2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES 

TRANSPORT SAFETY INVESTIGATION BILL 2002

TRANSPORT SAFETY INVESTIGATION
(CONSEQUENTIAL AMENDMENTS) BILL 2002

EXPLANATORY MEMORANDUM

(Circulated by authority of the Minister for Transport and Regional Services, 
the Honourable John Anderson, MP)

TRANSPORT SAFETY INVESTIGATION BILL 2002

OUTLINE

The purpose of the Transport Safety Investigation Bill (TSI Bill) is to maintain and improve transport safety in the aviation, marine and rail modes by providing for the:

•	reporting of transport safety matters;
•	conduct of safety investigations by the Australian Transport Safety Bureau (ATSB);
•	making of safety action statements, including safety recommendations to address safety deficiencies identified by investigations; and
•	publication of investigation results.

Arrangements in the Bill are based on the principles of international best practice for investigation currently adopted in the aviation and marine transport sectors. Such investigations are:

•	independent - of other interests such as regulatory and commercial ones;
•	no-blame - in conduct and outcome to encourage cooperation and reporting on safety; and
•	open - involving a wide dissemination of findings and the fair treatment of directly involved parties.

This Bill consolidates the ATSB’s investigation powers in Part 2A of the Air Navigation Act 1920 and the Navigation (Marine Casualty) Regulations under the Navigation Act 1912 into one piece of legislation. The powers under those pieces of legislation will be repealed upon the enactment of the TSI Bill (refer to notes on clauses of the Transport Safety Investigation (Consequential Amendments) Bill 2002 in this Explanatory Memorandum. In addition, the TSI Bill introduces international best practice investigation to the rail industry on the interstate system consistent with the Commonwealth’s constitutional powers and the Intergovernmental Agreement on Rail Safety signed with the states and Northern Territory in 1996.

Having one piece of legislation for investigation will serve to:

•	clarify the ATSB’s roles and responsibilities in relation to its objectives for investigations;
•	update and standardise objectives and administrative arrangements for the conduct of investigations, including a common process for investigation reports;
•	provide consistent treatment of sensitive information obtained during safety investigations, including disclosure of such safety information in courts and coronial inquests and for Freedom of Information purposes; and
•	facilitate appropriate multi-modal cooperation with other bodies such as through Memoranda of Understanding and cross-modal use of ATSB investigation expertise.

The Bill has seven parts.

Part 1 - Preliminary: This Part includes the objects of the Bill, its application, both inside and outside Australia, adoption of Chapter 2 of the Criminal Code, relationship with other laws, and constitutional limitations on powers and functions. Definitions in the Bill are broadly described to cater for multi-modal requirements and also to avoid unintentionally restricting the ATSB’s ability to investigate a particular safety matter. The Bill is intended to prevail over other Commonwealth and State laws to the extent of any inconsistency when necessary to meet the objects of the Bill. Its provisions reflect the Commonwealth’s primary role within constitutional limits with respect to aviation and large ships and a role in rail investigations on the interstate rail system, which includes those aspects of the intrastate system that may have an effect on the interstate system.

Part 2 - Administration: This Part provides for the creation of the office of the Executive Director of Transport Safety Investigation which has a range of powers under the Bill to conduct safety investigations, including powers of delegation to appropriately qualified people. There is express provision covering independence of action by the Executive Director. Neither the Minister whose portfolio includes responsibility for the ATSB nor the relevant Departmental Secretary may give direction on the exercise of powers under the Bill. This Part also includes provision for Australia’s compliance with international aviation and marine agreements. Regulation will describe international obligations for marine safety investigation arrangements such as the Code for the Investigation of Marine Casualties and Incidents, adopted by the Assembly of the International Maritime Organisation in resolution A.849(2) and those for aviation under the 1944 Convention on International Civil Aviation. Annex 13 to the latter (Chicago) Convention prescribes standards and recommended practices for accident and incident investigation adopted by the International Civil Aviation Organisation in 1951 and subsequently.

Part 3 - Compulsory reporting of accidents etc.: Under this Part, people responsible for reporting must report matters related to safety. Non-reporting may result in a penalty of up to a maximum of 6 months imprisonment for immediately reportable matters. Regulation will identify matters to be reported, people responsible for reporting, nominated officials to receive reports and the manner of reporting, having regard to existing arrangements and efficiency and effectiveness.

Part 4 - Investigations and reports: Division 1 of this Part provides for the Executive Director to investigate transport safety matters which are listed in Clause 23 and describes circumstances in which the Executive Director cannot investigate certain transport safety matters. To appreciate the full scope of the ATSB’s powers to investigate under the Bill, these matters should also be considered in conjunction with Clause 11 in Part 1, which describes the constitutional boundaries of investigating under the Bill. The Division also makes it an offence to hinder an investigation.  Division 2 provides for the publication of investigation reports where this is necessary or desirable for transport safety, the release of confidential draft reports, and protection of the draft report from further release including disclosure for the purposes of legal proceedings or disciplinary actions. The Bill clarifies that draft reports are not admissible in evidence in civil or criminal proceedings, including coronial inquiries. The same provision applies to final reports (with the exception of coronial inquiries).

Part 5 - Investigation powers: This Part provides the powers to investigate, to require attendance before the Executive Director to answer questions etc., access to relevant premises, including accident sites, the detention of transport vehicles, issue of warrants, protection and handling of evidential material and penalties for non-compliance with some provisions to allow unimpeded conduct of a safety investigation and to encourage the free flow of information relating to the improvement of safety. Additionally, this Part provides a mechanism for the release of evidential material that is not OBR information or restricted information, by the Executive Director to other agencies.

Certain provisions in this Part also prevent self-incrimination being used as an excuse for not complying with the requirements under this Part but make any information and evidential material provided under those provisions, inadmissible in evidence against the person in civil or criminal proceedings.

Regulations will provide for the form of identity cards, and payment of witness expenses for attending before the Executive Director.

Part 6 - Protection of OBR information and restricted information: Sensitive information collected during the course of an investigation is separated into two Divisions under this Part.  Division 1 deals with on-board recording (OBR) information, which cannot be used in criminal proceedings against a crew member. The use of OBR information in civil proceedings and coronial inquiries will be subject to different restrictions.  Other sensitive information collected during an investigation is afforded another level of protection and is referred to as restricted information in Division 2. Division 3 confirms that the information gathering powers of the Commonwealth Parliament and Royal Commissions are not affected.

Part 7 - Miscellaneous: This Part provides confirmation of the common law general immunity for the exercise of powers under the Bill, arrangements for ATSB staff members’ participation in coronial inquiries, compensation for acquisition of property and provision for the making of regulations. Regulation will provide further details on payment of fees for ATSB’s attendance at coronial inquiries.

Financial impact statement

Existing Budget allocations for aviation and marine investigations will be unaffected by this Bill.  However, additional funding for rail investigations will be required and would need to be sought for 2003-2004. The minimum amount required is estimated to be $0.75 million per annum. This would enable four to six medium complexity rail investigations to be conducted each year.  The funding arrangements would be similar to that accorded to aviation and marine accident investigations, whereby extra funds may be required if a major accident occurs justifying a very complex inquiry.

Regulation impact statement

A Regulation Impact Statement (RIS) has been prepared for the rail component of the Bill only.  The Office of Regulatory Review (ORR) was also consulted on the requirement to prepare a RIS for the provisions applying to the aviation and marine transport modes, including on additional provisions that were incorporated following a period of external consultation on an exposure draft of the Bill. However, ORR advised that a RIS was not required because it considered that the provisions applying to the aviation and marine transport modes were not sufficiently different from existing arrangements to have a significant effect on business.

Regulatory Impact Statement – Commonwealth Rail Safety Investigation Legislation

1.	Problem

1.1	Background

On 13 April 2000, the Minister of Transport and Regional Services issued a media release relating to the tabling of the Government’s response to four reports on land transport issues that had been approved by Cabinet. The Minister said, inter alia:

. . . rail safety is a priority and the Government will legislate to enable the Australian Transport Safety Bureau to independently investigate accidents and incidents on the interstate rail system. The reports of such systemic, ‘no-blame’ investigations will be publicly released by the ATSB to allow the rail industry to benefit from the lessons learned.

The rail industry has historically developed on a State basis with vertically integrated government-owned rail authorities and without the intention of it becoming a seamless national activity. However, the rail industry has changed significantly over the last ten years. The carriage of passengers and freight by rail is now seen as an important national and commercial activity in which State boundaries increasingly have no meaning.  Privately owned corporations trade, new rail operators travel, and new track owners’ rail networks and control systems routinely operate across State borders. Initiatives to establish an interstate corridor are well advanced with the States and Northern Territory (NT) agreeing on the geographical limits of the Defined Interstate Rail Network in the context of the ATC National Rail Summit Communique, 10 September 1997 and in the 1999 IGA for National Rail Uniformity. In response to a need recognised in the 1993 Standing Committee on Transport (SCOT) report, A National Approach to Rail Safety Regulation, the rail industry is now moving toward national codes of practice and other means of standardisation. However, the adoption of such harmonised measures, including all aspects of rail safety, is currently dependent upon the cooperation and agreement of the various States, NT, and individual rail industry organisations. Rail safety investigations and the recommendations arising out of such investigations, currently rest with State and NT rail accreditation authorities. The standardisation of the investigation of rail accidents, incidents and safety deficiencies is seen as a measure to enhance rail safety but an area that is considered not to have progressed sufficiently. This concern was acknowledged in a communique issued by the Australian Transport Council (ATC) on 19 May 2000, which stated inter alia:

Ministers note Rail Group strategic issue 8 that: ‘participants in the rail industry do not openly investigate and share safety problems and findings within a ‘no blame’ safety culture. As a result, mistakes are often repeated, with consequential loss of life and injury, thus reducing rail’s competitive safety/social advantage over road. In developing safety procedures and priorities, there is a need to better define and reflect community concern for the avoidance of major accidents particularly those with injuries and fatalities to fare-paying passengers’.

Deregulation of transport in overseas countries has prompted the review and reform of national rail safety regimes. Those reforms have been characterised by a number of common features, including the provision for independent investigation. Independent rail investigations are conducted in a number of countries including Canada, New Zealand, Sweden, and the USA.

The 1996 Inter-governmental Agreement (IGA) in relation to National Rail Safety was signed by the Commonwealth, the States and the NT formalising ATC endorsement of the recommendations of the 1993 SCOT report. In the development of that report, the need for a separate investigatory agency was discussed at some length. There were divided views as to whether national arrangements should incorporate such an agency. 

Despite the differences, ATC agreed that:
•	prescribed accidents/incidents should be reported to the national agency;
•	there is a need for a national approach to independent rail safety investigations;
•	any proposed legislation ‘shall provide the opportunity for an Accredited Owner, Accredited Operator or a Party to seek the appointment of an independent investigator to investigate an accident or other serious incident involving interstate rail operations in which death or major damage occurs’ (later became clause 8 of the IGA);
•	an accident investigation capability should be included in the national arrangements; and
•	there should be a national research/data base facility. 

Since the IGA was signed two reports have been submitted to the Commonwealth Government, which make specific reference and recommendations on the investigation of rail accidents:

1	The House of Representatives Standing Committee on Communications, Transport and Micro-economic Reform, Tracking Australia (Neville Report, July 1998) recommended, inter alia, that the Commonwealth establish a national rail incident investigation unit.  

2	A report by an independent industry group Revitalising Rail (Smorgon Report, April 1999) recommended that the regulators should be ‘prepared to transfer its investigation function to an independent, and possibly multi-modal, agency’.

Two further reports have been submitted to ATC:

3	The report, Independent Investigation and Open Reporting of Rail Occurrences (prepared for Rail Group by the Rail Accident and Incident Investigation Task Group, March 1999 and endorsed by ATC in April 1999), acknowledged that:

Most investigation reports are prepared by the parties involved in the occurrence following internal investigation. Such investigations may be perceived as biased or done in such a way that avoids or fails to expose evidence of system failures. If the investigations were undertaken by external investigators with no association with the parties involved, the investigation would be said to be ‘independent’. 

That report also observed that under current State laws, there are no requirements for reports to be made public. It recommended that, if written in a style suitable for open reporting, safety investigation reports should be made public in order to allow for safety lessons to be more broadly communicated at all levels throughout the industry, and to demonstrate to the public that actions have or will be taken to address any identified safety deficiencies.

4	The Independent Review of Rail Safety Arrangements in Australia (Booz-Allen & Hamilton Report, Sept 1999) recommended that the ATC ministers agree that ‘a separate Rail Safety Investigations Authority would be set up with the necessary investigation powers and research and analytical capability as an independent unit within the Australian Transport Safety Bureau (ATSB)’ in order to ensure that regulators themselves are subject to appropriate scrutiny in the case of any major accident or incident.

Standards Australia has recently completed its work with industry and governments to develop a proposed standard on rail safety incident investigation as part of the AS 4292 series on Rail Safety Management. Agreement to include the draft document as a standard could not be reached as some members of the committee considered that their organisation, or those that they represented, would not be able to meet the intent of the standard or that it could potentially be ‘used against them’ in a legal context. As a result, AS 5022, Guidelines for Railway Safety Investigation, was released in June 2001. The ATSB considers that, in its current form, the guidelines inadequately reflect best practice procedures for safety investigation in some areas. The Bureau’s concerns about the inadequacies of that document are a reflection of similar concerns about the inadequacies of the current State-based arrangements for rail safety investigations and are described in more detail in later sections of this paper. As AS 5022 is a set of guidelines only, there are no legal requirement for compliance with the principles contained in that document. In addition, only some States call up the Australian Standard Railway Safety Management (AS 4292) in their respective rail safety legislation. As such, even if the document had been published as a standard, there would be no legal requirement for some States to comply with that standard. 

1.2	Problem being addressed

In all industries, it is recognised that safety improvements come about, in no small measure, by the objective analysis of accidents, incidents and safety deficiencies, and applying the lessons learnt from that analysis. Open and independent investigations of safety occurrences in high risk industries such as aviation, shipping, and the offshore oil industry, is accepted internationally as the most effective system in terms of safety outcomes and the public interest. 

There is currently no international rail body equivalent to that of the International Civil Aviation Organisation (ICAO) or the International Maritime Organisation (IMO), which may be used as the benchmark of ‘world’s best practice’. This could be attributed to the fact that rail is essentially a land-locked activity and not a truly global activity as is aviation and marine. However, even this argument is becoming increasingly fragile with, for example, rail trade and passenger transport activity spanning the European and Asian continents and similarly throughout the countries of both North and South America. In the aviation and marine spheres, both ICAO and IMO have set international standards and recommended practices for, amongst other things, the conduct of independent safety investigations. There are currently 185 signatories to the 1944 Chicago Convention, which includes Annex 13 to the convention, Aircraft Accident and Incident Investigation - International, Standards and Recommended Practices. Most countries, including Australia, the US, Canada and New Zealand, have incorporated those ‘best practice’ principles of Annex 13, including systemic ‘no-blame’ investigation methodology and open reporting, into their international and domestic legislation. Over 150 countries are signatories to the IMO, including Australia, where Assembly Resolutions A.849 (20) and A.884 (21) make provision for the conduct of investigations into marine ‘casualties’ and ‘near misses’. The investigation principles promoted by the IMO are similar to those of ICAO.

In order to illustrate the specific problems being addressed, the international and largely generic practices and procedures of both ICAO and IMO have been used as the benchmark against which to compare current practices in rail safety investigations in Australia. A number of shortcomings are evident in the Australian context, and are detailed below.

1.	Currently, one of the few completely independent forms of rail safety investigation is through a judicial inquiry with the powers of a Royal Commission. Such investigations are only appointed in the event of a major accident, usually involving the loss of life of fare-paying passengers.  Judicial inquiries are inevitably lengthy and expensive to conduct and are often adversarial and legalistic in nature. While they have the virtue of being open to the public, they are also subject to selective reporting by the media. Aviation and marine transport modes have demonstrated that an independent, technical investigation produces better safety outcomes. Publishing the reports of such investigations meets the dual purposes of public accountability of the investigation and ensures the industry is provided with the detailed analysis of the circumstances and contributing factors to the accident.

2.	Other than judicial inquiries, rail accident investigations are generally carried out by either (a) State and NT accreditation authorities; or (b) by rail companies under reporting requirements of individual State and NT legislation. This gives rise to potential conflicts of interest in which the investigator may have a direct involvement in part of the causal chain which led to an accident.  In addition, officers of the regulator may be investigating an accident or incident that may have regulatory or organisational deficiencies as contributing factors, which reflect adversely on their organisation. Accident investigations conducted by an individual company may also present conflicts of interest similar to those previously described and are often engineering-focussed, blame-based and non-systemic. Such investigations tend to be focussed on legal and financial aspects, relating to limiting liability or the recovery of costs from other parties. This can lead, in turn, to pressure on individuals or teams to modify reports at the behest of those higher in the chain of responsibility. It also leads to a potential reluctance to publicly issue reports and their findings. Such a demonstrable conflict of interest leads to a lack of public confidence in an ‘introverted’ system of accident investigation, which is perceived to be neither disinterested nor transparent. 

3.	There is a lack of a uniform approach to rail safety investigation. In some cases, the powers and protections offered by some State and NT legislation, do not provide the appropriate scope to fully explore all the safety issues and potentially limit the future free flow of safety information where an investigation for the purpose of a prosecution and the safety investigation process are not able to be clearly separated. 

4.	Accidents are random events that cannot be predicted either in location or time. Each authority of itself, does not have the 'critical mass' of accidents to justify the resources of a specialist independent investigation system. This in turn leads to limited exposure to investigation techniques and a dilution of expertise. For example, in the 1993 SCOT report, the NSW State rail authority acknowledged that in ideal circumstances, the separation of the regulatory and investigation function is desirable but that budgetary and other constraints render such an approach impractical as it often involves duplication, with an associated cost. 

5.	It has become increasingly and publicly unacceptable to make advancements in rail safety based solely on the analysis of historical events that have, at times, had tragic consequences. The contemporary approach to investigation recognises the importance of identifying safety hazards before they become factors in accidents or incidents. The investigation of occurrences that could have affected or might affect transport safety provides valuable opportunities to seek proactive solutions to safety hazards. Such occurrences may not have been the result of the unsafe operation of a transport vehicle itself, for example, there may have been a loss of train control communications or signalling functionality that does not result in a reportable occurrence but where safety margins have nevertheless been reduced.

While the principles of systemic investigation and open reporting are seen as desirable by the States and NT, there is no uniform procedure or clearly defined mechanism for proactive investigations. 

6.	The Commonwealth has a major stake in rail safety in interstate trade. A Commonwealth Government Business Enterprise owns and operates track and train control (Australian Rail Track Corporation).  The Commonwealth considers it vital to foster independent and objective investigations in the interest of cost effective rail transport and public safety and accountability. However, there is no current legal mechanism that allows the Commonwealth to investigate in its own right. In contrast, the Transportation Safety Board of Canada is responsible, under discrete legislation, for the investigation of rail safety occurrences on the national network and the international routes that cross into Canada from the USA. Canada has a similar mix to Australia of both federal and provincial railway networks.  While the TSB does not specifically investigate in the provinces, agreements are in place with a number of those provinces in which the TSB renders assistance as required.

7.	The publishing and public dissemination of rail safety reports produced by or on behalf of the State and NT rail safety accreditation authorities, is discretionary. The majority of State/Territory rail safety legislation does not require reports to be made public. There have been very few independent investigations and fewer truly public reports. As such, many of the important safety messages are not reaching the working level or the travelling public.  As a result, there is limited opportunity to apply relevant safety lessons in other parts of the rail industry in order to ensure an acceptable level of safety throughout the industry and eliminate duplicated effort. Such duplicated effort may have a direct and significant human and financial cost. In contrast, for example, all safety investigation reports completed by the ATSB in the aviation and marine spheres are made public. There have been many examples of where findings and recommendations arising from those public reports within Australia have been embraced internationally. Even within Australia, lessons learnt have been incorporated in a number of ways including, but not limited to, amendments to regulations and recommended practices, changes to design and maintenance, and the restructure of relevant organisations to better support and enhance safety within those organisations. Issues of commercial advantage arising from the release of reports are viewed as secondary to the importance of reducing or eliminating safety risks.

1.3	Risk

Accidents are random events that cannot be predicted.  

In 1998, 15, 336 ‘rail occurrences’ were reported from four States (NSW, Victoria, Queensland, South Australia). Of these 2,728 or 18%, were categorised as ‘major occurrences’ involving serious injury, death or significant damage (Rail Accident and Incident Investigation Task Group, March 1999). The majority of those categorised as major occurrences were investigated internally by the companies involved and reports of the findings were provided to the respective accreditation authorities. The remainder of the occurrences were reported in limited detail to the accreditation authorities and were used to identify trends. Only six of the occurrences were considered by accreditation authorities to warrant independent investigation.

The interstate network, as it is currently defined, accounts for approximately 8,000 kilometres of the total rail network in Australia, or approximately 20% of that network. The Australian Rail Track Corporation (ARTC), a Commonwealth government business enterprise which commenced operations on 1 July 1998, owns and/or controls approximately half of that network. In the second half of 1998, a total of 501 occurrences were reported to ARTC. In 1999, a total of 1,176 occurrences were reported, of which 31 were categorised as major occurrences. It is considered that the remainder of the interstate corridor would experience a similar number of occurrences each year.

The Australian rail system hauls about one-third of the total net tonne kilometres of freight of the national rail task, a figure that has increased by 36% from 1988 to 1997. Interstate freight tonnage has increased by 27% in the last decade (Australasian Rail Association website) which amounts to a total annual revenue of approximately $500 million. In addition, over 700,000 passengers are carried on interstate journeys each year (Australasian Rail Association).

The social cost of rail accidents in 1988 was assessed at around $100 million per annum (ATC 1993 report). The Independent Review of Rail Safety Arrangements in Australia (Booz-Allen & Hamilton Report, Sept 1999) observed that in 1993, the cost of rail accidents was comparable to that of air accidents. While that figure has not been updated, it is expected to be considerably higher in 2000, particularly if insurance costs are taken into consideration. While this figure is considered to be low compared with the social cost of road accidents and travel by rail is regarded as a safe mode of transport, it is significant in absolute terms.

Except for a handful of examples, investigation reports produced by companies, accreditation authorities and even some independent inquiries that have been instigated by the States, have not conformed to accepted best-practice safety investigation principles. For example, individuals continue to be named in most reports particularly if they have been completed by the company involved, the ‘no-blame’ philosophy is not reflected as those reports often continue to attribute a single causal factor, and there are few public examples of proactive investigations of safety occurrences. In addition, there have only been a few independent inquiries as there is a general view that only serious accidents need an independent approach. The risk associated with these identified inadequacies is that the investigation reports do not lend themselves well to public dissemination, they do not guarantee that safety issues from an organisational and systemic perspective have been explored fully, and only a limited number of serious occurrences are investigated. The lack of a proactive approach means that death, serious injury or property damage has often already occurred before anything is done about it.

A national database of rail safety occurrences is currently being developed by the Commonwealth with assistance from the States and NT. It is intended that the database will provide a national overview of the safety health of the rail industry, something that has not previously been achievable under the State-based arrangements. It will also assist the States, NT and the Commonwealth to take a more considered and strategic approach to any emerging rail safety issues, and will play a role in the ongoing monitoring of the national codes of practice once they have been implemented. Despite the intended benefits of such an initiative, the States and NT are currently under no legal obligation to investigate anything other than predominantly defined events ie. accidents and incidents in which death or injury has occurred to persons or where damage has occurred to, or defects have been identified in, rolling stock or track infrastructure.

2.	Objectives

2.1 	Objectives of government action

To enhance rail safety by creating a national rail safety investigation regime that meets ‘best practice’, including:

•	objectivity arising from;
•	independence from regulatory and commercial concerns
•	unrestricted authority over the conduct of investigations
•	the adoption of a systemic approach where appropriate; 
•	the sole objective to improve safety and not to attribute blame or liability;
•	certainty arising from;
•	uniform procedures
•	a high level of public accountability through public reporting of all investigations 
•	a mechanism for proactive safety investigation; and
•	a high level of centralised expertise.

2.2	Existing regulation/policy

States and NT

All States and NT have railway legislation, making provision for the operation of railways under their individual jurisdictions. Such legislation covers all aspects of rail operations under their separate jurisdictions including financial and safety issues that, in turn, includes the investigation of rail occurrences. The same authorities that oversee regulations, both commercial and operational, conduct investigations of accidents and incidents under their respective legislation.  

State and NT rail accreditation authorities have been invited to utilise the expertise and independence of the ATSB. While some States have indicated that they would utilise this offer, others have not responded. Further, it is at the various authorities’ discretion whether or not they invite the ATSB to lead or assist in an investigation. Under such an arrangement, the ATSB is bound by the State and NT legislation and there is no guarantee of open reporting. Officers of the ATSB have been involved in rail accident investigations on six occasions at the invitation of the States between 1997 and 2002.

Commonwealth

There is currently no specific power to regulate rail safety investigation at a Commonwealth level. However, there are a number of general powers which, together, can be used to support legislation regulating most, if not all, rail operations.

Through ATC, the Commonwealth has led the States and NT in promoting an Australia-wide, uniform rail policy. This includes developing a consistent approach to safety issues, including accident investigation. The Commonwealth is a signatory, with all other State and NT administrations, to the Inter-governmental agreement in relation to rail safety. 
  
Inter-governmental agreement (IGA) in relation to national rail safety

Clause 4 of the 1996 IGA states that:

Legislation shall be passed or appropriate administrative action under existing legislation taken as soon as practicable by the Parties which allows for the application of the Australian Rail Standard and any additional requirements notified in Clause 7 as the basis for accrediting safe operations by interstate rail Operators and Owners.

Clause 8 of the IGA states that any proposed legislation:

shall provide the opportunity for an Accredited Owner, Accredited Operator or a Party to seek the appointment of an independent investigator to investigate an accident or other serious incident involving interstate rail operations in which death or major damage occurs.

As noted previously, the Commonwealth is a ‘Party’ to the IGA.

Australian Standard - Guidelines for Railway Safety Investigation 

Rail accreditation authorities and the rail operators, through Standards Australia, have developed AS 5022 Guidelines for railway safety investigation, closely modelled on the existing Commonwealth marine and aviation procedures. However, as previously discussed, there is no legal requirement for compliance with this guideline by the States and NT, further contributing to a lack of uniformity.

3 	Options

3.1	Status quo 

Continue to conduct investigations under State and NT legislation with the rail industry carrying out the majority of those investigations and with the balance conducted by State and NT accreditation authorities. The Commonwealth (ATSB) would continue to be invited to participate in or conduct independent rail investigations at the discretion of the State and NT accreditation authorities.

3.2	Self-regulation

The introduction of a system of self-regulation requiring rail operators, individually or collectively, to undertake investigations, with no State, NT or Commonwealth involvement, is an option. 

3.3	Quasi-regulation

Quasi regulation would involve no legislative powers. Rail safety investigation could be conducted in accordance with national codes of practice and/or Australian Standards/Guidelines, or through the development of Memoranda of Understanding between the Commonwealth, States and NT.

3.4	Commonwealth government regulation

The Commonwealth to use its Constitutional powers to set up a national investigator with coercive powers in relation to rail safety investigations on the interstate track and those parts of the intrastate track that have a safety impact on interstate operations, analogous to existing Commonwealth aviation and marine investigation legislation. 

4	Impact Analysis

4.1	Groups affected by the problem and proposed solutions

There are four general groups to be considered:
•	the general public;
•	State/Territory governments (Departments of Transport and their accreditation authorities);
•	the rail industry; and
•	the Commonwealth.

The general public has the right to expect that rail occurrences involving death or injury of train crew or the public, major damage, or damage to the environment, are properly investigated and that significant factors contributing to those occurrences are fully determined. The general public also has the right to expect that any resulting safety lessons, which assist to prevent further similar occurrences, are made public.

Legislation and the application of rail safety investigation methodology varies considerably between State and NT Governments. The interstate operators are seeking uniform standards and a uniform approach to rail safety. This includes a uniform approach to rail safety investigations and that such investigations should be separate from the regulatory functions of the accreditation authorities. 

The Commonwealth has an existing pool of resources and a proven track record in systemic ‘no-blame’ investigations in the aviation and maritime spheres. The consistent application of these principles to the rail industry would meet the stated objectives as outlined in section 2.2 Objectives of government action.  

4.2	Self regulation

Rail operators and track owners already have an obligation to investigate under their own management, accidents and incidents involving company property, systems and/or staff. They have the appropriate technical expertise and operating knowledge of the industry and, in particular, their own company. In addition, it may be argued that they possess a sufficient degree of self-preservation and commitment to safety to ensure that they conduct thorough rail safety investigations.

The implementation of this option would necessitate a repeal of current State-based legislation, which requires the rail industry to operate in a co-regulatory environment, a process designed to apply external safeguards to an otherwise self-regulated industry.

This option does not meet the objectives of independence and objectivity as it would not cater for the often multiple interests in a rail safety investigation. These interests would be as diverse as accreditation authorities, track owners, operators, maintenance providers, employee representatives, occupational health and safety representatives, and the travelling public. Issues related to conflicts of interest and the competing goals of safety and commercial viability are not likely to be adequately addressed, or be seen to be adequately addressed, under such a regime. There may be reluctance to share information in relation to the findings of an investigation if it is seen to erode a competitive advantage. All of these concerns may potentially result in an inherent lack of confidence in the industry’s ability to investigate itself.

Further requirements with their attendant costs would be imposed on the industry, in order that an appropriate level of expertise for the investigation of safety issues is assured. Such a regime would result in greater pressure to conduct judicial inquiries in the absence of any formalised system to ensure that public accountability is at least assured following serious accidents (Refer to section 1.2 Problem being addressed for other issues related to the use of judicial inquiries).

4.3	Quasi regulation

Quasi-regulation relies heavily on the cooperation and agreement of all the parties involved and is not legally binding. Therefore, this option would not wholly meet the objective of a consistent approach to rail safety investigation.

Whilst the agreement and adoption of national codes of practice for the defined interstate network is progressing, with parts of the national code implemented during 2001 and additional parts due to be implemented during 2002, those codes do not address the specific issue of rail safety investigation. The codes were predominantly developed to address efficiency issues with passenger and freight operations. Although safety issues are inherently intertwined with operational issues, it is considered that rail safety investigation should be kept at ‘arm’s length’ from a document that sets operational standards and which may itself be under scrutiny during a safety investigation.

As with self-regulation, quasi-regulation will not satisfy the necessary requirements in relation to the powers and protections that must be afforded to investigators and affected parties to ensure that the primary objective of safety is able to be rigorously pursued in order to benefit the industry and the travelling public.

Given the continued fragmented nature of the industry and the strong interests of the States and NT, it is unreasonable to expect that the States and NT could come to an agreement with the Commonwealth on the narrow issue of rail safety investigation, when other rail reform issues remain unresolved after eight years of the current reform agenda. This was recently illustrated when it has become apparent that the views held by the States, NT and the rail industry on the proposed draft Australian standard on Railway Safety Investigation, were extremely varied in respect to fundamental issues such as definitions, investigation methodology, and reporting. 

Quasi-regulation in the form of MOUs between the Commonwealth, the States and NT, may be beneficial in so far as it may help to clearly define the roles and responsibilities of each party in the event of a rail safety investigation on the interstate system. This, in turn, may reduce duplicated effort and resources and any inconvenience to the rail industry as a result of an unnecessary further layer of investigation. It may also allow for a strategic approach in relation to the expertise that may be required to reside within a Commonwealth investigatory agency and which may be able to be sourced externally. An MOU may also provide for a cooperative approach in respect of the uniform training and development of investigators.

4.4	Explicit Commonwealth legislation

Commonwealth legislation would apply only to improve safety of the interstate rail system. State and NT authorities would maintain jurisdiction to investigate intrastate operations, including urban networks, where the interstate system is not affected.

The rail industry is a high-risk operation with the potential to significantly impact on public safety and environmental integrity.

The introduction of proposed Commonwealth legislation may be viewed as the most formal and potentially complicated option to implement. However, this option will meet the objectives as a legal framework provides certainty, consistency and specific safety investigation provisions such as ensuring confidentiality, protection against self-incrimination, transparency, and requirements to divulge relevant information overriding other requirements not to divulge such information. As litigiousness increases, the protections of such legislation may be the only way to ensure that information from witnesses and other relevant parties to a safety investigation is forthcoming.

In a currently dynamic rail industry, competition and horizontal structures are replacing vertical, government-controlled structures. As a result, critical interface and other safety issues have been raised for an expanding number of operators in both  ‘above’ and ‘below’ rail operations. An objective, independent, rail safety investigation capability, supported by relevant Commonwealth legislation, is required in this environment to ensure that such safety issues are properly identified and adequately addressed. 

The introduction of explicit Commonwealth legislation with rail safety investigations conducted by an independent agency such as the ATSB, has great potential to bolster public confidence in the rail industry. With the ATSB’s proven track record in other modes of transport investigation, many expensive judicial inquiries resulting from the public’s lack of confidence in the integrity of an investigation conducted by interested parties, including the accreditation authorities, may be averted. 

Some accreditation authorities, while welcoming ATSB assistance, believe that the ATSB needs to prove the effectiveness of its investigation methodology to the industry, prior to mandating it through legislation. Some authorities view such a proposal as resulting in more unnecessary power over the States by the Commonwealth and that any proposed Commonwealth legislation goes against the intent of the IGA.

The introduction of any proposed Commonwealth legislation will come with attendant administrative costs and, if not handled adequately, has the potential to result in a further player added to the already multiple interests to a rail safety investigation. The Commonwealth would need to fund its own investigation capacity (estimated to be a minimum of $0.75 million per annum). The funding arrangements would need to be similar to those accorded to aviation and marine accident investigations, whereby extra funds may be made available if a major inquiry justifies supplementary expenditure. The cost of any rail safety investigation that falls within Commonwealth jurisdiction would be wholly funded by the Commonwealth and therefore has the potential to reduce the States’ and NT costs for investigation and the need for the States to have the same level of investigation resources. 

The legislation will clearly state the roles and responsibilities of the State/Territory governments, rail owners and rail operators in such matters as:

•	accident and incident reporting requirements to the Commonwealth;
•	the requirement to provide information to the Commonwealth for rail safety investigations; and
•	the Commonwealth’s authority/powers over accident sites and custody of wreckage.

Reporting protocols as referred to above, would need to be established in order to eliminate duplication of effort resulting in an unnecessary cost to the industry. An industry education campaign would need to be conducted and appropriate literature would need to be distributed to ensure maximum awareness, understanding and cooperation with the new Commonwealth regime. These initiatives could be funded by the Commonwealth at an estimated cost of $0.75 million per annum. 

The adoption of an independent organisation reporting publicly significantly reduces the public expectation for judicial inquiries. Experience of equivalent Commonwealth marine legislation, which makes provision for judicial inquiries, is that the last marine accident to be subject to a judicial inquiry occurred in 1985. Since that time, all serious accidents have been investigated and reported on by specialist Commonwealth investigators. This includes accidents involving fatalities and major pollution incidents. 

Whilst Commonwealth legislation would provide explicit powers for the Commonwealth to investigate for rail safety, any benefits or reforms arising from those rail safety investigations would rely largely on the cooperation of the State accreditation authorities and the rail industry. It is not intended that the Commonwealth would have the power or responsibility for implementing safety reforms on the interstate rail system. If such powers were granted to the Commonwealth, the Commonwealth investigation agency would, by default, become a quasi regulator and in so doing would not be truly independent. It is intended that the rail safety legislation would provide for the Commonwealth to identify and communicate safety deficiencies to the relevant action agency, with any response from action agencies, including any intended safety action being taken by the action agency, being placed on the public record. This is similar to the arrangements in the aviation sphere. As the ATSB is regarded as an independent and credible investigation agency, records show, for example, that approximately 80% of its recommendations have been accepted by the aviation industry. This approach is also similar to that of royal commissions of inquiry, in which there is no legal authority to enforce the adoption of recommendations. However, business reality and common sense suggests that such recommendations cannot be simply ignored and must be dealt with and acted upon appropriately.

As the introduction of explicit Commonwealth rail safety investigation legislation is just one element of a wider package of reform in the rail industry, it is not possible to separate the positive outcomes of sound rail safety investigation principles from those of other changes taking place within the rail industry. It is expected that these reforms which include such things as increased standardisation in procedures and technology and improvements in infrastructure, will compliment this legislation. 

4.5	Impact in terms of costs and benefits

Option 1 
Status Quo	        Public                                       Rail Industry                      State Government                  C’wealth Government	
Costs/disbenefits	Rail accident reports not easily accessible to public, limiting public awareness and choice

Potential for accidents to be investigated through a judicial inquiry. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.	Non uniform approach retained.

Interstate operators are subject to different legislative provisions and investigation methodology with the potential to create confusion and a higher workload for an operator.

Operators not required to make investigation reports public. Safety-critical information may be withheld from industry or other rail authorities.  This has a direct human and financial cost if the same safety mistakes reoccur.

Potential for accidents to be investigated through a judicial inquiry. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.

Cost of independent investigations could be passed on from the States and NT to the industry.
	Potential conflicts of interest, leading to lack of credibility in the investigation process.  

Potential for accidents to be investigated through a judicial inquiry, with, significant resource implications.

State and NT expertise may be diluted in so far as there are insufficient investigations of a major nature on a State by State basis.

States and NT not required to make investigation reports public. Safety-critical information may be withheld from industry or other rail authorities.  This has a direct human and financial cost if the same safety mistakes reoccur.

Cost of any Commonwealth participation in independent investigations would be passed on the States.

	Commonwealth may be seen as avoiding responsibility for leadership and public good resulting in political opinion arising against the government.

Any involvement by Commonwealth in investigations must rely on current provisions of State and NT legislation – which do not meet the objectives of ‘best practice’ in all cases.

Involvement by Commonwealth in investigations only by invitation the States and NT (which may not be forthcoming if politically sensitive).	
Benefits	No specific benefits identified.	No further implementation requirements.

Industry maintains current relationship with the States, NT and the Commonwealth.

No requirement to change internal procedures or rail safety reporting protocols.	No further implementation requirements

States and NT maintain current legal jurisdictions and relationship with the Commonwealth.

No requirement to change internal procedures or rail safety reporting protocols.

Discretion to report publicly may enable problems to be dealt with internally without unnecessarily undermining the confidence of the public.	No further implementation requirements

No direct financial cost to Commonwealth. 

Commonwealth would maintain harmony with States and NT as far as is practicable, in respect of the traditional roles of the States and NT and the Commonwealth.	

Option 2 
Self Regulation	        Public                                       Rail Industry                      State Government                  C’wealth Government	
Costs/disbenefits	Would not meet public interest test for safe rail transport and right to critical safety information

Perception by public of conflicts of interest and competing goals of safety and commercial viability if the rail industry is allowed to self-regulate in relation to rail safety investigations. Such concerns are not likely to be adequately addressed, or be seen to be adequately addressed, under such a regime. As a result, public confidence in the industry could suffer.

Greatest political pressure for accidents to be investigated through a judicial inquiry with non-existent or inadequate legislation and government capability to investigate. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.

	May not satisfy multiple interests and could create an unnecessary adversarial climate between the various parties.

Would not address issues of proper public accountability 

Would not overcome provisions in insurance policies that information must not be divulged unless required by law. Therefore critical information may be withheld.

Greatest political pressure for accidents to be investigated through a judicial inquiry with non-existent or inadequate legislation and government capability to investigate. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.

Cost of any independent investigations would be passed on to the industry.

Some rail safety occurrences may not be fully investigated due to financial constraints.	Contrary to existing legislative provisions.

Greatest political pressure for accidents to be investigated through a judicial inquiry with non-existent or inadequate legislation and government capability to investigate. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.

Would require a repeal of current State legislation.	Commonwealth may be seen as avoiding responsibility for leadership and public good resulting in political opinion arising against the government.	
Benefits	No specific benefits identified.	Rail industry free to set own standards and protocols for rail safety investigation without influence/oversight of States/Territories or Commonwealth. 

Discretion to report publicly may enable the industry to deal with problems internally without unnecessarily undermining the confidence of the public.

Industry’s sense of self-preservation is likely to ensure well-intentioned efforts to address safety issues.	Will free up resources previously devoted to investigation, which will enable greater priority on other matters such as accreditation processing and auditing.	No direct cost to the Commonwealth.
 
Will free up resources previously allocated to rail safety investigation.	

Option 3 
Quasi Regulation	        Public                                       Rail Industry                      State Government                  C’wealth Government	
Costs/disbenefits	Limitations of self-regulation also apply to quasi-regulation, with consequent affect on public confidence.

Significant political pressure for accidents to be investigated through a judicial inquiry with non-existent or inadequate legislation and government capability to investigate. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.

No legal requirement for the industry to conform with safety recommendations arising as a result of quasi-regulation if the industry does not want to embrace them due to financial or other reasons.

	Many of the same concerns held by the industry about self-regulation also apply to quasi-regulation.

Significant political pressure for accidents to be investigated through a judicial inquiry with non-existent or inadequate legislation and government capability to investigate. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability.	Progress toward a national approach to rail safety investigation through the use of an Australian standard is protracted and States and NT  continue to disagree on fundamental issues. Therefore, possible to be no closer to achieving the potentially positive outcomes of a uniform approach.

Significant political pressure for accidents to be investigated through a judicial inquiry with non-existent or inadequate legislation and government capability to investigate. Therefore, significant resource implications, both financial and human and the potential for the focus to be on blame and liability. 

Cost of any Commonwealth participation in independent investigations would be passed on the States and NT.

Administrative costs of negotiating and maintaining an MOU with the Commonwealth that requires continued cooperation with all the parties.	Administrative costs of negotiating and maintaining MOUs with several States and NT which requires continued cooperation with all parties.	
Benefits	No specific benefits identified.	May ensure greater standardisation in the way the industry is treated by the respective authorities in relation to rail safety investigation as the roles and responsibilities of all the parties are clearly understood and that there is no duplication of effort.

No legal requirement to conform with safety recommendations arising as a result of quasi-regulation if the industry does not want to embrace them due to financial or other reasons.

Cooperative relationships fostered through quasi-regulation between the States, NT and the Commonwealth, may have a flow-on effect on the industry.

	Quasi-regulation in the form of MOUs between the Commonwealth and the State/Territory governments will ensure that roles and responsibilities of all the parties are clearly understood and that there is no duplication of effort.

Has the potential to foster cooperative relationships between the States, NT and the Commonwealth.	Quasi-regulation in the form of MOUs between the Commonwealth and the State and NT governments will ensure that roles and responsibilities of all the parties are clearly understood and that there is no duplication of effort.

Has the potential to foster cooperative relationships between the States, NT and the Commonwealth.

Fewer resources required to develop and support quasi-regulation in contrast to explicit Commonwealth legislation.

Option 4 
C’wealth Regulation	        Public                                       Rail Industry                      State Government                  C’wealth Government	
Costs/disbenefits		Occasionally, destructive tests on materials/components conducted by the Commonwealth, may have an operational or financial cost to the industry. It is envisaged that such a requirement would be infrequent and only used when considered necessary for a full understanding of relevant safety issues. It is not possible to accurately predict the potential cost of this procedure as it may range from just a few dollars to several thousand. However, the cost associated with such an activity may be covered by the Company’s insurance. 

Mandatory reporting requirements require review to reduce duplication and ensure all the relevant parties are notified of any rail safety occurrence/investigation.

Custody of wreckage and power of authority over evidence would remain with the Commonwealth investigation agency until such time as it considered of no further use to the inquiry. Protocols will need to be established to overcome any potential delays to the progress of other investigations or the  restoration of rail services. For example, access to evidence would be available under the supervision of the ATSB and evidence may be collected/recorded where necessary on behalf of the ATSB in order to reduce delays to the restoration of normal services.	State and NT rail safety accreditation authorities traditional role modified.  

States may provide technical/general assistance to Commonwealth rail safety investigations, which may have an impact on their resources (States would be compensated in cases where State resources were requested by the Commonwealth).

State and NT investigations confined predominantly to intrastate rail.

Further resources may be required to gain the benefits from the establishment of  MOU’s with the States and NT in order to determine protocols for Commonwealth rail safety investigation.	Commonwealth has an independent investigation Bureau, ATSB. Cost of some rail accident investigations would shift to the Commonwealth’s investigation agency, the ATSB at an extra cost of $0.75 million per annum.

Resources within the allocation referred to above, would be required to gain the benefits from the establishment of MOU’s with the States and NT in order to determine protocols for Commonwealth rail safety investigation.

	
Benefits	Greater access to safety information.

Greater public confidence in investigation process and it’s outcomes.

Potential to avert, in all but the most serious of accidents, judicial inquiries with their attendant costs and adversarial characteristics.	Create uniform safety investigation regime where Commonwealth jurisdiction applies.

Greater public accountability.  Potential to influence issues of liability in civil proceedings. 

Greater potential to make improvements in safety industry-wide, not just localised within a particular company or State. 

Less impact on resources than the use of judicial inquiries.

	Will free up some resources previously devoted to investigation, which will enable greater priority on other matters such as accreditation processing and auditing.

Less impact on resources, both financial and human,  than the use of  judicial inquiries. 

	The ATSB, as a centre of excellence with a proven track record in safety investigations, would provide the Commonwealth, States, NT and the rail industry with objective rail safety findings.

Ensures that safety messages are conveyed to the whole industry and the public. 

Ensures that witnesses and other relevant parties are forthcoming with safety-related information.

A transparent rail safety regime. 

Greater support from the Commonwealth for industry in safety management and training.   

Ability to identify trends and respond in a proactive manner to developing safety issues that fall within its jurisdiction and to relay this information to the States, NT  and the rail industry.

Commonwealth meeting its responsibility for leadership and public good.

The legislation will support the national codes of practice as it will provide a mechanism to identify any safety issues arising from the implementation and ongoing operation of those codes.

4.6	Other groups potentially affected 

Coroners – the current relationship between the States, NT and the respective coroners would be similar if Commonwealth legislation was enacted. Therefore, it is considered that there would be no adverse impact on the work of the coroner. Some provisions of the proposed legislation will provide greater certainty to coroners with respect to access to certain types of information and assistance from the Commonwealth. This could be reinforced through Memoranda of Understanding.

Workcover/Comcare  - Workcover/Comcare have traditionally played an active role following rail accidents and incidents. It must be recognised that the objectives of any proposed Commonwealth rail safety legislation and that of Workcover and Comcare are quite separate and must be treated as such. Whilst the introduction of another ‘player’ other than the States and NT would result following the implementation of Commonwealth legislation, the relationship would remain unchanged. On those occasions when the Commonwealth chooses to investigate, it is expected that the Commonwealth investigation will replace that of any State or NT rail accreditation authority such that no additional investigation is conducted for a particular accident or incident than what the rail industry might normally be subject to.

In line with similar legislation in the aviation and marine transport modes, it is proposed that control of accident sites (following the activities of ‘first response’ agencies) and protection of sensitive information would be retained by the Commonwealth investigation agency. This may have the potential to delay the progress of other investigations if not handled appropriately and may also slow progress toward returning to normal operations. However, cooperative arrangements have been established in the other modes of transport investigation to minimise any problems arising from such a situation. Such arrangements could include access to or provision of evidence and communication of relevant factual information to other parties as soon as possible. Similar arrangements could be applied in the rail safety context. 

Insurers – In line with similar legislation in the aviation and marine transport modes, it is proposed that control of accident sites (following the activities of ‘first response’ agencies) and protection of sensitive information would be retained by the Commonwealth investigation agency. This may have the potential to delay the progress of other investigations if not handled appropriately. However, cooperative arrangements have been established in the other modes of transport investigation to minimise any problems arising from such a situation. Such arrangements would include access to or provision of evidence and communication of relevant factual information to other parties as soon as possible. Similar arrangements could be applied in the rail safety context. 

Rescue authorities – generally, rescue authorities have the task of saving lives, providing first aid and to a lesser degree, returning operations to normal following an occurrence. Any proposed Commonwealth legislation would not have an adverse impact on that role. The proposed legislation will specifically acknowledge the need for first response agencies to carry out those important activities largely unimpeded. It may be appropriate as part of the ATSB’s educational role, to provide educational material and training to rescue personnel in order that they have a clear appreciation of the requirements of a rail safety investigation in terms of preservation of evidence etc.

Australian Rail Operations Unit (AROU) – as the manager and owner of the proposed national codes of practice, the activities of the AROU may be subject to investigation following a safety occurrence on the interstate network. A Commonwealth investigation, with a national rather than State focus, would provide an opportunity to independently monitor the finalisation, implementation and effectiveness of those codes. Safety findings in relation to the national codes may provide insight into required changes/improvements to those codes in order to achieve better safety outcomes. This impact is viewed as positive rather negative. 

Small business – It is not considered that small business would be affected by the introduction of any proposed Commonwealth legislation.

4.7	Distributional effects

Given the increasing value of rail as a method to transport freight for interstate trade and its extensive use by passengers, the potential benefits that have previously been outlined in this document will affect a significant portion of the Australian population for a relatively small cost to the taxpayer. Refer to information supplied in section 1.3 – Risk.

4.8	Data sources

Australian Transport Council National Rail Summit Communique, 10 September 1997

Australian Transport Council Communique, 19 May 2000

Booz-Allen and Hamilton, Independent review of rail safety arrangements in Australia -a report to SCOT, September 1999

Committee ME/79 Draft Australian Standard for Comment-Rail safety incident investigation (AS4292.7), January 2000

Intergovernmental agreement in relation to national rail safety, 1996

Intergovernmental agreement for national rail uniformity, 1999

Inter-governmental working group on rail safety, A National Approach to Rail Safety -  report to SCOT, September 1993

Rail Accident and Incident Investigation Task Group, Independent Investigation and Open Reporting of Rail Occurrences - a report for Rail Group, March 1999

Rail Group,  Independent investigation and open reporting of rail occurrences - a report to SCOT, March 1998

Smorgon. J, Revitalising rail - Report to the Prime Minister, April 1999

The House of Representatives Standing Committee on Communications, Transport and Micro-economic Reform, Tracking Australia  - Neville Report, July 1998 

5	Consultation

5.1	Affected parties

The following rail organisations have been consulted:

Australasian Railway Association Inc.
AROU Advisory Group
Interstate Rail Operators Group
FreightCorp
Australian Rail, Tram and Bus Industry Union
Australian Services Union
National Rail Corporation Ltd
Australia Southern Railroad
Great Southern Railway
Australian Rail Track Corporation 
The State rail accreditation authorities of NSW, Vic, SA, WA, Qld and NT

Individual meetings were held with some industry operators and other industry organisations. Proposals have also been discussed at accreditation authority and Rail Group, SCOT and ATC meetings. 

In September 2001, comment from the rail industry was sought on an Exposure Draft of the proposed legislation. A multi-modal industry consultation workshop was held in Canberra on 21 September 2001 to brief the aviation, marine and rail industry on the proposed provision of the new legislation. A number of comments were received from interstate operators and State and Territory regulatory authorities.  The ATSB has sought to accommodate to the extent possible a number of concerns raised by those parties within a revised version of the Bill and will work with the industry and regulatory authorities to develop agreed protocols through Memoranda of Understanding. Consultation has also occurred with occupational health and safety bodies.

5.2	Affected parties views

Operators and industry organisations

Operators and industry organisations are generally in support of Commonwealth legislation with the following reservations and concerns:

•	Another layer of investigation in addition to the many and varied interests of other investigation bodies eg Workcover, company, EPA, insurers etc.; 
•	Protection of witnesses – some organisations were supportive provided that the legislation provides protection to witnesses against the use of information provided to the investigation in criminal or civil proceedings; and
•	A definition of what constitutes Commonwealth jurisdiction, for example, geographical corridor v interstate trade needs to be established.

Traditional concerns that have prompted support of the proposal to implement Commonwealth legislation include the following issues:

•	Lack of standardisation compounded by the fact operators may be accountable to several State jurisdictions;
•	An opinion that investigations are still conducted primarily for the purpose of blame or liability despite progress in this area. The Glenbrook inquiry was sited at several meetings as an example of an accident inquiry seeking to apportion blame and liability;
•	Limited public reporting of investigations resulting in safety messages not being widely spread; and 
•	That Commonwealth jurisdiction should be as wide as possible.

Other positive comments from rail industry include the following aspects:

•	The development of a national database of rail accident/incident statistics coordinated by the ATSB. Many operators see this as a good opportunity to ensure that safety issues are identified at a national level and safety messages disseminated widely. Also, opportunities for benchmarking.
•	The Commonwealth’s established reputation/track record as an independent investigation agency in other modes will be able to be utilised in the rail industry.

State/Territory rail safety accreditation authorities 

Accreditation authorities’ concerns about proposed Commonwealth legislation include the following:

•	the proposal would result in more unnecessary power over the States;
•	the initiative is contrary to the intent of the 1996 IGA;
•	the current regime is adequate and there is a wish to maintain discretionary powers over the terms of reference and whether or not individual investigation reports are publicly released;
•	the States and NT are progressively improving their rail safety legislation to embrace the principles of open,  independent, ‘no-blame’, systemic investigations; and
•	the ATSB needs to prove the effectiveness of its investigation methodology to the industry, prior to mandating it through legislation.

6  	Conclusion and recommended option

6.1	Option four is the preferred option

By adopting this option, it is considered that the following benefits outweigh the costs/disadvantages that have been identified. This option:

•	provides for the demonstrable independence of the investigating process, while providing the capacity for State authorities to remain involved in rail safety investigations, under ATSB leadership, through Memoranda of Understanding;
•	a nationally consistent approach with the use of a well-proven model for investigation used in other transport modes within Commonwealth jurisdiction and high risk industries internationally;
•	provides certainty through a legislated requirement for transparency that, in turn, ensures that safety information is distributed to all areas of the rail industry and the general public;
•	maximises potential benefit for travelling public including public confidence and accountability issues;
•	enables the development of a pool of professional, dedicated resources, concentrated in the one centre – trained in contemporary investigation techniques and the management of complex investigations as a national resource for rail safety investigation and investigator training;
•	is consistent with recommendations made by recent public reports; and
•	Government’s stated policy to introduce Commonwealth legislation for the  investigation of rail safety occurrences as part of the reform program for interstate rail.

6.2	Implementation and review

The preferred option will need to be implemented through the introduction of a discrete Commonwealth rail investigation Bill. The Bill will be clear and comprehensive in defining the responsibilities of the Commonwealth, the State and Territorial governments, and rail operators and track owners, in relation to rail safety investigations.

Before the legislation is finalised, ATSB will hold a workshop with interstate rail operators and the State and Territory Departments of Transport to consider the legislation and the procedures that will be followed to ensure major stakeholder interests are fully considered and to avoid unnecessary overlap or duplication of existing arrangements.

Following enactment of the legislation, ongoing review of its application against its objective will occur through consultation with major stakeholders at the Rail Safety Consultative Forum (RSCF) SCOT and ATC forums, and through direct consultation with the rail industry. Investigation reports are to be available on the ATSB's website together with other educational material to promote rail safety. The ATSB's Annual Review will report on progress of implementation of the legislation.

TRANSPORT SAFETY INVESTIGATION BILL 2002

NOTES ON CLAUSES

Part 1 - Preliminary

Clause 1 Short title

This clause provides the proper title of the Bill.

Clause 2 Commencement

This clause provides that the Bill commences on the date of proclamation or the expiration of six months after it receives Royal Assent, whichever is earlier. This period will allow sufficient time for the completion of the drafting of the regulations, which will need to commence at the same time as the Bill.

Clause 3 Definitions

This clause defines certain terms used in the Bill.  In particular:

Accident is defined to cover more serious occurrences involving death, serious injury, destruction or serious damage of vehicles or property. The definition serves to distinguish more serious occurrences from other incidents or situations. Where an accident has occurred, the Executive Director may exercise certain coercive powers in respect of the accident site and accident site premises, in addition to powers, which are available in relation to premises that are not accident sites. (Refer also to the definitions of accident site, accident site premises and special premises).

Commonwealth place includes all places acquired by the Commonwealth for public purposes, but does not include the Australian Capital Territory.

Constitutional corporation may be a foreign corporation (ie. company formed outside the limits of the Commonwealth) or a trading or financial corporation formed within the limits of the Commonwealth. This term is also defined to include any body corporate formed in a Territory (ie. regardless of whether or not it is carrying out trading or financial activities).

Control area is a generic name being used for the purposes of this Bill. It will include, for example:
in aviation 	- the flightdeck of an aircraft
in marine 	- the bridge of a ship
          		-  the machinery control room of a ship
           		- the cargo control room of a ship
in rail 		- the locomotive cab of a rail vehicle

Note that control area is not intended to cover such facilities as air traffic control centres or equivalent facilities in other modes. Refer also the Explanatory Memorandum comments at Clause 48.

Court is defined to mean any person or body that has power to require the production of documents or answering of questions. This will include, for example, the Administrative Review Tribunal or a coroner, but the definition expressly excludes the Parliament or a Royal Commission so that the restrictions under the Bill which are applicable to provision of evidence for purposes of court or tribunal proceedings, will not apply to Parliamentary or Royal Commission proceedings.

Crew member may include such persons who are employed (or engaged under contract) as the technical Flight Crew and Cabin Crew of an aircraft, the Master and seagoing crew of a ship, or the Driver, Second Person or Guard and Conductor of a rail vehicle, and who are on board the respective transport vehicle at the time that it is operating. For further explanation, refer also to the Explanatory Memorandum comments on the definition of operational duties.

Evidential material means anything that may be relevant to an investigation conducted under the Bill. Evidential material includes on-board recordings and restricted information (such as interview notes, results and analysis of tests, personnel records, electronic data and other recorded information, medical records and autopsy results). Refer also to the Explanatory Memorandum comments on the definition of restricted information and further comments at Clauses 60, 61 and 62. In addition, evidential material may include information that is not restricted information such as fuel and maintenance records, photographs, log books etc. and physical evidence such as components of transport vehicles, wreckage of transport vehicles and baggage.

On-board recording or OBR is defined by reference to Clause 48 which sets out the conditions to be met before a recording may be regarded as an OBR within the meanings of the Bill. A Cockpit Voice Recording (CVR), as referred to in aviation, is one example of an OBR. Note that a recording becomes an OBR only upon the happening of an Immediately Reportable Matter as prescribed by the regulations.  However, once an Immediately Reportable Matter has occurred, the entire recording becomes an OBR, including parts of the recording made prior to the time of the occurrence, unless and until such time as the Executive Director declares that the recording ceases to be an OBR (see Clause 49). Also note that as long as a recording falls within the definition of an OBR, the protection and restrictions under Part 6 apply.

Operational duties are those duties that a person is designated to carry out in order to safely and efficiently operate a vehicle on an assigned task, such as the carriage of passengers or cargo, from one destination to another. It requires such persons to operate the transport vehicle within its prescribed performance limits, to ensure that any passengers are supervised and assisted throughout the operation of a transport vehicle including emergency evacuations, and to observe laws and standard operating procedures applicable to that transport vehicle. 

Restricted information covers various types of information acquired by a staff member under or in connection with the Bill, not including OBR information. Restricted information is a subset of evidential material and is sensitive information that may have an adverse impact on the free flow of safety information in the future (and in turn have a substantial adverse impact on the proper and efficient conduct of an investigation conducted under this Bill) if it was made freely available by the Executive Director for purposes other than transport safety, such as ‘blame’ inquiries. 
The exclusion of OBR information from the definition is to separate the protection of unique OBR information from the protection of other types of information obtained by the Executive Director for purposes of the Bill.  

Note that the disclosure and admissibility of restricted information is subject to the provisions of Part 6 Division 2-Restricted Information.

State referral of power means a referral by a State to the Commonwealth allowing the Commonwealth to legislate in respect of a certain subject matter which is not normally within the Commonwealth’s legislative power under the Commonwealth Constitution.

Clause 4 Act binds the Crown

This clause provides that the Crown in right of the Commonwealth and all the States and Territories is subject to the Bill, but it cannot be prosecuted for an offence under the Bill.

Clause 5 External Territories

This clause provides that the Bill applies in all external Territories, eg. Christmas Island, Norfolk Island etc.

Clause 6 Application outside Australia

This clause provides that the Bill applies outside Australia, unless there are provisions in the Bill, which provide otherwise. This means the Bill authorises the Executive Director to do anything in a foreign country where he or she is authorised to do the same thing in Australia. For example, an Australian flight crew stationed in a foreign country may be subject to the provisions of Clause 32 of this Bill ie. requirement to attend before the Executive Director. However, it should be noted that subjects of foreign countries are under no obligation, when they are outside Australia, to comply with provisions of the Bill and therefore it may not be possible in those cases to enforce provisions requiring compliance with the Bill. 

Clause 7 Objects of this Act

This clause sets out the objects of the Bill. In general, the main object will be to determine the events and factors, both immediate and underlying, relating to a transport safety matter that has been investigated under the Bill. In doing so, safety deficiencies in the transport system may be identified and relevant safety action statements, including safety recommendations to address those safety deficiencies, may be made by the Executive Director in order to improve transport safety. There will be public reporting of transport safety matters, particularly including investigation findings in the interests of transport safety. Such reporting may also include studies of trends in accidents and other occurrences that have been reported to the Executive Director. 

An additional object of the Bill is for the Executive Director to cooperate with other Commonwealth agencies or persons having powers under another law of the Commonwealth to also investigate the same matter as that being investigated under the Bill. This will include agencies such as the AFP, AMSA, CASA and Comcare. Other provisions within the Bill, notably Clauses 24, 43, 44 and 45, reinforce the notion of cooperation by providing specific defences against penalties to allow such parties and others to carry out their statutory responsibilities and to provide a mechanism for the provision of evidence in the possession of the Executive Director to other parties on request. However, whilst the Executive Director will cooperate with those parties to the extent possible, this provision must be read in conjunction with other provisions within the Bill, particularly Parts 5 and 6, which may place some necessary limitations on otherwise unfettered cooperation in the interests of transport safety and in ensuring separation between ‘no-blame’ investigations and a process that may lead to blame or liability.

The objects of the Bill will NOT be to determine blame or liability of a person. Note that the term ‘person’ may include a body corporate. In addition, no adverse inference is to be drawn by the fact that a particular operator may be subject to an investigation of a transport safety matter under this Bill. Note also that the Bill (see Clause 17) is the mechanism for Australia complying with international agreements including for aviation, Annex 13 to the Convention on International Civil Aviation - International Standards and Recommended Practices for Aircraft Accident and Incident Investigation. Article 94(7) of the UN Convention on the Law of the Sea, IMO Resolution A.849(20), SOLAS (IMO Convention for the Safety of Lives at Sea) & MARPOL (IMO Convention of Marine Pollution) outline international agreements for ships and marine navigation.

Clause 8 Application of Criminal Code

This clause provides that Chapter 2 of the Criminal Code (which is found at the Schedule to the Criminal Code Act 1995) applies to offences against this Bill.  Chapter 2 of the Criminal Code contains all the general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created.  Chapter 2 covers elements of an offence, circumstances in which there is no criminal responsibility, extensions of criminal responsibility, corporate criminal responsibility, and proof of criminal responsibility.  

Subclause 8(2) means that the offences under the Bill may apply outside the geographical limits of Australia in accordance with section 15.4 of the Criminal Code.  Under section 15.4, there is no need for the offending conduct to have any connection with Australia, and the fact that the conduct is not a crime under the law of the foreign country where the conduct occurred cannot be used as a defence.

Clause 9 Penalties specified at foot of sections or subsections

This clause provides that where a provision creating an offence specifies a maximum penalty for an offence, then the offence is punishable by a penalty up to the maximum specified. This is so irrespective of whether the provision specifying the maximum penalty is a clause or a subclause of this Bill, or whether the offence is created expressly.  

Clause 10 Relationship with other laws

Subclause 10(1) makes it clear that the Bill is not intended to ‘cover the field’ of transport safety investigation. This provision means that the Bill does not prevent a State or a Territory from conducting their own investigation into safety, disciplinary or administrative matters under their own legislation as long as that legislation is not directly inconsistent with this Bill. Therefore, State and Territory authorities, which have jurisdiction to investigate, will be able to do so, in parallel to any investigation under this Bill if necessary. The only occasion when this Bill has primacy over State or Territory laws is when there is inconsistency with the State or Territory legislation, eg. when the operation of that legislation hampers an investigation conducted under this Bill. For example, both State laws and this Bill may allow investigators to seize evidential material at accident site premises. In such cases, the Executive Director will have primacy over the State laws. However the Executive Director will endeavour to work cooperatively with the State and Territory authorities in order that they are able to conduct their own investigations. Note that if the Commonwealth elects not to investigate, State and Territory authorities will not be precluded from conducting their own investigation into the matter in whatever form or forms. Also note that Clause 45(6) allows for evidential material that is not OBR information or restricted information to be provided to other agencies such as regulatory bodies, police, coroners and occupational health and safety (OH&S)authorities. Other provisions in Part 6 of the Bill deal with the disclosure and admissibility of OBR information and restricted information to other agencies.

The potential to save lives through an unimpeded transport safety investigation is imperative, consistent with Australia’s international obligations and in the interests of the continued free flow of safety information. It must be recognised that 90% of accidents and incidents are a result of human or technical factors where no malice was intended and that only a very small proportion of accidents are the result of serious criminal activity where there was an intention to harm other persons and/or property. It is the former types of operational accidents and incidents that the ATSB focuses on and has the expertise to investigate. Recent experience overseas emphasises the need for agencies to cooperate to the extent possible and to acknowledge that where an accident was not the result of a serious crime, the recognised independent safety investigation agency should be the lead agency. This means that the ATSB must be able to direct and control safety investigation activities beyond those required in the ‘first response’ phase following a transport accident and to coordinate with other agencies to the extent possible to allow those agencies to achieve their respective objectives. Equally, it is be recognised that on those rare occasions such as September 11, 2001 in New York and Washington, when serious criminal (terrorist) activity caused four fatal aircraft crashes, the relevant law enforcement agency will be the lead agency. It is noted that under the Annex 13 definition of an accident, obvious cases of terrorism such as those cited in this example, are not considered to be accidents and safety investigation agencies such as the ATSB would not routinely investigate such occurrences. In such cases, the ATSB would provide whatever expertise and support it was able to assist the Australian Federal Police and other authorities.

There will be some occasions when it is not immediately apparent whether a transport accident was the result of human and/or technical failure or the result of a serious crime. The Airbus 300 accident in New York (November 2001) which resulted in 260 fatalities, was a case in point. On that occasion, a public announcement was made early in the investigation that until there was evidence to suggest that the accident was the result of a crime, the US National Transportation Safety Board (NTSB) would remain the lead agency. That arrangement worked well and is being reflected in protocols in an MOU that is under development between the NTSB and the US Federal Bureau of Investigation. 

Subclause 10(2) provides that the Bill prevails over other Commonwealth legislation, including any other legislation allowing Commonwealth agencies or authorities other than the Executive Director to conduct an investigation into a transport safety matter, to the extent of any inconsistency. However, it is assumed that Commonwealth laws are compatible and can operate concurrently. Therefore, this Bill does not exclude Commonwealth agencies from investigating a transport safety matter, in parallel if necessary, as long as that legislation does not hamper an investigation conducted under this Bill. For example, another Commonwealth Act may have similar provisions to this Bill, which state that certain powers may be exercised under warrant in relation to evidence collection. This Bill would have primacy over the evidence collected under those provisions only in those cases where the ED considered that the operation of those provisions hampered an investigation under this Bill. Notwithstanding, the Executive Director will endeavour to work cooperatively with other Commonwealth authorities in order that they are able to conduct their own investigations with little or no impediment in accordance with current practice.

For further reasons for primacy over other legislation, refer also to comments at Subclause 10(1).

Clause 11 Constitutional limitations on powers and functions

This clause prescribes the limits, as consistent with the Commonwealth’s constitutional power, within which the powers under the Bill may be exercised in relation to each mode of transport, including aviation, marine and rail. The use of the ‘purpose’ limitation will make it easier to apply a generic set of laws to all three modes of transport. 

Subclause 11(1) relates to aviation safety investigation and is consistent with the Commonwealth’s constitutional power to legislate in respect of external affairs, trade and commerce with other countries and among the States, foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, matters referred to the Commonwealth by any State or States, power to legislate in respect of territories and Commonwealth places and in respect of any other matter to which the Commonwealth has the power to make laws. The Commonwealth’s wide constitutional power to make laws relating to air navigation has been confirmed by court decisions such as Airlines of New South Wales Pty Ltd v. New South Wales (Airlines No.2 (1965) 113 CLR 54).

Subclause 11(2) relates to marine safety investigation and is consistent with the Commonwealth’s constitutional power to legislate in respect of external affairs, trade and commerce with other countries and among the States, foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, matters referred to the Commonwealth by any State or States, power to legislate in respect of territories and Commonwealth places and in respect of any other matter to which the Commonwealth has the power to make laws. For instance, based on the external affairs power, the Bill will allow investigation into occurrences involving intrastate operations as long as they are operating outside the baseline from which the breadth of the territorial sea is measured. (Refer to Subclause 11(5)). For example, an intrastate ship that is operating from Brisbane to Weipa along the Great Barrier Reef could be investigated under this Bill if it was involved in an investigable matter (Refer to Clauses 22 and 23). 

Subclause 11(3) relates to rail safety investigation and is consistent with the Commonwealth’s constitutional power to legislate in respect of trade and commerce among the States, and of the Northern Territory. It is also consistent with the Commonwealth’s constitutional power to legislate in respect of foreign corporations and trading or financial corporations formed within the limits of the Commonwealth, matters referred to the Commonwealth by any State or States, power to legislate in respect of a Commonwealth place and in respect of any other matter to which the Commonwealth has the power to make laws. The subclause does not contain provisions to reflect the Commonwealth’s power to make laws with respect to external affairs. This is due to the lack of international element at present in the context of rail transport. The Bill would also cover intrastate operations if the Executive Director considered that there was an impact on the safety of operations on the interstate rail system. For example, an intrastate train may collide with an interstate train on the Defined Interstate Rail Network (DIRN), or an intrastate train may be involved in a single-vehicle safety occurrence on the DIRN, or there may be an accident on track that is not considered part of the DIRN but is being used for interstate operations. Note that the Northern Territory is referred to in this subclause but not the Australian Capital Territory (ACT) as there is no part of the current interstate rail track within the ACT.

Subclause 11(4) clarifies that the constitutional limits imposed under Clause 11 are only relevant and applicable in relation to the exercise of powers under the Bill. The constitutional limits regarding the protection of OBRs and OBR information are provided separately under Clause 48.

Subclause 11(5) makes it clear that for the purposes of Clause 11 only, outside Australia  means outside the baseline from which the breadth of the territorial sea is measured. In other words, the territorial sea is considered outside Australia for purposes of Clause 11. This definition has been adopted to ensure that the Commonwealth’s external affairs power can be invoked to the maximum extent possible for the purposes of the Bill. However, any references to ‘Australia’ in other provisions of the Bill, for example, Clauses 22, would have the ordinary meaning in accordance with Section 15B of the Act Interpretation Act 1901 which includes the coastal sea (including the territorial sea) of Australia.  In other words, the territorial sea would be considered within Australia for purposes of all other provisions of the Bill.

Part 2 - Administration

Clause 12 Executive Director of Transport Safety Investigation

This clause creates the office of the Executive Director of Transport Safety Investigation. The incumbent of this office will be a public servant appointed by the Secretary of the Commonwealth Department within which the Australian Transport Safety Bureau (ATSB) exists for administrative purposes by reference to Clause 77 of the Public Service Act 1999. It is anticipated that the Executive Director would be a member of the Senior Executive Service of the Department. The Executive Director will be accountable to the Secretary in matters relating to the operation of the Public Service Act 1999 and other legislation such as the Financial Management and Accountability Act 1997. Refer also to Explanatory Memorandum comments at Clause 15 for an explanation of the level of independence that the Executive Director has in relation to the exercise of powers under this Bill. 

Clause 13 Delegation

Subclause 13(1) permits the Executive Director to delegate all or any of his or her powers under the Bill to any suitably qualified person, subject to the limitations provided under this clause. A suitably qualified person may be a Commonwealth or State/Territory officer or a private individual with appropriate qualifications and experience. This is an acknowledgment of the need to maintain transport safety as a priority over what might otherwise be considered in other statutes as unacceptable protocol to delegate powers to anyone other than a Commonwealth officer and allows Australia to meet international obligations in respect of aviation and marine safety investigations. This flexibility is essential as it may be necessary, for example, in remote locations to delegate powers to an appropriately qualified person in order that perishable evidence is collected in a timely fashion and that witnesses are interviewed quickly before their memory becomes less reliable. In such cases, only those powers, or aspects of those powers, seen as necessary to adequately carry out investigative functions on behalf of the Executive Director under this Bill, would be bestowed on those persons. To ensure the Executive Director maintains control over the manner in which the delegated powers are exercised, the delegation may be conditional upon the delegate complying with the Executive Director’s directions given under Subclause 13(7) in relation to the exercise of the powers by the delegate. The Executive Director may also limit the scope of any delegation by limiting the powers to be delegated depending on the qualification and experience of the individual concerned. The Executive Director may also revoke a delegation at any time if he or she believes it is necessary or desirable to do so.  

Refer also to Explanatory Memorandum comments at Clause 14 – Special Investigators.

Subclause 13(2) provides that the Executive Director’s power under Clause 14 to appoint a special investigator and in respect of Clause 25 to release final reports on investigations, cannot be delegated. In other words, only the Executive Director himself or herself may appoint a special investigator for any particular investigation and release final reports on investigations. 

It was considered appropriate that only the Executive Director be able to delegate powers to special investigators, after careful consideration of the need (see Explanatory Memorandum comments at Subclause 13(1)), as those investigators may be other than APS employees and are therefore not subject to the same controls as APS employees. 

Release of reports under Clause 25 reflects current practice in respect of the public release of investigation reports.

Subclause 13(3) provides that the powers in relation to the requirement, by written notice, for attendance and/or production of documents may only be delegated to those persons identified in that subclause, including special investigators. 

Subclause 13(4) provides that the power to apply for a warrant may only be delegated to those persons identified in that subclause but does not include special investigators. 

Subclause 13(5) provides that the power to enter residential premises under warrant may only be delegated to a Commonwealth officer. The requirement to act quickly or to comply with international obligations were not considered relevant arguments in the case of residential premises. It was therefore determined that standard Commonwealth policy in respect of delegations should apply to residential premises powers. 

Subclause 13(6) places a responsibility on the Executive Director to ensure powers are not delegated to someone who will not exercise them in a responsible manner consistent with the provisions of this Bill. The Executive Director must carefully consider the need to delegate.  Since the Executive Director is ultimately responsible for the application of this Bill, it is in his or her interest to maintain the integrity of the process of delegations by making a determination about the suitability of any particular person.

Subclause 13(7) provides for the Executive Director to prescribe the manner in which the delegate may exercise the delegated powers, and specify in detail particular requirements of a delegation as he or she sees necessary. This will be particularly important where it is considered by the Executive Director as necessary to delegate powers to persons other than staff members. For the purpose of this provision, ‘directions’ can be any direction in any form in addition to any direction or condition spelt out in the relevant instrument of delegation. Such directions may take the form of a verbal or written direction to an individual or to a group, for example, directions and policy contained within an ATSB policy and procedures manual.

Subclause 13(8) clarifies that where the Executive Director’s power under a particular provision of the Bill has been delegated, any reference to the Executive Director in that provision means the delegate as well as the Executive Director. 

Clause 14 Special investigators

This clause allows the Executive Director to appoint a special investigator to exercise powers under Clause 32, in addition to all other powers, which the Executive Director may delegate to any suitably qualified person. A special investigator could be a State/Territory official, a private expert or other private person provided he or she meets the criteria set out in the regulations regarding qualifications and experience required for such an appointment. In addition, a special investigator could be a person appointed to an investigation under this Bill in accordance with international obligations. The reasons for the need to appoint private citizens as delegates to exercise coercive powers are set out in the comments at Subclause 13(1) in this Memorandum.

Clause 15 Independence

This clause provides that neither the Minister nor the Secretary may direct the Executive Director in relation to the manner in which the Executive Director exercises his or her powers under this Bill except in respect of a direction by the Minister under paragraph 21(1)(b). The independence of the Executive Director is consistent with Australia’s international obligation to conduct independent investigations into transport safety occurrences. For example, Paragraph 5.4 of Annex 13 to the International Convention on Civil Aviation provides that ‘the accident investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct’. The Secretary or Minister cannot direct the Executive Director to not investigate a particular transport safety matter, nor can they direct which staff members are selected to conduct an investigation into a particular transport safety matter. In addition, neither the Secretary nor the Minister can influence the content of any information that is released by the Executive Director in the interests of transport safety. Note that the Executive Director remains accountable to the Minister and the Parliament. Also note that the Executive Director is answerable to the Secretary in matters related to such legislation as the Public Service Act 1999 and Financial Management and Accountability Act 1997.

Clause 16 Minimal disruption to transport services

This clause explains that the Executive Director is to be cognisant of the commercial implications caused by the disruption to transport services following a transport accident. In order to ensure, to the extent practicable, that the safety investigation process itself does not result in delays to transport services, the Executive Director will adopt procedures that enable him/her to carry out investigative functions and duties efficiently. This clause is primarily concerned with cases where, following an occurrence, the transport vehicle is not able to be moved under its own power and where the location of the accident site is such that the transport vehicle, its wreckage and the area secured by the Executive Director for the purpose of examination of the vehicle and its wreckage, may temporarily prevent other transport services from operating or may delay those services. For example, a derailment on an interstate rail line, the crash of an aircraft on the main runway at Sydney or the disabling of a ship in a main shipping channel. In practice, the safety investigation process is often carried out at the same time as ‘first response’ and recovery operations are in progress and where those activities in themselves preclude the operation of normal services for safety reasons. In some cases, where the accident site is large and complex, it must be acknowledged that the on-site investigation process will necessarily take longer. In the interests of transport safety, the Executive Director may be required to delay services on those rare but critical occasions. Refer also to Explanatory Memorandum comments at Clause 39 – Power to Stop and Detain a Vehicle.

Note that for the purposes of this clause, transport relates to transport by means of aircraft, ships and rail vehicles.

Clause 17 International obligations

This clause requires the Executive Director to exercise his or her powers in a manner consistent with Australia’s obligations under relevant international agreements that are identified by the regulations. It is intended that the applicable international agreements will include for aviation, Annex 13 to the Chicago Convention on International Civil Aviation and for marine, Article 94(7) of the UN Convention on the Law of the Sea, IMO Resolution  A.849(20), SOLAS & MARPOL. Note that there is no equivalent international agreement for rail. 

Part 3 – Compulsory reporting of accidents etc.

Clause 18 Immediate reports

This clause creates an obligation on a responsible person to report an immediately reportable matter as soon as possible and by means prescribed by the regulations. It is intended that the regulations will state the preferred means of reporting, eg. by telephone. The reason for such a requirement is that the need for the Executive Director to act as quickly as possible to preserve evidence and to determine the proximal and underlying factors that led to an accident or serious incident is often paramount for optimum safety outcomes. 

The regulations will prescribe immediately reportable matters and provide a list of responsible persons for each transport mode. Responsible persons for the purposes of reporting will include only those with an operational connection to the transport vehicle such as the crew, the owner and/or operator of the transport vehicle or persons performing vehicle control duties, for example, air traffic controllers or train controllers. The principles of this provision and the penalties applying to the failure to report transport safety matters are derived from the existing aviation legislation. ‘First response’ agencies such as the police are not to be included in the list of responsible persons required to report safety occurrences. However, in practice, such agencies may indeed be the first to provide notification of some transport accidents to the ATSB though there would be no attendant penalty if they did not do so. 

The penalty associated with the failure to report immediately reportable matters is intended to ensure that responsible persons who may wish to deliberately conceal the fact that an accident or serious incident has occurred, perhaps motivated by insurance implications or employer disciplinary sanctions, will be discouraged from doing so. Consequently, timely reporting will enable the Executive Director to act quickly for reasons previously outlined in this Clause.

Note that a report under Clause 18 must be followed by a written report under Clause 19. It is also recognised that there may be a number of responsible persons who are aware of a particular immediately reportable matter. The ATSB has no objections to multiple reports being received as a result of the obligation imposed on those responsible persons. The important issue is that the ATSB is made aware of the immediately reportable matter in a timely fashion so that appropriate action can be taken to commence an investigation. However, it is acknowledged that it would be impractical to expect each and every responsible person who is aware of an immediately reportable matter to report and to impose a large criminal penalty if they do not. Therefore, if the responsible person has reasonable grounds to believe that the immediately reportable matter has already been reported by another responsible person, then they are no longer under that obligation. It is recommended that if the responsible person is in doubt, then he or she should report the matter anyway.

Subclause 18(3) explains that matters that are required to be reported under provisions of the Navigation Act 1912 or the Protection of the Sea (Protection of Pollution from Ships) Act 1983 will satisfy the reporting requirements under this Bill where they are reportable matters under this Bill. The policy intent is to nominate Australian Maritime Safety Authority (AMSA) officers as nominated officials under the provisions of Clause 19. AMSA officers, in turn, will be expected to report such matters to the Executive Director.

Clause 19 Written reports within 72 hours

This clause requires a responsible person to provide a written report on a reportable matter (which may be an immediately reportable matter or a routine reportable matter) within 72 hours. The change from 48 hours (as referred to in current aviation legislation) to 72 hours was to ensure compatibility with similar reporting requirements under State/Territory legislation, in particular, requirements as they currently relate to rail safety occurrences. The regulations will prescribe routine reportable matters. Note that this requirement is in addition to the reporting requirement under Clause 18 in relation to immediately reportable matters. Note also that the same principles apply as referred to in the Explanatory Memorandum comments at Clause 18, regarding responsible persons being relieved of the obligation to provide a written report if they have reasonable grounds to believe that another responsible person has already done so. 

Subclause 19(3) Refer to Explanatory Memorandum comments at Subclause 18(3).

Clause 20 Nominated officials for receiving reports

This clause allows the Executive Director to provide a list, in the regulations, of officials who have the function of receiving reports under Clause 18 or Clause 19. In some cases, it is considered appropriate for organisations or persons other than the Executive Director to be the main conduit for such reports. For example, in the case of marine occurrences, it is unreasonable for foreign ship Masters to differentiate between the Australian Maritime Safety Authority (AMSA) and the Australian Transport Safety Bureau, and as AMSA (through AusSAR) is often the first point of contact, a report is made to AMSA.  It is expected that AMSA will, in turn, report to the ATSB, rather than the owners and operators involved in the reportable matter reporting directly to the ATSB.   

Part 4 – Investigations and reports

Division 1 - Investigations

Clause 21 Investigations

Subclause 21(1) and Subclause 21(2) provide that the Executive Director has discretionary power to investigate any investigable matter except with respect to a direction to investigate in respect of paragraph 21(1)(b). The Executive Director may also discontinue or scale down any particular investigation in cases where it is clear that there is little safety value in continuing the investigation and available resources are better directed elsewhere. Note that this Bill does not preclude the Executive Director from re-opening an investigation if the Executive Director becomes aware of significant new information.

Paragraph 21(1)(b) places a limit on the Executive Director’s discretionary power to investigate by requiring the Executive Director to investigate a transport safety matter upon a direction from the Minister. This paragraph must be read in conjunction with Clause 15 Independence. It must be noted that while the Minister can, upon written direction, require the Executive Director to commence an investigation into a particular transport safety matter, the Minister cannot place any restrictions on the manner in which the investigation is conducted.

Subclause 21(3) requires a statement to be released within 28 days of discontinuing an investigation, explaining the reasons why the Executive Director has elected not to continue to investigate a particular investigable matter.

Clause 22 Restriction on investigations of transport safety matters

This clause describes circumstances in which a transport safety matter may or may not be investigated under the Bill.  The restrictions provided under Clause 22 are imposed on policy grounds and are additional to the constitutional limits imposed under Clause 11. Note that a reference to ‘Australia’ in this clause should be interpreted in accordance with Section 15B of the Acts Interpretation Act 1901, which defines ‘Australia’ to include the coastal sea (including the territorial sea).

Subclause 22(1) provides that a transport safety matter is not investigable unless it has a link to Australia, for example, the occurrence occurs in Australia, involves an Australian transport vehicle outside Australia, there is evidence relating to the occurrence found within Australia, or where a foreign country requests the Executive Director to investigate.  

An example in relation to paragraph 22(1)(c) is where a foreign registered ship en route from New Zealand to Australia may be involved in an occurrence outside Australia. The Executive Director will have the power to investigate by virtue of the fact that the ship arrives and docks at an Australian port and there is now evidence in Australia (on board the ship) for the purposes of a safety investigation such as the crew, ship’s documents and ship components. 

A further example, though in aviation, is where a foreign registered aircraft is involved in a near collision within the Australian Flight Information Region while it is en route to Singapore. The Executive Director will have the power to investigate by virtue of the fact that evidence exists within Australia such as the Air Traffic Control tapes and records. If the crew that was involved in the occurrence later returned to Australia, the Executive Director would be able to exercise powers under the Bill in order to, for example, interview the crew. It must be noted that in such cases, aspects of the investigation conducted outside Australia in such situations may be subject to the laws of the relevant country.  

Paragraph 22(1)(d) relates to an occurrence or situation that normally falls outside the policy boundaries of this legislation such as the sinking of a foreign ship or crash of a foreign aircraft in international waters off the Australian coast. In such cases the Executive Director will have the power to investigate if the country that would normally be responsible for conducting such an investigation, requests the Executive Director to do so. This element of Clause 22 enables Australia to meet its international obligations in respect of marine and aviation safety investigations.

Subclause 22(2) excludes from the application of the Bill occurrences involving ONLY exempt transport vehicles (ie. Australian defence aircraft or ships, or aircraft and ships operated by the military, customs or police of a foreign country).However, the Executive Director may investigate a matter normally outside the application of the Bill at the request of the Australian Defence Force (see Subclause 22(3)). Note that the Executive Director may investigate an occurrence involving BOTH an exempt transport vehicle and a transport vehicle that is not an exempt transport vehicle and/or a civil transportation facility. In such cases,  the Executive Director has broad and coercive powers to obtain evidential material in relation to the exempt transport vehicle, including systems and facilities that support the safe operation of that vehicle.

Note that a civil transportation facility may include, but is not limited to, installations such as Air Traffic Control centres and facilities used to support the maintenance of transport vehicles or logistics of transport vehicle operations. This would include even those facilities that may, in some cases, also support the safe operation or maintenance of exempt transport vehicles. 

Subclause 22(3) clarifies that the Executive Director may investigate an occurrence involving defence vehicles at the request of the Australian Defence Force. It also places a requirement on the Executive Director to publish details of any request by the Australian Defence Force. Publishing details of the request provides a mechanism to advise those persons who may become subject to the powers and obligations under this Bill as a result of the request, who would not otherwise have become subject. For example, military personnel involved in the occurrence that the Executive Director has been asked to investigate. Note that the term ‘publish’ means to make public or generally known and is not confined to any particular means. In practice, the ATSB would liaise directly with relevant personnel in the Australian Defence Force and would, as a minimum, place details of the request on the ATSB website (or similar).

Clause 23 Transport safety matters

This clause defines transport safety matter for the purposes of the Bill. In order to keep the list of investigable transport safety matters generic, and avoid using mode-specific terminology, a broad ‘menu’ of general event or situational descriptions has been listed. This ‘menu’ must be considered in conjunction with Clause 11, which describes the constitutional boundaries of investigating under this Bill. Decisions about which particular transport safety matters will be investigated and to what level under this Bill, will be determined at a policy level, as consistent with Government policy. For example, when prioritising matters to be investigated, the Executive Director may have regard to the Government policy, which requires that the primary consideration be the safety of fare-paying passengers.  Note that this clause covers events where no damage to any property or injury to any person has in fact taken place but where something occurred that affected, is affecting or could affect transport safety. For example, the loading of contaminated fuel, the breakdown of rail or air traffic control services, incorrect loading of a transport vehicle having a significant effect on the vehicle’s mass and balance, incorrect transmission, receipt or interpretation of significant messages or a significant change to air or sea port operations resulting in vehicle operations for which the port was not designed. All of the previous examples may have the potential to adversely affect the safety of transport systems.  

Note also that an investigation maybe triggered by a series of occurrences that reveal an adverse safety trend for the particular transport mode or transport safety more generally. In addition, the occurrence does not need to involve any particular transport vehicle but may affect, or have the potential to affect, any number of transport vehicles.  

Clause 24 Offence to hinder etc. an investigation

Subclause 24(1) sets out the elements of the offence of hindering an investigation, namely a person must be reckless as to any possible adverse impacts of his or her conduct, and that the conduct must have the result of adversely affecting an investigation, and the conduct is not authorised by the Executive Director. Note that in accordance with guidance in the Criminal Code, where recklessness is a fault element of a physical element of an offence, proof of intention, knowledge or recklessness will satisfy the fault element.

This provision is intended to cover conduct such as withholding information, concealing evidence, tampering with evidence etc but no conduct will constitute an offence unless it actually has an adverse effect on an investigation. This clause not only relates to accident sites where it is very important that evidence is preserved, but also extends to include such things as the destruction/removal of evidence remote from the accident site such as minutes of meetings, training records, data recordings etc. Such information may provide crucial evidence pertinent to the investigation. Where an immediately reportable matter has occurred, the offence may apply before the matter is reported and before Executive Director decides to investigate. This is because a person would reasonably be expected to know that the Executive Director is likely to investigate in such cases. Therefore, this provision serves to discourage persons from tampering with evidence before the matter is reported to the Executive Director and an investigation can be commenced. Without such a provision, it would be possible for persons to tamper with evidence relating to a serious safety occurrence before reporting to the Executive Director in the knowledge that they cannot be prosecuted for doing so with the real potential for critical safety information to be lost or destroyed. In all other cases, ie. where the transport safety matter is not immediately reportable, the offence will apply only if the conduct took place at the time that the Executive Director was conducting an investigation. In such cases, where the transport safety matter is of a less serious nature, it would not reasonably be expected that a person would know that an investigation is likely to be conducted.

 Note that this offence is broader than Clause 149.1 of the Criminal Code (Obstructing Commonwealth Public Officials) as it covers conduct that is not directed at a particular official but rather hindering an investigation or future investigation more generally.

This offence is not generally intended to put restrictions on agencies with legitimate rights to investigate. Those agencies, in accordance with Clause 10 of this Bill, may investigate in parallel if necessary to an investigation being conducted by the Executive Director. Those agencies would not ordinarily be considered to be hindering an ATSB investigation and thus be subject to the attendant penalties unless the actions of officers from those agencies were clearly reckless and adversely affected an investigation under this Bill. In practice, the Executive Director will coordinate and cooperate with other agencies, consistent with the objects clause of this Bill, and would reasonably expect cooperation from those agencies. It is intended that working protocols between the Executive Director and other relevant agencies such as transport regulatory authorities, police, OH&S authorities and coroners will be dealt with in Memoranda of Understanding. These protocols may, for example, provide that the Executive Director will authorise certain conduct for purposes of paragraph 24(1)(d).  Note also that State or Territory governments cannot be prosecuted for an offence under the Bill.

This provision and others, ensures that the Executive Director has an unhampered ability to conduct a safety investigation and is consistent with the principles of international agreements.

Subclause 24(2) provides exceptions to the offence under Subclause 24(1) in addition to the standard defences under Part 2.3 of the Criminal Code such as a ‘sudden and extraordinary emergency’. These additional exceptions include conduct ensuring the safety of persons, animals, or property, the removal of deceased persons or animals, making safe vehicles and wreckage, and conduct to protect the environment from significant damage or pollution. This will allow, for instance, ‘first response’ agencies to ensure the safety of persons, animals and property;  coroners to remove bodies from the wreckage of a transport vehicle for the purposes of a coronial inquiry; and agencies such as the Australian Maritime Safety Authority to deal with the damaging effects of pollution without the need for authorisation by the Executive Director.

Subclause 24(3) makes it clear that the offence in Subclause 24(1) does not apply in cases where a person may have initially given consent to the Executive Director to enter premises in accordance with Clause 34 and subsequently withdrawn that consent or has chosen not to provide assistance to the Executive Director as a result of the withdrawal of consent. In such cases, the Executive Director would be required to consider the need to obtain a warrant except if the premises were special premises where entry is permitted without consent or warrant. (For further explanation on entry to premises, refer to Explanatory Memorandum comments at Clauses 33, 34 and 35).

Subclause 24(4) clarifies that, in the spirit of cooperation, the Bill is not intended to unnecessarily impede the statutory activities of other Commonwealth, State and Territory agencies. Therefore the Executive Director will not unreasonably withhold authorisation under paragraph 24(1)(d).

Subclause 24(5) clarifies that conduct may include an omission. For example, an Air Traffic Services officer not retrieving/isolating air traffic control information when it would be reasonably expected that the officer should have known that such an action was necessary in the circumstances.

Division 2 – Investigation reports

Clause 25 Reports on investigations

Subclause 25(1) provides for the publication of investigation reports by the Executive Director for the purposes of transport safety. Subclause 25(2) allows the Executive Director to release such things as preliminary reports, interim factual reports, safety recommendations etc either as an internal policy or in accordance with an international agreement, whether or not the investigation has been completed. The release of investigation reports is considered vital to ensure that the public and the transport industry are aware of the safety issues and to confirm that the investigation process has been open and independent. That process, in turn, allows an opportunity for the transport industry, including operators, manufacturers, regulators etc., to take appropriate safety action to reduce or eliminate the risk of similar safety occurrences in the future. 

Subclause 25(3) clarifies that a report may include submissions made to the Executive Director either in response to a draft report released under Clause 26 or to safety recommendations. For example, the Executive Director may wish to include, as part of the public record, comments made by directly involved parties to the investigation in relation to the accuracy of the factual information in a draft report in accordance with Subclause 26(1). Similarly, the Executive Director may also wish to include responses to safety recommendations that were issued to organisations or individuals. Those responses would normally indicate whether the organisation or individual accepted the safety recommendations and what action, if any, is to be taken to address the safety issues identified during the investigation. Advice received from organisations on safety action taken or proposed in response to the findings of an investigation of a transport safety matter may also be included in a published report in the form of a safety action statement.

Subclause 25(4) clarifies that, without consent, a person will not be referred to by name in a report. In order to meet the ‘no blame’ principle of the Bill and to comply with international obligations, long standing practice has been not to name any person in a report that has been directly or indirectly an object of the investigation. Notwithstanding, this clause may accommodate future policy changes with respect to naming other persons in an investigation report such as the investigator in charge, the author of the report, the current Executive Director or the Minister who may have directed that a particular transport safety matter be investigated under paragraph 21(1)(b). In such cases, the consent of those persons would be required.

Subclause 25(5) clarifies that a report may include any safety action statements and safety recommendations issued by the Executive Director either as part of the final report or those issued separately from the final report. 

Note that this Bill continues to refer to safety recommendations in conformity with ICAO Annex 13 terminology.  However, it is believed that safety action undertaken or in progress (in the form of safety action statements) should be reported in preference to making safety recommendations as this has the potential to result in better safety outcomes such as early implementation of safety measures and reflects well on organisations that take timely safety action. Where this is not possible, safety recommendations will normally be couched in broad terms in language that is sufficient to clearly address the desired safety outcome and not to provide prescriptive solutions. Safety solutions are usually best left to regulators and other organisations with the technical knowledge and ability to make appropriate risk-based, cost effective safety changes within their sphere of influence.

Clause 26 Draft reports

Subclause 26(1) permits the Executive Director to provide draft reports on a confidential basis to appropriate persons for the purpose of allowing those persons to make submissions. The primary purpose of this subclause is to improve the accuracy of the contents of the report by allowing directly involved parties to view and comment on the draft report. Directly involved parties are those individuals or organisations that may have influenced the circumstances that led to a transport safety occurrence.  It may include individuals and organisations remote in time and place to the occurrence but whose decisions and actions had an impact on the nature of the operating environment of the transport vehicle and, in turn, the decisions and actions of the operating crew. For example, the owner of the transport vehicle, the organisation that manufactured the transport vehicle, the transport safety regulator responsible for the rules under which the transport vehicle operates or the organisation that employs and trains the operating crew of the transport vehicle. This process is consistent with international agreements relating to aviation and marine investigation, to which Australia is a party. Depending on the circumstances of a particular occurrence, directly involved parties could include some or all of the following, for example, in aviation:

•	some or all of the surviving crew members of an aircraft;
•	the aircraft operator;
•	the aviation regulatory authority;
•	the manufacturer of the aircraft;
•	the air traffic control service provider;
•	the aircraft component manufacturer;
•	the aircraft maintainer;
•	the aerodrome/airport operator; and 
•	another person or organisation whose reputation may be affected following the public release of the report.  

Equivalent parties in other modes may be considered by the Executive Director to be directly involved parties for the purposes of this subclause.

This subclause also permits the Executive Director to provide advance notice of the broad form of the published report to directly involved parties. This may, in turn, allow those parties to prepare themselves for any possible repercussions, such as media attention, following the public release of the final report. 

Subclause 26(2) makes it an offence for a person who receives a draft report under Subclauses 26(1) or 26(4) to copy or disclose the contents to any other person or to a court. A draft report may be subject to change before its release to the public and is issued to directly involved parties for the reason described. It is vital that there is an obligation on those individuals who are issued with or have a copy of the draft report under paragraphs 26(1)(a) or (b) or 26(4)(a) or (b), to not further disclose that information or provide it to a court. This is to prevent the information, for example, from being taken out of context or misused and, as a result, prejudicing that particular investigation or future investigations, or unnecessarily and unjustly tarnishing reputations.

Subclause 26(3) provides that the offence under Subclause 26(2) does not require any proof of intention, knowledge, recklessness or negligence with respect to the fact that the draft report has been provided under Subclause 26(1) or (4). However, a person is not criminally responsible for the offence if at or before the time of the offending conduct the person considered whether or not the draft report had been provided under Subclause 26(1) or (4), and was under a mistaken but reasonable belief that the report was not provided to him or her under either one of those provisions (see section 9.2 of the Criminal Code regarding mistake of fact (strict liability)).  

Subclause 26(4) clarifies that Subclause 26(2) does not prevent copying or disclosure that is necessary for preparing submissions on the draft report or for taking remedial action in relation to identified safety deficiencies. In respect of making submissions to a draft report, it may be necessary for several persons within an organisation to view the draft report in order to assist with that process. The latter reason is an acknowledgment of the importance of taking timely remedial safety action, whether or not an investigation has been completed.

Subclause 26(5) clarifies that a court cannot compel a person to provide a draft report to the court. This subclause differs from previous references in Clause 26 about disclosure to courts as those references relate to voluntary disclosure.

Subclause 26(6) provides that no disciplinary action may be taken against an employee or a person on the basis of information in the draft report acquired under Subclause 26(1) or (4). As draft reports may be subject to change before the release of the final report, it may be premature to take disciplinary action against an employee when the contents of the final report suggest that disciplinary action may not have been warranted. 

Subclause 26(7) clarifies that, without consent, a person will not be referred to by name in a draft report. For further explanation, refer to Explanatory Memorandum comments at Subclause 25(4).

Clause 27 Reports not admissible in evidence

Subclause 27(1) makes investigation reports inadmissible in evidence in civil or criminal proceedings whether through inadvertent disclosure or in contravention of this part of the Bill. This subclause sends a clear message that such information is to be used for the purpose of safety only and should not to be used in the judicial system for the purpose of blame or liability, otherwise it could prejudice the free flow of safety information in future transport safety investigations.

Subclause 27(2) excepts coronial inquiries from the provisions in Subclause 27(1).  This acknowledges that coronial inquiries share a similar purpose to investigations conducted under this Bill.

Subclause 27(3) precludes admission of draft reports in civil (including coronial) and criminal proceedings. A draft report may be subject to change as a result of further investigation and the ‘interested party’ process. Therefore, it would not be in the best interest of the legal system or the individuals and organisations affected by the analysis and conclusions of the investigation, for the ATSB to provide such a report for use in any court proceedings, including coronial proceedings. The risk of incorrect conclusions being drawn from the information contained in a draft report could be significant and the repercussions unnecessary and damaging. Refer also to Explanatory Memorandum comment at Subclause 27(1). 

Part 5 – Investigation powers

Division 1 - Preliminary

Clause 28 Powers only exercisable in relation to an investigation

This clause clarifies that the powers provided in Part 5 are confined to an investigation under this Bill. In clarifying this matter, this clause acknowledges that the Bill provides for wide and coercive powers that may infringe upon the rights of individuals. Therefore, those powers must not be exercised except in relation to an investigation conducted for the ultimate purpose of enhancing transport safety.

Clause 29 Identity cards

Subclause 29(1) imposes an obligation on the Executive Director to ensure that identity cards are issued to persons exercising premises powers. Premises powers are defined in Clause 3. Such an obligation is considered reasonable and is consistent with requirements in other statutes, which also provide for premises powers. Persons affected by the powers in this subclause need to be assured that the person exercising those powers has a legal right to do so.

Subclause 29(2) makes it mandatory for an identity card to have a photograph and be in a form prescribed by regulations. A photograph will clearly indicate to the affected parties that the delegations to exercise those powers have been conferred on the person shown on the identity card and enable the affected parties to verify that the person carrying the identity card is bona fide.

Subclause 29(3) creates an offence if a person issued with an identity card does not return the card to the Executive Director when the person ceases to be entitled to a card. This subclause therefore acknowledges that the coercive powers conferred on the wearer of an identity card must not be misused. This would prevent, for example, a person continuing to exert the powers associated with the card to gain access to premises even though that person no longer has the delegation to exert those powers.

Subclause 29(4) means the offence under Subclause 29(3) requires no proof of ‘fault element’ such as intent or knowledge.

Subclause 29(5) qualifies Subclause 29(4) by making a person not guilty of the offence if the identity card was lost or stolen. Note that if a lost card was subsequently used by another person, that person may be guilty of an offence under the Criminal Code such as impersonation of a Commonwealth public official, and may be subject to legal action for engaging in certain conduct without proper legal authority (such as trespass).

Subclause 29(6) requires the holder of an identity card to carry it when exercising premises powers. For example, if four ATSB investigators wished to gain access to premises at the same time, each of the four investigators who are exercising the premises powers must have an identity card displayed, not simply the first investigator of the four to gain access to the premises. However, an identity card is not required by a person who is merely assisting an investigator to gain entry to premises, where such assistance is required and who is not otherwise exercising premises powers under this Bill.

Clause 30 Production of identity card

This clause removes the ability of the Executive Director to exercise investigation powers under Part 5 if an occupier requires the production of his identity card and the Executive Director (or delegate) fails to comply.

Clause 31 Powers conferred on magistrates

Subclause 31(1) clarifies that the powers conferred on a magistrate by Part 5, are personal powers and not powers of a court. Since the powers under Part 5 (ie. powers relating to search warrants) are administrative and not judicial powers, this provision is consistent with the notion of the separation of powers of the Judiciary and the Executive, and the general assumption that a non-judicial power is conferred on the magistrate only in his or her personal capacity.  

Subclause 31(2) extends court immunity to magistrates exercising powers under Part 5. For example, an action against a magistrate in the ACT in relation to his or her issue of a search warrant under Part 5 will not be successful unless the person who brought the action can prove the magistrate was acting with malice and without reasonable and probable cause (see Section 241 of the Magistrates Court Act 1930 (ACT)).   

Subclause 31(3) makes it clear that a magistrate of a particular State or Territory may issue search warrants in respect of premises in another State or Territory. For example, it may be more practical and expeditious to issue a warrant in the ACT (most investigators are based in Canberra) before an investigator departs to the location where the warrant is to be executed, say, the north-west of Western Australia. In such cases, it may be logistically difficult to obtain a warrant from a magistrate in Western Australia when it is considered necessary to act quickly to preserve/collect evidence.

Division 2 – Requirement to attend before the Executive Director

Clause 32 Executive Director may require persons to attend and answer questions etc.

Subclause 32(1) enables the Executive Director to require the attendance of a person for the purpose of an investigation and to require production of specified evidential material. This mechanism ensures that the Executive Director has the ability to obtain ALL the information he or she considers is relevant to a safety investigation, particularly in cases where the person does not wish to be cooperative. Note that this requirement may at times be time-critical due to the possibility that evidential material may be perishable or may become inaccessible. In addition, the need to require a person to provide information to the Executive Director may also be essential in the interests of safety as that person may be aware of critical safety information that has the potential to prevent similar events from occurring. There is no explicit provision for either legal counsel or any other person to accompany the person attending before the Executive Director. However, as a matter of policy, the Executive Director will allow a person to be accompanied by whomsoever they wish, though that person or persons will be asked to observe only and not to actively participate in the interview. Note that where the Executive Director considers that the person accompanying the person attending before him/her is engaging in conduct that is adversely affecting the investigation, that person may be subject to penalties in respect of Clause 24 – Offence to hinder etc. an investigation.

Also note that when a person is attending before the Executive Director or his or her delegate under this subclause, that person is required to answer questions put by any person the Executive Director allows (not just the Executive Director or delegates) relating to matters relevant to the investigation.

Subclause 32(2) clarifies that a coroner, acting in his capacity as a coroner, cannot be compelled by the Executive Director to answer questions or to provide evidential material. However, this subclause does not prevent the Executive Director requiring a coroner who, for example, may have been an eye witness to a transport accident, to answer questions etc. as a private citizen. In addition, this subclause does not prevent a person assisting the coroner such as police officer being required by the Executive Director to attend and answer questions etc.  

Subclause 32(3) provides that the Executive Director may only exercise his or her power under Subclause 32(1) by issuing a written notice. This subclause also outlines notice requirements when attendance of a person is required for an investigation or when specified evidential material is required. Note that the notice must be directed to an individual and not an organisation.

Subclause 32(4) provides that the Executive Director, when a person is required for an investigation, has the discretion to require answers on oath or by affirmation and that he or she may administer oaths or affirmations to a person. While this is not a common practice, there may be some occasions in relation to critical safety matters, when the Executive Director considers it necessary in order to satisfy himself or herself that the person has been truthful and forthcoming in the provision of information.

Subclause 32(5) makes it an offence to fail to attend or produce evidential material as required under Subclause 32(1), or to refuse to take oaths or make affirmations or answer questions. Note that this clause should be read in conjunction with Clause 47 which describes the relevant protection to a person from criminal and civil proceedings, in the event that they incriminate themselves whilst complying with Clause 32. Therefore, a person is not excused from attending and answering questions truthfully and providing evidential material on the grounds that the answer to those questions or the production of that evidentiary material may incriminate themselves or make themselves liable to a penalty. This acknowledges the importance of the primary need to identify the safety issues that may potentially save lives overriding the right of an individual to exercise their right to claim self-incrimination privilege or ‘penalty privilege’. 

Subclause 32(6) provides that the offence under Subclause (5) does not require any proof of intention, knowledge, recklessness or negligence with respect to the fact that the requirement to answer questions or provide evidential material has been given in accordance with clause 31. However, a person is not criminally responsible for the offence if at or before the time of the offending conduct the person considered whether or not the requirement was given in accordance with Clause 32, and is under a mistaken but reasonable belief that the requirement was not given in accordance with Clause 32 (see Section 9.2 of the Criminal Code regarding mistake of fact (strict liability)).

Subclause 32(7) provides an entitlement to payment of fees, allowances and expenses in accordance with the regulations, for persons who attend before the Executive Director under Subclause 32(1). In practice in most cases, the Executive Director travels to a mutually agreed location so that the person is subject to minimal inconvenience.

Division 3 – Powers in relation to premises

Clause 33 Power to enter special premises without consent or warrant

This clause enables the Executive Director to enter special premises without a warrant or consent and to use reasonable force where necessary. Special premises is defined under Clause 3 to include premises such as a transport vehicle or an accident site. In practice, this clause allows an investigator to gain access to accident sites in order to preserve and collect, as soon as possible, potentially vital evidence relevant to an investigation. As there is usually considerable evidence on an accident site that is perishable, it may be impracticable or impossible to get a warrant in time, and so it is imperative to gain access to the site in a timely fashion without having to obtain a warrant first. It may also be impractical to gain consent to enter an accident site as this may unduly delay the commencement of the evidence preservation and collection process. This power also extends to vehicles, which, by their transient nature, may also need to be quickly accessed in case they are removed to a less accessible location where relevant evidence may be removed or destroyed simply by virtue of the vehicle relocating. Vehicles include not only transport vehicles as defined for purposes of this Bill, but also other vehicles such as cars and trucks. The ability to gain access to vehicles without a warrant is consistent with similar provisions in other statutes.

Clause 34 Power to enter any premises with occupier’s consent

Subclause 34(1) enables the Executive Director to enter any premises with the consent of the occupier. This is consistent with long-standing ATSB practice in relation to entry to premises. However, where the occupier has provided consent to enter premises, then subsequently withdraws consent to cooperate further with the Executive Director, the Executive Director may have to consider the need to exercise his/her powers under the provisions of a warrant.  

Subclause 34(2) makes it mandatory to inform persons that they may refuse consent for entry to premises under Subclause 34(1), when the Executive Director is obtaining consent. If the occupier refuses consent, the Executive Director may consider the need to gain access to the premises under the provisions of a warrant (refer to Clauses 40, 41 and 42), except in relation to special premises, where the Executive Director may enter without consent or warrant.

Subclause 34(3) requires consent to be voluntary. A person must be completely willing and not goaded/forced into consenting.

Clause 35 Power to enter any premises with warrant

Subclause 35(1) empowers the Executive Director to enter any premises under an investigation warrant. This is standard protocol, which is consistent with Commonwealth legal policy. This provision will apply, where necessary, to premises other than special premises. 

Subclause 35(2) outlines formal requirements that the Executive Director must comply with before entering premises under an investigation warrant. These require announcement of authority and giving an opportunity to any person at the premises to allow entry.

Subclause 35(3) excuses the Executive Director from the requirements of Subclause 35(2) if he or she believes it is necessary to ensure the safety of a person or effective execution of the warrant. For example, if the investigator observes that someone’s life is in danger inside the premises, they may consider it necessary to enter the premises quickly to render or seek assistance. This provision is consistent with warrant provisions in other statutes. It may also be the case, for example, that the occupier is trying to stop or delay the Executive Director from entering the premises in order to prevent evidential material from being collected or to allow time to hide or destroy evidential material. In such cases, it may be considered sufficiently important to prevent such actions by entering the premises quickly without complying with Subclause 35(2).

Subclause 35(4) imposes a requirement on the Executive Director to provide to the occupier a copy of the warrant or a copy of the form of a warrant (eg. a proforma warrant may be all the Executive Director could give to the occupier if the warrant was obtained by telephone under Clause 41 and therefore a copy of the signed warrant is not yet available at the time of entry). This assures the occupier that the warrant is legitimate and explains clearly the terms of the warrant. The occupier may also be able to determine whether the Executive Director goes beyond the prescribed conditions of the warrant. 

Subclause 35(5) allows the Executive Director to use whatever force and assistance is necessary and reasonable in the circumstances to execute the warrant. This provision is consistent with Commonwealth legal policy with respect to warrants.

Clause 36 Powers after entering premises

Subclause 36(1) outlines what the Executive Director may do after entering premises.  This includes searching for, conducting tests on, operating, retaining samples of, securing and copying evidential material. This subclause also outlines what an investigator can do to access or acquire evidential material. For example,  it may be necessary to operate equipment, other than electronic equipment, to obtain relevant evidential material. Note that if experts are required to operate equipment or obtain evidential material, the Executive Director may need to issue appropriate delegations in order for this to be achieved. 

Paragraph 36(1)(g) allows the Executive Director to remove evidential material from premises with the consent of the owner where practicable or, where it is not practicable to obtain the consent of the owner, the occupier. This provision is consistent with other Commonwealth statutes that provide for the removal of evidential material with consent. There may be many situations when it will not be easy to identify who is the legal owner of the material.  For example a person may have been killed in a transport vehicle accident or has otherwise passed away.  Alternatively there may be a dispute over the ownership of the thing, for example, aircraft parts and components are often leased to multiple parties and under insurance arrangements the title to the wreckage and parts of a crashed aircraft may pass to insurers.  Similarly when an airline is subject to insolvency proceedings, there may be a dispute between a creditor and a person administering the insolvent firm. In such cases, it would not be considered practicable to obtain the consent of the owner and it would therefore be sufficient to obtain the consent of the occupier.

Subclause 36(2) makes it clear that before evidential material may be removed from premises with the consent of the owner or occupier in accordance with paragraph 36(1)(g), the Executive Director must inform the person of the purpose for which the material is required and that they may refuse consent. Note that consent must be voluntary. This is consistent with long-standing ATSB practice and reflects similar requirements in other Commonwealth legislative regimes. 

In cases where the occupier refuses consent, the Executive Director must consider the need to seize the evidential material under the terms of a warrant except if those premises are special premises where material may be seized without consent or warrant. Alternatively, the Executive Director may consider using his or her powers to require that specified evidential material be produced to the Executive Director in accordance with Clause 32.

Subclause 36(3) provides additional powers if the premises are special premises.  These include the power for the Executive Director to require a person on the premises to answer questions and produce evidential material and the power for the Executive Director to seize evidential material, without the need for an investigation warrant. The power of seizure will allow evidential material to be removed from the premises for further examination. Special premises include accident site premises and vehicles in accordance with Clause 3 – Definitions. 

In practice, this subclause applies particularly to accident sites, where it may be necessary to obtain information from witnesses while it is still fresh in their memories and not ‘tainted’, for example, as a result of talking to other witnesses or simply ‘faded’ as a factor of time passing between the event and being interviewed by the Executive Director. Evidential material, particularly on accident sites, could include wreckage, documents etc., all of which may be perishable, that is, it could be damaged or changed in some way due to the nature of the site and the passage of time. Such evidential material must be collected/recorded quickly for further examination off-site. This subclause also acknowledges the transient nature of vehicles and therefore the possible need to seize evidential material before it becomes inaccessible or perished by virtue of the relocation of the vehicle to another place.

Note that consistent with Commonwealth legal policy, the power to seize things without a warrant under Subclause 36(3) is more limited than the power of seizure under warrant under Subclause 36(4). The Executive Director may only seize evidential material under paragraph 36(3)(b) where the material is directly relevant to the investigation and where seizure is necessary to prevent interference with or the concealment, loss, deterioration or destruction of the material.   

Subclause 36(4) provides additional powers if entry to the premises is made under an investigation warrant, for the Executive Director to require a person on the premises to answer questions and produce evidential material and for the Executive Director to seize any evidential material in accordance with the warrant.

Subclause 36(5) makes it an offence for refusing or failing to comply with Subclauses 36(3) or 36(4). Such coercive powers are seen as necessary in the interests of transport safety. Note that the provision of false or misleading information in the course of complying (or purporting to comply) with a requirement under Subclause 36(3) or 36(4) is a criminal offence under Clause 137.1 of the Criminal Code.

Subclause 36(6) provides that the offence under Subclause 36(5) does not require any proof of intention, knowledge, recklessness or negligence with respect to the fact that the requirement to answer questions or provide evidential material etc. has been given under Subsection 36(3) or 36(4). However, a person is not criminally responsible for the offence if at or before the time of the offending conduct the person considered whether or not the requirement was given under Subsection 36(3) or 36(4), and is under a mistaken but reasonable belief that the requirement was not given under either of those provisions (see Section 9.2 of the Criminal Code regarding mistake of fact (strict liability)).

Clause 37 Occupier to provide Executive Director with facilities and assistance

This clause imposes a requirement on occupiers of premises that are the subject of an investigation warrant, to render reasonable facilities and assistance to the Executive Director exercising his powers. This subclause is consistent with similar provisions in other statutes.

Clause 38 Occupier entitled to be present during search

Subclause 38(1) clarifies the extent of an occupier's entitlement to be present during a search if an investigation warrant is being executed in relation to the premises. The provision entitles the occupier to be present at the premises and to observe the search.

Subclause 38(2) removes rights to observe a search if the occupier impedes the search.

Subclause 38(3) clarifies that a right to observe does not preclude a simultaneous search of two or more areas of the premises. This subclause is consistent with similar provisions in other statutes.

Clause 39 Power to stop and detain transport vehicles

This clause allows the Executive Director to stop and detain a transport vehicle for the purposes of an investigation (Clause 28). However, the transport vehicle must not be detained for longer than is necessary and reasonable (Subclause 39(3)). The use of such a power must be consistent with the main object of the Bill (Subclause 7(1)). In addition, the power under Clause 39 can only be exercised if the Executive Director considers it is necessary to prevent the evidential material on the transport vehicle from being removed from Australia or being interfered with or to prevent its concealment, loss, deterioration or destruction. This provision is primarily intended to capture circumstances where, following the occurrence of an investigable transport safety matter, a transport vehicle is capable of normal or near-normal operation including, for example, continuing its journey either to other parts of Australia or, in particular, overseas. In such cases, the Executive Director may need to stop and/or detain the vehicle in order to collect evidential material. Note that in order to exercise those powers, the Executive Director may obtain such assistance and force as is necessary and reasonable under the circumstances.

Current practice suggests that this provision would rarely be required as, in most cases, investigation activities that meet the requirements of the Executive Director are able to be completed at a time and place mutually agreed to by the Executive Director and the operator of the transport vehicle, with little or no disruption to transport services. Refer also to Explanatory Memorandum comments at Clause 16.

Division 4 – Investigation warrants

Clause 40 Issue of investigation warrants

Subclause 40(1) provides that the Executive Director may apply to a magistrate for an investigation warrant.

Subclause 40(2) clarifies that, before issuing a warrant, a magistrate must satisfy himself or herself that there is evidential material on the premises or there may be within 72 hours.

Subclause 40(3) clarifies that a magistrate may require further information concerning the grounds for issuing a warrant and that unless such information is provided by the Executive Director or some other person, the warrant must not be issued.

Subclause 40(4) specifies that the content of a warrant must authorise entry to the premises, authorise the exercise of powers set out in Clause 36 and authorise seizure of evidential material to which the warrant relates. Paragraph 40(4)(b) requires the time of entry to be specified. Paragraph 40(4)(c) requires the warrant to specify the day on which the warrant ceases to have effect and paragraph 40(4)(d) requires the purpose of the warrant to be stated.  

Clause 41 Investigation warrants by telephone, fax etc.

Subclause 41(1) provides for the application for a warrant under Clause 40 to be made by telephone and electronic means if urgent. This may be necessary in cases where the Executive Director considers it necessary to obtain a warrant quickly and when it may not be practical to do so in accordance with Clause 40. For example, it may be necessary for a marine investigator to board and search a ship on a weekend before the ship departs for an overseas port. In such cases, the only practical means of obtaining a warrant quickly may be in accordance with this subclause.

Subclause 41(2) provides that a magistrate may require communication by voice to the extent practicable in the circumstances. This is to allow the magistrate to satisfy himself or herself that there is evidential material on the premises or there may be within 72 hours and to clarify any of the conditions of the warrant being requested by the Executive Director.

Subclause 41(3) requires the Executive Director to prepare details of the kind specified in Subclause 40(2) setting out the reasons for and conditions of the warrant.

Subclause 41(4) clarifies that the Executive Director may, for example in urgent situations, submit an application for a warrant first, and then proceed to swear to declare the truthfulness of the information provided to the magistrate after the event.  Note, however, that the Executive Director must provide duly sworn information to the magistrate no later than the day after the day of expiry or execution of the warrant in accordance with Subclause 41(7). 

Subclause 41(5) provides for a magistrate to issue a warrant on consideration of the information and any further information required if he or she is satisfied there are reasonable grounds to issue the warrant.

Paragraph 41(6)(a) makes it obligatory for a magistrate, upon signing a warrant, to tell the Executive Director the terms, date and time, duration and record the reasons.  

Paragraph 41(6)(b) makes it obligatory for the Executive Director to complete a form of warrant as instructed by the magistrate, and record details of the magistrate and date.

Subclause 41(7) makes it obligatory for the Executive Director to return the form of warrant and duly sworn information to the magistrate not later than the day after the day of expiry or execution of the warrant whichever is the earlier.

Subclause 41(8) makes it obligatory for the magistrate to attach documents provided under Subclause 41(7) to the signed warrant and deal with them in the same way as an application under Clause 40.

Subclause 41(9) clarifies that a form of warrant completed under paragraph 41(6)(b) has the same authority as a warrant signed by the magistrate.

Subclause 41(10) provides that if a warrant signed by a magistrate authorising the exercise of power is not produced in evidence in court proceedings the court must assume, unless the contrary is proved, that the exercise of the power was not authorised by the warrant. That is, if the original document representing the warrant signed by the magistrate (and not simply the ‘form of warrant’ produced by the Executive Director) is not provided to the court, then the warrant used by the Executive Director at the time, is not considered to be legally authorised.

Clause 42 False statements etc. in application for warrant etc.

Subclause 42(1) makes it an offence for the Executive Director to make false or misleading statements, or statements omitting significant information, in an application for an investigation warrant.

Subclause 42(2) and Subclause 42(3) provide that the prohibition under subclause 42(1) does not apply where the Executive Director’s statement is not false or misleading in relation to a material aspect, or where the statement did not omit anything significant.

Subclause 42(4) makes it an offence for the Executive Director to misuse warrant provisions under Clause 41, for example, by presenting a document that purports to be a warrant issued under Clause 41 where it is not, or contains terms different from the terms of the warrant issued.  

Subclause 42(5) provides that the offence under paragraph 42(4)(a) or (c) does not require any proof of intention, knowledge, recklessness or negligence with respect to the fact that the document purports to be a form of warrant under Clause 41. However, the Executive Director is not criminally responsible for the offence if at or before the time of the offending conduct he or she considered whether or not the document purported to be a warrant under Clause 41, and is under a mistaken but reasonable belief that it did not (see Section 9.2 of the Criminal Code regarding mistake of fact (strict liability)).

Subclause 42(6) provides that the offence under paragraph 42(4)(b) or (d) does not require any proof of intention, knowledge, recklessness or negligence with respect to the fact that the form of warrant is under Clause 41. However, the Executive Director is not criminally responsible for the offence if at or before the time of the offending conduct he or she considered whether or not the warrant was under Clause 41, and is under a mistaken but reasonable belief that it was not (see Section 9.2 of the Criminal Code regarding mistake of fact (strict liability)).

Division 5 – Protection orders

Clause 43 Protection orders by Executive Director

This clause allows the Executive Director to issue an order to prevent evidence from being removed or interfered with. Contravention of such an order constitutes an offence.  This offence differs from the offence under Clause 24 in that there is no need to prove actual adverse impact on any investigation where the Executive Director has issued a protection order under Subclause 43(1). This clause is intended to cover situations, in particular other than at accident sites, where it might have been usual, despite being related to a serious safety occurrence (immediately reportable matter), to remove or interfere with specified things, or a specified class of things. For example, there may have been an immediately reportable matter in which the crew of an aircraft was temporarily incapacitated due to suspected fumes in the aircraft possibly emanating from the passengers’ cabin baggage lockers. Following a normal landing after the event, it may have been usual practice to allow the passengers to remove their cabin baggage. However, the Executive Director may consider it necessary to examine the passenger cabin baggage in-situ before it is released to the passengers. In such a case, the Executive Director would issue a protection order for the baggage not to be interfered with until he or she has properly examined it. A further example to illustrate this clause in practice is that the cargo load may have shifted while a ship was en route between ports, resulting in a loss of ship stability. Although it might be accepted practice to allow removal of cargo once the ship arrives in port, the Executive Director may consider it necessary to issue an order for the cargo to remain in-situ until it is properly examined. In practice, these are not decisions taken lightly and protection orders would only be issued if the Executive Director considers it necessary in the interests of transport safety. 

Subclause 43(4) provides exceptions to the offence created under Subclause 43(1). These are the same exceptions to the offence created under Subclause 24(1). For further explanation, refer also to Explanatory Memorandum comments at Subclause 24(2).

Subclause 43(5) states that, in the spirit of cooperation, the Bill is not intended to unnecessarily impede the statutory activities of other Commonwealth, State and Territory agencies. Therefore the Executive Director will not unreasonably withhold permission under Subclause 43(1)

Division 6 – Securing accident sites

Clause 44 Securing accident sites

This clause enables the Executive Director, by securing the perimeter of an accident site, to prevent any person from entering or remaining on the accident site without the permission of the Executive Director. The power described in this clause serves a number of purposes. For example, it enables better control over the preservation of evidence and allows the Executive Director to exercise his or her duty-of -care responsibilities with regard to occupational health and safety issues. This provision is not intended to restrict access by other agencies with legitimate grounds to investigate, though such access may necessarily need to be under the supervision of the Executive Director for the reasons previously outlined. 

Note that the site may have been previously secured by another authority, for example, police or the local firefighting authority. It is expected that the Executive Director would not formally control access to the accident site until he or she arrives on site and the relevant authority declares that the site is safe to access. Prior to arrival, the Executive Director may liaise with local authorities and provide advice regarding site access, evidence preservation and safety issues. 

Whilst this provision gives power to the Executive Director to control access to the site once rescue and other ‘first response’ activities have been completed, the legislation  leaves room for the Executive Director to cooperate with other agencies and is less coercive in this respect than some provisions of law enforcement agencies. Investigators of the ATSB have enjoyed a good working relationship with first response and law enforcement agencies over the years. This legislation does not seek to jeopardise that relationship but does reiterate that, for the continued free flow of safety information and, in turn, the safety of the travelling public, law enforcement and safety investigation processes must remain separate to the extent possible. In essence, the intention is for both authorities to work cooperatively to achieve respective objectives.

Subclause 44(3) – Provides exceptions to the offence created under Subclause 44 (1). These are the same exceptions to the offences created under Subclauses 24(1) and 43(1). For further explanation refer also to Explanatory Memorandum comments at Subclause 24(2).

Subclause 44 (4) states that, in the spirit of cooperation, the Bill is not intended to unnecessarily impede the statutory activities of other Commonwealth, State and Territory agencies. Therefore the Executive Director will not unreasonably withhold permission under paragraph 44(2)(b).

Division 7 – Miscellaneous

Clause 45 Retention, testing etc. of evidential material

This clause sets out the administrative requirements for evidential material, and those things that may be done to material seized for the purposes of an investigation. 

Subclause 45(2) requires that the Executive Director must provide a receipt for the evidential material acquired under various provisions in Part 5 of this Bill. This requirement forms part of the protocol for the continuity of evidence. The receipt provides proof of who has possession of the evidence and in what condition it was in at the time it was produced, removed with consent or seized.

Subclause 45(3) provides that the Executive Director may make copies of evidential material acquired under Clause 32 or Part 5. It is normal protocol for the Executive Director to make copies of documents etc. and not to retain original material any longer than is necessary. Note that the Executive Director, being a non-judicial authority, is not bound by formal rules of evidence when conducting an investigation under this Bill. Therefore, uncertified copies of evidential material are sufficient for the purpose of a transport safety investigation under this Bill. 

Subclause 45(4) provides that the Executive Director may examine or test evidential material even if the examination or test results in damage or destruction of that material. Destructive testing is not normally carried out on evidential material that is considered to be capable of being returned to its owner for return to normal service or repair, for example, a propeller blade or the bogie of a rail vehicle. However, the Executive Director may consider it necessary on some occasions to carry out destructive testing when there is no other suitable alternative and the testing is in the interests of transport safety. In such cases, the Executive Director would consider, on a case by case basis, permitting parties with a legitimate interest to observe the testing process. 

Subclause 45(5) requires that the Executive Director must return evidential material when it is no longer required for the purposes of a transport safety investigation and is consistent with ATSB policy. It is also recognised that other agencies may have a legitimate right to the same evidential material and the Executive Director would not wish to unnecessarily frustrate the progress of other investigations. By returning the material to its owner, other agencies may then exercise their rights to access such material and obtain the material from the owner. In addition, the owner of the evidential material may be temporarily disadvantaged as a result of evidential material being held by the Executive Director for the purposes of an investigation. For example, an aircraft or ship may be delayed from returning to normal service until such time as the evidential material is returned. In such cases, the Executive Director would only hold that material for such time as was considered necessary for the purpose of the investigation.

Subclause 45(6) and Subclause 45(7) provides a mechanism for the Executive Director to provide evidential material that is not OBR or restricted information directly to other Commonwealth and State authorities or to a coroner. Making available such material is provisional on a request in writing from the relevant authority or coroner, and the Executive Director being satisfied that making the material available will not interfere with an investigation to which the material relates. This clause is intended to cover such items as transport vehicle wreckage, components, baggage, goods and documents or other evidence acquired at accident sites or obtained under other provisions of the Bill except when that information is OBR or restricted information. Note that restricted information includes information acquired under compulsion in accordance with the provisions of Clause 32 and paragraphs 36(3)(a) and 36(4)(a) and is therefore subject to the protection under Subclause 47(2). 

Note also that the provision of OBR or restricted information to other authorities or to the coroner, would be subject to Part 6 – Protection of OBR information and restricted information. 

Subclause 45(8) explains that the owner includes an agent of the owner and therefore allows evidential material to be returned to an agent where appropriate. For example, it is not unusual in marine for most of the dealings in relation to an investigation to be conducted through a shipping agent acting on behalf of the owner. It would also be impractical in some cases to return material directly to the owner so an arrangement with an agreed agent may need to be made. In many cases, following an accident where the vehicle suffers extensive damage, the owner is deemed to be the insurer. 

This subclause also provides a list of those persons or authorities that may be given evidential material under Subclause 45(6). 

Clause 46 Compensation for damage to electronic equipment

This clause provides detail on the circumstances in which compensation for damage to electronic equipment must be made when such equipment has been operated by the Executive Director in accordance with premises powers (Clause 36). This is a common provision in other legislation permitting operation of electronic equipment on premises.

Clause 47 Self-incrimination not an excuse

Subclauses 47(1) and 47(2) clarify that whenever a person is obliged to answer questions and produce evidential material under provisions of this Bill (such as Clause 32, paragraph 36(3)(a) or 36(4)(a)) that person cannot be excused from answering those questions or providing that material on the grounds that it might incriminate them or make them liable for a penalty. These subclauses also acknowledge that such coercive powers must be accompanied by appropriate protections. Therefore, information obtained directly or indirectly as a result of answers to questions or evidential material produced under Clause 32, paragraph 36(3)(a) or 36 (4)(a), cannot be admitted as evidence in criminal or civil proceedings against the person who provided the information or material. Note that where the material provided is OBR information, it is also inadmissible according to Clause 55 in relation to criminal proceedings against crew members. Note also that the use-derivative-use provisions of this clause are consistent with Commonwealth legal policy. Advice received from the Attorney General’s Department indicated that the removal of the derivative-use provisions would not be supported unless significant empirical evidence was provided as to how this provision had adversely affected the operation of other statutes. Notwithstanding, this clause does not prevent other agencies from separately collecting the same information that may then be admitted as evidence. 

Subclause 47(3) means that notwithstanding Subclause 47(2), information given in answer to the Executive Director’s questions may be used in evidence in criminal proceedings concerning the falsity of the information.

Subclause 47(4) clarifies that the immunity provided under Subclause 47(2) overrides any other clauses in this Bill dealing with the admissibility of evidence in criminal or civil proceedings. For example, OBR information cannot be admitted in evidence against the person who provided the OBR to the Executive Director, even where all the conditions set out under Subclause 56(3) are met.

Part 6 – Protection of OBR information and restricted information

Division 1 – OBR information

Clause 48 Definition of OBR or on-board recording

Subclause 48(1) defines the meaning of on-board recording or OBR. To fall within the definition of an OBR, a recording must meet the descriptions provided under paragraphs 48(1)(a), (b), and (c), and also at least one of the descriptions under paragraph 48(1)(d). This is to ensure that there is a proper constitutional basis for the provisions throughout the Bill relating to OBRs. (Refer also to Clause 11) 

Note that the principles contained in this Division relating to the disclosure and use of OBR information are derived from existing legislation and reflect standards and recommended practices of international agreements.

Control area is a generic name being used for the purposes of this Bill. Refer to Explanatory Memorandum comments at Clause 3 for examples of control areas in different transport modes. 

An OBR may be in the form of a Cockpit Voice Recording (CVR as referred to in aviation). It is also the only form of control area recording that is currently required by any law in Australia (Commonwealth or State/Territory) and is to be carried in certain classes of aircraft. However, this legislation acknowledges that such technology is carried in other forms of transport and is likely to become mandatory in the future. For example, there is already an international program for the introduction of laws that will require OBRs on certain classes of ships. Therefore, such recordings will need to be provided with the same protections as any other similar recordings required by law. 

Historically, CVRs were required by law ONLY for the purposes of transport safety investigation in recognition of the fact that they had the potential to provide vital information about the circumstances and contributing factors of accidents. In particular, CVRs were originally intended only to be used to assist in the investigation of occurrences where the flight crew were fatally injured as a result of an accident and were therefore unable themselves to provide critical safety information about the events immediately preceding the accident. CVR information is now used more broadly in many non-fatal accidents and serious incidents as the information has also proven to be vital in those cases. 

It is acknowledged that such recordings constitute an invasion of privacy for the operating crew of an aircraft that most other employees in workplaces are not subject to. Such recordings, therefore, must be treated with the utmost confidentiality and continue to be used for safety investigation purposes only. To ensure the ongoing availability of information from CVRs, it was considered necessary to protect the rights of individuals, in particular the operating crew of an aircraft. Inappropriate use of CVR information in the judicial system, for example, may adversely affect transport safety, both domestically and internationally, as it is unlikely that the availability and free flow of safety information will be guaranteed/continued in the future. Inappropriate use by an operator such as for disciplinary action may also result in an adverse outcome for transport safety. For example, the operating crew of an aircraft has the ability to deny access to CVR information simply by ‘pulling’ a circuit breaker, thus rendering a CVR inoperative. 

In a recent case in New Zealand (NZ), the desire of NZ police to prosecute a DASH-8 crew for an operational error that led to an aircraft crash resulted in strong ICAO/international criticism.  In this case, the police charged the crew with manslaughter and seized the cockpit voice recorder as evidence.  These actions subsequently led to NZ and foreign aircrews ‘pulling’ circuit breakers on CVR devices when within NZ airspace and in doing so, rendered the CVR inoperative. This effectively denied access by investigators to vital information for future safety investigations. Aircrews were also less inclined to be cooperative and forthcoming to safety investigators in relation to their role in air safety occurrences. At the time of the events described above, NZ legislation did not provide protection regarding the disclosure and use of CVRs. Those tensions have since eased with a change to NZ law that now provides similar disclosure and use provisions for CVRs as those provided in Australian legislation.

The need to provide adequate protection to CVR information was recently reaffirmed by the International Civil Aviation Organisation (ICAO) in its Working Paper A33-WP/46 of 29 June 2001, in which it expressed a concern about inappropriate use of accident and incident records in some Contracting States. ICAO considered that accident and incident records such as CVR recordings should be protected from utilisation in disciplinary, civil, administrative and criminal proceedings, and from disclosure to the news media and the public.  Therefore, it proposed a resolution urging Contracting States ‘to examine, and if necessary, adjust their laws, regulations and policies to protect certain accident and incident records in order to mitigate impediments to accident and incident investigations’.

Note that a recording becomes an OBR within the meaning of the Bill only upon the occurrence of an immediately reportable matter as prescribed by the regulations.  However, once an immediately reportable matter has occurred, the entire recording becomes an OBR, including parts of the recording made prior to the time of the occurrence, unless and until such time as the Executive Director declares that the recording ceases to be an OBR (see Clause 49). Since a recording is protected under Clauses 53, 54, 55, 56 and 59 as long as the recording remains an OBR for the purposes of the Bill.  The effect of the definition under this subclause is that any person is prevented from interfering with or disclosing OBR information which relates to an immediately reportable matter even before it may have been reported under Clause 18 and before there is any decision to investigate. This ensures that, until otherwise indicated, this information is protected and not used in any way contrary to the provisions of this Bill. 

Subclause 48(2) is a broader version of the definition of OBR, and will capture a wider range of recordings than the definition under Subclause 48(1). It is intended that in most circumstances, the broader definition under Subclause 48(2) will be adopted.  However, where there is doubt as to whether sufficient link to the Commonwealth’s Constitutional power may be established with respect to a particular recording, the narrower definition under Subclause 48(1) will be used in determining whether that recording is an OBR. 

Subclause 48(3) allows the Executive Director to declare that a particular kind or class of recording that might otherwise be interpreted under Subclause 48(1) to be an OBR, is not an OBR for the purposes of this Bill. For example, it may be argued that a recording made at an Air Traffic Control facility that includes some of the sounds within the cockpit of an aircraft could be construed as an OBR. To avoid doubt, such recordings will be declared in the regulations not to be an OBR. As recording technology is rapidly changing, it was considered appropriate to prescribe any necessary exceptions within the regulations to avoid either:

•	inadvertently constraining the ability of the Executive Director to provide discrete protections for an OBR, which is a kind of recording with a unique purpose; or
•	inadvertently broadening those discrete protections to include a kind of recording that was not intended to be the subject of such protections.

It must be noted that while a recording made at an Air Traffic Control Centre, and equivalents in other transport modes, may not be an OBR for the purposes of this Bill, they would nevertheless be classed as restricted information and be subject to the considerable restrictions on disclosure under Part 6 Division 2 – Restricted Information.

The declaration under this Subclause 48(3) and the regulations is different from the declaration under Clause 49. Declaration under the regulations would cover an entire class of recordings of a specified nature, and once declared, any recording within the specified class would be outside the scope of the OBR provisions. A declaration under Clause 49 only relates to discrete recordings relating to a specific occurrence. See Explanatory Memorandum notes at Clause 49 for further explanation.
 
Subclause 48(4) defines constitutional journey consistent with the Commonwealth’s constitutional limits regarding transport safety investigation.

Clause 49 OBR ceasing to be an OBR under Executive Director’s declaration

This clause enables the Executive Director to declare that an OBR ceases to be an OBR. Subclause 49(1) provides for a discretionary power to do so while Subclauses 49(2) and (3) place obligations on the Executive Director to make a declaration under specified circumstances.  Note that upon such declaration, all protection for the OBR and any related OBR information in respect of the recording ceases. However, the recording may still be protected as restricted information under Division 2, Part 6. 

Subclause 49(2) places an obligation on the Executive Director where he or she elects not to investigate an immediately reportable matter to declare by published notice that any related OBR is not an OBR for the purposes of the Bill. When an OBR ceases to be an OBR under this subclause, any related OBR information also ceases to be OBR information (see Subclause 49(5)).  By declaring that the OBR has ceased to be an OBR, other agencies with statutory rights to investigate may do so without impediment, for example, State rail, marine or OH&S  agencies and other Commonwealth agencies

Subclause 49(3) places an obligation on the Executive Director to declare by published notice that parts of an OBR not relevant to a transport safety matter that is being investigation under the Bill, are not to be treated as an OBR on and after the date specified. This allows those parts of the OBR to be used for other purposes such as training or for other investigations being conducted by State, Territory and Commonwealth agencies. Subclause 49(5) also applies with respect to this subclause.

Subclause 49(4) states that once the Executive Director has declared that an OBR ceases to be an OBR, he or she cannot change/reverse that decision. 

Clause 50 Executive Director’s certificate about disclosure of OBR information

This clause enables the Executive Director to certify that the disclosure of specified OBR information is not likely to prejudice or interfere with any investigation. Such certification is one of the requirements to be met for OBR information to be disclosed under paragraph 53(3)(d) and to be admitted in evidence in civil proceedings under Clause 56. Note that this certificate may also be used to allow disclosure by a person who is not the Executive Director for coronial inquiries under paragraph 53(3)(d) (eg. if police have obtained the OBR information under paragraph 53(3)(b), it would be possible for the coroner to obtain OBR information from the police under paragraph 53(3)(d) rather than directly from the Executive Director under Clause 59).

Clause 51 Release of OBR information in the interests of transport safety

This clause permits the Executive Director to publicly release OBR information for the purposes of transport safety, notwithstanding anything in the Bill to prevent disclosure of such information. In practice, this is not a decision taken lightly (refer to Explanatory Memorandum comments at Subclause 48(1)). If publicly released, OBR information would be restricted to only those parts of the OBR that are directly relevant to the circumstances and analysis of the immediately reportable matter and which could not be obtained by any other means. 

Note that disclosure of OBR information under this clause will not include personal information except in the circumstances prescribed by the regulations. It is intended that such circumstances may include, for example, release to Commonwealth regulatory authorities, police or to State and Territory coroners for the purposes of an investigation into the same transport safety matter. Note that any personal information released under Subclause 51(2) will still be subject to protection under other provisions within the Bill which place restrictions on further disclosure of the OBR information to any other parties.

Clause 52 Executive Director may authorise persons to have access to OBR information

This clause provides the Executive Director with a discretionary power to grant general access to OBR information to a person who falls outside the definition of staff member either generally or in relation to a specific occurrence. Such a person may, for example, be a temporary or non-ongoing employee who is not an APS employee, or a contractor or consultant who does not have delegated powers under this Bill. This may become necessary in cases, for example, where experts other than staff members are required to assist with replaying and analysing the contents of the OBR. For example, an interpreter may be needed if the contents of the OBR are in a foreign language, or an expert in voice analysis may be required to provide expert opinion on the content of the OBR. In accordance with international agreements, there may be other persons considered appropriate to have access to OBR information. In most instances, the Executive Director will consider such a need on a case by case basis. Those persons will be subject to the confidentiality provisions under Clause 53 in relation to OBR information.

Clause 53 Copying or disclosing OBR information

Subclauses 53(1) and 53(2) prohibit copying or disclosure of OBR information.  Note that disclosure to a court, including a coroner or a tribunal, is also prohibited under this subclause, subject to the exceptions under Subclause 53(3). Also note that OBR information is defined under Clause 3 to include a copy or transcript of the OBR made before or after the occurrence of the immediately reportable matter that caused the recording to become an OBR. This subclause reinforces the notion that the confidentiality of this information is considered to be of the utmost importance and that it is to be used primarily for the purpose of transport safety investigation.

Subclause 53(3) provides the exceptions to the prohibition under Subclauses 53(1) and (2).  Such exceptions include disclosure or copying in the course of the exercise of powers under this Bill or in connection with this Bill (paragraph 53(3)(a)). This represents a normal part of the investigation process where a team approach is taken and where it may be necessary to disclose the contents of an OBR to external experts and others for the purposes of properly analysing the significance of the information. While paragraph 53(3)(b) allows copying or disclosure, for example, to the police, for purposes of the investigation of any offence against a law of the Commonwealth, a State or a Territory, it should be noted that any OBR information so disclosed would not be admissible in criminal proceedings against crew members (see Clause 55).  

Under paragraph 53(3)(c), disclosure to a court for the purposes of criminal proceedings is only allowed in criminal proceedings against someone who is not a  crew member, for example, in relation to a hijack or in-flight violence.  

Paragraph 53(3)(d) permits disclosure to a court in civil proceedings (including coronial proceedings) where the Executive Director has issued a certificate under Clause 50 stating that the disclosure is not likely to interfere with ANY investigation, and the court or coroner has made a determination under Subclause 53(4). Disclosure of OBR information is also permitted where a coroner has determined the information to be no longer confidential (paragraph 53(3)(e)). As stated in the Explanatory Memorandum comments at Clause 50, a person who is not the Executive Director may disclose OBR information for coronial inquiries under paragraph 53(3)(d) (eg. if police have obtained the OBR information under paragraph 53(3)(b), it would be possible for the coroner to obtain OBR information from the police under paragraph 53(3)(d) rather than directly from the Executive Director under Clause 59). 

Subclause 53(4) sets out the conditions under which a court may order that the OBR information is permitted to be disclosed under paragraph 53(3)(d)(ii). In essence, the court needs to conduct a public interest test to weigh up the relevance of the information in the administration of justice against any adverse impact of such disclosure on any current or future investigation.

Subclause 53(5) allows the court to issue directions to prohibit or restrict publication and communication of the OBR information to any person. This subclause ensures that the ‘audience‘ is restricted to only those persons necessary and keeps out other parties, for example, the media, who may take the OBR information out of context or use it for purposes other than relating to the proceedings.

Subclause 53(6) clarifies that a person cannot be compelled by a court to disclose OBR information. In addition, where a person discloses OBR information in contravention of Subclause 53(1), that information cannot then be admissible as evidence, thus removing any doubt about the discretion of a court to admit such evidence.

Clause 54 OBR information no ground for disciplinary action

This clause prevents any person from using OBR information as the basis for a disciplinary action against that person’s employee. That employee may be a  crew member within the meanings of the Bill or any other person. This clause reinforces the notion that OBR information is to be used for safety purposes only and that, while there may be relevant safety messages which arise from the OBR information, it should be used in a constructive way such as retraining, changing procedures etc. and not for disciplinary action such as dismissal or demotion.

Clause 55 OBR information not admissible in criminal proceedings against crew members

This clause prevents OBR information and any information or thing derived from the use of OBR information, from being admitted in evidence in criminal proceedings against a crew member except proceedings for an offence against the Bill, such as Clause 24 for tampering with an OBR in order to hinder an investigation. 

Clause 56 Admissibility of OBR information in civil proceedings

Subclause 56(1) allows OBR information to be admitted in civil proceedings provided that the Executive Director issues a certificate under Clause 50 certifying that the disclosure of the information is not likely to prejudice or interfere with any investigation, and that the court makes an order under Subclause 56(3).  Note that these requirements are in addition to the restrictions on the disclosure of OBR information for purposes of civil proceedings under paragraph 53(3)(d).  A public interest order will mean that the court will have to perform a ‘balancing act’ by weighing up the potential domestic and international safety impact on current or future investigations against the proper administration of justice. In conducting that balancing act, the court will also need to take into account whether the evidence can be obtained by other means. If the court considers it is likely that the free flow of safety information will be affected in future because of the disclosure and use of the OBR information, and that this impact outweighs the administration of justice, then the court may rule against disclosure (and conversely). This is consistent with international practice. Note that this subclause does not allow admittance of OBR information where such information is made inadmissible by Subclause 47(2) which prevents admittance of information in proceedings against a person who has given that information without being allowed to claim self-incrimination privilege or ‘penalty privilege’ according to Subclause 47(1).

Subclause 56(2) allows a party to a proceeding to apply for an order that OBR information be admissible in the proceeding. The onus will be on the parties to justify disclosure, rather than the Executive Director having to continually take privilege claims when disclosure is sought. 

Subclause 56(3) sets out the conditions under which a court may order that the OBR information is admissible. In essence, the court needs to conduct a public interest test to weigh up the relevance of the information in the administration of justice against any adverse impact of such disclosure on any current or future investigation. (For further explanation, refer also to Explanatory Memorandum comments at Subclause 56(1)). Note that a co-requirement for admissibility is a certificate issued by the Executive Director under Clause 50.

Subclause 56(4) provides that coronial inquiries do not come under this clause. In other words, once OBR information is permitted to be disclosed for the purposes of a coronial inquiry under either paragraph 53(3)(d) or Clause 59, it will be admissible in the coronial proceedings.

Clause 57 Examination by a court of OBR information under subsection 56(3)

This clause places restrictions on who may be present while a court is examining OBR information for the purposes of making an order under Subclause 56(3). It also allows the court to issue directions to prohibit or restrict publication and communication of the OBR information to any person. This clause ensures that the ‘audience’ is restricted to only those persons necessary and keeps out other parties who may take the OBR information out of context or use it for purposes other than relating to the proceedings.

Clause 58 Where a court makes an order under subsection 56(3)

This clause specifies that OBR information admitted in a civil proceeding may not be used in evidence for the determination of the liability in the proceedings of a crew member but may be used for such purposes with respect to non crew members. It also allows the court to issue directions to prohibit or restrict publication and communication of the admitted OBR information to any person. Refer also to Explanatory Memorandum comments at Clause 57.

Clause 59 Use of OBR information in coronial inquiries

Subclause 59(1) requires the Executive Director, at the request of a coroner, to make OBR information available to the coroner, unless the Executive Director believes the coroner’s access to the information is likely to interfere with any investigation to which the OBR concerned relates. For example, a particular transport safety matter may still be under investigation at the time of a coronial inquiry into that same or related matter. In such cases, the Executive Director may consider it inappropriate to disclose the requested OBR information at that time as it may prejudice that investigation if that information was made public before the investigation was completed. Note that this test is easier to satisfy compared with the test under Clause 53 for the disclosure by any person (including a person who is not the Executive Director), which requires the disclosure to be unlikely to ‘interfere with any investigation’. 

Subclause 59(2) means that the coroner must examine OBR information in the privacy of the coroner’s chambers (ie. interested parties to the coronial proceedings and the public will be excluded) before the coroner may make a determination that the information should no longer be protected from disclosure. Note that such a determination will not make the information admissible in any other proceedings where admissibility is prevented by other clauses of this Bill.

Subclause 59(3) provides that the coroner may only make a determination under Subclause 59(2) where the information concerned is relevant and cannot be obtained by an alternative means, and where any adverse impact on a safety investigation is outweighed by the public interest. Refer also to Explanatory Memorandum comments at Subclause 56(1).

Subclause 59(4) allows the coroner to issue directions to prohibit or restrict publication and communication of the OBR information to any person. For further explanation, refer also to Explanatory Memorandum comments at Clause 57.

Subclause 59(5) makes it an offence to contravene a direction by the coroner in respect of Subclause 59(4). This offence was included to remove any doubt about whether there is any real legal consequence attached to the contravention of a coroner’s direction under Subclause 59(4).

Division 2 – Restricted information

Clause 60 Limitations on disclosure etc. of restricted information

Subclauses 60(1), (2) and (3) prohibit a person who is or has been an staff member, or who has been authorised to access restricted information under Clause 62, from making a record of restricted information, or disclosing the information to any person. Restricted information covers various types of sensitive information acquired by a staff member under or in connection with this Bill. For further explanation and examples of restricted information, refer to Explanatory Memorandum comments at Clause 3. 

Note that disclosure to a court, including to a coroner or a tribunal, is also prohibited under this subclause. The restrictions on the disclosure and admissibility of restricted information referred to in Division 2 of this Part, reinforce the notion that safety investigation processes and those relating to judicial proceedings, particularly criminal proceedings, should be separate to ensure a continued free flow of safety information. The principles of this provision are derived from existing legislation and reflect standards and recommended practices of international agreements. Note that nothing in Division 2 of this Part prevents other agencies separately collecting and using evidential material that is restricted information for the purposes of judicial and other proceedings.

Subclause 60(4) provides the exceptions to the prohibition under Subclause 60(1), (2) and (3). Such exceptions include disclosure or copying in the course of the exercise of powers under this Bill or in connection with this Bill (refer also to Explanatory Memorandum comments at Subclause 53(3)). This subclause allows disclosure to a court for purposes of criminal proceedings for an offence against this Bill, for example, providing false information, which is an offence under Clause 24 as well as an offence under the Criminal Code. In addition, this subclause allows disclosure to a court in civil proceedings where the Executive Director has issued a certificate under Subclause 60(5) and the court makes a public interest order under Subclause 60(6). Note that information disclosed as permitted under Subclause 60(4) will be admissible in court proceedings, subject to Subclause 47(2), which prevents admission of information in proceedings against a person where the person has given that information without being allowed to claim self-incrimination privilege or ‘penalty privilege’.

Subclause 60(5) enables the Executive Director to certify that the disclosure of the restricted information is not likely to prejudice or interfere with any investigation.  

Subclause 60(6) allows the court to order disclosure of restricted information if it is satisfied that any adverse impact on transport safety investigation is outweighed by the public interest (refer also to Explanatory Memorandum comments at Subclause 56(1)).

Subclause 60(7) allows the court to issue directions to prohibit or restrict publication and communication of the restricted information to any person. Refer also to Explanatory Memorandum comments at Clause 57.

Subclause 60(8) prevents a court from requiring a person to disclose restricted information. This subclause also clears up any doubt about the discretionary power of a court in relation to the admissibility of evidence. This means that restricted information is not admissible as evidence in civil or criminal proceedings where disclosure of that information is not permitted under the provisions of this Bill, for example, a person discloses information to a court in contravention of Subclause 60(1), (2) or (3). However, this subclause does not prevent admittance of restricted information in evidence against a person for disclosing restricted information in contravention of Subclause 60(1), (2) or (3) itself.

Clause 61 Release of information in the interests of transport safety

This clause provides the Executive Director with a discretionary power to publicly disclose restricted information for the purposes of transport safety. Such release may be by way of publishing a report under Clause 25 containing such information, or by any other methods. One of the only means to ensure that safety issues arising from an investigation into a transport safety matter reaches the broadest possible audience is to publicly release relevant safety information. Transport operators, transport regulatory agencies and the transport industry in general, have the capacity to address those safety issues and therefore must have this information made available to them. In addition, the Government and the travelling public expect an open and transparent process regarding the communication of and actions to address, safety issues. This is important in order to achieve public confidence in the safety of transport. 

Note that disclosure of restricted information under this clause will not include personal information except in the circumstances prescribed by the regulations. It is intended that such circumstances may include, for example, release to Commonwealth regulatory authorities, police or to State and Territory coroners for the purposes of an investigation into the same transport safety matter. Note that any personal information released under Subclause 61(2) will still be subject to protection under Clause 60 which places restrictions on disclosure of restricted information, although such restrictions only apply to current or former staff members or someone who has been authorised to access the information under Clause 62.  

Clause 62 Executive Director may authorise persons to have access to restricted information

This clause provides for authorisation, at the Executive Director’s discretion, of a person who is not a staff member, to allow general access to restricted information either generally or in relation to a specific occurrence. Such a person may, for example, be a temporary staff member who is not an APS employee, or a contractor or consultant who does not have delegated powers under this Bill. For further explanation, refer also to Explanatory Memorandum comments at Clause 52.

Division 3 - Miscellaneous

Clause 63 Powers of Parliament and Royals Commissions not affected

This clause clarifies that the restrictions on disclosure of information under the Bill do not prevent the Commonwealth Parliament or a Royal Commission from gathering information for the purposes of their proceedings. 

The legislation reflects the need for the ATSB to act as independently as possible in the interests of transport safety and provides considerable protection against the disclosure and inappropriate use of OBR information and restricted information.  However, the Parliament or a Royal Commission can access OBR information and Restricted Information and are not subject to the ‘hurdles’ that civil or criminal courts are subject to. This is in recognition of the fact that Parliamentary and Royal Commission proceedings are inquisitorial (as opposed to adversarial) in nature and that both the Parliament and Royal Commissions have wide powers to gather evidence for their own investigations. Parliament and Royal Commissions, therefore, reserve the right to call upon the ATSB to assist in providing evidence to their inquiries, especially when the manner in which ATSB conduct their investigation is the focus of such inquiries for accountability purposes. 

Nevertheless, in assisting with such inquiries, the ATSB would explain the confidentiality issues and restrictions normally applicable to the disclosure and use of such information. Members of those inquires would be requested to carefully consider the potential domestic and international safety implications resulting from the disclosure of that material before making a determination about whether it was necessary to disclose that information for the purpose of the inquiry.

Part 7 – Miscellaneous

Clause 64 Immunity

This clause makes it clear that a person is not liable for anything done (or omitted to be done) in good faith, when exercising powers under the Bill. This clause reflects the common law position and is merely enacted to avoid doubt.

Clause 65 Certification by Executive Director of staff member’s involvement in investigation

This clause allows the Executive Director to certify that a specified person who is or was a staff member, was involved in a particular investigation. This certification will serve the purpose of exempting a current or former staff member from complying with a court direction that is not a coroner’s direction (see Clause 66) to give evidence in court proceedings. Note that this provision is discretional and where, for example, a staff member has been a material witness to an occurrence, it would be possible for the Executive Director to not issue a certificate under this clause, so that the staff member may be compelled to appear at the relevant court proceeding. 

Clause 66 Staff members etc. not compellable as witnesses

Subclause 66(1) provides that where the Executive Director has issued a certificate under Clause 65, the current or former staff member specified in the certificate is not obliged to comply with a court direction to give evidence relating to an investigable matter.

It is considered important, in the interests of maintaining trust and a free flow of safety information, that any current or former staff member who is involved, or has been involved, in the investigation of a transport safety matter (including those having access to OBR and restricted information), should maintain a ‘distance’ from the judicial system, the focus of which is primarily on blame or liability. It was considered appropriate to include former staff members in this provision to ensure that the confidentiality of sensitive information, including OBR and restricted information, is maintained in the interests of transport safety.

Subclause 66(2) exempts a staff member from giving expert opinion in civil or criminal proceedings in relation to any matter relating to transport safety. For example, a particular staff member may be considered to be a subject expert in materials failure analysis. As such, a court could not compel that a staff member to appear in a criminal or civil proceeding simply by virtue of their expertise (refer also to Explanatory Memorandum comments at Clause 65). Note that this provision applies to current staff members only as it was not considered appropriate to place such restrictions on former staff members simply because of their technical expertise about aspects of transport safety rather than their direct involvement in an investigation under this Bill. 

Subclause 66(3) provides that coronial inquiries are excluded from the operation of this clause. In other words, staff members cannot be exempted from attending coronial proceedings.  

Every effort has been made in the legislation to separate safety investigations from legal processes. However, it is accepted that coroners have a legitimate role to play in determining the ‘manner and cause of death’ and that the cause of death is not legally limited to providing simplistic explanations such as ‘death from traumatic injuries sustained as a result of an aircraft accident’. The legal role of coroners is not entirely dissimilar to that of the Executive Director. Both conduct inquisitorial inquiries, which are not bound by formal rules of evidence. Both are empowered to investigate to determine the underlying reasons for a death and to make recommendations to ensure that accidents resulting in death and injury do not recur. It was therefore considered appropriate to assist coroners when requested to do so. Such assistance also ensures that the coroner is provided with unbiased information about the circumstances of a fatal accident. 

Note that even where a staff member is compellable to give evidence for purposes of a court proceeding, disclosure of OBR and restricted information in providing evidence to a coroner or to other courts will still be subject to the restrictions under Part 6 of the Bill.

Clause 67 Attendance fees where staff members attend coronial inquiry

This clause provides that a staff member requested to appear in a coronial inquiry to give expert opinion, or who is the subject of a certificate issued by the Executive Director under Clause 65, must be reimbursed for the expenses of that attendance.

Clause 68 Legal representation for staff members at coronial inquiry

This clause provides that a staff member requested to appear in a coronial inquiry to give expert opinion, or who is the subject of a certificate issued by the Executive Director under Clause 65, is entitled to legal representation at that inquiry. Normally, witnesses have no automatic right to legal representation at a coronial inquiry, although coronial legislation in some jurisdictions may allow such representation with the leave of the coroner. This clause will ensure that the staff member may be represented by a lawyer without the leave of the coroner. Legal assistance at coronial inquiries will allow investigators to focus on their role as an assistant to the coroner in providing expert opinion, or as a witness, and not in defending the findings of the investigation to legal representatives with interests other than transport safety. This will also ensure that the focus of the coroner’s inquiry is not drawn away from transport safety to issues of blame and liability by legal representatives of other parties who may be at the coronial inquiry for the purpose of preparing the groundwork for a case in subsequent civil or criminal proceedings. 

Clause 69 Staff members may exercise powers under State and Territory laws

This clause clarifies the Parliament’s intention to allow staff members to exercise powers conferred upon them on a case by case basis under any State or Territory legislation that relates to transport safety, provided that such the State or Territory does not impose an obligation either expressly or impliedly on the staff members to perform the relevant functions. Note that transport is defined in the Bill to include air, sea or rail transport. There may be occasions when State authorities request the Executive Director to conduct an investigation into a transport safety matter where that transport safety matter does not fall within the Executive Director’s constitutional jurisdiction to investigate. For example, a State or Territory rail accreditation authority may request that the Executive Director conduct an investigation into an accident of a suburban (intrastate) train. In such cases, the Commonwealth officers can exercise investigation powers under relevant State or Territory legislation if approved by the Executive Director. 

Clause 70 Compensation for acquisition of property

This clause provides for compensation for acquisition of property where compensation is required for constitutional reasons. 

Clause 71 Regulations

This clause allows regulations to be made where required or permitted by this Bill, or where necessary or convenient for the purposes of the Bill.  

TRANSPORT SAFETY INVESTIGATION (CONSEQUENTIAL AMENDMENTS) BILL 2002

The Transport Safety Investigation (Consequential Amendments) Bill 2002 accompanies the Transport Safety Investigation Bill 2002.

NOTES ON CLAUSES

Clause 1 Short title

This clause provides the proper title of the Bill.

Clause 2 Commencement

This clause provides that the Bill commences on receipt of Royal Assent.  Note that the actual amendments contained in the Schedule do not commence until the Transport Safety Investigation Bill 2002 (the main Bill) commences.

Clause 3 Schedules

This clause means that the amendments made by the main Bill to other legislation are set out in the Schedule.

Schedule 1 – Amendments

Air Navigation Act 1920

Item 1 provides that Part 2A (Investigation of Accidents etc.) of the Air Navigation Act 1920 will be removed from that Act in its entirety. Subject to the transitional arrangements (see item 2), all investigations of aviation safety occurrences are to be conducted under the main Bill once it commences.

Item 2 provides for the transitional arrangements for any aviation investigation that has been completed or is under investigation at the time that Part 2A of the Air Navigation Act 1920 is repealed. This includes investigations that have completed or yet to be completed, and investigations that have been discontinued before the repeal. Such investigations will continue to be covered by the provisions of the repealed legislation. All investigations that commence on the date that the main Bill becomes effective will be conducted in accordance with the provisions of the main Bill.

Air Services Act 1995

Item 3 amends paragraph 8(1)(c) of the Air Services Act 1995 to reflect the new arrangements under the main Bill regarding aviation safety, by replacing the reference to the ‘Bureau of Air Safety Investigation’ with a reference to the ‘Executive Director of Transport Safety Investigation’.

Australian Maritime Safety Authority Act 1990

Item 4 provides for an additional paragraph 6(1)(ca) relating to cooperation to be inserted in the Australian Maritime Safety Authority Act 1990. This amendment was included to ensure consistency with similar clauses contained in the Air Services Act 1995 and the Civil Aviation Act 1988 (as referred to in the notes on Item 3 and Item 5 in this Explanatory Memorandum).

Civil Aviation Act 1988

Item 5 provides an amendment to paragraph 9(3)(a) of the Civil Aviation Act 1988 to reflect the new arrangements under the main Bill regarding aviation safety, by replacing the reference to the ‘Bureau of Air Safety Investigation’ with a reference to the ‘Executive Director of Transport Safety Investigation’.

Freedom of Information Act 1982

Item 6 deletes the reference to ‘Air Navigation Act 1920, subsection 19CU(1)’ from Schedule 3 of the Freedom of Information Act 1982 (the FOI Act). Schedule 3 of the FOI Act provides a list of secrecy provisions contained in various Acts.  Any information covered by the specified secrecy provisions is automatically exempt in accordance with Section 38 of the FOI Act. 

Note that Subsection 19CU(1) of Part 2A of the Air Navigation Act 1920 refers to any part of a report or document that was given to the Secretary under Subsection 19CT of that Act. Other information collected under Part 2A of the Air Navigation Act 1920 is currently subject to various confidentiality provisions contained in Part 2A.

Item 7 inserts a reference to the new confidentiality provisions contained in the main Bill into Schedule 3 of the FOI Act, thereby making any information covered by the new provisions automatically exempt from release under the freedom of information legislation. The information referred to in this item includes on-board-recording (OBR) information and restricted information. The wider application of the FOI exemption is in compliance with Australia’s international obligation to protect information collected in the course of no-blame safety investigations.

Navigation Act 1912

Item 8 repeals paragraph 425(1)(ea) which provides that the Governor General may make regulations for and in relation to the investigation of, and reporting on, casualties affecting ships, or entailing loss of life on or from ships.  Repeal of this paragraph would effectively repeal the Navigation (Marine Casualty) Regulations 1990, which were made under paragraph 425(1)(ea). Provisions in relation to the investigation of safety occurrences relating to ships and marine navigation will be covered under the main Bill when it commences. 

Item 9 repeals Subsection 425 (1AAA) which provides that Section 2 –(Application) of the Navigation Act 1912 does not apply in relation to the investigation of, and reporting on, casualties affecting ships, or entailing loss of life on or from ships.  This allowed investigations to be conducted into incidents involving vessels to which the Act did not apply but for this paragraph.  For example, if a ship to which the Act applied was in collision with a ship to which the Act did not apply, the Inspector of Marine Accidents would investigate and regard both vessels as coming under the provisions of the Regulations. This paragraph is redundant as the safety investigation of ships and marine navigation will be covered under the main Bill when it commences.