Civil Aviation Order 481 Instrument 2019 [F2019l01070] [2019] AUPJCHR 92 (5 December 2019)

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Purpose	The instrument provides a new framework for the more effective management of fatigue risk in aviation operations The instrument replaces Part 48 of the Civil Aviation Orders
Portfolio	Infrastructure, Transport, Cities and Regional Development
Authorising legislation	Civil Aviation Act 1988
Last day to disallow	15 sitting days after tabling (tabled in the Senate and the House of Representatives on 9 September 2019).
Rights	Privacy
Status	Seeking additional information

1.58 The instrument provides a regulatory framework for the management of fatigue risk in aviation operations. Section 10 of the instrument requires holders of Air Operators' Certificates to comply with a number of limits and requirements for flight crew members,^[2] including a requirement, in Appendix 7 of the instrument, to apply to the Civil Aviation Safety Authority for approval to use an individualised Fatigue Risk Management System. This system is to be 'tailored to the specific fatigue-relevant circumstances of an individual pilot'.^[3]

1.59 The statement of compatibility further explains that the holder of an Air Operators' Certificate who elects to use a Fatigue Risk Management System:^[4]

assumes an onerous burden that may involve the collection and use of physiological and other data about an individual pilot in order to create a database which, when properly managed, operates scientifically to determine individual fatigue risk.

1.60 The potential collection and use of a person's physiological information in compliance with a Fatigue Risk Management System engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information. It also includes the right to control the dissemination of information about one's private life.^[5] Limitations on this right will be permissible where they pursue a legitimate objective, are rationally connected to that objective, and are a proportionate means of achieving that objective.

1.61 The statement of compatibility acknowledges that the Fatigue Risk Management System regime, as set out in Appendix 7 of the instrument, may limit the right to privacy; however, it suggests that 'the limitation is lawful and reasonable, and proportionate to the risks and dangers to life that a fatigue management regime must address'.^[6]

1.62 The objective of the instrument, as described in the statement of compatibility is 'to address the safety implications of [flight crew members’] fatigue in the interests of the aviation safety'.^[7] The maintenance of aviation safety is a legitimate objective for the purposes of international human rights law, and the Fatigue Risk Management System, in creating 'a more accurate and reliable indicator of actual fatigue and fatigue risk',^[8] appears to be rationally connected to the objective of addressing fatigue to promote aviation safety.

1.63 In relation to the proportionality of the measure, the statement of compatibility notes that the collection and use of physiological and other data about an individual pilot to create a database to scientifically determine individual fatigue risk might appear to interfere with the right to privacy, but:

it produces more flexibility for all concerned and creates a more accurate and reliable indicator of actual fatigue and fatigue risk. Also, under the new [Civil Aviation Order], even under an [Fatigue Risk Management System] regime, every pilot has an obligation to self-assess and refuse duty if that assessment indicates unfitness for duty.

Thus, while the new [Civil Aviation Order] may limit the right to privacy, the limitation can only arise in a voluntary employment contractual situation and, as such, the limitation is lawful and reasonable, and proportionate to the risks and dangers to life that a fatigue risk management regime must address.^[9]

1.64 However, in the absence of further information, it is unclear how this separate obligation on pilots to self-assess their fitness for duty might operate to limit the instances in which holders of Air Operators' Certificates might collect and use physiological and other data about an individual pilot. It is also unclear why the fact that 'the limitation can only arise in a voluntary employment contractual situation' necessarily means that the measure is a proportionate limitation on the right to privacy.^[10]

1.65 More broadly, neither the statement of compatibility nor the explanatory statement appears to provide any specific information as to the type of 'physiological and other data' that might be collected in compliance with Appendix 7 of the instrument, the method of collection, how such data will be stored, and who such data might be disclosed to. This raises concerns as to whether the measures are sufficiently circumscribed. Further information about the nature and scope of the personal information which is likely to be collected and disclosed under the Fatigue Risk Management System regime is therefore necessary to determine whether this measure constitutes a proportionate limitation on the right to privacy.

1.66 Questions also arise as to the nature and adequacy of any safeguards in place. The statement of compatibility states that 'the statutory protections afforded by the Privacy Act 1988 continue to apply'.^[11] While physiological information is likely to be a type of personal information that is protected by the Australian Privacy Principles (APPs) and the Privacy Act 1988 (Privacy Act), compliance with the APPs and the Privacy Act does not necessarily provide an adequate safeguard for the purposes of international human rights law. This is because the APPs contain a number of exceptions to the prohibition on use or disclosure of personal information, including where its use or disclosure is authorised under an Australian Law,^[12] which may be a broader exception than permitted in international human rights law. Consequently, in the absence of further information about how the Privacy Act applies specifically to holders of Air Operators' Certificates, questions remain as to whether this identified safeguard is sufficient.

1.67 Appendix 7 of the instrument would appear to permit the collection and use of physiological and other data about individual pilots, which engages and limits the right to privacy. In order to assess whether any limitation on this right is proportionate, further information would be required as to:

what type of 'physiological and other data' might be collected in compliance with Appendix 7 of the instrument, the method of collection, how such data will be stored, and who such data might be disclosed to; and

the adequacy and effectiveness of any relevant safeguards, including whether the Privacy Act 1988 (Privacy Act) will act as an adequate and effective safeguard, noting the various exceptions to the collection, use and disclosure of information under the Privacy Act.

1.68 The committee notes the legal advice on the bill. The committee notes that Appendix 7 of the instrument would appear to permit the collection and use of physiological and other data about individual pilots, which engages and limits the right to privacy. In order to assess whether any limitation on this right is proportionate, the committee seeks the minister's advice in relation to the matters set out at paragraph [1.67].

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Civil Aviation Order 48.1 Instrument 2019 [F2019L01070], Report 6 of 2019; [2019] AUPJCHR 92.

[2] As set out in Table 10.1 of the instrument which includes requiring 'any operation' to comply with Appendix 7.

Australian Parliamentary Joint Committee on Human Rights

Civil Aviation Order 481 Instrument 2019 [F2019l01070] [2019] AUPJCHR 92 (5 December 2019)