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26 September 2012
The Convention on International Civil Aviation was ratified by China on February 20 1946 and by Portugal on April 28 1948. On December 6 1999 the Chinese government notified the secretary general of the International Civil Aviation Organisation (ICAO) that after December 20 1999, China would exercise sovereignty over Macao; thereafter, the convention and some of its protocols would apply to Macao.
Under the convention, Macao is subject to certain obligations relating to the operational safety of civil aviation. Although operational safety is already regulated by Circulars AC/GEN/002R01, AC/GEN/003R01 and AC/GEN/005R01, the ICAO conducted an audit in Macao in March 2009 and decided that the issue should be governed by law.
The Draft Law on the Investigation of Aeronautical Accidents and Incidents and the Protection of Air Safety Information lays down the principles governing:
The draft law begins by defining a number of key concepts, including 'accident' and 'incident', which are already defined in similar terms in Circular AC/GEN/002R01.
Scope of duty and timeframes for reporting
The draft law applies to accidents and incidents involving:
The sole objective in investigating an accident or incident is to prevent such events in future - it is not the purpose of the investigation to attribute blame or establish liability.
The Civil Aviation Authority of Macao (CAA) is responsible for the investigation of air accidents within the jurisdiction of Macao or involving Macao-registered aircraft. It is charged with supervising compliance with the law and applying the fines and other penalties stipulated therein. Under the draft law, this responsibility is extended to include:
All accidents and serious incidents recorded in Macao or in its airspace - involving aircraft of any type, nationality or registration - must be notified to the CAA as soon as possible, but no later than six hours after an accident or 12 hours after an incident. Accidents or serious incidents that occur outside Macao, but involve an aircraft that is registered in Macao (or operated by an entity which is resident in Macao or has a registered office there) must be reported promptly.
The draft law requires the crew, operator or owner (or its legal representative) to prepare a written report on the accident or serious incident involving the aircraft, describing the relevant facts and circumstances. This report must be submitted to the CAA within 72 hours.
All accidents or serious incidents that fall within the scope of the draft law are subject to investigation. However, such investigations may be fully or partly delegated to another convention state or region.
Role of chief investigator
A chief investigator must be appointed. If necessary, further investigators may be appointed, who then constitute a commission of inquiry under the guidance of the chief investigator.
The chief investigator enjoys independence and full authority over the investigation, and must ensure that it is conducted according to the ICAO's standards and recommended practices.
The chief investigator must immediately arrange for the collection of wreckage and other relevant evidence for examination, as well as arranging for alcohol and drug testing of the operational staff involved. He or she must also request a meteorological report and hear the testimonies of those who were involved in or witnessed the incident, ensuring that their confidentiality is preserved.
If the chief investigator finds evidence of a criminal offence, he or she must immediately inform the judicial authorities or the police.
Except with the permission of the chief investigator, it is prohibited to:
The CAA may require the collaboration of specialists and experts in specific areas. In the event of an accident or serious incident involving an aircraft registered in another state or region, the CAA must inform the state of registration and the ICAO of the aircraft's operator and its model or design.
Reports and confidentiality of findings
The draft law generally provides for the confidentiality of:
Such information may not be disclosed, except for the purposes of the investigation. The chief investigator and all CAA personnel are subject to secrecy in respect of all information obtained as a result of their collaboration with the judicial authority.
The chief investigator must prepare a preliminary and a final report, subject to consultation with, and approval by, the president of the CAA. The president then submits the report to the chief executive and sends it to the authorities listed in Annex 13 of the convention. If new facts or evidence come to light within 10 years of approval of the final report, the investigation must be reopened.
The draft law also provides for the processing and protection of air safety information, which - along with its sources - must remain confidential. Such information may not be used for purposes other than those for which it was collected.
The draft law, which is still under discussion by the Legislative Assembly, is intended to come into force 120 days after its publication.
The draft law aims to transpose the convention's rules into Macao's legal system, although some aspects are already regulated by the aeronautical circulars. Over the past decade, the rate of accidents in civil aviation has been low. The introduction of the new law is expected to reduce the accident rate still further, despite the projected increase in air traffic in Macau.
For further information on this topic please contact Pedro Cortés or Marta Mourão Teixeira at Rato Ling Vong Lei & Cortés Advogados by telephone (+853 2856 2322), fax (+853 2858 0991) or email (firstname.lastname@example.org or email@example.com).
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