Civil Aviation Amendment Regulations 2009 (No. 2)

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2009L02509 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 146

 

Issued under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

 

Civil Aviation Act 1988

 

Civil Aviation Amendment Regulations 2009 (No. 2)

 

 

Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor-General may make regulations for the purposes of the Act and in relation to the safety of air navigation.

 

Subsection 9 (1) of the Act specifies, in part, that the Civil Aviation Safety Authority has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.

 

The Regulations amend the Civil Aviation Regulations 1988 (CARs) to provide an authorisation for certain persons who are required to copy and disclose Cockpit Voice Recorder (CVR) information for the purpose of checking the functioning and reliability of the CVR. This change would be consequential to a recent amendment to the Act.

 

Background

 

The Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 (the Amendment Act), which received Royal Assent on 26 March 2009, amended the Act by inserting new provisions into Part IIIB of the Act to allow for the copying and disclosure of aircraft CVR information for the purpose of checking the functioning and reliability of the CVR. Those amendments came into effect on 1 July 2009.

 

Strict confidentiality requirements are imposed by Part IIIB of the Act to ensure the continued availability of CVR information in the future for accident and incident investigations by the Australian Transport Safety Bureau (ATSB) under the Transport Safety Investigation Act 2003.

 

The changes made by the Amendment Act clarifies that the confidentiality requirements do not make it unlawful to copy or disclose CVR information for maintenance of the CVR provided certain conditions are met.  One of those conditions is that the person copying or disclosing CVR information must be prescribed in the CARs.

 


The amendment

 

The proposed Regulations authorise the following persons to copy and disclose CVR information when checking the equipment to determine it is functioning and reliable:

 

  1. ‘staff members’ as defined by the Transport Safety Investigation Act 2003 (i.e. employees of the ATSB) who have been trained with respect to the replay and analysis of CVR recordings, and have been briefed on the requirements of Part IIIB of the Act; and

 

2.      persons who are already authorised under the CARs to carry out maintenance on CVRs who are acting under the authority of the Certificate of Approval (COA) holder covering the maintenance, have been trained by the COA holder with respect to the replay and analysis of CVR recordings, and have been briefed by the COA holder on the requirement of Part IIIB of the Act.

 

Details of the Regulations are attached.

 

The Regulations are mechanical in nature and are consequential to the Amendment Act.

 

Consultation has been undertaken through the ATSB, the Australian and International Pilots Association, and the joint industry/CASA Standards Consultative Committee (SCC) and the relevant sub-committees of the SCC.

 

A Regulation Impact Statement Exemption, reference 10248, has been obtained from the Office of Best Practice Regulation  as the amendments are not expected to result in any additional costs to industry.

 

 The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 July 2009.


ATTACHMENT

 

Civil Aviation Amendment Regulations 2009 (No. 2)

 

 

DETAILS OF THE REGULATIONS

 

Regulation 1 - Name of Regulations

Regulation 1 provides that the title of the Regulations is the Civil Aviation Amendment Regulations 2009 (No. 2).

 

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 1 July 2009.

 

Regulation 3 - Amendment of Civil Aviation Regulations 1988

Regulation 3 provides that Schedule 1 amend the Civil Aviation Regulations 1988.

 

 

Schedule 1 - Amendment

 

Item 1 - After regulation 50F

Item 1 inserts a new regulation 50G of the CARs, pertaining to copying or disclosing of CVR information.

 

For the purpose of subsections 32AP (3) and (3A) of the Act, the following persons are authorised to copy and disclose CVR information when checking the equipment to determine it is functioning and reliable:

 

  1. ‘staff members’ as defined by the Transport Safety Investigation Act 2003 (i.e. Australian Transport Safety Bureau employees) who have been trained with respect to the replay and analysis of CVR recordings, and have been briefed on the requirements of Part IIIB of the Act; and

 

2.      persons who are already authorised under the CARs to carry out maintenance on CVRs who are acting under the authority of the Certificate of Approval (COA) holder covering the maintenance, have been trained by the COA holder with respect to the replay and analysis of CVR recordings, and have been briefed by the COA holder on the requirement of Part IIIB of the Act.

 

 

Overview

The Civil Aviation Amendment Regulations 2009 (No. 2) were enacted to address the gap introduced by the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009. The original Act, the Civil Aviation Act 1988, had been amended to allow for the copying and disclosure of aircraft Cockpit Voice Recorder (CVR) information for checking the functioning and reliability of the CVR, provided certain confidentiality conditions were met. However, to operationalise this change, specific authorisations needed to be set out in the Civil Aviation Regulations 1988 (CARs). The Civil Aviation Amendment Regulations 2009 (No. 2) were issued under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government to provide this necessary authorisation. The policy objective of these regulations is to ensure that CVR information can be checked for reliability and functionality while maintaining strict confidentiality to safeguard its availability for future accident and incident investigations by the Australian Transport Safety Bureau (ATSB).

Scope and Application

The Civil Aviation Amendment Regulations 2009 (No. 2) amend the Civil Aviation Regulations 1988 to provide an authorisation for certain individuals to copy and disclose Cockpit Voice Recorder (CVR) information to check the functioning and reliability of the CVR, in line with the recent amendment to the Civil Aviation Act 1988. These Regulations apply to persons who are prescribed in the Civil Aviation Regulations 1988, specifically staff members of the Australian Transport Safety Bureau who have been trained and briefed, and persons authorised to carry out maintenance on CVRs who are acting under the authority of a Certificate of Approval holder. These Regulations are consequential to the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009, which amended the Civil Aviation Act 1988 to allow for the copying and disclosure of CVR information for the purpose of checking the functioning and reliability of the CVR while ensuring strict confidentiality requirements to protect CVR information for future accident and incident investigations. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and commence on 1 July 2009.

Key Provisions

The Civil Aviation Amendment Regulations 2009 (No. 2) introduce significant changes to the Civil Aviation Regulations 1988 (CARs) in response to amendments made by the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 (Amendment Act). The main operative sections of these regulations, specifically Regulation 3 and Schedule 1, focus on amending regulation 50F of the CARs by inserting a new regulation 50G. This new regulation (section 50G) authorises certain individuals to copy and disclose Cockpit Voice Recorder (CVR) information for the purpose of checking the functioning and reliability of the CVR. This authorisation is given to two categories of persons: staff members of the Australian Transport Safety Bureau (ATSB) who are trained in replay and analysis of CVR recordings and briefed on Part IIIB of the Civil Aviation Act 1988 (section 32AP), and persons authorised under the CARs to carry out maintenance on CVRs, provided they are acting under the authority of a Certificate of Approval (COA) holder, have been trained by the COA holder in replay and analysis of CVR recordings, and have been briefed by the COA holder on the requirements of Part IIIB of the Act. These regulations impose several obligations and requirements on the parties they govern. Firstly, the staff members of the ATSB and maintenance personnel authorised under the CARs must undergo specific training in the replay and analysis of CVR recordings. Additionally, they must be briefed on the confidentiality requirements stipulated in Part IIIB of the Act to ensure that the disclosure of CVR information does not compromise the future availability of such information for accident and incident investigations. This briefing is crucial to ensure that the authorised persons understand the legal framework governing the use of CVR information and adhere to the confidentiality requirements. Failure to comply with the provisions of these regulations may result in legal consequences. While the regulations themselves do not explicitly outline specific penalties for non-compliance, any breach of the confidentiality requirements could potentially lead to civil or criminal liability under the Civil Aviation Act 1988 or the Transport Safety Investigation Act 2003. The penalties for unauthorised copying or disclosure of CVR information could include fines or imprisonment, depending on the severity of the breach and the specific provisions of the Acts under which the offence is prosecuted. It is important for authorised personnel to strictly adhere to the conditions set forth in the regulations to avoid such consequences.

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