By Stephen Davies Howard, Deputy Chief Commissioner, Transport Accident Investigation Commission
It’s one of those sombre moments that everyone who was around at the time remembers – where they were when the news came through that TE901 was missing.
This November the 40th anniversary of the Erebus crash will be commemorated.
It resulted in two investigations under intense public and legal scrutiny, a protracted series of legal appeals, accusations and counter-accusations about blame and liability that had come out of inquiries by the Office of Air Accidents and the subsequent Royal Commission of Inquiry.
The Transport Accident Investigation Commission (TAIC) didn’t exist at the time of the tragedy in 1979, or throughout the 1980s, but by the end of that decade, its time had come.
Change for the better depended on more clarity around the circumstances and causes of accidents, whilst observing the provisions of the Convention on International Civil Aviation (Chicago Convention), and minimising the ongoing arguments and difficulties of previous approaches. The mechanism was and is the Transport Accident Investigation Commission Act, passed in 1990.
The Act established the Commission to determine the circumstances and causes of significant aviation accidents and incidents with a view to avoiding similar occurrences in the future, rather than to ascribe blame.
Within a few years, as the reputation for unbiased and objective investigation was established, the Commission’s mandate was extended to include significant rail and maritime occurrences.
What is TAIC?
TAIC comprises four Commissioners, supported by a Chief Executive and 27 staff, with an annual budget of about $5m. There are currently four Commissioners with legal and specialist knowledge and experience operating as a standing Commission of Inquiry. The Commission is uniquely placed in New Zealand to influence and contribute to keeping transport users and workers safe by sharing the knowledge it gains and transferring the lessons it identifies during its inquiries.
The Commission has broad investigative powers under the TAIC Act. These include the power of entry and inspection, and the power to seize, remove and protect evidence. Under the Commissions of Inquiry Act, TAIC can require people to produce evidence and to be summonsed to appear before the Commission.
As well as being Commissioners for inquiry purposes, my colleagues and I also comprise the board of TAIC as an independent Crown entity. TAIC is independent of the work done by the Police to investigate criminal activity or the cause of deaths on behalf of the Coroner.
TAIC’s specialist investigators undertake the investigation phase of the inquiry and report to the Commissioners.
New Zealand is well-known as a good international citizen, and the Commission is part of a global network of transport accident investigation bodies that conduct independent investigations consistent with international requirements. TAIC participates in overseas inquiries, where a New Zealand connection may give us a right or obligation to participate. An example familiar to air line pilots would be the Commission’s assistance to France’s Bureau d’Enquêtes et d’Analyses pour la sécurité de l’aviation civile in their inquiry into the fatal crash of an Airbus A320-200 into the Mediterranean off the coast of Perpignan on 27 November 2008. TAIC’s participation right came from the aircraft being owned by Air New Zealand even though it was operated by German charter firm XL Airways and because the French investigation required a significant amount of information from the New Zealand aviation system.
TAIC’s jurisdiction extends to the 12 nautical mile limit of New Zealand's territorial waters, the land within that, and the air above, and to New Zealand-registered aircraft anywhere in the world.
What does TAIC do?
The Commission conducts independent inquiries into aviation, rail and maritime accidents and incidents. The Commission’s inquiries focus on the how the loss or damage actually occurred, systemic failings, and the safety system as a whole. The safety system includes the performance of regulators (CAA, Maritime New Zealand and the NZTA), and how gaps in regulation might increase safety risk.
To that end, in the case of each occurrence, TAIC first decides whether to investigate, then co-ordinates its activities with those of other types of investigations into the same occurrence. It considers evidence gathered by investigators, advice from experts, and the submissions of consulted people and organisations; and may hold private or public hearings. Finally it publishes its findings and recommendations. As with other commissions of inquiry, the Transport Accident Investigation Commission can only recommend; it can’t compel.
What TAIC Doesn't Do
For the Commission’s inquiries to have optimal influence, TAIC has to be absolutely independent and impartial. So the legal and self-limitations are many:
- We do not determine ‘blame’, ‘liability’, or ‘guilt’. Accidents and incidents often result from complex factors, and focusing on blame can get in the way of people acknowledging and understanding what happened, why, and what should be done to prevent recurrences.
- We do not make public statements about any analysis while an investigation is ongoing. Rumours or theories about the cause of an accident, often spread in social and news media soon after an accident, when it is too early to say anything with certainty. The final report states the Commission’s findings.
- TAIC can’t help with insurance or damages claims; these are matters for the aircraft operator, its representative or insurers.
- TAIC doesn’t offer practical or psychological assistance. Families and victims are encouraged to seek advice or referral from the Police Family Liaison Officer, Victim Support, ACC, funeral director, lawyer, or social services.
- TAIC doesn’t determine cause of death. This is the Coroner's role.
- TAIC doesn’t comment on other investigations into the same event by, for instance, the Coroner, Police, CAA, and environmental agencies.
Opening an inquiry
The Commission opens an inquiry if it believes a particular accident or incident has (or is likely to have) significant implications for transport safety or is likely to result in recommendations that will help make transport safer.
The Commission usually receives a formal notification from the relevant transport regulator soon after the occurrence. A decision is then made to investigate or not. Sometimes the decision is obvious; where it is not, the Commission considers factors such as:
- Number of people – actual or potential – killed or seriously injured
- Aircraft capacity for passengers, freight, or pollutants
- Whether dangerous goods are involved
- Extent of damage to the aircraft
- Interfaces, such as air traffic control, regulatory action, or transport policy.
Finally, we think about whether the circumstances relate to an item on the TAIC Watchlist and whether this may be part of a pattern of similar safety issues. The Watchlist draws attention of regulators, operators, the Government and the people involved in transport every day to transport-related concerns of high social, economic or environmental risk; and systemic transport safety risks.
If the decision is made to investigate, the Chief Investigator of Accidents appoints an investigator-in-charge and notifies the Commissioners and other relevant government agencies.
TAIC provides basic details of every new inquiry on its website, and in the case of high profile events, issues media statements and updates on its social media accounts.
Work starts on getting the investigation team to the site of the accident - often difficult, and not for the risk-averse. Locations have included anywhere from snowy mountaintops and glaciers, to ridgelines, to isolated dense bush, to the bottom of a lake or the sea. The weather plays a big part, and it may be several days before we can even get there.
At a crash site TAIC investigators begin immediately to gather evidence.
Sometimes evidence recovery is not straightforward. The process may take many months and even then can still be incomplete. When wreckage of interest is recovered it is sent to TAIC’s technical facility for detailed examination. Evidence includes paperwork and maintenance records, analysis of the weather, and interviews with crew, operators and witnesses. During this stage of an investigation we can uncover safety issues in the wider system that adds context and may further broaden lines of inquiry.
Where mechanical and electronic evidence may be chaotic at first sight but straightforward over time, the human side often appears straightforward at first sight but can be complex over time. Human factors invariably form a large part of an inquiry.
Increasingly important is the work done by TAIC’s experts in recovering digital evidence from on-board recorders, cockpit voice and video, cellphones, navigation apps, electronic chips, computer hard drives, and monitoring systems.
A future growth area in accident investigation worldwide is likely to be remotely piloted and autonomous aircraft, and we may need to develop new investigation skills in digital system protocols and robotics.
No blame means confidentiality
The Commission’s powers include the power to prohibit access to an accident site, to inspect and remove records, and to secure physical evidence. Evidence TAIC gathers during an investigation has extensive legal protection from disclosure. Protection of evidence is absolutely vital for TAIC investigations because the safety information we find can heavily outweigh the possible benefits of allowing the information to be used in court proceedings. For example, cockpit voice recorders may be the only way of knowing what happened on the flight deck in the period immediately prior to an accident. Clearly, if the flight crew is facing an emergency situation, everyone on board should feel free to communicate without worrying about whether those communications will be used against them. This protection is fundamental to the no-blame nature of the Commission’s work.
The no-blame philosophy extends to the Commission’s reports, which can’t be used in regulatory, criminal or civil proceedings, but can be used in a Coroner’s inquiry. People should therefore feel able to speak to us freely about what happened in an accident.
Stephen Davies Howard
Stephen Davies Howard is Deputy Chief Commissioner of the Transport Accident Investigation Commission. He is a Wellington-based company director. He flew fighters for the Royal Air Force (including the F4 Phantom and Tornado F3) and also served in the Royal New Zealand Air Force as the Training Group Commander. He attained the rank of Group Captain in both services. His strategic international experience includes being an accredited attaché to the British Embassy to the United States. He retains a commercial pilot licence and a commercially endorsed Ocean Yachtmaster's certificate. Stephen was appointed as a Commissioner in June 2015.
When evidence gathering and analysis is done, the Commission prepares a draft report for consultation with interested persons. The Commission is required to consult with people and organisations where a draft report states or could infer that their conduct has contributed to the circumstances or causes of the occurrence. So we give them an opportunity to provide a written submission on the parts of the draft report that relate to them. We take these submissions very seriously and may re-analyse evidence or invite submitters to clarify or present to the Commission in person. On rare occasions the changes we make to a draft report at this stage are significant and may require us to re-consult. Once the report is finalised, we approve the report for publication, and at www.taic.org.nz you can find details of every current TAIC inquiry and every final report going back to the Commission’s formation in 1990.
The Commissioners are always aware of the effect a prolonged investigation can have on those affected by the occurrence, and we do all we can to ensure that investigations are completed as expeditiously as possible. With about 30 inquiries live at any one time, across air, marine and rail, the entire process can take one to two years to complete. However, a full, thorough, factual investigation and an accurate report are the priority.
The Commission’s reports explain the supporting evidence for the key findings, set out the key safety issues that need to be addressed, detail the supporting analysis and evidence, and usually make recommendations to improve safety.
The Commission is successful because its inquiry practices are robust, its investigations are thorough, its final reports accurate. We encourage change to address any safety issues we identify. If change is not immediately forthcoming, then we make safety recommendations. We can’t make people and organisations do what we recommend, but our safety recommendations are reasonable, practicable, and shouldn’t be ignored. New Zealand and New Zealanders then rely on the organisations and individuals in the transport sector to respond positively to what we’ve said, to be committed, to dedicate the required resources, and to do the work to improve safety.
WHAT TAIC IS NOT:
• TAIC is not part of the Civil Aviation Authority, whose investigations usually focus on how well Civil Aviation rules and regulations have been observed.
• It is not part of the Ministry of Transport, which advises the Government on transport policy.
• It has no connection with businesses.
• It is not a court (but it does have the powers of a District Court to undertake its inquiries).
• It doesn’t help in the pursuit of criminal, civil or regulatory action against people or organisations; or compensation for victims.
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