• Maurice Williamson

Efforts to improve aviation safety will be boosted by the Transport Accident Investigation Amendment Bill, reported back to Parliament today, Transport Minister Maurice Williamson said.

Mr Williamson welcomed the significant contribution the Transport and Environment Select Committee had made to the Bill.

"It would enable aviation accident investigators to have access to the best possible information for the purposes of preventing future accidents," said Mr Williamson.

The Bill would ensure that certain sensitive information, such as witness statements and cockpit voice recorder (CVR) information gathered by the Transport Accident Investigation Commission (TAIC) as part of its investigations into an accident, was protected from use for any other purpose.

"It is a question of balancing the aim of preventing future accidents with the desire to prosecute or apportion blame. The policy behind the Bill is that accident information should primarily be for safety investigation and not used as evidence for the purpose of blame or prosecution," said Mr Williamson.

"This Bill goes to the core of aviation safety. All those involved in aviation, including pilots and passengers, stand to benefit if we can ensure that accident investigation information is used for the purposes for which it is collected - that is, safety."

Mr Williamson said that CVRs had a crucial role to play in safety investigations, given that they were often the only way of knowing what was happening on the flight deck in the period immediately prior to an accident.

The recorders also involved a significant intrusion into the privacy of the flight crew. The Bill recognised this by making all CVR information immune from use in criminal or civil proceedings against flight crew, said Mr Williamson.

"The Government has a firm view on the admissibility of CVRs in air accident investigations, and I am delighted that the select committee shares that view. The committee has found that the safety information CVRs have to offer heavily outweigh the possible benefits of allowing that information to be used in court proceedings."

Mr Williamson said this did not mean that pilots were protected from prosecution.

"The police or the Civil Aviation Authority (CAA) can still conduct their own interviews or use other forms of evidence against pilots to prosecute if they choose to. But the number of fatal crashes where the pilot survives and faces prosecution are extremely rare. Much more common are those accidents and incidents where the CVR offers vital safety information."

The select committee found that it was not necessary for the CAA to have access to CVRs for its investigations. Mr Williamson said this was not necessary because although TAIC had discretion over which accidents it investigated, it was extremely unlikely that TAIC would not investigate an accident involving a large aircraft.

"The focus is really on ensuring TAIC investigators have access to all the information they need. If this information is disclosed to other parties then control over the flow and subsequent use of that information may not be so readily given to TAIC in future."

Mr Williamson said the Bill would bring New Zealand legislation closely into line with Australia, and would reflect the provisions of the International Convention on Civil Aviation (the Chicago Convention).

In addition, the Bill when passed would enable the Government to make it mandatory to fit and operate cockpit voice recorders in all larger commercial aircraft. At present it is necessary to rely on the airlines to install the recorders, and for pilots to turn them on."

"This Bill will go a long way to making our skies safer".


Details: Peter Burdon, Press secretary, ph 04 471 9409 or 026 105 112



What is the Bill about?

The Bill amends the Transport Accident Investigation Commission Act 1990 to:

* provide legislation that will ensure that aviation accident investigators have access to the best possible information for the purposes of preventing future accidents; * align New Zealand domestic legislation with Annex 13 to the Chicago Convention which contains recommended standards on the disclosure of records such as cockpit voice recorders obtained during an aviation accident investigation; and * allow the bringing into force of civil aviation rules which make it mandatory to install and use cockpit voice recorders in large passenger aircraft.

Why is the Bill necessary?

There are four main reasons for the Bill:

* New Zealand is a signatory to the International Convention on Civil Aviation (the Chicago Convention). The Convention has international obligations and standards on matters of aviation safety. Annex 13 to the Convention contains standards relating to aircraft accident or incident investigation. Paragraph 5.12 of that Annex covers the use of information gathered in an aircraft accident or incident. Unlike other countries New Zealand does not have domestic law incorporating the provisions of paragraph 5.12.

* The need for domestic legislation reflecting Annex 13 of the Chicago Convention was highlighted following the Ansett Dash 8 aircraft crash in June 1995. The police sought access to the CVR fitted to that aircraft for the purpose of obtaining evidence for possible criminal charges against the flight crew. The matter went to the Court of Appeal which held that provisions of the Chicago Convention relating to CVRs were not part of New Zealand law. After the Court of Appeal decision, the police obtained the CVR by search warrant. Since that decision, there has been concern that pilots are not turning on CVRs which are already fitted in some aircraft and that safety information from a CVR would not be available for an accident investigation.

* In July 1997 the Transport Accident Investigation Commission (TAIC) following its investigation into the Ansett Dash 8 crash, recommended to the Minister of Transport that the provisions of paragraph 5.12 of Annex 13 of the Chicago Convention, for both CVR and other evidence obtained by the Commission, be written into New Zealand domestic law.

* Civil Aviation rules which make the installation and use of cockpit voice recorders mandatory in larger commercial aircraft have been signed by the Minister of Transport though are not yet in force. The rules are suspended to allow time for the issue of the use of information from a CVR to be resolved. The Bill addresses this issue.

What does paragraph 5.12 of Annex 13 to the Chicago Convention say?

Paragraph 5.12 of Annex 13 to the Chicago Convention covers the use of information gathered in an aviation accident or incident safety investigation. It provides that the State conducting such an investigation shall not make specified records available for purposes other than safety investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or future investigations.

What are the records used for?

Internationally, aviation accident records are used for facilitating safety investigations, which establish the causes and contributing factors of the accident for the purpose of preventing future accidents rather than attribute blame.

The Chicago Convention recognises that certain information such as that obtained from a cockpit voice recorder is often crucial to finding the cause of an accident. If used for other purposes - such as criminal or civil proceedings - it may not be disclosed to investigators in the future and this could seriously impede the safety investigative process.

What does the Bill do?

The Bill:

* provides that certain records generated in the course of an accident investigation by the TAIC (such as witness statements) may only be disclosed for the purpose of that investigation and are not admissible as evidence in any proceedings;

* provides that cockpit voice and video recordings are not admissible in court proceedings against flight crew.

Are cockpit voice recorders mandatory in aeroplanes?

No, not yet.

Civil aviation rules signed by the Minister of Transport in February 1997 require mandatory fitting and use of cockpit voice recorders in aircraft that require two or more flight crew members and have 10 seats or more, excluding the pilots.

However these rules are suspended to give operators sufficient time to fit the CVRs and to allow for the Bill to be enacted.

What is a CVR?

The cockpit voice recorder (CVR) records sounds in the cockpit during the previous 30 minutes or more of flight. This includes conversations between the flight crew and voice communications to and from the aircraft and air traffic control. With careful intepretation, this enables accident investigators to piece together what was happening on the aircraft's flight deck in the period leading up to an accident , even though the crew may all be dead.

Do other countries have a similar regime to that proposed in the Bill?

Internationally countries have incorporated paragraph 5.12 of Annex 13 to the Chicago Convention into domestic law in varying ways. The Chicago Convention allows flexibility and discretion in how the provisions in the Convention are implemented in domestic legislation.

In Australia the CVR cannot be used in criminal or civil proceedings against Australian flight crew. It can be used in other civil proceedings, against an airline, for example. The CVR is admissible in such civil proceedings only if the Court is satisfied that the information is necessary evidence and the public interest in the proper administration of justice outweighs the importance of protecting the privacy of the flight crew.

In Canada, the range of information that is protected is much broader, as is the range of people protected from having the information used against them.

In the USA the CVR is obtainable by discovery if the Court decides it is necessary for a fair trial. In practice however CVR information has never been used for prosecuting flight crew.

In the United Kingdom, the CVR can only be released for safety investigation purposes or if the Court is satisfied that the interests of justice outweigh the adverse impacts of disclosure on current and future safety investigations. The UK practice with respect to using this information in the prosecution of pilots is similar to the United States.

A number of other countries that are signatories to the Chicago Convention do not have law regulating the use of CVRs in court proceedings.