Something has gone seriously wrong with the drafting of new rules in Australia concerning the responses of pilots to emergency situations.

These rules are included in what are collectively known as the Part 91 regulations which are being overhauled by CASA, with the enthusiastic support of much of the industry from general aviation to high capacity Australian airlines.

BUT there are problems.

The major problem is what seems to an attempt to impede the absolute and timely discretion of the pilot in charge of a flight to take whatever action he or she deems appropriate in an emergency.

If the new Australian rules were taken seriously, a pilot would have to satisfy him or herself that they were complying with a whole set of conditions or face criminal charges carrying large fines, of more than $5000, as well a risking the loss of their pilot licence as a consequence of being found guilty of a ‘serious’ offence against safety laws.

In the US this particular section of their Part 91 regulations are short and sweet.

FAA § 91.3   Responsibility and authority of the pilot in command.

(a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.

(b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.

(c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.

But the proposal for the same section of the revised regulations in this country is  as follows:

Division 91.B.1

Responsibility and authority of pilots

91.055 Designation of pilot in command

(1) If an aircraft is required by its flight manual to be flown by 2 or more pilots, the operator of the aircraft must, before a flight of the aircraft commences, designate 1 of the pilots as the pilot in command for the flight.

Penalty: 25 penalty units.

(2) An offence against subregulation (1) is an offence of strict liability.

91.060 Responsibility and authority of pilot in command

(1) The operator of an aircraft must ensure that the following information is available to the pilot in command of the aircraft to enable the pilot in command to comply with subregulation (5):

(a) the aircraft flight manual instructions for the aircraft;

(b) the airworthiness conditions (if any) for the aircraft;

(c) if the operator is required by these Regulations to have an operations manual — the operations manual;

(d) if the operator is required by these Regulations to have a dangerous goods manual — the dangerous goods manual.

Penalty: 50 penalty units.

(2) The pilot in command of an aircraft is responsible for the safety of the occupants of the aircraft, and any cargo on board, from the time the aircraft’s doors are closed before take-off until the time its doors are opened after landing.

(3) The pilot in command of an aircraft is responsible for the start, continuation, diversion (if any) and end of a flight by the aircraft, and for the operation and safety of the aircraft, from the moment the aircraft is ready to move until the moment it comes to rest at the end of the flight and its engine or engines are shut down.

(4) The pilot in command of an aircraft has final authority over:

(a) the aircraft while he or she is in command of it; and

(b) the maintenance of discipline by all persons on board the aircraft.

(5) The pilot in command of an aircraft must discharge his or her responsibilities under subregulations (2) and (3) in compliance with the following:

(a) the aircraft flight manual instructions for the aircraft;

(b) the airworthiness conditions (if any) for the aircraft;

(c) the operations manual (if any) as it applies to the pilot in command;

(d) the dangerous goods manual (if any) as it applies to the pilot in command.

Penalty: 50 penalty units.

Note These Regulations also contain other requirements and offences that apply to the pilot in command of an aircraft.

(6) An offence against subregulation (1) or (5) is an offence of strict liability.

91.070 Defence relating to reliance on information

If a provision of these Regulations requires the pilot in command of an aircraft to ensure that, at a particular time, a state of affairs exists, or that something has been done, it is a defence to a prosecution for an offence against the provision that the pilot:

(a) had received information that, at the time, the state of affairs existed, or that the thing had been done; and

(b) it was reasonable in the circumstances for the pilot to have relied on that information.

Note For the defence of sudden or extraordinary emergency, see section 10.3 of the Criminal Code.

There is more too.

The airlines will almost certainly tell their pilots to leave worrying about legalities to them. CASA’s track record in prosecuting high capacity airline pilots for anything is one of near total failure since such laws have existed.

But at the secondary and tertiary air services level it is quite possible that this dog’s breakfast of conditions, particularly 91.060 (3) will cause hesitation or delay in action in an emergency, which could of itself cause loss of life.

It is even an offence to make an emergency call which subsequently turns out to have been unnecessary.

The proposed rules need to be reduced to something as universal, unambiguous and safety positive as the US rules. Such as, in an emergency do whatever you see fit to do to avoid an accident.

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