On 10 September 2018 a new Air Accident Investigation Authority (AAIA) was established in Hong Kong, headed by a new Chief Inspector of Accidents Darren Straker, formerly the Chief Air Accident Investigator of the United Arab Emirates.
Previously, air accident investigations in Hong Kong were carried out by the Civil Aviation Department (CAD), which was also responsible for both aviation regulation and air traffic services. As a result, there was a concern about the CAD’s lack of independence, given the potential for conflict of interest when conducting investigations. The need for impartiality was a global challenge, which led the International Civil Aviation Organisation (ICAO) to require all Contracting States to establish independent air accident investigation authorities by November 2018. The establishment of Hong Kong’s new AAIA meets that requirement.
In order to provide the AAIA and the Chief Inspector with the necessary statutory powers, amendments to the existing legislation were made11, which came into force on 3 December 2018. The new AAIA is independent from the CAD, and forms part of the Transport and Housing Bureau, with the Chief Inspector reporting to Hong Kong’s Secretary for Transport.
Changes to the legislation have been made in order to align it with the international standards set out in Annex 13 to the Convention on International Civil Aviation, which addresses aircraft accident and incident investigation. The main changes comprise the following:
- Replacing the previous definitions of “accident" and “reportable accident" with the definitions of "accident" and "serious incident" set out in Annex 13;
- Updating the definition of "serious injury" to include exposure to infectious substances or radiation;
- Empowering the Chief Investigator to investigate incidents which are not serious if safety lessons can be drawn; and
- Amending the information required to be given in notifications of accidents and serious incidents to the Chief Inspector. For example, the nationality of crew and passengers (if available), the manufacturer and serial number of the aircraft, and a description of any dangerous goods on board the aircraft are all now required.
These changes are welcome, but further legislation is still required in order to shield from further disclosure information obtained by the AAIA during the course of an investigation, such as interview statements and cockpit voice recordings (as required by chapter 5.12 of Annex 13). Without such protection, this information could be used inappropriately for subsequent disciplinary, civil or criminal proceedings.
Additional legislation to address these issues was due to be put forward in the Hong Kong Government’s 2018-19 legislative session. That now appears unlikely, as no such legislation forms part of the Government’s transport policy agenda for the forthcoming year, and nor has it been scheduled for discussion by the Government’s Transport Panel. In the interim, the Government has somewhat vaguely said that the relevant protection will be provided by "administrative means".
The AAIA comprises six accident investigators in addition to the Chief Investigator. The aim is to speed up investigations, make safety recommendations, and pursue accident prevention initiatives. As is to be expected given its location at an important international aviation hub, the AAIA’s facility comprises a command centre, a flight data recorder download and playback centre, a secure evidence hangar, and adjoining interview rooms. It is also equipped with a range of underwater locator beacon detectors, in case of ditching or runway overrun, given Hong Kong airport’s island location.
Although the AAIA has only been in existence for six months or so, it has already published three preliminary reports in relation to investigations commenced during that period. In addition, it has also taken over the investigations previously initiated by the CAD.
It has been a busy start for the AAIA. Based on our own experience to date, it has been encouraging to note that, where necessary, the AAIA is willing to exert its independence, by investigating the activities of the CAD and commenting as appropriate.