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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
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.
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
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.
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.
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.
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.
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.
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.
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).
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).
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.
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.