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Privacy and cockpit voice recorder information: Report to the Minister for Infrastructure, Transport, Regional Development and Local Government

Report to the Minister for Infrastructure, Transport, Regional Development and Local Government pursuant to section 4 of the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 made in June 2010

pdfPrivacy and cockpit voice recorder information: Report to the Minister for Infrastructure, Transport, Regional Development and Local Government

 
 

Privacy and cockpit voice recorder information: Implications for flight crews of the Civil Aviation Act 1988 provisions on copying or disclosure of cockpit voice recorder information

Report to the Minister for Infrastructure, Transport, Regional Development and Local Government pursuant to section 4 of the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009

Office of the Privacy Commissioner

21 June 2010

 

Key Recommendations

1. The right to privacy is not absolute and it is often necessary to balance it with other important public interests, such as protecting the Australian community. In certain work areas like the flight deck of an aircraft, for public safety reasons, workplace surveillance is considered to be essential. However, the Office of the Privacy Commissioner (the Office) notes there needs to be an appropriate balance between the public interest in using cockpit voice recorders (CVRs) for public safety and accident investigation purposes, and the public interest in protecting the privacy of individuals.

2. The Office recommends, to further enhance and protect the personal information of flight crew members, that the Civil Aviation and Safety Authority (CASA) consider developing guidelines to assist the aviation industry with their obligations under section 32AP (3) (aa) and (3A) of the Civil Aviation Act 1988 (Cth). These guidelines could be incorporated into the existing CAAP 42L-7(0) on CVR maintenance and should cover:

(i) Notice: the circumstances in which flight crew members (including maintenance personnel) should be given written notice, the form of the notice, and the means by which the notice can be provided, such as through the use of an aircraft’s technical log, Geneva or equivalent electronic advice system, or insertion into aircraft maintenance manuals.

(ii) Training: the areas to be covered in maintenance crew training to satisfy the requirements set out in Regulation 50G of the Civil Aviation Regulations 1988 (Cth). Various privacy topics, including surveillance in the workplace, general privacy obligations under the Privacy Act 1988 (Cth), the collection, use and disclosure of CVR information, minimising potential privacy risks during the handling of CVRs, and processes for dealing with privacy complaints, could be incorporated into this training.

(iii) Complaints: the appropriate complaint mechanisms and procedures available to flight crew members (including maintenance personnel) if they have a complaint about the way in which CVR information has been handled during the course of maintenance checks.

Office of the Privacy Commissioner

1. The Office of the Privacy Commissioner (the Office) is an independent statutory body whose purpose is to promote and protect privacy in Australia. The Office, established under the Privacy Act 1988 (Cth) (the Privacy Act), has responsibilities for the protection of individuals' personal information that is handled by Australian and ACT Government agencies, and personal information held by all large private sector organisations, health service providers and some small businesses.

Background

2. Section 4 of the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 (the Amendment Act) provides for the Privacy Commissioner to examine the privacy implications for flight crew members on the operation of the provisions of the Civil Aviation Act 1988 relating to the copying or disclosure of cockpit voice recorder (CVR) information.[1]Section 4 of the Amendment Act may be found at Appendix A.

3. In conducting the review, the Privacy Commissioner is required to consult with representatives of associations affected by the provisions.[2]A written report is required to be submitted to the Minister for Infrastructure, Transport, Regional Development and Local Government (the Minister) within 15 months of the commencement of the Amendment Act about the operations of the relevant provisions over its first 12 months.[3]

4. The part of the Amendment Act containing section 4 commenced on 26 March 2009. Therefore, the report must be provided to the Minister by 26 June 2010.

5. The relevant CVR provisions commenced on 1 July 2009. Therefore, this review does not cover a full 12 months of operation. Despite the review only covering the first 10 months of operation, the Office believes it unlikely that any further substantive issues would have been raised if the review had covered a 12 month period.

Regulatory framework for CVRs

Part IIIB of the Civil Aviation Act 1988 (Cth)

6. Part IIIB (sections 32AN – 32AU) of the Civil Aviation Act 1988 (Cth) (Civil Aviation Act) deals with the protection of CVR information. It imposes strict confidentiality requirements to ensure the continued availability of CVR information in the future for ‘no blame’ accident and incident investigations under the Transport Safety Investigation Act 2003 (Cth) (Transport Safety Investigation Act).[4]

7. The definition of a ‘CVR or cockpit voice recording’ is contained in section 32AO of the Civil Aviation Act.[5]The definition covers recordings of persons on the flight deck of an aircraft made while the aircraft is on a constitutional journey (or incidental to such a journey) or if the aircraft is owned or operated by a constitutional corporation or Commonwealth entity.[6]The definition expressly excludes any recordings that would be regarded as on board recordings for the purposes of the Transport Safety Investigation Act.

8. The Office understands that if there is an ‘incident or accident’, the Transport Safety Investigation Act applies thereby allowing the ATSB to investigate and examine the CVR and other flight recorders on the aircraft. The provisions in Part IIIB are intended to operate at other times and ensure that the copying or disclosing of CVR information is extremely limited when there is no incident under investigation.

9. CVR information is defined in section 32AN of the Civil Aviation Act as a CVR or any part of a CVR; or a copy or transcript of the whole or any part of a CVR; or any information obtained from a CVR or any part of a CVR. Section 32AP (1) and (2) of the Civil Aviation Act make it a criminal offence to copy or disclose CVR information except in limited circumstances. These circumstances are set out in section 32AP(3). The text of section 32AP is at Appendix A.

The 2009 CVR amendments

10. In 2009, Part 2 Schedule 1 of the Amendment Act inserted into Part IIIB of the Civil Aviation Act new provisions relating to the copying or disclosure of CVR information (2009 CVR amendments). The Explanatory Memorandum to the Aviation Legislation Amendment (2008 Measures No.2) Bill 2008 states the CVR amendments were derived from a recommendation made by the Australian Transport Safety Bureau (ATSB) during the investigation of a fatal aircraft accident at Lockhart River in Queensland in May 2005.[7]

11. Problems with the CVR on the aircraft involved in the accident at Lockhart River had not been detected during maintenance checks and, as a consequence, no useable data was recovered to assist in the accident investigation. Accordingly, the 2009 CVR amendments are intended to facilitate the implementation of improved maintenance checks by reducing the frequency of undetected inoperative CVRs. The improved reliability of CVRs will also enhance the ability of CVRs (and the information they contain) to assist in accident investigations.[8]

12. The 2009 CVR amendments inserted a new section 32AP(3)(aa) and (3A) into the Civil Aviation Act. Section 32AP(3)(aa) creates a new exception to the general prohibition against copying or disclosing CVR information by allowing copying or disclosing for the purposes of checking whether equipment used to make a cockpit voice recording is functioning and reliable, provided the conditions set out in subsection (3A) are met.[9]

13. The conditions in section 32AP(3A) provide that the person who copies or discloses the CVR information must be authorised to do so under regulation 50G of the Civil Aviation Regulations 1988 (Appendix A). They also require the person to honestly and reasonably believe on the information available to him or her that:

(i) the cockpit voice recording does not relate to a reportable matter (as defined for the purposes of the Transport Safety Investigation Act); and

(ii) the cockpit voice recording does not relate to an offence under the law of the Commonwealth, or of a State or Territory; and

(iii) the crew members in relation to the CVR information were notified in writing, before the cockpit voice recording was made, of the intention to copy or disclose the CVR information for the purposes of checking whether the equipment used to make the recording is functioning and reliable.

14. Authorised persons under the regulations must be either:

  • a staff member within the meaning of the Transport Safety Investigation Act; or
  • a person who is to check on behalf of the holder of a CVR certificate of approval[10] whether equipment used to make a cockpit voice recording is functioning and reliable.

Both categories of persons are also required under the regulation to have had training with respect to the replay and analysis of CVRs; and have been briefed on the requirements of Part IIIB of the Civil Aviation Act.[11]

Use of CVR Information

15. Under the Privacy Act the transfer of personal information within an agency or organisation is regarded as a ‘use’ rather than a disclosure of the information. It is not clear whether the term ‘disclose’ as defined in Part IIIB of the Civil Aviation Act would be interpreted in similar terms to ‘disclosure’ as that term is used in the Privacy Act.

16. If a similar concept of disclosure as that used in the Privacy Act is applied to the provisions in Part IIIB of the Civil Aviation Act, the Office notes that the ‘use’ of CVR information during maintenance checks may not necessarily fall within the scope of section 32AP.

CVR maintenance requirements

17. There are a number of regulatory requirements relating to CVRs.[12] However, generally, the maintenance and testing requirements for CVRs are not expressly defined in Australian regulations. Within the aviation industry it is understood that the International Civil Aviation Organisation (ICAO) Annex 6 requirements related to CVRs are accepted as the minimum requirements to be met by operators to obtain Civil Aviation and Safety Authority (CASA) approval for schedules of maintenance.

18. CASA has also issued an advisory publication on CVR maintenance. This publication provides general guidance on issues such as recommended functional tests for CVRs, the effect of modifications and the system of maintenance.[13]

Review Process

Scope

19. Section 4(1) of the Amendment Act states that the Privacy Commissioner must examine:

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.

20. For this reason, the review focuses on identifying and assessing any privacy issues or risks that specifically arise out of the operation of the 2009 CVR amendments. The review does not seek to evaluate the general effectiveness of section 32AP or the other provisions contained in Part IIIB of the Civil Aviation Act.

Process and Consultation

21. The Privacy Commissioner commenced the review process in March 2010 by conducting a scoping exercise in consultation with the ATSB and CASA. The review consultation process primarily involved reviewing written responses from the industry associations and participants identified below about conducting CVR maintenance checks, including any privacy issues arising out of this process since the commencement of the 2009 CVR amendments. Interviews (either face-to-face or on the telephone) were also conducted.

22. In accordance with section 4(2) of the Amendment Act, representatives of the following associations affected by the 2009 CVR amendments have been consulted:

  • Australian and International Pilots Association (AIPA)
  • Australian Federation of Air Pilots (AFAP)
  • Australian Licensed Aircraft Engineers Association (ALAEA)

23. Other industry participants were also contacted to assist in the review process namely:

  • Australian Transport Safety Bureau (ATSB)
  • Civil Aviation and Safety Authority (CASA)
  • Qantas Airways Limited (Qantas)

24. A copy of the draft report was circulated for comment on 4 June 2010 to the industry associations and industry participants identified above.

Privacy and the 2009 CVR amendments

25. The right to privacy is not absolute and it is often necessary to balance it with other important public interests, such as protecting the Australian community. In certain work areas like the flight deck of an aircraft, for public safety reasons, workplace surveillance is considered to be essential. However, the Office of the Privacy Commissioner (the Office) notes there needs to be an appropriate balance between the public interest in using cockpit voice recorders (CVRs) for public safety and accident investigation purposes, and the public interest in protecting the privacy of individuals.

26. Generally, personal information collected using workplace surveillance must be handled in accordance with the Privacy Act. Acts or practices by private sector organisations that directly relate to the handling of an employee record in relation to a current or former employment relationship are exempt from the operation of the Privacy Act (the ‘employee records exemption’).[14]The Office is of the view that the handling of CVR information by airlines during the maintenance process would not fall within the employee records exemption and, therefore, would be subject to the Privacy Act where the organisation involved is covered by the Privacy Act.[15]

27. As a matter of good privacy practice, the Office generally encourages organisations undertaking workplace surveillance to ensure that measures affecting privacy are transparent to staff, are a necessary and proportionate response to an identified issue and provide a minimum standard of privacy protection to all staff members.

28. The 2009 CVR amendments inserted into Part IIIB of the Civil Aviation Act recognise the sensitivities associated with CVR information and can be seen to provide specific mechanisms, in addition to any general protections that may apply under the Privacy Act, to protect the way in which CVR information is handled during CVR maintenance checks. This approach is consistent with the other protections contained in Part IIIB such as the limitations placed upon the use of CVR information in disciplinary, criminal and civil proceedings and the ability for a court to direct that CVR information not be published or communicated to any person.[16]

29. During the review process a small number of potential privacy issues for flight crew members have been identified as arising out of the 2009 CVR amendments. These are discussed in more detail below.

Conclusions and Recommendations

CVR maintenance checks

30. The CVRs used on aircraft in Australia are either a magnetic tape recorder or a solid-state digital recorder. The magnetic tape runs for a shorter length of time (around 30 minutes) whilst the solid-state digital recording operates for a longer period (around 2 hours). The CVRs record on four separate channels.

31. CVR maintenance checks are usually conducted on the aircraft or, alternatively, in a workshop. The latter type of CVR maintenance check involves physically removing the CVR from the aircraft to conduct the maintenance. In accordance with CASA’s Airworthiness Directive AD/Rec/1[17], a functional check for a CVR is required 12 monthly or following 2000 hours of time in service or, alternatively, for Class A and Class B aircraft in accordance with the system of maintenance for the aircraft.[18]

32. CVRs operate on an endless loop principle. This means that data is automatically recorded over once the end of the tape or recording capacity is reached. Flight crew members also have the ability to erase the CVR recording at the end of a flight. The Office understands that the erasure of the CVR usually occurs as part of the post flight processes, the only exception being in circumstances where the CVR is required for an accident/incident investigation or a maintenance check.

33. CVR maintenance checks are usually conducted by the maintenance engineers or technicians employed directly by the relevant airline or, in some cases, by a third party contracted to provide maintenance services to that airline.[19]The Office understands that although outsourcing may occur from time to time the Australian standards set out in the Civil Aviation Act must be complied with.

34. All industry associations consulted during the review indicated they understood the need for maintenance checks to be conducted on CVRs to ensure they are accurate and readable. In addition, they acknowledged it was important for CVRs to be available for accident and incident investigation purposes.

35. However, it was also recognised by the two pilot associations that CVRs may sometimes contain private conversations between flight crew members and this warranted a high level of privacy protection for flight crew members to prevent any unauthorised access to or misuse of CVR information not required for accident or incident investigation.

36. ALAEA indicated it was their understanding that the CVR maintenance checks (both on the aircraft and in the workshop) did not involve playing back a CVR recording containing the conversation of flight crew members. Instead, when testing the CVR equipment in the aircraft the engineer would conduct a ‘live’ test by simulating the start-up of the aircraft and testing each of the 4 microphones to ensure the sound is coming through the microphones. ALAEA also said the engineer may test the playback by replaying their own voices without listening to any existing content on the CVR, but indicated they did not think the engineer had the capability to simply play back what was already recorded by flight crew. This was consistent with CASA’s understanding of the way CVR checks were conducted and information obtained from Qantas.

37. Qantas indicated there was no need to listen to the recorded pilots’ conversations contained on a CVR when conducting maintenance checks. Qantas also stated there was no capability to review or record information that is already stored on the CVR during the service that takes place on board the aircraft. The engineer or technician during the service can conduct a test whereby they talk into the microphones and this is played back after a 1.5 second delay. They do not have the capability to access or play back conversations already stored on the CVR. When maintenance checks are conducted on CVRs in the workshop there is a capability to review or record but Qantas stated this does not form part of the standard practice or procedure for such maintenance; i.e. it is not a requirement in the Aircraft Maintenance Manual or the Component Maintenance Manual (CMM). On this basis, Qantas is of the view there is no copying or disclosing of CVR information when maintenance checks are carried out.

Notice

38. The provision of written notice to flight crew members is one of the conditions that must be met before a person can rely upon the exception to the general prohibition against copying or disclosing CVR information contained in section 32AP(3)(aa). In effect, this requirement means all flight crew members must be given sufficient warning of the intention to conduct a CVR maintenance check that will involve the copying or disclosure of CVR information before a CVR recording is made.

39. Pilots are the flight crew members primarily affected by this condition. Although, as ALAEA has pointed out, there may be circumstances where its members may also be regarded as flight crew. This can occur when engineers run an aircraft’s engines as part of the aircraft’s maintenance checks. As the CVR automatically begins recording when the aircraft’s engines are turned on, in this situation, the CVR will record the conversations of maintenance crew that take place in the cockpit.

40. Both pilot associations indicated they had an expectation that their members would receive notice about CVR maintenance checks that were to be conducted. This appeared to be based upon the understanding that CVR maintenance checks would involve the playing back of CVR recordings containing the conversations of flight crew members. ALAEA commented that the notice requirements should apply equally to its members if they are likely to be recorded whilst on the flight deck. AFAP agreed with ALAEA’s comments.

41. None of the industry associations consulted during the review could point to an example of when their members had received written notification as required by the condition in section 32AP (3A) (b) (iii). It appears that the lack of notice currently being provided to flight crew members is attributable to the fact that the maintenance checks do not involve the copying or disclosing of CVR information as no conversations of flight crew members are accessed or played back during the maintenance process at this time.

42. Both pilot associations also noted that there may be circumstances where the CVR recording may contain conversations of more than one flight crew. For example, this may occur on short haul domestic flights where there may be several changes in flight crew over a 4-6 hour period. It was acknowledged that any system for providing flight crew members with notice should be designed to ensure all relevant flight crew members are alerted about the intended CVR check.

43. AIPA suggested that an aircraft’s technical log may be a suitable mechanism to ensure all relevant flight crew members are provided with written notice about intended CVR maintenance checks. This is on the basis every aircraft is legally required to keep a technical log and the flight crew must check and sign it before every flight. ALAEA indicated they support this approach and also suggested notice could be provided through an insertion to aircraft maintenance manuals. AFAP suggested that another suitable mechanism may be to notify the flight crew through the Geneva or equivalent electronic advice system. This is an electronic messaging system that flight crew members are required to access prior to each flight.

44. It is a fundamental principle of privacy that individuals should, to the greatest extent possible, be given notice about how their personal information is to be collected, used and disclosed. Accordingly, the notice requirement in section 32AP (3A) (b) (iii) can be seen as an important mechanism to protect the privacy of flight crew members (including maintenance personnel). In the present circumstances, there appears to be a lack of awareness about how the process of conducting maintenance checks is undertaken. This has resulted in confusion and misplaced expectations about when the notice requirements in section 32AP (3A) (b) (iii) should be followed.

Recommendation on Notice

45. It is recommended that CASA considers developing guidelines to assist the aviation industry with their obligations under the notice requirements in section 32AP (3A) (b) (iii). The guidelines could canvass the circumstances in which flight crew members (including maintenance personnel) should be given written notice, the form of the notice, and the means by which the notice can be provided (for example, through the use of an aircraft’s technical log, Geneva or equivalent electronic advice system, or insertion into aircraft maintenance manuals).

46. The Office suggests that the guidelines could be incorporated into the existing CAAP 42L-7(0) on CVR maintenance. These guidelines would help address the lack of awareness and confusion within the aviation industry that appears to currently surround CVR maintenance checks and their interaction with the notice requirements contained in section 32AP (3A) (b) (iii) of the Civil Aviation Act.

47. The Office is also supportive of other measures that individual airline operators may consider taking to clarify their CVR maintenance procedures. For example, Qantas has indicated to the Office that they are taking steps to address any potential confusion over the way in which CVR maintenance is handled. These steps include the publication on 10 June 2010 of a CMM Supplemental Manual Instruction Sheet (SMIS) that provides an overview of Part IIIB of the Civil Aviation Act including section 32AP and Regulation 50G. The SMIS ensures the procedure for CVR maintenance includes the bulk erasure of CVR prior to any repair or overhaul activity on the CVR unit. A procedure for inclusion in the Qantas Engineering Procedures Manual (QEPM) setting out the relevant Part IIIB requirement will also be developed and finalised by the end of June 2010.

Training Requirements

48. Authorised persons under Regulation 50G of the Civil Aviation Regulations 1988 (Cth) are required to have had training with respect to the replay and analysis of CVRs and to have been briefed on the requirements of Part IIIB of the Civil Aviation Act.

49. ALAEA was not aware whether any of their members had undertaken the required training and were unable to locate or confirm the existence of online training modules, appropriate maintenance manuals and protocols. However, they pointed out that non ALAEA members may also carry out maintenance checks.

50. Qantas has advised the Office they have one technician in its Sydney workshop that normally carries out CVR checks. Qantas also advises that this individual has completed training in the United States of America on CVRs including on privacy and data disclosure.

51. It appears that other workshop technicians that may carry out CVR maintenance from time to time have not been made aware of the Part IIIB requirements. The Office notes the training requirements in Regulation 50G are only applicable if authorised persons are copying or disclosing CVR information. In addition, Qantas advises that the copying or disclosure of CVR information is not required to perform maintenance or functional testing of CVRs. Qantas has stated that the new SMIS and QEPM will ensure all technicians who may conduct CVR maintenance follow the CVR erasure requirements. Qantas advises that these changes will be fully implemented by the end of June 2010.

Recommendation on Training

52. It is recommended that CASA consider developing guidelines detailing what should be covered in training in order to satisfy the requirements set out in Regulation 50G. Various privacy topics, including surveillance in the workplace, general privacy obligations under the Privacy Act, the collection, use and disclosure of CVR information, minimising potential privacy risks during the handling of CVRs, and processes for dealing with privacy complaints, could be incorporated into this training.

53. The Office suggests that the guidelines could be incorporated into the existing CAAP 42L-7(0) on CVR maintenance and will assist in increasing general awareness levels about the 2009 CVR amendments and the potential privacy implications for flight crew members.

Complaint Handling Mechanisms

54. None of the industry associations consulted during the review could point to an example where their members had experienced difficulties as a result of the unauthorised access or misuse of CVR information. This is consistent with the fact that, to the Office’s knowledge, neither the ATSB, CASA, Qantas or the Office have received any complaints about the handling of CVR maintenance checks since the 2009 CVR amendments became operational on 1 July 2009.

55. All the industry associations consulted during the review indicated that if there were instances of unauthorised access or misuse, their concerns over the practical operation of the 2009 CVR amendments would increase. To date, the perception within the industry appears to be there are no practical problems with the current complaint handling processes.

56. The Office understands that existing complaint handling mechanisms would be utilised in the event there was an allegation that during a CVR maintenance check there was unauthorised copying or disclosing of CVR information. Both pilot associations indicated their members would be likely to raise any complaints with CASA and ATSB. AIPA indicated it would initially raise its members’ concerns directly with the relevant airline or maintenance staff. In addition to these avenues, ALAEA also identified private legal action and this Office as other possible avenues to resolve complaints.

Recommendation on Complaint Mechanisms

57. It is recommended that CASA develops guidelines detailing the appropriate complaint mechanisms and procedures available to flight crew members (including maintenance personnel) if they have a complaint about the way in which CVR information has been handled during the course of CVR maintenance checks. The Office suggests that the guidelines could be incorporated into the existing CAAP 42L-7(0) on CVR maintenance and will assist in increasing general awareness levels about the 2009 CVR amendments for flight crew members (including maintenance personnel).

Appendix A:

Aviation Legislation Amendment (2008 Measures No.2) Act 2009 (Cth)

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 (3) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

Civil Aviation Act 1988 (Cth)

32AP Copying or disclosing CVR information

(1) A person is guilty of an offence if:

(a) the person makes a copy of information; and

(b) the information is CVR information.

Penalty: Imprisonment for 2 years.

(2) A person is guilty of an offence if:

(a) the person discloses information to any person or to a court; and

(b) the information is CVR information.

Penalty: Imprisonment for 2 years.

(3) Subsection (1) or (2) does not apply to:

(aa) copying or disclosure that is necessary for the purposes of checking whether equipment used to make a cockpit voice recording is functioning and reliable, provided the conditions set out in subsection (3A) are met; or

(a) copying or disclosure for the purposes of an investigation under the Transport Safety Investigation Act 2003; or

(b) copying or disclosure for the purposes of the investigation of any offence against a law of the Commonwealth, a State or a Territory; or

(c) disclosure of CVR information to a court in criminal proceedings against a person who is not a crew member; or

(d) disclosure of CVR information to a court in criminal proceedings against a person who is a crew member for an offence against a law of the Commonwealth, a State or a Territory punishable by a maximum penalty of imprisonment for life or more than 2 years, where:

(i) the offence does not arise as a result of an act done or omitted to be done in good faith in the performance of the person’s duties as a crew member; and

(ii) the court makes a public interest order under subsection (4) in relation to the CVR information; or

(e) disclosure to a court in damages proceedings where the court makes a public interest order under subsection (4) in relation to the CVR information. Office of the Privacy Commissioner

Note: A defendant bears an evidential burden in relation to a matter in subsection (3). See subsection 13.3(3) of the Criminal Code.

(3A) The conditions that must be met for the purposes of paragraph (3)(aa) are:

(a) the person who copies or discloses the CVR information for the purposes of checking the equipment is authorised to do so under the regulations; and

(b) that person honestly and reasonably believes on the information available to him or her that:

(i) the cockpit voice recording does not relate to a reportable matter (as defined for the purposes of the Transport Safety Investigation Act 2003); and

(ii) the cockpit voice recording does not relate to an offence under the law of the Commonwealth, or of a State or Territory; and

(iii) the crew members in relation to the CVR information were notified in writing, before the cockpit voice recording was made, of the intention to copy or disclose the CVR information for the purposes of checking whether the equipment used to make the recording is functioning and reliable.

(4) If the court is satisfied that, in the circumstances of the case, the public interest in the proper determination of a material question of fact outweighs:

(a) the public interest in protecting the privacy of members of crews of aircraft; and

(b) any adverse domestic and international impact that the disclosure of the information might have on any future investigation under the Transport Safety Investigation Act 2003;

then the court may order such disclosure.

(5) The court may direct that CVR information, or any information obtained from the CVR information, must not:

(a) be published or communicated to any person; or

(b) be published or communicated except in such manner, and to such persons, as the court specifies.

(6) If a person is prohibited by this section from disclosing CVR information, then:

(a) the person cannot be required by a court to disclose the information; and

(b) any information disclosed by the person in contravention of this section is not admissible in any civil or criminal proceedings (other than proceedings against the person under this section).

Civil Aviation Regulations 1988 (Cth)

Regulation 50GCopying or disclosing CVR information

(1) For paragraph 32AP (3A) (a) of the Act, the following are authorised:

(a) a person who:

(i) is a staff member within the meaning of the Transport Safety Investigation Act 2003 ; and

(ii) has had training with respect to the replay and analysis of cockpit voice recordings; and

(iii) has been briefed on the requirements of Part IIIB of the Act;

(b) a person who:

(i) is to check on behalf of the holder of a CVR certificate of approval (the holder ) whether equipment used to make a cockpit voice recording is functioning and reliable; and

(ii) has had training from the holder with respect to the replay and analysis of cockpit voice recordings; and

(iii) has been briefed by the holder on the requirements of Part IIIB of the Act.

(2) In this regulation, CVR certificate of approval means a certificate of approval covering the maintenance of aeronautical products used to make cockpit voice recordings.



[1] The relevant provisions are found in section 32AP of the Civil Aviation Act 1988 (Cth) as amended by Part 2 Schedule 1 of the Amendment Act.

[2] Section 4(2) Aviation Legislation Amendment (2008 Measures No. 2) Act 2009.

[3] Section 4(3) Aviation Legislation Amendment (2008 Measures No. 2) Act 2009.

[4] Paragraph 37 of the Explanatory Memorandum to the Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008.

[5] Section 32AO (1) of the Civil Aviation Act 1988 (Cth).

[6] Section 32AO (2) of the Civil Aviation Act 1988 (Cth) defines a constitutional journey as a journey in the course of trade or commerce with other countries or among the States; or within, to or from a Territory; or within, to or from a Commonwealth place.

[7] Paragraph 38 of the Explanatory Memorandum to the Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008.

[8] Paragraph 38 of the Explanatory Memorandum to the Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008.

[9] Section 32AP (3) (aa) of the Civil Aviation Act 1988 (Cth).

[10] A ‘CVR certificate of approval’ means a certificate of approval covering the maintenance of aeronautical products used to make CVRs - see Regulation 30 of the Civil Aviation Regulations 1988 (Cth).

[11] Regulation 50G of the Civil Aviation Regulations 1988 (Cth).

[12] Regulatory requirements include CASA AD/Rec/1, CAO 103.2, CAR 42L, CAO 20.18.

[13] CAAP 42L-7(0) (revised January 2006).

[14] See section 7B(2) of the Privacy Act. An employee record is defined in section 6(1) of the Privacy Act as a record of personal information relating to the employment of an employee that includes personal information about an employee’s performance or conduct and the engagement, training, disciplining or resignation of an employee.

[15] All private sector organisations with an annual turnover in excess of $3 million are covered by the Privacy Act and are obligated to comply with the National Privacy Principles (NPPs).

[16] See sections 32AQ, 32AR, 32AS, 32AT and 32AU of the Civil Aviation Act.

[18] Regulation 2 of the Civil Aviation Regulations 1988 (Cth) defines Class A& Class B aircraft.

[19] The ATSB advise that their staff only conduct CVR maintenance checks on first of type/first of model CVRs in accordance with CAAP 42L-7(0) (revised January 2006).