Commonwealth Numbered Acts

Air Navigation Amendment Act 1984 No. 69 of 1984 - SECT 3

3. After section 27 of the Principal Act the following section is inserted:
Evidence of cockpit voice recordings

''27A. (1) A cockpit voice recording made during the flight of an aircraft
operated by an Australian operator is not admissible in evidence in any
criminal proceedings in an Australian court against a crew member.

''(2) Subject to sub-section (4), a cockpit voice recording made during the
flight of an aircraft operated by an Australian operator is not admissible in
evidence in any civil proceedings in an Australian court.

''(3) A party to proceedings in an Australian court for damages in respect of
personal injury, death or damage to property may, at any time before the
determination of the proceedings, apply to the court in which the proceedings
have been instituted for an order that a cockpit voice recording, or part of a
cockpit voice recording, made during the flight of an aircraft be admissible
in evidence in the proceedings.

''(4) Where an application is made to a court under sub-section (3), the court
shall examine the cockpit voice recording and, if it is satisfied, after
hearing such argument (if any) as it considers necessary from the legal
representatives of the parties to the proceedings-

   (a)  that, if the other evidence available to the court in the proceedings
        is the only evidence so available, a material question of fact in the
        proceedings will not be able to be properly determined;

   (b)  that the cockpit voice recording, or a part of the cockpit voice
        recording, if admitted in evidence in the proceedings, will assist in
        the proper determination of that material question of fact; and

   (c)  that, in the circumstances of the case, the public interest in the
        proper determination of that material question of fact outweighs the
        public interest in protecting the privacy of members of crews of
        aircraft, the court may order that the cockpit voice recording, or
        that part of the cockpit voice recording, be admissible in evidence in
        the proceedings and, where the court makes such an order, the cockpit
        voice recording or that part of the cockpit voice recording is,
        notwithstanding sub-section (2), admissible in evidence in the
        proceedings.

''(5) The only persons who may be present at an examination by a court of a
cockpit voice recording for the purposes of sub-section (4) are-

   (a)  the person or persons constituting the court, other than the members
        of the jury (if any);

   (b)  the legal representatives of the parties to the proceedings; and

   (c)  such other persons (if any) as the court directs.

''(6) Where a cockpit voice recording, or a part of a cockpit voice recording,
made during the flight of an aircraft is, pursuant to sub-section (4),
admitted in evidence in proceedings-

   (a)  the cockpit voice recording, or that part of the cockpit voice
        recording, is not evidence for the purpose of the determination of the
        liability in the proceedings of a crew member; and

   (b)  if there are 2 or more defendants in the proceedings of whom at least
        one is a crew member and at least one is not a crew member, the
        cockpit voice recording, or that part of the cockpit voice recording,
        is evidence for the purpose of determining whether or not any crew
        member has been negligent, to the extent only that such a
        determination is relevant to the determination of the liability in the
        proceedings of any defendant who is not a crew member.

''(7) Where-

   (a)  a court examines a cockpit voice recording under sub-section (4); or

   (b)  a cockpit voice recording or part of a cockpit voice recording is
        admitted in evidence in proceedings pursuant to an order made by a
        court under sub-section (4), the court may direct that the cockpit
        voice recording or the part of the cockpit voice recording, or any
        information obtained from the cockpit voice recording or part of the
        cockpit voice recording, shall not be published or communicated to any
        person, or shall not be published or communicated except in such
        manner, and to such persons, as the court specifies.

''(8) A person shall not make a publication or communication to any person in
contravention of a direction under sub-section (7).

''(9) A person is not entitled to take any disciplinary action against an
employee of the person on the ground of a cockpit voice recording or any part
of a cockpit voice recording or information obtained from a cockpit voice
recording or any part of a cockpit voice recording.

''(10) A person (other than a person who is a Commonwealth officer within the
meaning of the Crimes Act 1914) shall not publish or communicate to any
person-

   (a)  a cockpit voice recording or any part of a cockpit voice recording; or

   (b)  any information obtained from a cockpit voice recording or any part of
        a cockpit voice recording, otherwise than in an investigation or
        inquiry into an accident involving an aircraft conducted pursuant to
        regulations under the Air Navigation Act 1920
or for the purposes of, or in connection with-

   (c)  criminal proceedings, other than criminal proceedings of the kind
        referred to in sub-section (1); or

   (d)  civil proceedings of the kind referred to in sub-section (3).

''(11) Nothing in this section affects the admissibility in any criminal or
civil proceedings of evidence of words spoken by a person on the flight deck
of an aircraft other than evidence constituted by a recording made by the use
of a cockpit voice recorder or by a transcript or summary of such a recording.

''(12) A reference in this section to a cockpit voice recording is a reference
to a recording, made by the use of a cockpit voice recorder, of any words
spoken during a flight of an aircraft by a person on the flight deck of the
aircraft, and includes a reference to any transcript or summary of such a
recording.

''(13) A reference in this section to a cockpit voice recording made during
the flight of an aircraft is a reference to a cockpit voice recording made
during any period (whether before, during or after that flight) in which the
cockpit voice recorder was required, by the Air Navigation Regulations or by
Air Navigation Orders issued under those regulations, to be operated in
connection with that flight.

''(14) In this section, unless the contrary intention appears-

'Australian court' means a court in Australia;

'Australian operator' means an operator whose principal place of business is
in Australia;

'cockpit voice recorder' means a device that meets the requirements for
cockpit voice recorders that are specified in Air Navigation Orders made under
the Air Navigation Regulations;

'crew member', in relation to a flight of an aircraft, means a person who, at
the time when the flight took place, was employed under a contract of service,
or engaged under a contract for services, by the operator of the aircraft and
was assigned for duty on the aircraft for the purposes of the flight;

'operator' has the same meaning as in the Air Navigation Regulations.

''(15) This section has effect notwithstanding anything in any other law and
sub-section (9) also has effect notwithstanding anything in any agreement.''.