Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I support the measures put forward in the Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 but wish to move amendments to the provisions for copying, disclosing and testing cockpit voice recording on aircraft, which I will speak to shortly. I note that there have been discussions with the minister’s office about this. I am in your hands, Madam Chair, as to when I should move the amendments to this bill.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

You can move them now. This is your lucky day.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I don’t know about ‘lucky day’ on today of all days! I seek leave to move amendments (1) and (2) on sheet 5737 revised together.

Leave granted.

I move:

(1)    Schedule 1, item 11, page 7 (line 29), at the end of paragraph 32AP(3A)(b), add:

       ; and (iv)    the crew members in relation to the CVR information have given their consent in writing, after the CVR recording was made, for the copying or disclosure of the CVR information for the purposes of checking whether the equipment used to make the recording is functioning and reliable.

(2)    Schedule 1, page 7 (after line 29), after item 11, add:

11A  After subsection 32AP(3A)

Insert:

      (3B)    If crew members have declined to give their consent in writing under subparagraph (3A)(b)(iv) to two consecutive requests within a 12-month period in relation to checking particular equipment:

             (a)    the condition of consent under that subparagraph does not apply to the next such request in relation to the same equipment; and

             (b)    crew members must be notified in writing of those circumstances.

Our airline pilots do a magnificent job and play a key role in, and take responsibility for, having some of the safest skies in the world and the best safety record in the world. The contentious issue for them is the provision relating to cockpit voice recordings. They want an opportunity to give their consent in writing after a recording is made. Checks are made to ensure that the equipment is operating appropriately on each plane owned by an Australian based company.

The issue here is one of privacy. What has been put to me by the airline pilots—and I have had some very useful discussions with Guy Maclean from the Australian and International Pilots Association—is that their workplace is different to any other workplace. The government has said: ‘What is wrong with simply handing in a recording from pilots for the purposes of checking? It is the same as taxidriver recordings.’ With respect to the government, there is a fundamental difference. The nature of the workplace—that is, the cockpit—is quite different. These pilots may be in the cockpit for 14 hours. They have no protection in relation to the content of the conversations that may be listened to by engineers simply for the purpose of checking. There is an understandable nervousness that if in the course of a flight they discuss a personal matter or an operational issue that does not relate to safety—for instance, about the management of the airline they work for—that could cause them some significant and considerable embarrassment. They have very real concerns about that.

The point made by the airline pilots association is that these amendments would provide a provision where consent needs to be sought for the cockpit voice recording to be listened to. If that consent is not given on the first occasion, a second attempt can be made with a subsequent crew in relation to the cockpit voice recording—it is specific to the equipment. If that is not given within a 12-month period, on the third occasion—in the very unlikely event that you have already failed to gain consent twice—that would have to be listened to by the engineers to check the equipment. It gives a safeguard in relation to privacy.

The airline pilots make the point that the amendments will not pose any administrative costs or logistical burden on operations. The authority can easily be obtained post-flight in circumstances where engineers already seek multiple authorisation signatures from the flight crew. Obtaining approval to copy and review CVR data for maintenance purposes will simply be incorporated within existing processes. The Australian and International Pilots Association say:

… this advance notice is indeed appropriate and is supported by pilots. However, while useful as a “heads-up” advance notice is only half of the required protection; it provides absolutely no protection for content of subsequent actual conversations. At the beginning of a long flight one cannot forecast the range or content of future conversation or reasonably be expected to be guarded with respect to such content over an extended period. Indeed, this requirement may alter the communication dynamic within a multi-crew environment and diminish safety by inhibiting free flowing and open communications.

So that sums it up pretty well and I think the airline pilots do have an important point to make there. This is about enhancing, and not in any way compromising, safety, and I believe the privacy concerns of the airline pilots are legitimate. I can indicate that if this amendment is not supported, as appears to be likely, then I will not be seeking to divide in relation to this and I will proceed to my fallback position, which is amendment (3).

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I want to make a couple of comments about the proposed amendments. I want to indicate that I have had quite extensive consultation with the pilots in relation to the matter that Senator Xenophon was just speaking on—that is, the issue of the taping of the conversations in the cockpit and its length of time. I take the pilots’ point on board that on a long light they might consider this a particularly onerous burden. But having now had a further briefing and upon thinking further about the matter, as I understand it the tape can only be for two hours—and I would like the government to just reassure the committee in relation to this.

My understanding is that the tape can only be for two hours. Because the purpose of the tape is to check the safety systems and so on you could assume that on any kind of flight the tape will include take-off and landing, where all the procedures are gone through. The pilots are given notice beforehand that this is the flight that is going to be recorded and it is only once a year that this occurs. So once a year they are given notice that the tape is going to be made, it is only for a two-hour period and, because it is for the checking of safety procedures and so on, it will be on take-off and landing. I just want the government to clarify that that is the case.

I am also assured that if there is an incident of any kind on the particular flight about which notice has been given for the taping of the procedures then the tape cannot be used in relation to that incident—a separate process or procedure takes effect in looking at and examining that particular incident and other mechanisms are used. So it comes back to this issue of the public interest and the pilots’ interest. In the community’s interest what is being asked here is that, with notice, two hours can be taped for safety procedures when things have gone in a straightforward manner and there has not been an incident.

If you then say, ‘Well, the problem for the pilots is that they will not behave as they normally would in terms of their interaction because they know that they are being taped for two hours,’ the downside of that from the community’s point of view is that pilots can then say, ‘Well, we’re not going to sign off on this.’ I understand that there have been modifications to the position of ‘we’re not going to sign off on this’ which gives the pilots that power, if you like, over what can and what cannot be released.

So on balance I am on the pilots’ side in terms of not wanting to put an onerous burden on them and making them feel as if everything they say is being monitored and watched to be used against them. But there are very strict rules around who can listen to it and what it can actually be used for. So it cannot just be released to the front pages of a daily newspaper speculating on any conversation that might have gone on. There are very strict rules about that with quite severe penalties.

Having listened to both sides of the argument and having engaged with the government about this as well, the Greens do not feel like we can support the amendment. But I do want to be assured by the government that the tape is for two hours maximum and that the likelihood is that, of that two hours, take-off and landing will be part of it. Therefore with notice you know you are going to have to do that, and in those two hours you are not likely to be engaging in much other conversation anyway because of the procedures you have to go through to check off all your systems. I just ask the government to reassure the committee in relation to that before we get to vote on that amendment.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Link to this | Hansard source

First of all, the government is not supporting Senator Xenophon’s first two amendments but will be supporting the third amendment in the event of this happening. In relation the question from Senator Milne, I reassure all those listening that the government has of course had extensive consultations around this—as has everybody else here, I think. The bill specifically amends the Civil Aviation Act 1988 to allow copying and disclosure of the cockpit voice recordings for the purposes of testing whether the CVR is functioning and reliable. Senator Milne, it retains the last two hours of audio in the cockpit during a flight. Where domestic flights are likely to be less than two hours it will be the full flight, but for flights going across to Perth, for example, it will be the last two. It would not be take-off and landing; it would be those last two hours. The information is recorded for use in accident investigations, so it needs to be fully functional and reliable for that critical safety purpose. I confirm that it is anticipated that this testing would occur once every 12 months.

The bill provides strong privacy safeguards for both the technicians and the pilots during CVR testing. Those standards are international best practice. The protections include notifying the crew in writing before the recording is made that it will be used for maintenance, so there are no surprises sprung on the crews in that regard. The protection is consistent with national privacy principles for the collection and use of personal information, and assurances have been given that that information cannot be read on the front page of the daily newspaper. Additionally, it will be an offence punishable by two years imprisonment to disclose that information for purposes other than maintenance. The offence provision recognises the sensitivity of CVR information, the circumstances that the pilots and crew might be under and the need to deter unacceptable disclosure. Only a person prescribed in the regulations will be able to copy and disclose CVR information for the purposes of testing its function and reliability. There will be a regulatory development process involving industry consultation for the development of those regulations.

Of Senator Xenophon’s three amendments to the regime, the first two relate to the crew giving consent before CVR recording is used for its maintenance. The third one, if for expediency I may go to it, relates to the legislative review role for the Privacy Commissioner. Addressing proposed amendments (1) and (2), which are about the consent issue, the government has confidence that the crew of an aircraft would as a matter of practice be cooperative with respect to the maintenance of the CVRs. However, adding a requirement that the crew needs to give assent would create problems with the serviceability of the CVR and the schedule of maintenance for the plane where consent is not provided. The maintenance schedule for aircraft needs to be reliable, especially when there is a large fleet of aircraft with numerous components to be maintained. Further, an aircraft needs to have a serviceable CVR on board as an operating requirement. The operator needs to be able to guarantee its functionality and reliability, and the confidentiality of the CVRs has been appropriately protected by workable and stringent protections in the bill. The government therefore opposes amendments (1) and (2) to the bill, which involve the crew members giving written consent. However, it does support Senator Xenophon’s third amendment, which provides for a review of the legislation and involves the Privacy Commissioner. The privacy protections in the bill are already stringent, and it is not inconsistent with the nature of these protections to have an independent body review their implementation in the interests of preserving best practice.

David Johnston (WA, Liberal Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

I commence the response of the opposition to these amendments by commending Senator Xenophon on his very thoughtful and considered amendments. It is a very important issue, and the opposition has, in seeking to balance the very vital and important issues of safety in aviation and employee and pilot privacy, come down on the side of safety. I seek to adopt the quite comprehensive and, may I say, very proper response of the minister in this matter.

We are very respectful of the need for pilots to feel secure in their workplace. It is a unique workplace. As I say, we are very respectful of their wishes. We cannot, unfortunately, in this instance accede to the matters that Senator Xenophon has put forward as we see the overriding, overarching imperative being one of safety. As a background to these remarks, as we all know, the act does a number of things, including the enabling of the department of transport to collect more information on aviation industry participants, to permit the secretary of the department to delegate certain powers and to give the Australian Transport Safety Bureau more time to bring prosecutions. This is the important aspect of the legislation that relates to these amendments: it also facilitates the testing and maintenance of cockpit voice recorders, and that is the context of the amendment. The bill clarifies the confidentiality provisions before the cockpit voice recorder may be copied and disclosed for legitimate maintenance and testing purposes. Currently there is doubt that any copying or disclosure of cockpit voice recorder data for such purposes is legal. Indeed, I might say that I do not think that situation could go on much longer and I congratulate the government for bringing these amendments.

The bill seeks to rectify this anomaly by including necessary changes to the act. These changes stipulate that the person checking the equipment is authorised so to do under relevant regulations and must believe that the material does not relate to a reportable matter, as defined, and that the crew members have been advised in writing beforehand of the intention to copy or disclose the information. According to the government, these changes are necessary, and the opposition accepts that statement. Following the findings of the very serious and unfortunate Lockhart River aviation accident on 7 May 2005, the ATSB discovered that the data on the cockpit voice recorder of the crashed aircraft was not recoverable and that any problems with that recorder were not detected during maintenance. I think that is the background and indeed the safety imperative that the opposition seeks to underline in balancing these two very important issues.

The opposition accepts that any legal ambiguity that arises from copying the data in the voice recorder for legitimate maintenance purposes needs to be dealt with. We also accept that privacy issues need to be managed and, like the government, we will be supporting the third of Senator Xenophon’s amendments. We believe the government amendment goes a long way to addressing these very important matters.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank Senators Stephens, Johnston and Milne for their contributions. I accept that it is lost and I agree that safety has to be the primary consideration. I want to make it clear that where there is a question mark about a safety incident on an aircraft the CVR is subject to checking—no ifs, no buts. The pilots fully accept that. I think the best thing to do is to put this to a vote now. I will not be dividing. Then we can get on with amendment (3), which I see there is widespread support for.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 5737 revised 2 moved by Senator Xenophon be agreed to.

Amendments negatived.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move amendment (3) on sheet 5737 revised 2:

(3)    Page 2 (after line 11), after clause 3, insert:

4 Report of the Privacy Commissioner

        (1)    The Privacy Commissioner must examine the following matter:

                      The privacy implications for flight crew members of the provisions of the Civil Aviation Act 1988 relating to copying or disclosure of CVR information, as amended by Part 2 of Schedule 1 of this Act.

        (2)    In examining the matter the Privacy Commissioner must consult representatives of associations affected by the provisions.

        (3)    The Commissioner must produce a written report to the Minister within 15 months of the commencement of this Act about the operation of the provisions referred to in paragraph (1) over its first 12 months, and may include in the report any recommendations the Commissioner wishes to make for amendment of the provisions to address any privacy concerns.

        (4)    In examining and reporting on this matter the Privacy Commissioner may exercise any of the powers conferred upon him or her by the Privacy Act 1988, and may delegate any matter to a member of his or her staff as provided for by section 99 of that Act.

        (5)    The Minister shall cause a copy of a report given to the Minister under subsection (2) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

I think all my colleagues have well articulated it. This is important for the pilots. From my discussions with the Pilots Association I know they want an opportunity to have their views heard before an inquiry by the Privacy Commissioner. That will be reported on or tabled in parliament in some 15 months from the time of the effect of this provision. I think that will go a long way in dealing with their concerns.

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens will support this amendment for the reasons that I indicated before. We want to make sure that the pilots’ interests are protected whilst understanding that the overriding concern in the parliament has to be for public safety and the public interest.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I take this opportunity to make a few brief comments about the broader area of air safety—not specifically on this amendment but broadly on the matter of air safety—with respect to this legislation. In particular I indicate that I raised some issues with Airservices Australia some 12 months ago regarding an empty control tower at Launceston airport: it was left vacant for 1½ days due to staff sickness. Likewise, it was left unattended the previous December. I was advised that an investigation would take place and I have asked for that investigation to be made public and for the conclusions and recommendations to also be made public. The Launceston airport has a million passengers a year—that is 3,000 passengers a day. It has four passenger airlines now, as well as small carriers to the Bass Strait islands, freight carriers and so on, and it is now subject to a $20 million redevelopment. I raise these issues seeking answers and for matters to be brought to public attention and put on the public record. I appreciate that air safety should be the top priority and absolutely key in every respect, and I appreciate the efforts of all senators in this chamber to achieve that objective.

Manning levels are very important. There were people at Launceston airport that were sick and also on leave, and I accept that these things happen, but why can’t Airservices Australia ensure that the air traffic control tower is manned by the appropriate people to ensure that air safety is a top priority? There were several serious incidents in and around Launceston, not just in terms of the matters I have raised. Some years ago, a Virgin flight came very close to a light aircraft. So we need the assurance that safety will not be compromised in any respect. I appreciate the efforts of Airservices Australia, but I do hope and expect that those investigations, the conclusions and recommendations, will be made public so that we have a full analysis of that review.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.