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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TRANSPORT SAFETY INVESTIGATION AMENDMENT BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure, Transport, Regional
Development and Local Government,
The Honourable Anthony Albanese MP)
TRANSPORT SAFETY INVESTIGATION LEGISLATION AMENDMENT
BILL 2009
OUTLINE
Schedule 1 - Establis hment of the Australian Transport Safety Bureau
Part 1 - Main Ame ndments
The Transport Safety Investigation Amendment Bill 2009 (the Bill) will amend the
Transport Safety Investigation Act 2003 (TSI Act) to establish the Australian
Transport Safety Bureau (ATSB) as a Statutory Agency within the meaning of the
Public Service Act 1999 (PS Act). The Agency will be established with a
Commission structure and come into being on 1 July 2009.
In 2007 Mr Russell Miller AM was tasked by the then Government to review the
relationship between the Civil Aviation Safety Authority (CASA) and the ATSB. In
finding there was room for improvement in the way the agencies interact, Mr Miller
addressed the ATSB's governance structure. Mr Miller recommended that the
Australian Government move to clarify the ATSB's independence as the national
safety investigation agency. The Australian Government accepted this key
recommendation, which received strong support from industry, and addressed it in the
National Aviation Policy Green Paper (2 December 2008).
Investigations that are independent of the parties involved in an accident, transport
regulators and government policy makers, are better positioned to avoid conflicts of
interest and external interference. Independence for the accident investigation
authority is consistent with international standards. Standard 5.4 of Annex 13 to the
International Convention on Civil Aviation (the Chicago Convention) states :
The accident investigation authority shall have independence in the conduct of
the investigation and have unrestricted authority over its conduct.
Enhanced independence for the ATSB results from a combination of factors. The
position of the Executive Director of Transport Safety Investigation, appointed by the
Secretary of the Department, will no longer exist. Instead, Commissioners appointed
by the Minister, consisting of the Chief Commissioner and two part-time
Commissioners (with the power to appoint more) will be responsible for
administering the functions of the TSI Act and exercising its investigation powers.
The Minister will have the power to provide notice of his or her views on the strategic
direction for the ATSB, to which the ATSB must have regard. However, other than
the ability for the Minister to require the ATSB to investigate a particular matter, the
ATSB will not be subject to a direction from anyone with respect to the exercise of its
powers and performance of its functions.
The creation of a statutory agency will also give the ATSB responsibilities in its own
right under the PS Act and the Financial Management and Accountability Act 1997
and discretion with respect to the management of its staff and resources consistent
with these Acts. The ATSB will, therefore, have operational independence with
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respect to the exercise of its investigation powers and functional independence with
respect to the administration of its resources.
Part 2 - Consequential amendme nts and saving and transitional provisions
The Bill provides for consequential amendments as well as saving and transitional
provisions. The consequential amendments affect the Air Services Act 1995, the
Australian Maritime Safety Authority Act 1990, the Civil Aviation Act 1988 and the
Inspector of Transport Security Act 2006, where there are references to the Executive
Director of Transport Safety Investigation. These references will be replaced with
references to the ATSB or the Chief Commissioner as required for the circumstances
of the exercise of the relevant power or performance of the function.
Part 3 - Saving and transitional provisions
The Bill provides for transitional provisions so that investigations commenced under
legislation existing before the new laws come into effect on 1 July 2009, can be
continued by the ATSB. For investigations already completed, the ATSB or the Chief
Commissioner, as required, will be able to exercise powers under old laws in relation
to administrative matters still concerning those investigations. These matters will
include the protection of investigation information. Further, the Bill provides for the
ATSB or the Chief Commissioner to perform functions or exercise powers conferred
on the Executive Director of Transport Safety Investigation under the following
Regulations establishing confidential reporting schemes:
- the Navigation (Confidential Marine Reporting Scheme) Regulations 2008;
- the Air Navigation (Confidential Reporting) Regulations 2006 ;
- the Civil Aviation Safety Regulations 1998.
Schedule 2 - Other ame ndments
Under Schedule 2, the Bill allows regulations to be made to establish voluntary and
confidential reporting schemes of the type referred to in Part 3 of Schedule 1 of the
Bill. This means that the ATSB's powers and functions in relation to these schemes
can eventually be consolidated under the one Act. The confidential nature of the
schemes will be provided for by making information in a report received and
information associated with the report restricted information. Restricted information,
as defined by section 3 of the TSI Act, has confidentiality protections under
Division 2 of Part 6 of the Act.
The Bill also provides a new power to the ATSB to require responses within 90 days
to any formal recommendations that it makes. This requirement will provide
confidence that the ATSB's safety recommendatio ns are being properly considered
and addressed.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill on the Commonwealth is expected to be minimal. A
modest increase in resourcing for ATSB to support the new statutory authority and
commissioners is currently being considered as a part of the 2009-10 budget process.
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NOTES ON CLAUSES
Clause 1: Short Title
Clause 1 is a formal provision specifying the short title of the Act which may be cited
as the Transport Safety Investigation Amendment Act 2009.
Clause 2: Comme ncement
The Bill contains two schedules of amendments. This clause specifies when the
various provisions of the Bill will commence. The time of the commencements of the
particular provisions are set out in a table in subclause 2(1).
Item 1 of the table provides that the preliminary provisions of the Bill (short title,
commencement and effect of Schedules) commences upon receiving Royal Assent.
Items 2 and 4 of the table provide that the items referred to in Schedule 1 commence
on 1 July 2009. This is consistent with the Australian Government's commitment in
the National Aviation Policy Green Paper to have the Statutory Agency established by
1 July 2009.
Item 3 of the table provides that item 25 in Schedule 1 commences immediately after
the commencement of item 20 of Schedule 1 to the Aviation Legislation Amendment
(2008 Measures No.2) Bill 2008. The Aviation Legislation Amendment (2008
Measures No.2) Act 2009 contains amendments to the sections of the TSI Act that
contain references to the Executive Director of Transport Safety Investigation. Item
25 in Schedule 1 of this Bill amends those references to refer to the Chief
Commissioner so as to accommodate the new structure.
Item 5 of the table provides that Schedule 2 to the Bill (which deals with other
amendments involving voluntary reporting schemes and safety recommendations)
commences on 1 July 2009.
Clause 3: Schedule(s)
Each Act that is specified in the Schedules to this Bill will be amended or repealed as
set out in the applicable items in the Schedules concerned. Any other item in a
Schedule to the Bill has effect according to its terms.
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SCHEDULE 1 - ESTABLISHMENT OF THE AUSTRALIAN
TRANSPORT SAFETY BUREAU
Part 1 - MAIN AMENDMENTS
1. Part 1 of Schedule 1 amends the Transport Safety Investigation Act 2003 (TSI
Act) to establish the Australian Transport Safety Bureau (ATSB). The ATSB will
have commissioners and a Chief Executive Officer as well as staff engaged under the
Public Service Act 1999 (PS Act). Amendments to existing provisions of the TSI Act
will also be provided for to accommodate the establishment of the ATSB in place of
the Executive Director of Transport Safety Investigation (Executive Director).
Item 1 - Section 3
2. Item 1 replaces a reference to the Executive Director in the definition of an
accident site in section 3 with a reference to the Chief Commissioner. The Chief
Commissioner has the power to determine such area around an accident, as is
reasonably necessary, to be the accident site to facilitate the investigation of the
accident and secure the site.
Items 2, 3, 4, 5 and 6 - Section 3
3. These items will insert definitions for ATSB, Chief Executive Officer, Chief
Commissioner, Commissioner and consultant which will be terms introduced into the
TSI Act by other amendments provided for in the Bill.
Item 7 - Section 3 (definition of Executive Director)
4. Item 7 repeals the definition of Executive Director in section 3. Presently all the
powers in the TSI Act (other than paragraph 21(1)(b)) are vested in the Executive
Director. The establishment of the ATSB mean that this position will no longer be
required. In accordance with the other amendments, all the powers within the Act
relating to transport safety investigation will either be vested in the ATSB or the
Chief Commissioner.
Item 8 - Section 3 (definition of an investigable matter)
5. Item 8 replaces a reference to the Executive Director in the definition of
investigable matter in section 3 with a reference to the ATSB as the Agency with the
capacity to investigate transport safety matters under the TSI Act.
Item 9 - Section 3 (note to the definition of OBR or on-board recording)
6. Item 9 replaces a reference to the Executive Director in the note to the definition
of OBR or on-board recording, in section 3, with a reference to the ATSB. Item 54
proposes an amendment for the ATSB to have the power to declare that a recording is
no longer an OBR under section 49.
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Item 10 - Section 3
7. Item 10 inserts a definition for a part-time Commissioner which is a new term
introduced into the TSI Act by other amendments in the Bill.
Item 11 - Section 3 (paragraphs (a) and (b) of the definition of restricted
information)
8. Item 11 replaces the reference to staff member in paragraphs (a) and (b) of the
definition of restricted information with a reference to `Commissioner, staff member
or consultant.' Commissioners, staff members and consultants, as defined in the
amendments in items 5, 15 and 6 of the Bill, respectively, are the persons who will
obtain statements and record information in the course of an investigation that needs
to be classified as restricted information. Restricted information, as defined in
section 3, is sensitive safety information obtained or generated in the course of an
investigation that requires protection in order to ensure the free- flow of such
information in the future for safety investigation purposes.
9. Section 60 of the TSI Act currently contains the limitations on copying and
disclosure of restricted information in the interests of ensuring its continued
availability. Item 57 of the Bill amends section 60 so that Commissioners, staff
members and consultants are subject to these limitations.
Item 12 - Section 3 (paragraph (g) of the definition of restricted information)
10. Item 12 repeals paragraph (g) of the definition of restricted information and
replaces it with new paragraphs (g) and (h). The new paragraphs do not alter what is
currently classified as restricted information. The proposed amendment only
removes the reference to a staff member and replace it with refere nces to the ATSB
and Chief Commissioner who may have documents produced to them in accordance
with the amendments to paragraphs 32(1)(b), 36(3)(a) or (4)(a) in items 36 to 40 in
this Bill.
Item 13 - Section 3 (paragraphs (a) and (b) of the definition of safety action
statement)
11. Item 13 omits the term `deficiencies' in the definition of safety action statement in
section 3. The term `issues' replaced `deficiencies' so that the definition refers to
`safety issues' rather than `safety deficiencies'. The term `safety issue' better reflects
the terminology used by the ATSB when referring to a safety factor that can
reasonably be regarded as having the potential to affect transport safety.
Item 14 - Section 3 (definition of Secretary)
12. Item 14 omits the definition of Secretary. This definition will no longer be
required in the TSI Act. Under the new independent ATSB structure, the Secretary
will have no functions or powers.
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Item 15 - Section 3 (definition of special investigator)
13. Item 15 replaces a reference to `section 14' with a reference to `section 63E' as
item 61 of the Bill introduces a new section 63E in place of section 14 to provide the
power to appoint a `special investigator'.
Item 16 - Section 3 (definition of staff member)
14. Item 16 inserts a new definition for staff member. The TSI Act in section 3
presently defines a staff member to mean:
(a) the Executive Director; or
(b) an APS employee who is assisting the Executive Director in exercising powers
under this Act; or
(c) a person to whom the Executive Director has delegated any of the Executive
Director's powers under this Act.
The new definition of a staff member omits the reference to the Executive Director
and replaces it with a reference to the Chief Executive Officer. Paragraph (b) of the
new definition of a staff member ensures APS employees are still included. Further,
paragraphs (d), (e) and (f) of the new definition ensure that persons delegated powers
under the TSI Act are still included.
Paragraph (c) of the new definition also makes a person from another Commonwealth
agency or from a State or Territory Government a staff member for the purposes of
the Act when their services are made available in accordance with new clause 16A
(see item 24 of the Bill). The term staff member is currently used in the TSI Act in
relation to provisions for the protection of safety information, such as section 60 for
restricted information. It is important that persons from other Commonwealth, or
State or Territory agencies, who assist the ATSB to carry out its functions, as a result
of an arrangement made under clause 16A, protect restricted information in the same
way as persons engaged by the ATSB under the PS Act.
Item 17 - Section 7
15. Item 17 repeals section 7 of the TSI Act. Section 7 provides the Objects of the
Act. Instead of referring to the Objects of the Act, new clause 12AA (see item 24)
defines the functions of the ATSB in a manner similar to the objects prescribed in
section 7.
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Item 18 - Subsection 11(1)
Item 19 - Paragraphs 11(1)(a) and (b)
Item 20 - Subsection 11(2)
Item 21 - Paragraphs (11)(2)(a) and (b)
Item 22 - Subsection 11(3)
Item 23 - Paragraphs 11(3)(a) and (b)
16. Items 18 to 23 make amendments to section 11 of the TSI Act to ensure that the
functions of the ATSB in clause 12AA (see item 24) are not inappropriately limited
by section 11. Section 11 prescribes the limits, consistent with the Commonwealth's
constitutional power, within which the powers under the Bill may be exercised for
aviation, marine and rail transport. Items 18 to 23 do not omit any references to
particular constitutional heads of power in section 11. They only amend the section
so that the preface in section 11, `improving the safety of air navigation/mar ine
navigation/rail transport', does not prevent the ATSB from achieving the full extent
of its functions in clause 12AA.
17. Clause 12AA(1) makes it a function of the ATSB to improve transport safety by
the means provided in that subclause. However, subclause 12AA(2) provides for
additional functions, including cooperation with an agency of the Commonwealth, a
State or a Territory that has functions or powers relating to transport safety or
functions affected by the ATSB's function of improving transport safety. When a
transport accident or incident occurs there may be a number of different
Commonwealth, State and Territory agencies that have a statutory interest in the
matter. This could include, for example, the Australian Federal or State or Territory
Police. They may be performing a function in relation to the accident or incident
other than one related to improving transport safety. In this situation the ATSB
should, while not seeking to apportion blame or determine liability itself, be able to
exercise powers such as in section 45(6) to make evidential material available (other
than OBR or restricted information) for the purpose of the police investigation.
18. Removing the reference in section 11 to `improving the safety of air
navigation/marine navigation/rail transport' avoids any potential doubt surrounding
the ATSB's ability to exercise powers for the purpose of cooperating with other
Government agencies affected by the ATSB's functions. Further, removing the
reference to `improving the safety of' in paragraphs 11(1)(a) and (b), 11(2)(a) and (b)
and 11(3)(a), (b) and (c) would be consistent with the absence of the phrase in
paragraphs (11)(1)(c) and (d) and 11(2)(c) and (d).
Item 24 - Part 2
19. Item 24 repeals Part 2 of the TSI Act which currently relates to matters of
administration including the creation of the position of the Executive Director of
Transport Safety Investigation. Item 24 replaces the current Part 2 with a new Part 2
relating to the establishment of the ATSB and its functions and powers, the
appointment of commissioners and meetings of commissioners, the role of the Chief
Executive Officer and the engagement of staff and consultants.
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Division 1 of Part 2 - the Establishment, Functions and Powers of Bureau.
Clause 12 - Establishment of the Australian Transport Safety Bureau (ATSB)
20. Clause 12 provides for the establishment of the ATSB.
Clause 12A - Constitution of the ATSB
21. Clause 12A provides for the ATSB to consist of a Chief Commissioner and 2 or
more Commissioners. In accordance with clause 13, the Chief Commissioner will be
appointed on a full-time basis and the other Commissioners will be appointed on a
part-time basis. This is consistent with the National Aviation Policy Green Paper.
22. Initially, the Chief Commissioner and two part-time Commissioners will be
appointed. If particular investigations require certain expertise, further part-time
Commissioners could be appointed in the future.
Clause 12AA - Functions of the ATSB
23. Clause 12AA provides for the functions of the ATSB. The functions of the ATSB
are derived from what are presently termed the objects of the Act in section 7 of the
TSI Act. In general, the main function of the ATSB will be to improve transport
safety through independent investigation of transport safety matters. Its
investigations will be into aviation, marine and rail transport safety matters.
24. As part of its function of improving transport safety, the ATSB will seek to
identify and communicate to the relevant sectors of the transport industry, and the
public, the factors that it identifies that:
(a) contribute, or have contributed, to transport safety matters; or
(b) affect, or might affect, transport safety.
25. The identification and communication of the factors above will not be limited to
those that are proximal to the transport safety matter such as acts and omissions by
operational personnel, but will also include, to the extent practicable, the
identification of underlying factors such as risk controls and organisa tional
influences. A systemic approach, the outcomes of which focus on facilitating learning
opportunities and corrective actions that relate to the transport system more broadly,
rather than on individuals, will provide the greatest opportunities to impro ve
transport safety.
26. Significantly, section 25 of the TSI Act will require the ATSB to publish, as soon
as practicable after an investigation has been completed, a report in relation to its
investigation (all ATSB reports are available on- line at www.atsb.gov.au). This
obligation provides an assurance that the public will be informed of the way the
ATSB has carried out its functions in relation to the investigation of an accident or
incident.
27. In addition to conducting formal investigations into transport safety matters, the
ATSB will also have the function of receiving and assessing reports of transport
safety matters, reportable matters and other safety information that is prescribed by
the regulations. This will incorporate the ATSB's management of the mandatory
reporting of accidents and incidents and voluntary reporting of safety concerns under
Part 3 of the TSI Act. Information that the ATSB obtains through the management of
8
these reporting systems will be used, as it currently is by the Executive Director, to
determine what matters should be investigated and for trend analysis and safety issue
identification. As a result of its investigations and broader trend analysis and safety
issue identification, the ATSB will be able to promote safety awareness such as
through public educational programs.
28. Paragraph 12AA(2)(a) will provide for a cooperation function for the ATS B
derived from the existing cooperation clause in subsection 7(2) of the TSI Act.
Presently, subsection 7(2) provides for cooperation between the Executive Director
and any other Commonwealth agency or person who has powers under another law
of the Commonwealth in relation to a matter that the Executive Director is
investigating. The cooperation ensures that there can be separate parallel
investigations where necessary by agencies such as the Australian Federal Police, the
Australian Maritime Safety Authority, the Civil Aviation Safety Authority and
COMCARE in accordance with the functions under their respective statutes.
29. In addition to Commonwealth agencies and persons, it will also be necessary for
the ATSB to cooperate, where appropriate, with State and Territory Government
agencies and persons having functions or powers under laws relating to transport
safety or who are affected by the ATSB's function of improving transport safety.
This could include State and Territory police, State and Territory maritime and rail
regulatory authorities, and State and Territory agencies performing occupational
health and safety functions. The new subparagraph 12AA(2)(a)(ii) will provide for
cooperation with these State and Territory agencies while new subparagrap h
12AA(2)(i) will preserve the cooperation function with Commonwealth agencies and
persons.
30. However, while the ATSB will cooperate with these persons and agencies, the
cooperation function must be read in conjunction with other provisions within the
TSI Act, particularly Parts 5 and 6. These provisions may place some necessary
limitations on otherwise unfettered cooperation. These limits would be in the
interests of transport safety and in ensuring separation between `no-blame'
investigations and a process that may lead to blame or liability. Subclause 12AA(3)
in the Bill and the explanation below will address the need for the ATSB to avoid
apportioning blame or determining liability in order to carry out its function of
improving transport safety through safety investigations.
31. Subparagraph 12AA(2)(iii) will provide for a cooperation function with a body of
another country that has functions or powers relating to transport safety or whose
functions are affected by the ATSB's function of improving transport safety. The
addition of this cooperation function addresses the obligation that the ATSB will
have to cooperate under international instruments with foreign agencies in the course
of accident investigations. The aviation and maritime transport industries are global
industries. A number of countries may have government bodies involved in an
accident investigation depending, for example, on where a transport vehicle was
registered and where components of the transport vehicle were manufactured. Annex
13 (Aircraft Accident and Incident Investigation) to the `Convention on International
Civil Aviation' (Chicago Convention), done at Chicago on 7 December 1944,
requires cooperation in these circumstances. Likewise, in the marine context, the
`Code for the Investigation of Marine Casualties and Incidents', adopted by
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International Maritime Organization (IMO) Resolution A.849(20), requires
cooperation between countries in the investigation of shipping accidents and
incidents. The new `Code of the International Standards and Recommended
Practices for Safety Investigations into a Marine Casualty or Marine Incident'
(Marine Casualty Investigation Code) which is expected to come into force on 1
January 2010 through annexure to the `International Convention for the Safety of
Life at Sea' (SOLAS), done at London on 1 November 1974, will further underscore
the need for cooperation in maritime investigations.
32. Subclause 12AA(2)(b) will provide the ATSB with the function of doing
anything incidental to its function of improving transport safety. For example, the
ATSB may become aware of issues affecting transport security as a result of
performing its function of improving transport safety. The Inspector of Transport
Security Act 2006 (ITS Act) takes into account the fact that transport security can be
incidental to the performance of the current functions of the Executive Director under
the TSI Act. The ITS Act provides for information sharing arrangements between
the Inspector of Transport Security and the current Executive Director.
33. Subclause 12A(3) provides that it will NOT be a function of the ATSB to
apportion blame or provide the means to determine liability of a person. This is
consistent with current subsection 7(2) of the TSI Act. Transport safety
investigations that avoid apportioning blame or determining liability are
internationally recognised as essential to the purpose of obtaining all the necessary
safety information and thereby determining the contributing factors in an accident or
incident. Standard 3.1 of Annex 13 to the Chicago Convention states, for example,
that:
the sole objective of the investigation of an accident or incident shall be the
prevention of accidents and incidents. It is not the purpose of this activity to
apportion blame or determine liability.
34. Further in support of this `no-blame' style of investigation, subclause 12A(3)
states that it is not a function of the ATSB to assist in court proceedings between
parties (except as provided by the Act, whether expressly or impliedly) or allow any
adverse inference to be drawn from the fact that a person was invo lved in a transport
safety matter. Since it is not a function of an ATSB investigation to draw adverse
inferences, provide a resolution to a dispute between two parties, or to take punitive
action for the breach of the law, people will be more likely to be forthcoming with
information to an ATSB investigation. The ATSB will be best positioned to identify
the proximal and underlying factors contributing to a transport accident.
35. The end of subclause 12A(3) states: `However, even though blame or liability
may be inferred, or an adverse inference may be made, by a person other than the
ATSB, this does not prevent the ATSB from carrying out its functions.' These words
are included to acknowledge that persons of their own accord may draw adverse
inferences or infer blame or liability based on what they have read in an ATSB
report. The ATSB should not be precluded from reporting on its findings and
including sufficient factual material because this may occur. It is expected that the
ATSB will endeavour to balance the use of material from which adverse inferences
10
may be drawn by others, against the need to properly explain, in a fair and unbiased
manner, what happened, and why.
36. Subclause 12A(4) avoids doubt that subclause 12A(3) does not prevent the
prosecution of offences under the Act. The TSI Act does not contain offences that
relate to a person having been involved in a transport safety matter. However, it does
contain offences where requirements of the Act have not been complied with in the
course of the investigation of a transport safety matter.
Clause 12AB - Independence of the ATSB and the Chief Commissioner
37. Clause 12AB is based on existing section 15 of the TSI Act which states that the
Executive Director is not subject to directions from the Minister or the Secretary with
respect to the exercise of the Executive Director's powers under the TSI Act. The
breadth of independence provided for in clause 12AB is consistent with the
Australian Government's commitment in the National Aviation Policy Green Paper
to enhance the ATSB's independent status. It is also consistent with international
best practice.
38. Standard 5.4 of Annex 13 to the Chicago Convention states that:
The accident investigation authority shall have independence in the conduct of
the investigation and have unrestricted authority over its conduct, consistent
with the provisions of this Annex.
39. Similarly, chapter 11 of the new `Marine Casualty Investigation Code' expected to
be annexed to SOLAS, and come into effect on 1 January 2010, states:
The marine safety investigation shall be able to report on the results of a
marine safety investigation without direction or interference from any persons
or organizations who may be affected by its outcome.
40. Being able to investigate transport safety matters without external direction
provides an assurance that the findings will be determined and fully reported on
without bias. This outcome is necessary in order for the transport industry and the
public to have confidence that the contributing factors in an accident or incident can
be understood and action can be taken to avoid their reoccurrence. In relation to rail
accident investigation bodies, the Honourable Peter McInerney QC emphasised the
need for independence when he stated in his report on the Waterfall rail accident that
occurred on 31 January 2003 that:
Such a body must be free from interference by government, the rail safety
regulator or rail organisations and be able to act without fear or favour in
relation to its findings as to the cause of any rail accident and any
recommendations made for safety improvements.1
1
The Honourable Peter McInerney QC, Special Commission of Inquiry into the Waterfall Rail Accident
(Final Report), January 2005, vol.1, p.206
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Clause 12AC - Minimal Disruption to transport services
41. Clause 12AC reiterates the content of current section 16 of the TSI Act but
replaces references to the Executive Director with reference to the ATSB and the
Chief Commissioner. The ATSB and the Chief Commissioner will be required,
when exercising their powers under the TSI Act, to have regard to the desirability of
minimising any resulting disruption to transport by means of transport vehicles.
Clause 12AD - International Obligations
42. Clause 12AD reiterates the content of current section 17 in the TSI Act but
replaces references to the Executive Director with references to the ATSB and the
Chief Commissioner. The international agreements and international instruments
that the ATSB/Chief Commissioner will be required to act consistently with, and
have regard to, respectively, will be the ones prescribed in regulation 5.3 of the
Transport Safety Investigation Regulations 2003 (TSI Regulations). Clause 109 of
the Bill will ensure that the continuity of these regulations is not affected.
43. The international agreements that regulation 5.3 of the TSI Regulations currently
prescribes includes relevant articles of the Chicago Convention and Annex 13 to that
Convention. The international instrument that is currently prescribed in regulation
5.3 is the `Code for the Investigation of Marine Casualties and Incidents'.
Clause 12AE - Minister may give the ATSB notices about its strategic direction.
44. Clause 12AE will be similar to section 12A of the Civil Aviation Act 1988 which
allows the Minister to give notices to CASA about its strategic direction. A notice
provided in accordance with clause 12AE will allow the Australian Government to
inform the ATSB of its policy objectives for safe transport and communicate how it
sees the ATSB fitting in with those policy objectives. Subclause 12AE(2) will
require the ATSB to have regard to such a notification about its strategic direction.
However, this will be subject to clause 12AB which provides the ATSB with
independence from being directed in relation to the exercise of its powers or
performance of its functions.
45. As the notice of strategic direction will be of a guiding nature, it will not be a
legislative instrument for the purpose of the Legislative Instruments Act 2003.
Division 2 of Part 2 - Appointment of Commissioners
Clause 13 - Appointment
46. Clause 13 provides for the appointment of the Chief Commissioner and part-time
Commissioners by the Minister. In accordance with new clause 12A (see item 24)
there will be at least two part-time Commissioners. Additional part-time
Commissioners can be appointed if needed for investigations.
47. A person will only be eligible to be appointed as a Commissioner if they have a
high level of expertise in one or more areas relevant to the ATSB's functions.
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Clause 13A - Term of Appointment
48. Clause 13A provides the maximum periods of appointment for a Chief
Commissioner and the part-time Commissioners. The maximum periods of
appointment provide the Commissioners with suitable security in order to establish
themselves in their appointed position.
49. The note to clause 13A advises that a Commissioner is eligible for reappointment.
Clause 13AA - Remuneration and allowances
50. Clause 13AA provides that a Commissioner is to be paid remuneration determined
by the Remuneration Tribunal. The Remuneration Tribunal is required to determine
remuneration for an `office' that meet the definition of `public office' in subsection
3(4) of the Remuneration Tribunal Act 1973. This definition includes all offices
established under Statute.
51. A Commissioner is to be paid the allowances prescribed by the Regulations.
Clause 13AB - Leave of absence
52. Clause 13AB states the Chief Commissioner has the leave entitlements that are
determined by the Remuneration Tribunal. The Minister will also be able to grant the
Chief Commissioner leave of absence other than recreation leave. The Chief
Commissioner will be able to grant leave of absence to part-time Commissioners.
Clause 13AC - Outside employment
53. Clause 13AC provides that the Chief Commissioner will not engage in outside
employment without the Minister's consent on the basis that it may detract from the
performance of his or her full time duties. For part-time Commissioners, the clause
provides that they must not engage in paid employment that conflicts or could
conflict with their role as Commissioner without the Minister's consent. However,
since people appointed as a Commissioner will be engaged for their relevant
experience and expertise, part-time Commissioners are likely to have outside
employment in the transport field. The Minister will need to weigh up these factors
in giving consent to outside employment. In particular, the ability of the ATSB to
conduct its investigations independently is relevant.
54. As further protection, clause 13AE provides separately for disclosure of interests,
pecuniary or otherwise, to the Minister.
Clause 13AD - Resignation
55. Clause 13AD provides that a Commissioner may resign by giving the Minister a
signed notice of resignation. As clause 15 states that the Chief Commissioner is the
Chief Executive Officer the Chief Commissioner also resigns his or her position as
the Chief Executive Officer.
Clause 13AE - Disclosure of interests to the Minister
56. As it is important that the ATSB be able to avoid conflicts of interest to perform
its transport safety investigation function independently, clause 13AE provides that a
Commissioner must disclose interests, pecuniary or otherwise, that could conflict
with the performance of the ATSB's functions.
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Clause 13AF - Other terms and conditions
57. Clause 13AF provides for terms and conditions of office for a Commissioner not
otherwise provided for in the Act, as determined by the Minister in writing.
Clause 13AG - Termination of appointment
58. Clause 13AG sets out the circumstances under which the Minister may terminate
the appointment of a Commissioner. The termination grounds are similar to those in
the National Water Commission Act 2004 which also provides for a full time
Commissioner and part-time Commissioners.
Clause 13AH - Acting Chief Commissioner
59. Clause 13AH provides for the Minister to appoint an acting Chief Commissioner.
This includes during a vacancy in the office, or because the Chief Commissioner is
absent from duty, or unable to perform the duties of the office. Subclause 13AH(2)
makes it clear that a part-time Commissioner and staff members engaged under the
PS Act can be appointed to the acting position.
Division 3 of Part 2 - ATSB Procedures
Subdivision A - Meetings
Clause 14 - Times and places of meetings
60. Clause 14 requires the Chief Commissioner to hold such meetings as are
necessary for the efficient performance of the ATSB's functions. The Chief
Commissioner will determine the time and place of meetings
Clause 14A - Conduct of Meetings
61. Clause 14A provides for the conduct of meetings by the Commission. The Chief
Commissioner or a person appointed to act as the Chief Commissioner will preside at
the meetings.
62. A quorum will be constituted by two Commissioners. If there are only two
members present, the person presiding as Chief Commissioner has a deliberative
vote, and if the votes are equal, a casting vote.
63. In accordance with section 33B of the Acts Interpretation Act 1901 participation
in a meeting may be by telephone.
Clause 14AA - Disclosure of interests
64. Clause 14AA requires Commissioners to disclose their interests, pecuniary or
otherwise, in a matter being considered at meetings. The disclosure must be recorded
in the minutes of meetings.
65. If a Commissioner discloses an interest, they would not normally be present
during the deliberation of the matter or take part in the decision. However, the ATSB
may determine to allow a Commissioner to be present. This may be the case, for
example, if it is considered that the Commissioner's interest in the matter does not
create an unmanageable conflict of interest.
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66. If a Commissioner does disclose an interest, and is present during deliberations
and/or takes part in a decision, this must be recorded in the minutes of the meetings.
Subdivision B - Decisions without meetings
14AB - Decisions without meetings
67. Clause 14AB provides for the ATSB to make decisions on matters without
meetings. The purpose of this clause is to accommodate the possibility of decisions
needing to be made when it is not convenient for the Commissioners to be physically
present or utilise a form of communication prescribed in section 34B of the Acts
Interpretation Act 1901 for such a meeting. The Commissioners as an alternative
could receive briefing on an issue and indicate to each other their position to
determine if they are in agreement.
Clause 14AC - Record of decisions
68. Clause 14AC requires a record to be kept of the decision in accordance with
clause 14AB.
Division 4 of Part 2 - Chief Executive Officer
Clause 15 - Chief Executive Officer
69. Clause 15 specifies that there will be a Chief Executive Officer (CEO) of the
ATSB. The Chief Commissioner will be the CEO.
Clause 15A - Functions of the Chief Executive Officer
70. Clause 15A states that the CEO will manage the ATSB in accordance with t he
policies determined by the ATSB. The CEO will act in the name of the ATSB.
Division 5 - Staff and consultants
Clause 16 - Staff
71. Clause 16 provides that the ATSB will employ staff under the PS Act. Those staff
and the CEO constitute a statutory agency for the purpose of the PS Act. The CEO
will have powers and functions under the PS Act as an Agency Head. Staff engaged
under the PS Act will be bound by the APS Code of Conduct in section 13 of the PS
Act.
Clause 16A - Staff to be made available to the ATSB
72. Clause 16A provides for arrangements to be made for the secondment of staff
from Commonwealth agencies or from a State or Territory to assist the ATSB in the
performance of its functions. This clause is included for the situation where the
ATSB may require specialist expertise in an investigation. It may also be necessary
to second staff in the event of a major transport accident.
Clause 16B - Consultants
73. Clause 16B provides that the ATSB may engage consultants. This provision is
provided to allow the ATSB to utilise specialist expertise in an accident investigation.
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Item 25 - Subsections 19(4) and (5)
Item 26 - Sections 21 and 22
Item 27 - Section 24
Item 28 - Subsections 25(1) and (2)
Item 29 - Subsection 25(2)
Item 30 - Subsection 25(3)
Item 31 - Subsection 26(1)
Item 32 - Paragraph 26(4)(b)
Item 33 - Subsection 29(1)
Item 34 - Subsection 29(1) (note 1)
Item 35 - Paragraph 29(3)(c)
Item 36 - Subsection 30(1)
Item 37 - Paragraph 30(1)(b)
Item 38 - Subsection 30(2)
74. These items amend sections in the TSI Act to substitute references to the
Executive Director of Transport Safety Investigation with references to the ATSB
and Chief Commissioner, who will have the powers and functions relating to
investigations vested in them. The ATSB, in accordance with clause 12A of item 24
will have powers to commence investigations and to publish reports and distribute
draft reports. This is consistent with the National Aviation Green Paper Policy.
Powers would be vested in the Chief Commissioner that are required to be exercised
regularly for investigations or for the management of administrative matters such as
the issue of identity cards.
Item 39 - Division 2 of Part 5 (heading)
75. Item 39 provides for a new title for Item 39 so that the reference to the Executive
Director is changed to the ATSB.
Item 40 - Subsection 32(1)
Item 41 - Subsection 32(3)
Item 42 - Subsection 32(3)
Item 43 - Subsection 32(4), (5) and (7)
76. These items amend section 32 of the TSI Act to replace references to the
Executive Director with references to the ATSB and the Chief Commissioner. The
ATSB will have the power to require persons to attend before it and answer questions
or to produce evidential material for an investigation. The Chief Commissioner will
have the power to issue notices in relation to this attendance or production of
evidential material.
Item 44 - Sections 33, 34, 35, 36, 37, 39, 40 and 41
Item 45 - Subsection 42(1)
Item 46 - Subsection 42(1)(note)
Item 47 - Subsection 42(4)
Item 48 - Paragraph 42(4)(b)
Item 49 - Paragraphs 42(4)(c) and (d)
Item 50 - Sections 43 and 44
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77. These items amend sections in Divisions 3 to 6 of Part 5 of the TSI Act relating to
the current Executive Director's investigations powers. References to the Executive
Director are omitted and replaced with references to the Chief Commissioner. The
powers vested in the Chief Commissioner will include those relating to entry to
premises, applying for warrants, securing accident sites and issuing protection orders
to prevent evidence from being removed or interfered with.
Item 51 - Paragraph 45(1)(a)
Item 52 - Paragraph 45(1)(c)
Item 53 - Subsection 45(2), (3), (4), (5), (6) and (7)
78. These items amend section 45 of the TSI Act which re lates to the retention, testing
and examination of evidential material. References to the Executive Director are
omitted and replaced with references to the ATSB and Chief Commissioner. The
ATSB references will be in relation to evidential material produced to the ATSB
under section 32 (see items 40 -to43). The powers relating to section 45 such as
making copies of evidential material and testing it will be vested in the Chief
Commissioner.
Item 54 - Sections 49, 50, 51, 52, 53 and 56
Item 55 - Subsection 59(1)
Item 56 - Subsection 59(1)
79. These items amend Division 1 of Part 6 of the TSI Act relating to On-board
recordings (OBRs). OBRs include aviation Cockpit Voice Recorders (CVRs) and the
voice component of a ship's Voyage Data Recorder (VDR). OBRs are the most
sensitive form of safety information, which require the protections of Division 1 of
Part 6 to ensure the continued availability of this information for accident and
incident investigation. There are strict limitations on any person copying and
disclosing OBR information. References to the Executive Director in these
provisions will be omitted and replaced with references to the ATSB and the Chief
Commissioner.
Item 57 - Subsections 60(1) and (2)
Item 58 - Subparagraph 60(4)(c)(i)
Item 59 - Subsection 60(5)
Item 60 - Sections 61 and 62
80. These items amend Division 2 of Part 6 of the TSI Act relating to restricted
information. Restricted information is defined in section 3 of the TSI Act as
amended by items 11 and 12 of Schedule 1 and item 2 of Schedule 2 of the Bill.
Restricted Information is information obtained or generated in the course of an
investigation or reported to the ATSB under a voluntary reporting scheme
(amendments in item 2 of Schedule 2) which is protected to ensure its continued
availability for safety purposes. In the case of restricted information, presently staff
members, as defined by section 3 of the TSI Act, are subject to the copying and
disclosure limitations. Item 57 replaces references to staff members in section 60
with references to Commissioners, staff members and consultants as persons who
will be subject to the copying and disclosure limitations. Commissioners, staff
members and consultants will be subject to the requirements of section 60 as they
17
will have access to restricted information for investigation purposes. It is an offence
with a penalty of two years imprisonment for a failure to comply with the copying
and disclosure obligations.
81. Items 58 to 60 amend provisions in Division 2 of Part 6 relating to disclosure and
providing access to restricted information. References to the Executive Director are
omitted and replaced with references to the ATSB.
Item 61 - After Part 6
Part 6A - Reporting requirements
63A Annual Report
82. This item inserts clause 63A to require the ATSB to, a soon as practicable after 30
June each year, prepare and give a report to the Minister on the ATSB's operations.
Subclause 63A(2) provides for matters to be addressed in the content of the Annual
Report.
Item 62 - Before section 64
Clause 63B - Delegation by the ATSB
83. Clause 63B provides the ATSB with the ability to delegate its functions and
powers under the TSI Act. The delegations clause is structured similarly to current
section 13 of the TSI Act that provides for the Executive Director's delegation
power. The ATSB would have the same limitations as the Executive Director with
respect to publishing reports consistent with statement in the National Aviation
Policy Green Paper that these would be released by the ATSB. The ATSB would
have the same limitation on its power to delegate section 32 as the Executive Director
does now. Section 32 will provide the ATSB with ability to require a person to
attend before it or produce evidential material.
84. If the ATSB delegates the power to the Chief Commissioner, the Chief
Commissioner will also have the power to delegate section 32. This is so that a
delegation can be made expediently for the purposes of an investigation.
85. Consistent with the current power of delegation in section 13, the ATSB, subject
to the restrictions in clause 63B the ATSB is able to delegate its powers to any person
but they would have to be suitably qualified in accordance with the criteria prescribed
in regulations under subclause 63(2). 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,
18
seen as necessary to adequately carry out investigative functions on behalf of the
ATSB under the TSI Act, will be bestowed on those persons. To ensure the ATSB
maintains control over the manner in which the delegated powers are exercised, the
delegation may be conditional upon the delegate complying with the ATSB's
directions given under subclause 63B(6) in relation to the exercise of the powers by
the delegate. The ATSB 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.
86. As an example of what would be prescribed in the regulations for the purpose
subclause 63B(2), regulation 5.1 of the Transport Safety Investigations Regulations
2003 currently prescribes the following criteria:
(a) to be delegated powers under the Act, a person must satisfy at least one of the
following criteria:
(i) the person must have experience or technical expertise in relation to
the relevant mode of transport and, in particular, the transport vehicle
or infrastructure involved in, or associated with, matters being
investigated;
(ii) the person must have safety investigation experience or safety
investigation qualifications;
(iii) the person's occupation must be in the relevant transport industry;
(iv) the person must have experience or technical expertise relevant to the
matter being investigated; and
(b) if the power to be delegated is a power under Division 2 or 3 of Part 5 of the Act,
the person must also have received appropriate training and briefing.
Clause 63C - Delegation by the Chief Commissioner
87. Clause 63C provides the Chief Commissioner with the power to delegate his or
her functions and powers under the TSI Act. Similar to the ATSB, the Chief
Commissioner will have limitations that are based on the current limitations for the
Executive Director delegating his or her powers under section 13 of the TSI Act.
Clause 63D - Delegation by the Chief Executive Officer
88. Clause 63D provides the CEO with the power to delegate his or her functions and
powers under the TSI Act. The CEO's functions and powers are not critically related
to use in specific investigations in the same way that the powers and functions of the
ATSB and the Chief Commissioner are. Therefore, the CEO's functions and powers
would only be delegable to SES employees and APS EL 2 employees.
Clause 63E - Special Investigators
89. Clause 63E vests the power to appoint special investigators in the Chief
Commissioner. The power to appoint special investigators is presently vested in
Executive Director under section 14. Section 14 would be omitted along with the rest
of Part 2 of the TSI Act in accordance with item 24 of the Bill.
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Item 63 - Section 65
Item 64 - Subsection 66(1)
Item 65 - Subsection 66(2)
Item 66 - Subsection 67(1)
Item 67 - Sections 68 and 69
90. These items amend Part 7 of the TSI Act where there are references to staff
members. The provisions are replaced to accommodate the arrangement for
Commissioners, staff members and consultants to be involved in the conduct of
investigations for the ATSB.
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Part 2 - CONSEQUENTIAL AMENDMENTS
The consequential amendments affect the Air Services Act 1995, the Australian
Maritime Safety Authority Act 1990, the Civil Aviation Act 1988 and the Inspector of
Transport Security Act 2006, where there are references to the Executive Director of
Transport Safety Investigation. These references will be replaced with references to
the ATSB or the Chief Commissioner as required for the circumstances of the
exercise of the relevant power or performance of the function.
Air Services Act 1995
Item 68 - Paragraph 8(1)(c)
91. Item 68 amends the cooperation function in the Air services Act 1995. The
reference to the Executive Director of Transport Safety Investigation is omitted and
replaced with a reference to the ATSB.
Australian Maritime Safety Authority Act 1990
Item 69 - Paragraph 6(1)(cb)
92. Item 69 amends the cooperation function in the Australian Maritime Safety
Authority Act 1990. The reference to the Executive Director of Transport Safety
Investigation is omitted and replaced with a reference to the ATSB. Further, a
reference to aircrafts is added in addition to the current reference to ships to
incorporate the Australian Maritime Safety Authority's search and rescue function
covering aircraft.
Civil Aviation Act 1988
Item 70 - Paragraph 9(3)(a)
93. Item 70 amends the cooperation function in the Civil Aviation Act 1988. The
reference to the Executive Director of Transport Safety Investigation is omitted and
replaced with a reference to the ATSB.
Inspector of Transport Security Act 2006
Item 71 - Section 3
Item 72 - Section 3 (definition of Executive Director)
Item 73 - Section 34
Item 74 - Subsection 37(1)
Item 75 - Subsection 37(2)
Item 76 - Subsection 37(2)
Item 77 - Subsection 37(3)(a) and (b)
Item 78 - Subsection 37(4)
Item 79 - Subsection 37(5)
Item 80 - Paragraphs 37(6)(b) and (c)
Item 81 - Subsection 37(7)
Item 82 - Paragraph 37(8)(a)
Item 83 - Subsection 51(4)
Item 84 - Subsection 52(5)
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Item 85 - Section 54
Item 86 - Subsection 55(7)
Item 87 - Subsection 59(4)
Item 88 - Section 63
Item 89 - Subsection 64(5)
Item 90 - Paragraph 66(f)
Item 91 - Section 66 (note 1)
Item 92 - Subsection 70(1)
Item 93 - Subsection 70(2)
Item 94 - Part 8
Item 95 - Section 72
Item 96 - Section 75
Item 97 - Paragraphs 76(1)(a) and (b)
Item 98 - Subsection 77(1)
Item 99 - Paragraph 77(3)(c)
Item 100 - Subsection 77(6)
Item 101 - Subsection 82(2)
Item 102 - Subsection 82(2)
Item 103 - At the end of section 82
94. These items amend the Inspector of Transport Security Act 2006 (ITS Act) to omit
references to the Executive Director of Transport Safety Investigation. The
Executive Director currently has powers and functions under the ITS Act which
include sharing OBR information and restricted information. The powers and
functions in the ITS Act will now be vested in the ATSB and Chief Commissioner in
accordance with the amendments made by the above items.
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Part 3 - SAVING AND TRANSITIONAL PROVISIONS
The Bill provides for transitional provisions so that investigations commenced under
legislation existing before the new laws come into effect on 1 July 2009, can be
continued by the ATSB. For investigations already completed, the ATSB or the Chief
Commissioner, as required, will be able to exercise powers under old laws in relation
to administrative matters still concerning those investigations such as the disclosure of
information. Further, the Bill provides for the ATSB or the Chief Commissioner to
perform functions or exercise powers conferred on the Executive Director of
Transport Safety Investigation under the following Regulations establishing
confidential reporting schemes:
- the Navigation (Confidential Marine Reporting Scheme) Regulations 2008;
- the Air Navigation (Confidential Reporting) Regulations 2006;
- the Civil Aviation Safety Regulations 1998.
Item 104 - Definitions
95. Item 104 provides definitions for ATSB, Chief Commissioner, Executive Director,
new law and old law for the purposes of Part 3
Item 105 - Continuation of existing investigations under the Transport Safety
Investigation Act 2003.
96. Item 105 provides for the continuation of investigations commenced by the
Executive Director of Transport Safety Investigation before 1 July 2009. Subitem
105(2) provides that anything done by, or in relation to, Executive Director under
such an investigation is taken to be done by, or in relation to, the ATSB or the Chief
Commissioner as the case requires.
97. Subitem 105(3) allows the Minister to determine that in writing that something is
not taken to be done by or in relation to the ATSB or the Chief Commissioner. This
would preserve the status quo with the thing done by, or in relation to, the former
Executive Director
98. A determination in subitem 105(3) is not a legislative instrument for the purposes
of section 5 of the Legislative Instruments Act 2003. Subitem 105(5) is included only
to assist readers.
Item 106 - Exercise of powe rs in relation to completed investigations.
99. Prior to the amendments in items 1to 24, items 26 to 109 and Schedule 2 of this
Bill coming into effect on 1 July 2009, safety investigations will have been
completed by:
(a) the Executive Director of Transport Safety Investigation under the TSI
Act;
(b) the former Director of Air Safety Investigation under former Part 2A of the
Air Navigation Act 1920;
23
(c) the former Inspector of Marine Accidents under the former Navigation
(Marine Casualty) Regulations 1990.
100. Item 106 ensures that the ATSB and the Chief Commissioner may perform
functions and exercise powers in relation to these investigations under the former
laws. The ATSB and the Chief Commissioner would need to perform functions and
exercise powers, for example, in relation to the protection and disclosure of
information obtained or generated in the course of those investigations.
Item 107 - Performance of functions and exercise of powers in relation to
voluntary reporting schemes
101. The Executive Director currently has functions and powers under the
following regulations establishing schemes for the voluntary and confidential
reporting of aviation and marine safety matters:
(a) the Navigation (Confidential Marine Reporting Scheme) Regulations
2008;
(b) the Air Navigation (Confidential Reporting) Regulations 2006; and
(c) Division 13.K.1 of Part 13 of the Civil Aviation Safety Regulations.
102. Item 107 provides that the ATSB or the Chief Commissioner will be able to
exercise the powers of the Executive Director under these Regulations until they are
repealed.
Item 108 - Validation of acts done under investigations conducted under the
Navigation Act 1912
103. The Navigation (Marine Casualty) Regulations 1990 provided for marine
investigation before the TSI Act came into effect on 1 July 2003. Subitem 108(1)
verifies that acts performed under those regulations are taken to have been validly
performed for investigations commenced before the TSI Act came into e ffect.
Subitem 108(2) verifies that the regulation making powers in the Navigation Act
1912 supporting the Navigation (Marine Casualty) Regulations 1990 continue in
force for investigations that were completed under the Regulations.
104. Item 108 clarifies the position after items 8 and 9 of the Transport Safety
Investigation (Consequential Amendments) Act 2003 repealed paragraphs 425(1)(ea)
and subsection 425(1AAA) of the Navigation Act 1912 relating to regulation making
powers for investigations.
Item 109 - Saving regulations
105. Item 24 repeals Part 2 of the TSI Act. In order to ensure that the regulations
made under section 17 are not affected, item 109 provides a saving provision.
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SCHEDULE 2 - OTHER AMENDMENTS
Transport Safety Investigation Act 2003
Item 1 - Section 3
106. Item 1 provides for a definition of a committee management for the purpose of
item 6 new subclause 25A(5).
Item 2 - Section 3 (at the end of the definition of restricted information)
107. Item 2 provides for amendments to the definition of restricted information in
section 3 of the TSI Act. The amendments add new elements to definition to
encompass information in reports made under a voluntary reporting scheme
established in accordance with new clause 20A (see item 5 of this Schedule).
Information obtained or generated in the course of considering and analysing those
reports would also be restricted information. Division 2 of Part 6 of the TSI Act
provides limitations on copying and disclosure of restricted information in the
interest of preserving its free- flow for safety purposes in the future.
108. The amendments to the definition of restricted information would support the
confidential nature of the schemes to be established under cla use 20A. Under a
voluntary reporting scheme, information would need to be protected in the manner
provided for with restricted information, in order to encourage persons to make
reports without fear of reprisal. Protection of the information would also ensure any
scheme established is directed towards providing information to the industry to
address a safety issue rather than prosecuting individuals. This is consistent with the
functions of the ATSB in clause 12AA (see item 24 of Schedule 2).
Item 3 - Section 3
109. Item 3 will insert a new definition in section 3 of the TSI Act for voluntary
reporting scheme.
Item 4 - Part 3 (heading)
110. Item 4 will insert a new heading for Part 3 to accommodate the introduction of
clause 20A for voluntary reporting.
Item 5 - At the end of Part 3
111. Item 5 provides for the new clause 20A to go into Part 3 to allow for the
establishment of voluntary and confidential reporting schemes under regulations.
The schemes established would be similar to those established for the Aviation and
Marine industries under the Air (Navigation Confidential) Reporting Regulations
2007 and the Navigation (Confidential Marine Reporting Scheme) Regulations 2008.
Item 107 of Part 2 of Schedule 1 provides for the ATSB and the Chief Commissioner
to exercise powers and perform functions under these Regulations until they are
25
repealed. The intention of Item 4 of this schedule is to provide for the consolidation
of the ATSB's legislative responsibilities under the TSI Act. New voluntary and
confidential reporting schemes would therefore be made under new clause 20A.
Item 6 - After 25
112. Item 6 provides for a new clause 25A. The new clause 25A will have the
effect when the ATSB issues a formal safety recommendation as a report, or part of a
report, under section 25. A person, unincorporated association, or an agency of the
Commonwealth or of a State or Territory to whom the recommendation is directed,
must respond to the ATSB within 90 days advising reasons for acceptance, partial
acceptance or rejection of the recommendation.
113. Where the recommendation is accepted or partially accepted the respo nse must
explain how the recommendation will be implemented.
114. Clause 25A creates an offence with a penalty of 30 penalty units where a
person or an unincorporated association fails to comply with the requirement to
respond.
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