CVR recordings to lose protection under new legislation
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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
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
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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.
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.
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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, 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.
Last edited by Boyd Munro; 21st Sep 2002 at 16:58.
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:
[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.
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.
(a) preparing submissions on the draft report; or
(b) taking steps to remedy safety deficiencies that are identified in the draft report.
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.
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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?
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?
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?
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.
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.
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Hello Creampuff,
You don't seem to have answered this question
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.
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?
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.
Boyd
What you call a question was in substance a motherhood statement:
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.
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.
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?
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).
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.
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Boyd and Creampuff
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
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
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Creampuff,
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?
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.
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?
Twin. You ask:
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:
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:
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.
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, 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?
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.
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Creampuff
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
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
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Creampuff
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.
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.
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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
Now have a look at sections 54 & 55.
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.
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.
(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.
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).
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).
It's an unlikey case I grant you, but still possible.
Good point C&B, but....
Subsection 49(1) should not be read in isolation. The next two subsections say:
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........
(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.
(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.
Hmmmmm. Boyd might have something to say about that........
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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?
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?
