• Jenny Shipley

"The Government wants to work with the aviation industry to ensure that air travellers are as safe as possible," Transport Minister Jenny Shipley said today.

"Part of that is ensuring safety devices such as cockpit voice recorders are properly used.

"I have worked with all interested groups to try to establish an agreed system to protect accident or incident safety investigation records, including information gathered from cockpit voice recorders (CVR's). The Government has now set out a proposal for discussion and is seeking comment from industry groups and the public.

"Every attempt has been made to ensure that such important information is only used for the purpose for which it was collected, except in the most exceptional of circumstances.

Mrs Shipley says the key features of the proposal are:

Strict limits on the use of accident or incident safety investigation records.

This includes CVR recordings, flight data recordings, cockpit video recordings, communications between air traffic control and flight crew, any TAIC accident investigation reports and statements taken during the course of an investigation.

A court ruling would be required if these records were sought for a criminal prosecution, civil proceedings or a coronial inquest.

The court would be required to take a number of factors into account, including any adverse impact the proposed use may have on current or future accident or incident investigations.

Where the court rules the records may be used, all irrelevant parts will be deleted and none of the material will be broadcast or published.
"This would write into New Zealand law the internationally accepted standard set down in Annex 13 of the Convention on International Civil Aviation (the Chicago convention).

"The proposal under consideration is very similar to the British legislation covering this issue."

Mrs Shipley said there had been considerable debate over this issue following the June 1995 Ansett New Zealand Dash 8 crash and the court ruling allowing the Police access to the CVR from that flight.

"The Transport Accident Investigation Commission (TAIC) recommended that the Government move forthwith to clarify the law in this area. TAIC considers CVR information an essential tool in investigating accidents or incidents and is concerned that if such information is not adequately protected, then pilots and others in the industry may refuse to co-operate in its collection.

"This information is also critical in educating and training pilots.

"I have discussed this issue in detail with pilots' groups and other industry representatives.

"It is currently intended that by April 1999 it will be mandatory for operators of larger commercial aircraft to fit and operate CVRs, but before then we need to resolve the issues around the use of the information. Pilots, airline operators, air traffic controllers and the public need to know that clear and fair rules apply.

"I look forward to receiving the feedback of industry groups and the public before the Coalition Government makes final decisions on this issue and the appropriate legislation can be introduced," Mrs Shipley concluded.



What is this proposal about?

The proposal sets out how information obtained through an aviation accident or incident safety investigation can be used. It maintains the primary purpose of these records as safety and educational tools. It allows for application to the court for use of the records as evidence for specified proceedings on a case-by-case basis and specifies the criteria for the court to use when weighing up whether a record may be used. A cockpit voice recorder (CVR) is one of the records included in this proposal.

Why is this proposal necessary?

There are two main reasons for the proposal.

Civil Aviation rules have been signed, though not yet in force, which make the installation and use of cockpit voice recorders mandatory in the larger commercial aircraft. The rules are suspended until 1 April 1999 at the earliest to allow time for the issue of the use of information from the CVR to be resolved. The proposal addresses this issue.

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 the investigation of an aircraft accident or incident. Unlike other countries, New Zealand does not have domestic law incorporating the provisions of paragraph 5.12. The Transport Accident Investigation Commission has recommended to the Minister of Transport that the provisions of paragraph 5.12 be incorporated in to New Zealand domestic law. The proposal sets out how this could be achieved.
What aircraft will need to have a CVR installed and in use after 1 April 1999?

Any air transport operation (carrying passengers for hire and reward) that requires 2 or more pilots and has a certificated seating capacity, excluding the pilot seat, of 10 seats or more, will need to have a CVR installed and in use during a flight.

What are the "black boxes" accident investigators talk about?

Most commercial aircraft carry two "black boxes". They are a flight data recorder (FDR) and the CVR. The FDR records the technical information about the aircraft and its movements and the CVR records sounds in a cockpit during at least the previous 30 minutes of flight. This includes conversations between the flight crew and voice communications to and from the aircraft and air traffic control.

The "black boxes" are located near the back of the aircraft and are actually bright orange to make them easier to find.

What are "accident or incident safety investigation records"?

These are records created or used during the course of the safety investigation into an aircraft accident or incident. This investigation is to establish the case of the accident, it does not attribute blame. The records included in this definition are:

all statements taken from persons by the safety investigation authorities in the course of their investigations;
all communications between persons having been involved in the operation of the aircraft (including between air traffic control and flight crew);
medical or private information regarding persons involved in the accident or incident;
the accident investigation report produced by the Transport Accident Investigation Commission;
cockpit voice recordings and transcripts from such recordings;
flight data recordings and transcripts from such recordings;
cockpit video recordings and transcripts from such recordings;
any records or any opinions expressed in the analysis of information derived from any item described above
How does this proposal respond to concerns expressed by pilots about the use of CVR recordings?

The proposal gives a high level of protection to the CVR and other safety investigation records. It also sets out the factors the court must take into account in deciding whether a CVR or other record may be used in specific court proceedings.

The use of CVRs will be mandatory through the civil aviation rules from 1 April 1999. However these rules will not be brought into force until the issue of the use of the information is resolved.

Can the CVR be used as evidence in court?

The proposal does allow for application to a court to use a CVR or other record in specific criminal proceedings, in civil proceedings and in for a Coroner's Court inquest.

The proposal sets out the factors to be taken into account by the court when making this judgement. These include any adverse impact the proposed use may have on current or future accident or incident investigations.

Will the media be able to print the CVR transcript?

The media will be able to publish the edited transcript of a CVR if it has been published in the accident investigation report. If a court determines that a CVR may be used as evidence, the proposal is that the court shall order that irrelevant parts of the record are deleted prior to its use in court and that the record shall not be broadcast or published.

How do other countries resolve this issue?

Internationally, countries have incorporated paragraph 5.12 into domestic law in varying ways. The Chicago Convention allows flexibility or discretion to the contracting states to the Convention and recognises that the recommended practices of Annex 13 will require amplification in some cases for domestic legislation. In Australia and Canada, the CVR is privileged. In the USA and the UK the use of the CVR information is subject to a balancing process by the court.

Does the proposal have implications for the other transport modes?

It could do. Trains and ships can have similar devices to the CVR and FDR. The proposal only covers aviation, but as the use of information from devices in trains and ships is a developing issue, legislation may be required in the future. The outcome for aviation could serve as a model for other modes.

Where to next?

Once the consultation on the proposal is complete, the Coalition Government will make its final decisions on this issue.

Can the public make submissions on the proposal?

The Ministry of Transport is consulting with aviation interest groups and other interested parties. Copies of the proposal are available from the Ministry, phone (04) 472-1253. Submissions close on 21 November 1997.