2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

SENATE

TRANSPORT SAFETY INVESTIGATION BILL 2002

TRANSPORT SAFETY INVESTIGATION
(CONSEQUENTIAL AMENDMENTS) BILL 2002

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be Moved on Behalf of the Government

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

transport safety investigation bill 2002
transport safety investigation (consequential amendments) bill 2002

OUTLINE

The amendments make changes to the Transport Safety Investigation Bill 2002 (TSI Bill) and the Transport Safety Investigation (Consequential Amendments) Bill 2002 (TSI (Consequential Amendments) Bill) in response to matters raised by the Senate Standing Committee for the Scrutiny of Bills and in the Senate Rural and Regional Affairs and Transport Legislation Committee.  The amendments also address some matters on the technical wording of the Bill and provide greater legal certainty on the operation of the Bill in an overseas investigation.  The purpose of the amendments is to:

•	enhance notice to occupiers of their rights and obligations under the TSI Bill regarding entry and search of premises or seizure of items from the premises where the Bill allows for it;
•	provide a regime to protect the confidentiality of Cockpit Voice Recordings (CVRs) where they are not designated as On Board Recordings (OBRs) under the TSI Bill;
•	include within the scope of the TSI Bill, investigations conducted by the Australian Transport Safety Bureau (ATSB) on behalf of a foreign country or ATSB participation in investigations led by a foreign country to ensure evidence that ATSB investigators obtain during these investigations is protected by the confidentiality provisions of the TSI Bill; and
•	make changes to clause 17 of the TSI Bill so that the clause requires that the Executive Director exercise his or her powers in accordance with international obligations under international agreements as in force from time to time and also have regard to other international instruments.

Financial impact statement

The amendments do not affect the Financial Impact Statement included in the Explanatory Memorandum for the Transport Safety Investigation Bill 2002.

transport safety investigation bill 2002

NOTES ON CLAUSES

Amendment No. 1
The amendment amends Subclause 13(6) by omitting the reference to a ‘suitable person’ as someone to whom the Executive Director can delegate powers under the Bill.  Subclause 13(6) now requires the specification of criteria in the regulations which a person must satisfy if the Executive Director is to delegate powers to that person under the Bill.  Only a person who meets the criteria prescribed in the regulations will be able to have powers delegated to them by the Executive Director.

The amendment addresses a specific concern of the Senate Standing Committee for the Scrutiny of Bills and assures that the delegation of power will only be made to persons who have the appropriate qualifications and experience to exercise the delegated power.

Amendment No. 2
The amendment amends Clause 17 of the Bill.  The amendment to Clause 17 makes a change to the wording so that the Executive Director will ensure the Executive Director’s powers under the Bill are exercised in a manner that is consistent with Australia’s obligation’s under international agreements ‘as in force from time to time’ that are identified by the regulations. With the amendment, it will be clear that the international agreements listed in the regulations will include changes that are made to those international agreements after the date the regulations come into force.

Amendment No. 3
The amendment adds a subclause to Clause 17.  It requires that the Executive Director should, when exercising powers under the Act, have regard to any rules, recommendations, guidelines, or codes or other instruments (as in force from time to time) that are promulgated by international organisations and that are identified by the regulations for the purposes of the clause.  The purpose of the amendment is to ensure that the Executive Director will have reference to international instruments that are not international agreements but nonetheless contain recommended practices which Australia is expected to follow.  The International Maritime Organization (IMO), for example, issues codes that are non-binding.  Consistent with international practice the ATSB has regard to such codes when it is conducting an investigation.

Amendment No. 4
The amendment to Subclause 22(1) of the Bill replaces Paragraphs 22(1)(c) and (d) with a new Paragraph 22(1)(c).  The amendment retains the substance of Paragraphs 22(1)(c) and (d) (see Paragraph 22(1)(c)(i) which allows for an investigation under the Bill into an occurrence outside Australia where evidence relating to the occurrence is found in Australia, and Paragraph 22(1)(c)(ii) which allows for an investigation under the Bill where the appropriate authority of another country has requested that the Executive Director be involved in the investigation of an occurrence).

In addition, the new Paragraph 22(1)(c)(iii) allows for an investigation under the Bill outside Australia where the Executive Director considers it necessary and there is the agreement of the appropriate authority of another country.  This may include, for example, participation in an accident investigation to gain major accident experience on a particular aircraft type.  Further, Paragraph 22(1)(c)(iv) provides for an investigation under the Act into an occurrence outside Australia where Australia has a right or obligation under an international agreement to participate in an investigation into the occurrence.  This may include participation in an accident investigation involving loss of Australian lives.

The amendment covers all the situations where in practice an ATSB investigation may take place into an occurrence overseas.  The amendment thereby provides legal certainty that the provisions of the Bill, such as confidentiality provisions under Part 6, apply in the case of an ATSB investigator obtaining information in the course of an overseas investigation.  Without this guarantee ATSB investigators could be forced to pass on information they have obtained to agencies or parties to court proceedings for the purpose of laying blame.  The ATSB has a reputation for conducting no-blame safety investigations that guarantee the future free flow of safety information.  The amendment maintains the ATSB’s capacity to do this.  

Amendment No. 5
The amendment replaces Clause 30.  The previous Clause 30 required the Executive Director to produce his or her identity card if the occupier of premises requested to inspect it.  If the Executive Director failed to comply he or she could not exercise powers under Part 5 of the Bill.  The new Clause 30(1) now requires that the Executive Director take reasonable steps to produce his or her identity card and notify the occupier of the purpose of entry before the Executive Director enters the premises.  In its application the Executive Director would be expected to make a reasonable attempt, at the premises, to get the occupier to take note of the identity card and advise them of the purpose of entry.  The application of Subclause 30(2) means that if the Executive Director failed to take the reasonable steps under Subclause 30(1) he or she could not exercise any of the premises powers under Part 5 of the Bill.

Based on a recommendation of the Senate Standing Committee for the Scrutiny of Bills, the amendment is made in relation to premises powers to give a legislative assurance that people’s individual rights are not unduly trespassed.

Amendment No. 6
The amendment replaces the present Clause 33.  The new Clause 33 still allows the Executive Director to enter special premises without consent or a warrant and with such assistance, and by such force, as is necessary and reasonable.  However, the new Clause 33 only allows the Executive Director to enter special premises where the Executive Director believes on reasonable grounds that it is necessary to do so and the investigation is into an immediately reportable matter.  The amendment provides a legislative assurance that Clause 33 will not be used excessively or outside the context of what is necessary for the conduct of a transport safety investigation. 

Further, new Subclause 33(3) requires that the Executive Director must take reasonable steps to give to an occupier of the premises (if present) a written notice setting out the occupier’s rights and obligations before entry to the premises.  In its application the Executive Director would be expected to make a reasonable attempt, at the premises, to get the occupier to take receipt of the written notice. 

The application of Subclause 33(4) would mean that if the Executive Director failed to take the reasonable steps under Subclause 33(3) he or she could not exercise any of the powers in relation to special premises under Clause 36 of the Bill.

The amendment is based on a recommendation of the Senate Standing Committee for the Scrutiny of Bills, in relation to special premises powers to give a legislative assurance that individual rights are appropriately balanced against the public interest in the need to quickly access perishable evidence and potentially time critical evidence.

Apart from the amendment to Clause 33 to provide legislative assurance for the protection of an occupier’s rights in relation to special premises, clause 33 also works in conjunction with other provisions that provide safeguards for the exercise of powers in the Bill. For example, where powers under Clause 33 need to be delegated, the amended Subclause 13(6) will mean the Executive Director can only delegate such powers to a person who meets criteria specified in the regulations.

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 

Amendment 1

This is a minor amendment to section 4 of the Civil Aviation Act 1988 (CA Act) to include a reference to Part IIIB.  Part IIIB is the new part proposed in the following amendments to protect aircraft Cockpit Voice Recordings.  The inclusion of a reference to “Part IIIB” in section 4 ensures that the protection under the new provisions will not apply to “state aircraft” as defined in the CA Act (eg. military aircraft).

Amendment 2
The amendment inserts a new Part IIIB into the CA Act.  The amendment addresses concerns raised in the Senate Rural and Regional Affairs and Transport Legislation Committee with respect to the non-disclosure of Cockpit Voice Recordings (CVRs).  Part IIIB covers confidentiality and use of CVRs that are not designated on-board recordings (OBRs) under the Transport Safety Investigation Bill 2002 (TSI Bill).  To a great extent Part IIIB preserves the protection CVRs presently have under Part 2A of the Air Navigation Act 1920 which is to be repealed with the commencement of the Transport Safety Investigation Act 2002 (TSI Act). 

To reflect international obligations in relation to protection of CVRs under Annex 13 to the International Convention on Civil Aviation (Chicago Convention), CVR information will continue to be protected where it is not OBR information under the TSI Bill. The confidentiality of CVRs that are not OBRs under the TSI Bill is also important because the recordings, regardless of whether or not they are or may be used in any investigation under the TSI Act, include private crew conversations in an aircraft.

By continuing to provide protection for CVR information that is not OBR information under the TSI Bill, the amendment to the CA Act helps to ensure the ongoing availability of information from CVRs for no-blame safety investigations.  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 by pulling a ‘circuit breaker’, thus rendering a CVR inoperative, or simply erasing a recording at the end of a flight.  The possible consequences of disclosure may outweigh the relatively minor legal consequences for breaching the law which requires conversations within the cockpit to be recorded, and may therefore provide an incentive for crew members to tamper with the CVR.  The protections provided for CVR information by the insertion of the new Part IIIB into the CA Act will help ensure that critical CVR information continues to be available for the investigation of transport safety matters in the future.

It should be noted that where a CVR is also “restricted information” as defined in the TSI Bill, the restrictions on disclosure under Division 2, Part 6 of the TSI Bill will apply to current and former staff members and those who have accessed the CVR under clause 62 of the TSI Bill.  The proposed Part IIIB in the Civil Aviation Act is not intended to override statutory obligations provided under the TSI Bill regarding restricted information.

Clause 32AN Definitions
Provides definitions for terms that are used in the new Part IIIB.

Clause 32AO Definition of CVR or cockpit voice recording 
Provides the definition for a CVR.  To fall within the definition, the recording must meet the descriptions provided under Subclause 32AO(1).  Note that a recording will be a CVR for the purpose of Part IIIB only if the recording is not an OBR for the purposes of the TSI Act.  

Clause 48 of the TSI Bill defines an OBR.  Clause 49 of the TSI Bill has the effect of an OBR ceasing to be an OBR under the Executive Director’s declaration.  Under clause 49 the Executive Director has a discretion to issue this declaration but also must issue it where he or she decides not to investigate.  If the Executive Director does decide to investigate then the declaration must be issued for any part of the OBR that is not relevant to the investigation.  If a CVR does not meet the requirements of Clause 48 of the TSI Bill or is declared not to be an OBR under Clause 49 then the provisions of the new Part IIIB of the CA Act will apply to it, provided the CVR meets the criteria set out in Subclause 32AO(1).

Clause 32AP Copying or disclosing CVR information
Subclauses 32AP(1) and (2) prohibit copying or disclosure of CVR information subject to the exceptions listed in Subclause 32AP(3).  As mentioned earlier in these Notes, where a CVR is also “restricted information” for purposes of the TSI Bill, it is intended that Division 2 Part 6 of the TSI Bill, instead of Part IIIB of the Civil Aviation Act, would apply to current and former staff members and those who have accessed the CVR under clause 62 of the TSI Bill.

Subclause 32AP(3) provides the exceptions to the prohibitions under Subclauses 32AP(1) and (2).  Such exceptions include copying or disclosure for the purposes of an investigation under the TSI Act.  This exception is made should it happen that CVR information from an aircraft is required for the purposes of a Transport Safety Investigation under the TSI Act but the CVR information is not classified as OBR information under the TSI Act because it does not meet the criteria to be classified as an OBR (eg. if the CVR does not relate to an immediately reportable matter) or is declared not to be an OBR (see Clause 32AO).

Paragraph 32AP(3)(b) allows copying or disclosure for purposes of the investigation of any offence against a law of the Commonwealth, a State or Territory.  It should be noted that any CVR information so disclosed has limitations placed on its admissibility in criminal proceedings against a crew member (see Clause 32AR).

Paragraph 32AP(3)(c) allows for the full disclosure of CVR information to a court in criminal proceedings against a person who is not a crew member.

Paragraph 32AP(3)(d) works in conjunction with Clause 32AR and allows for the disclosure of CVR information to a court in criminal proceedings against a person who is a crew member for an offence against a law of the Commonwealth, a State or a Territory punishable by a maximum penalty of imprisonment for life or more than 2 years.  This is to permit CVR to be disclosed for purposes of criminal proceedings for serious offences such as drug running, terrorism or murder but cannot be disclosed for less serious (eg regulatory) prosecutions.

Paragraph 32AP(3)(e) allows for the disclosure of CVR information in damages proceedings where the court has made a determination under Subclause 32AP(4).

Subclause 32AP(4) sets out the conditions under which a court may order that the CVR information is permitted to be disclosed under Paragraph 32AP(3)(e).  It is essentially a public interest test to weigh up the public interest in the proper determination of a question of fact in the case against any adverse impact on a future investigation under the TSI Act.  The other factor to be balanced against is the public interest in the protection of the privacy of members of crews of the aircraft.  This may be the sole factor to be balanced against when the CVR is not likely to have any relevance to any investigation under the TSI Act.

Subclause 32AP(5) allows the court to issue directions to prohibit or restrict publication and communication of the CVR 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 CVR information out of context or use it for purposes other than relating to the proceedings.

Subclause 32AP clarifies that a person cannot be compelled by a court to disclose CVR information where prohibited by clause 32AP. In addition, where a person discloses CVR information in contravention of Subclause 32AP(1), that information cannot then be admissible as evidence, thus removing any doubt about the discretion of a court to admit such evidence.

Clause 32AQ CVR information no ground for disciplinary action 
Clause 32AQ prevents any person from using CVR information as the basis for a disciplinary action against a crew member.  This clause reinforces the notion that CVRs are there for 
safety purposes and that while there may be relevant data from the CVR, it should not be used for disciplinary action such as dismissal or demotion.

Clause 32AR Admissibility of CVR information in criminal proceedings against crew members
Clause 32AR prohibits the admission of CVR information as evidence against a crew member in criminal proceedings other than in criminal proceedings for an offence against a law of the Commonwealth, a State or a Territory punishable by a maximum penalty of imprisonment for life or more than 2 years.  This means that CVR information under the CA Act can be used against crew members in criminal proceedings for serious offences such as drug running, terrorism or murder but cannot be used in less serious (eg regulatory) prosecutions.

Clause 32AS Admissibility of CVR information in civil proceedings
Clause 32AS prohibits the admission of CVR information as evidence in civil proceedings unless the court makes a public interest order for its admission in damages proceedings.  Subclause 32AS(2) allows a party to the damages proceedings to, before the proceedings have been determined, apply to the court to obtain that order.

Subclause 32AS(3) states the public interest test the court must apply to make the public interest order.  The court must consider how the withholding of the CVR information will affect the proper administration of justice against the public interest in protecting the privacy of crew members and any adverse impact admission would have on a future investigation under the TSI Act.  In considering how the withholding of the information will affect the proper determination of justice the court must take into account whether evidence can be obtained by other means to properly determine proceedings.  It must further consider whether the CVR information or part of the CVR information, if admitted, will assist in the proper determination of a material question of fact.  It is to be noted these two requirements are in addition to those covering the disclosure of CVR information for the purposes of damages proceedings under Clause 32AS(4).

A court is expected to weigh whether the disclosure of CVR information in damages proceedings could have an adverse impact on future safety investigations (eg if its disclosure may result in aircraft crew rendering CVRs inoperative or failing to cooperate with an Annex 13 type safety investigation generally). 

Clause 32AT Examination by a court of CVR information under subsection 22ZZB(3) 
Clause 32AT places restrictions on who may be present while a court is examining CVR information for the purposes of making an order under Subclause 32AS(3). It also allows the court to issue directions to prohibit or restrict publication and communication of the CVR information to any person. This clause ensures that the ‘audience’ is restricted only to those persons necessary and keeps out other parties who may take the CVR information out of context or use it for purposes other than relating to the proceedings.

Clause 32AU Where a court makes an order under subsection 32AU(3) 
This clause specifies that CVR information admitted in damages proceeding may not be used in evidence for the determination of the liability of a crew member where they are a defendant in the proceedings.  CVR information may still be used to determine the liability of the employer of the crew member, e.g. the airline.  There are no restrictions on the use of CVR information against non crew members in damages proceedings.

Clause 32AU also allows the court to issue directions to prohibit or restrict publication and communication of the admitted CVR information to any person.

Amendment 3
The amendment has the effect of exempting CVR information that is protected under the new Part IIIB of the Civil Aviation Act 1988, from the Freedom of Information Act 1982 (FOI Act).  The exemption is necessary to prevent litigants from relying on mechanisms under the FOI Act as a relatively inexpensive way to obtain information for purposes of lawsuits, thus frustrating the confidentiality scheme established by insertion of Part IIIB into the CA Act.