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Australian Parliamentary Joint Committee on Human Rights |
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Purpose
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The instrument provides a new framework for the management of fatigue risk
in aviation operations. It replaces Part 48 of the Civil
Aviation Orders
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Portfolio
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Infrastructure, Transport, Cities and Regional Development
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the Senate and the House of
Representatives on 9 September 2019).
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Right
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Privacy
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Status
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Concluded examination
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2.65 The committee requested a response from the minister in relation to the instrument in Report 6 of 2019.[2]
2.66 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,[3] 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'.[4]
2.67 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.
2.68 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. Questions also arise as to the nature and adequacy of any safeguards in place, noting that compliance with the Privacy Act 1988 (Privacy Act) and the Australian Privacy Principles (APPs) does not necessarily provide an adequate safeguard for the purposes of international human rights law. The full initial human rights analysis is set out in Report 6 of 2019.[6]
2.69 In order to assess whether any limitation on the right to privacy 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.
2.70 The committee noted the legal advice on the bill, and in order to assess whether any limitation on the right to privacy is proportionate, the committee sought the minister's advice in relation to the matters set out at paragraph [2.5].
2.71 The minister advised:
In raising your concerns about the Order, as set out in the Committee's Human Rights Scrutiny Report No. 6 of2019 (the Report), you requested further information as to what type of physiological and other data might be collected about individual pilots; how this data will be stored; and who such data may be disclosed to. You also requested further information on the adequacy and effectiveness of any relevant safeguards, including whether the Commonwealth Privacy Act 1988 (the Privacy Act) will be an adequate and effective safeguard.
I am advised by the Civil Aviation Safety Authority (CASA) that the kind of physiological and other data to be collected by an Air Operator's Certificate (AOC) holder would relate to an individual pilot's sleep and wake patterns. This data can be collected through self reporting, written diaries or via portable electronic monitoring devices. In the course of electronic collection, other physiological data may be incidentally collected, for example, heart rate and body movements. The collected data can be applied to biomathematical fatigue models to produce predictions of alertness, performance, or risk of impairment for given work/rest or wake/sleep schedules.
The collected data is understood to be stored by AOC holders on each individual's personal file, electronically or in hard copy, and resides there along with other private and personal information related to employment history. Where third parties are used to collect data, for example medical practitioners or through the use of recording devices, the data is also stored on electronic files pertaining to that individual pilot. Both AOC holders and those third parties must observe the requirements of the Privacy Act.
CASA presumes that an individual's sleep data may be accessed only in accordance with the AOC holder's requirements and procedures which must be in conformity with the Privacy Act. In practice, it is assumed that such access is by the relevant AOC holder's flight rostering managers for the purpose of evaluating the actual fatigue impact of duty scheduling practices that have been based on a predictive algorithm, for example, a biomedical model.
The Privacy Act does not permit any other legitimate access not authorised by law, nor does it permit use of the data for other purposes. All such information, including that collected by the use of third party electronic devices, is protected by the Privacy Act and may not be used for purposes other than those for which it was collected. CASA has no legal control over how an AOC holder deals with pilot sleep-data collected by the AOC holder for the AOC holder's purposes.
When an AOC holder applies to CASA for an interim or final approval of their proposed Fatigue Risk Management System (FRMS), a number of strict CASA procedures and standards come into play. AOC holders are notified in advance by CASA FRMS assessors that only de-identified sleep data may be supplied to CASA with the application. Electronic information received by CASA is stored on CASA's information system which is subject to both external IT security protections and internal security access protocols. The latter limits access to relevant recorded sleep-data to only those CASA officers involved in advising on, or actually taking, assessment decisions. That data is only evaluated as aggregated or 'grouped' and no individual information is accessed or used by CASA. The restrictions imposed by the Privacy Act also apply to CASA.
CASA is satisfied that, under the current law, the Privacy Act protects relevant pilot sleep related data, collected for the purposes of an AOC holder's aviation FRMS, to the standard that is the prevailing standard acceptable to the Australian Parliament.
In so far as the international right to privacy is limited by the Privacy Act, both CASA and I consider that, in the specific context of the collection and use of pilot sleep-related data for the purposes of an aviation FRMS, any such limitation is reasonably proportionate to the risks, dangers, and goal to be achieved. The risks and dangers are to life, both in the air and on the ground. The goal is individual pilot fatigue risk management in those areas of aviation where the absence or failure of such management may have catastrophic effects in relation to passenger transport, heavy and other cargo carriage, and aerial work operations.
2.72 The minister has advised that the type of physiological and other data to be collected by an Air Operator's Certificate holder would relate to an individual pilot's sleep and wake patterns, which may include the collection of other incidental physiological data, and this data would be held on an individual's personal file, and be subject to Privacy Act 1988 restrictions. The minister has also advised that only de-identified sleep information will be provided to CASA. In light of this information, it would appear that the collection of de-identified data by CASA does not engage the right to privacy. Any limitation on the right to privacy by virtue of the information collected by holders of Air Operator's Certificates would be for the legitimate objective of the protection of aviation safety and, noting the applicable safeguards in the Privacy Act 1988, would likely be considered reasonably proportionate to achieving that objective.
2.73 The committee thanks the minister for this response. The committee notes the legal advice and in light of the information provided by the minister as to the types of physiological information to be collected and how it will be used and stored, considers that any limitation on the right to privacy is reasonably proportionate to the legitimate objective of protecting aviation safety.
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Civil Aviation Order 48.1 Instrument 2019 [F2019L01070], Report 1 of 2020; [2020] AUPJCHR 22.
[2] Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 20-23.
[3] As set out in Table 10.1 of the instrument which includes requiring 'any operation' to comply with Appendix 7.
[4] Statement of compatibility, p. 20. See also: https://www.casa.gov.au/safety-management/fatigue-management/casas-approach-fatigue-management.
[5] International Covenant on Civil and Political Rights, article 17.
[6] Parliamentary Joint Committee on Human Rights, Report 6 of 2019 (5 December 2019)
pp. 20-23.
[7] The minister's response to the committee's inquiries was received on 6 January 2020. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
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URL: http://www.austlii.edu.au/au/other/AUPJCHR/2020/22.html