]

No one’s pointed out yet that on most newer aircraft types, there is no CVR C/B or ERASE button on the flight deck. On Boeings, it’s in the underfloor E & E compartment – which pilots, (in my company, at least), are forbidden to enter in flight – (and the hatch is out in the cabin and not the cockpit).

Someone better informed that I am may choose to correct me, but as I understand it, the newer digital CVRs do NOT employ a 30 minute continuous loop tape. I’ve heard, second hand, I’ll admit, of a case where investigators were able to access the cockpit conversations from an incident that some occurred some hours before the aircraft landed.

This is a classic case of the ‘drip, drip’ technique, where the ante is slowly raised on an ever-tightening ratchet. (Look at drink driving and anti-smoking laws as two other examples.)

Most companies today use a QAR to monitor a thousand+ parameters on every flight. The QAR can be set to trigger an ‘event’ at any (company set) excursion from the desired flight profile. Currently, all such information is de-identified before leaving the flight safety department and is used only to monitor trends. However, already, if any such is excursion is grave or considered grossly dangerous, the pilot involved will be identified and called in to explain or to be retrained.

With the increasing availability of technology such as QARs and ‘real time’ downloads of data through ACARS, it’s a rather short step from where we are today to a Soviet style system where every crew will attend a post flight (or later) debrief to discuss every factor of the just completed flight. The pilots, (and unions, remember them?), of twenty years ago would have screamed blue murder and not stood for any of this. But we, a bit like the proverbial frog in the slowly heating water dish, just accept each click of the ratchet until the monitoring reaches the stage where on a day to day basis, some accountant might well dock you pay for a flight excursion that cost the company money.

On a not so day to day basis, litigants intent on finding someone to blame will be given access to the information of the FDR and CVR giving them three months to dissect every step you took in a quite possibly time-critical, even life-threatening situation and apportion blame.

It may well come to pass that in time, airline pilots will be forced to carry so much personal liability insurance that we will find ourselves in the same ridiculous situation some doctors are today – unable to practise some aspects of our profession because of insurance costs.

CVRs were only accepted by pilots when they were first introduced on the understanding that they would be used strictly as an aid to flight safety. As usual, time has blurred this understanding.

I often wonder how many other people, particularly high-flying executives, would be comfortable having a tape recorder (or camera, as many people want now) recording every moment of their working day and having that information made available to the police or lawyers should their company be involved in some form of litigation. Enron comes to mind..

[SOPS]

Well said MTOW