Bills Digest No. 27 2002-03
Transport Safety Investigation Bill 2002
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Transport Safety Investigation Bill
2002
Date Introduced:
20 June 2002
House: Representatives
Portfolio: Transport and Regional
Services
Commencement: Upon
proclamation or six
months after Royal Assent.
Purpose
To consolidate
the statutory basis for the investigation of air and shipping
accidents by the Australian Transport Safety Bureau within a single
Act and for the first time to provide for statutory national rail
safety investigation.
The Australian Transport Safety Bureau (ATSB)
was created in July 1999 by amalgamating the former Bureau of Air
Safety Investigation (BASI), the non-regulatory parts of the
Federal Office of Road Safety (FORS) and the Marine Incident
Investigation Unit (MIIU).(1) It is a non-statutory
agency within the Commonwealth Department of Transport and Regional
Services (DOTRS).
Whilst ATSB's primary role is the investigation
of transport accidents, the mission statement in its 2001 annual
review is:(2)
To maintain and improve transport safety and
public confidence through excellence in:
open and independent no-blame systemic transport
accident, incident and safety deficiency investigation;
safety research and data analysis;
safety communication and education; and
safety programs, including the cost-effective
treatment of road safety Black Spots.
In terms of independence, the 2001 review also
states that the ATSB(3)
is operationally independent and has a strict
organisational separation from transport regulators and other
bodies that may need to be investigated. ATSB undertakes
investigations and analyses safety data without fear or favour and
in so doing helps to improve safety and maintain public confidence
that the safety of the transport system is not being
compromised.
ATSB air safety investigators currently exercise
statutory powers delegated by the Executive Director, who has been
designated the Director of Air Safety Investigation under Part 2A
of the Air Navigation Act 1920. The Executive Director has
the power to release air safety information under section 19HA and
delegated power to release final investigation reports under
section 19CU. Note that disciplinary action and criminal or
liability assessment do not form part of ATSB safety investigation
and may be progressed by separate agencies.
ATSB's Deputy Director, Surface Safety
Investigations, holds the statutory position of Inspector of Marine
Accidents under Part 3 of the Navigation (Marine Casualty)
Regulations (formed under the Navigation Act 1912) to
investigate marine accidents. The Executive Director has been
authorised to publish marine investigation reports and to appoint
the Inspector and other marine safety investigators.
While aviation and marine accident investigation
have been a large part of ATSB activities, its wider role also
incorporates road and rail accident investigation. The ATSB is
developing its rail investigation capability and a database of
national rail safety occurrences. It provides advice and
participates in investigations under State legislation on request.
The ATSB' road safety activities include research and statistical
analysis, a national strategy and publication of statistics, as a
legacy of the former Federal Office of Road Safety.
One of the major changes that is proposed by the
Bill is to provide ATSB with legislative authority in relation to
rail safety investigation. Amongst other things, this will provide
ATSB with the ability(4) to collect evidence, restrict
disclosure of relevant information etc in a way that overrides
State safety investigations carried out under State law.
Rail transport involves both public and private
operators providing the basic infrastructure and transport units.
An Inter-governmental Agreement (IGA) in relation to National Rail
Safety between the Commonwealth and all States and Territories came
into effect in July 1996. It aims to establish a nationally
consistent approach to rail safety including the accreditation of
rail owners and operators, development of uniform technical and
operating standards, for greater accountability and safety. Given
the open access now available to rail infrastructure, nothing less
than a national approach to rail safety is adequate to ensure
seamless utilisation across States, particularly on the
mainland.
In 2000, the Australian Rail Operations Unit
(AROU) commenced to help progress the finalisation and
implementation of Codes of Practice for use on the Defined
Interstate Rail Network and include safety matters. AROU sits in
the Commonwealth Department of Transport and Regional Services.
Each of the state railways has tended to follow their own set of
recommended practices or standards governing design and maintenance
of equipment and their own safety management systems. The
Australian Transport Council requested a Study of Rail Standards
and Operational Requirements report in 1998. It stated that there
was generally a lack of commitment to ensure that standards and
procedures were appropriate for interstate (national) operations.
The AROU builds upon that initiative but may itself be subject to
investigation following a safety occurrence on the interstate
network.
The rail industry has historically developed on
a State basis but now operates on a more national basis with
private companies operating trains across the country. However, the
adoption of national codes of practice for rail safety and other
means of standardisation will require the cooperation and agreement
among the various State rail organisations. While there has been an
intention of agreement among them, final action is still awaited.
There are published Australian rail safety management and other
relevant rail national standards. But, there is no agreed national
standard on rail safety incident investigation and thus a lack of
uniform approach can occur. While all States have been invited to
utilise ATSB services, not all have done so, noting their
respective State-based rail legislation. In view of the public
interest for safe rail services, a national approach appears
warranted.
Nonetheless, as noted in the Explanatory
Memorandum, some accreditation authorities, while welcoming ATSB
assistance, may believe that the ATSB needs to prove the
effectiveness of its investigation methodology to the rail
industry, prior to mandating it through an Act. Some authorities
may view the proposal as resulting in more unnecessary power over
the States by the Commonwealth and that any such legislation goes
against the intent of the 1996 Inter-Governmental Agreement.
However, precedents exist already in the
aviation and maritime sectors for Commonwealth transport mode
safety investigation by the ATSB. There will be a cost to the
Commonwealth, estimated at $0.75 million per annum, to enable the
ATSB to investigate rail accidents and establish the office of the
Executive Director of Transport Safety Investigation.
The explanatory memorandum
comments:(5)
Individual meetings were held with some industry
operators and other industry organisations. Proposals have also
been discussed at accreditation authority and Rail Group,
SCOT(6) and ATC(7) meetings.
In September 2001, comment from the rail
industry was sought on an Exposure Draft of the proposed
legislation. A multi-modal industry consultation workshop was held
in Canberra on 21 September 2001 to brief the aviation, marine and
rail industry on the proposed provision of the new legislation. A
number of comments were received from interstate operators and
State and Territory regulatory authorities. The ATSB has sought to
accommodate to the extent possible a number of concerns raised by
those parties within a revised version of the Bill and will work
with the industry and regulatory authorities to develop agreed
protocols through Memoranda of Understanding. Consultation has also
occurred with occupational health and safety bodies.
Another transport mode, space launch vehicle
safety comes under the Space Activities Act 1998 and
Regulations 2001. That Act contains various powers that
are conferred upon an investigation officer in the event of a space
accident or incident. However, it is arguable that a space vehicle
such as a rocket launcher also falls within the definition of an
'aircraft' under the Bill and thus the Bill may apply to activities
regulated by the Space Activities Act. New
subsection 10(2) of the Bill means that the Bill overrides
the Space Activities Act to the extent of any
inconsistency. Thus whilst a person may carry out any obligations
they have under the Space Activities Act it is possible
that they would also need to observe any obligations under the
Bill, which may cause difficulties should any inconsistencies
between the two occur. Whilst this issue may be more of a
theoretical concern than a practical one, it would be helpful if it
were clarified whether the Government intended to have any overlap
between the two.
New section 7 outlines the
objects of the Act. Notably, it makes clear that attributing blame
for transport accidents or incidents or providing the means to
determining the liability of any person for the same is not an
object of the Act. This 'no blame' approach is in line with current
ATSB practice.
New section 8 provides that the
Chapter 2 of the Criminal Code Act 1995 applies to all
offences in the Act. This means that standardised concepts of
fault, availability of defences etc apply.
New section 10 clarifies that
the Act is not intended to exclude the operation of State and
Territory laws as long as they are capable of operating
concurrently with the Act. In practice, while this allows the
States and Territories to proceed with their own statutory
transport safety investigations, ATSB will be able to collect
evidence, restrict disclosure of relevant information etc in a way
that overrides State safety investigations carried out under State
law. Page 34 of the explanatory memorandum to the Bill gives an
extensive commentary about the rationale for new section
10.
New section 11 sets out the
circumstances in which the powers under the Act apply. These
reflect the Commonwealth's constitutional limitations in regulating
transport. The most common circumstances in which the powers of the
Act will apply include those that involve interstate or overseas
trade or commerce, involve a constitutional corporation, take place
outside of Australia or attract the external affairs
power.(8)
The investigatory powers of the ATSB under the
Act are further restricted by new section 22.
There are two main restrictions. The first is that the relevant
'transport safety matter'(9) must have a connection with
Australia, unless in the case of a foreign registered ship or
aircraft the foreign country requests ATSB to investigate. The
second restriction is where the transport safety matter involves an
Australian military ship or aircraft or a foreign military, police
or customs ship or aircraft, ATSB can only investigate if the
incident also involves another civil vehicle or
transportation facility. However, the second restriction does not
prevent the ATSB from investigating in relation to an Australian
military ship or aircraft if it is requested to do so by the
Defence Force.
New section 12 requires the
Secretary of the administering Department(10) to create
the position of the Executive Director of Transport Safety
Investigation under section 77 of the Public Service Act
1999. The Executive Director may delegate most of his or her
powers to another person. However, the powers to appoint special
investigators (new section 14) and publish
investigation reports (new section 25) cannot be
delegated.
The Executive Director cannot be directed by
either the Minister or Secretary 'in respect to the exercise of
[his or her] powers under this Act' except the Minister may require
the Executive Director to investigate a transport safety matter:
new sections 15 and 21. In
exercising powers under the Act, the Executive Director 'must have
regard to the desirability of minimising any resulting disruption
to transport by means of transport vehicles': new section
16. He or she must also ensure that such powers are
'exercised in a manner that is consistent with Australia s
obligations under [those] international agreements' listed in
regulations: new section 17.
New sections 18-20 provides for
compulsory reporting of certain matters by 'responsible persons'.
The range of matters, and meaning of responsible persons, are to be
prescribed by regulations. If a responsible person has knowledge of
a reportable matter and fails to report it 'as soon as practicable'
they commit an offence punishable by up to six months imprisonment:
new subsection 18(1). No offence occurs if they
believe 'on reasonable grounds' that another responsible person has
duly reported the incident. The method of reporting is also to be
prescribed by regulations.
New section 21 provides the
Executive Director with the power to investigate any transport
safety matter subject to the limitations previously mentioned in
section 22. The Executive Director may discontinue
an investigation at any time, although they must make publicly
available the reasons for doing so within 28 days of the
discontinuation. Presumably this 'discontinuation' power also
applies for investigations ordered by the Minister under
new paragraph 21(1)(b).
New section 24 creates the
offence of hindering an investigation. Essentially, an offence
occurs if a person is reckless as to any possible adverse impacts
of his or her conduct on a current or possible future investigation
(note the conduct must actually adversely affect such
investigation) and the conduct is not authorised by the Executive
Director. An offence is punishable by up to six months
imprisonment. An offence does not occur if the conduct is necessary
to ensure the safety of persons, animals or property, remove
bodies, move the relevant transport vehicle to a safe location or
protect the environment from significant damage or pollution.
Refusing to let the Executive Director (including of course their
delegate) enter private premises that is not an accident site does
not give rise to an offence. The explanatory memorandum to the Bill
comments that(11)
This provision is intended to cover conduct such
as withholding information, concealing evidence, tampering with
evidence etc but no conduct will constitute an offence unless it
actually has an adverse effect on an investigation. This clause not
only relates to accident sites where it is very important that
evidence is preserved, but also extends to include such things as
the destruction/removal of evidence remote from the accident site
such as minutes of meetings, training records, data recordings etc.
Such information may provide crucial evidence pertinent to the
investigation. Where an immediately reportable matter has occurred,
the offence may apply before the matter is reported and before
Executive Director decides to investigate. This is because a person
would reasonably be expected to know that the Executive Director is
likely to investigate in such cases.
New section 25 provides for the
compulsory publication of investigation reports by the Executive
Director. He or she may also publish preliminary reports, interim
factual reports, safety recommendations etc, whether or not the
investigation has been completed. A report may include submissions
made to the Executive Director either in response to a draft report
released under new section 26 or to safety
recommendations. The explanatory memorandum comments
for example, the Executive Director may wish to
include, as part of the public record, comments made by directly
involved parties to the investigation in relation to the accuracy
of the factual information in a draft report
The Executive Director may give draft reports to
persons for comment or for the purpose of 'advance notice'. Any
draft reports so given are confidential and copying or disclosing
the report, except in very limited circumstances such as remedying
safety deficiencies identified by the draft report, carries a
maximum penalty of 2 years imprisonment: new subsection
26(2).
A published report cannot include the name of an
individual unless they have consented to the inclusion. This is
reflection of the 'no blame' approach to ATSB's reporting. Further,
new section 27 provides that new section
25 and 26 reports are not admissible in
evidence in civil or criminal proceedings, although new
section 25 reports (ie published reports) are admissible
in a coronial inquiry.
New section 28 provides that
any powers conferred under Part 5 can only be exercised 'for the
purposes of an investigation'.
New section 32 allows the
Executive Director to require a person to attend an examination and
answer any questions under oath or affirmation relevant to an
investigation or produce any specified evidence. 'Examination'
provisions are becoming fairly common in recent Commonwealth
legislation, though their content varies.
Under new section 47 a person
is not excused from answering questions or evidential
material on the grounds of self-incrimination, or of exposure of
the individual to a penalty. However, the information, evidence or
documentation, or anything obtained as a direct or indirect
consequence(12) of the information, evidence or
documentation provided cannot be used in evidence against the
individual in criminal proceedings except for a
prosecution for failing to provide information or giving false or
misleading information. Note that the information given could be
used to criminally prosecute a company. There is no right for
counsel to be present at an examination, nor is there any provision
for a record of the examination to be given to the examinee.
Failure to attend an examination, answer lawful
questions, provide requested evidence or a refusal to take an oath
or affirmation is punishable by a fine of up to $3 300.
New sections 33-39 contain a
fairly standard set of search and seizure provisions, except that
in the case of 'special premises' the Executive Director requires
neither a warrant nor the occupier's consent to enter. Special
premises encompass accident sites, the transport vehicle(s)
involved, and any thoroughfares needed to get access to these. The
Executive Director may use 'reasonable force' to gain entry to
special premises or to any premises under warrant. Where entry is
to special premises or to any premises under warrant, he or she may
also require a person on the premises to answer questions or
produce evidential material and seize and evidential material
without the occupier's consent - a failure to answer questions
attracts a fine of up to $3 300: new section 36.
New section 47 applies to new section
36. Occupiers are entitled to be present during a search
as long as they do not impede to search. Standard compensation
provisions apply under new section 46 should any
electronic equipment or data be damaged or corrupted through
insufficient care as the consequence of operating equipment under
new section 36 to access evidence.
New sections 40-42 deal with
the issuing of investigation warrants by magistrates. These are all
standard provisions regarding the grounds for the warrant,
requirement for the provision of information on oath to the
magistrate etc. The making of false or misleading statements in
applying for an investigation carries a maximum penalty of two
years imprisonment.
New section 43 provides that
the Executive Director may issue a protection order to prevent
evidence that might be relevant to an investigation from 'being
removed or interfered with'. The penalty for contravention of an
order is imprisonment for a maximum of 12 months. As for
new section 24, a new section 43
offence does not occur for actions done to ensure the safety of
persons, animals or property etc.
New section 45 deals with the
treatment of evidential material. In particular, new
subsections 45(6) and 45(7) allow the
Executive Director to provide evidential material that is not an
on-board recording or restricted information (see below) directly
to other Commonwealth and State authorities or to a coroner.
However, before doing so, the Executive Director must be satisfied
that making the material available will not interfere with an
investigation to which the material relates.
New sections 48-63 contain
complex provisions setting out limited circumstances in which
'on-board recording' (OBR) information and 'restricted information'
can be disclosed or otherwise made available to various parties.
OBRs are defined in new subsection 48(1), but the
most common example is of course the cockpit voice recording (CVRs)
devices used in larger commercial airservices. According to the
explanatory memorandum, it is arguable that the release of CVR
information on occasion into the courts and the public domain has
in fact had a prejudicial effect on transport
safety:(13)
CVRs were originally intended only to be used to
assist in the investigation of occurrences where the flight crew
were fatally injured as a result of an accident and were therefore
unable themselves to provide critical safety information about the
events immediately preceding the accident. CVR information is now
used more broadly in many non-fatal accidents and serious incidents
as the information has also proven to be vital in those cases.
It is acknowledged that such recordings
constitute an invasion of privacy for the operating crew of an
aircraft that most other employees in workplaces are not subject
to. Such recordings, therefore, must be treated with the utmost
confidentiality and continue to be used for safety investigation
purposes only. To ensure the ongoing availability of information
from CVRs, it was considered necessary to protect the rights of
individuals, in particular the operating crew of an aircraft.
Inappropriate use of CVR information in the judicial system, for
example, may adversely affect transport safety, both domestically
and internationally, as it is unlikely that the availability and
free flow of safety information will be guaranteed/continued in the
future. Inappropriate use by an operator such as for disciplinary
action may also result in an adverse outcome for transport safety.
For example, the operating crew of an aircraft has the ability to
deny access to CVR information simply by pulling a circuit breaker,
thus rendering a CVR inoperative.
In a recent case in New Zealand (NZ), the desire
of NZ police to prosecute a DASH-8 crew for an operational error
that led to an aircraft crash resulted in strong ICAO/international
criticism. In this case, the police charged the crew with
manslaughter and seized the cockpit voice recorder as evidence.
These actions subsequently led to NZ and foreign aircrews pulling
circuit breakers on CVR devices when within NZ airspace and in
doing so, rendered the CVR inoperative. This effectively denied
access by investigators to vital information for future safety
investigations. Aircrews were also less inclined to be cooperative
and forthcoming to safety investigators in relation to their role
in air safety occurrences. At the time of the events described
above, NZ legislation did not provide protection regarding the
disclosure and use of CVRs. Those tensions have since eased with a
change to NZ law that now provides similar disclosure and use
provisions for CVRs as those provided in Australian
legislation.
The need to provide adequate protection to CVR
information was recently reaffirmed by the International Civil
Aviation Organisation (ICAO) in its Working Paper A33-WP/46 of 29
June 2001, in which it expressed a concern about inappropriate use
of accident and incident records in some Contracting States. ICAO
considered that accident and incident records such as CVR
recordings should be protected from utilisation in disciplinary,
civil, administrative and criminal proceedings, and from disclosure
to the news media and the public. Therefore, it proposed a
resolution urging Contracting States to examine, and if necessary,
adjust their laws, regulations and policies to protect certain
accident and incident records in order to mitigate impediments to
accident and incident investigations .
Note that information that falls within the
definition of an OBR under new subsection 48(1)
can be excluded from the definition either by regulations
(new subsection 48(2)) or by a decision of the
Executive Director (new subsection 49(1)). It
appears the Executive Director can only exclude an OBR on the
grounds of either a decision not to investigate the relevant
transport safety matter or deciding part of the OBR is not relevant
to the investigation.
New section 53 creates a
criminal offence for copying or disclosing OBR information except
in certain cases. An offence carries a maximum penalty of 2 years
imprisonment. The main exceptions (ie where disclosure or copying
is permitted) are:
-
- in the course of the exercise of powers under this Act or in
connection with the Act - for example under new section
51. The explanatory memorandum comments that this might
occur for example 'as a normal part of the investigation process
where a team approach is taken and where it may be necessary to
disclose the contents of an OBR to external experts and others for
the purposes of properly analysing the significance of the
information'(14)
-
- for purposes of the investigation of any offence against a law
of the Commonwealth, State or a Territory
-
- to a court for the purposes of criminal proceedings against any
person who is not a crew member of a relevant transport
vehicle - for example the OBR could be used in prosecuting a
passenger for an assault or hijacking, or
-
- to a court(15) in civil proceedings if the Executive
Director has issued a certificate under new section
50(16) and the court is satisfied that
the public interest outweighs any adverse impact of such disclosure
on any current or future investigation.
Note that even if OBR information is disclosed
to a court under one of the above, new subsection
53(5) allows the court to issue directions to prohibit or
restrict publication and communication of the OBR information to
any person. The explanatory memorandum comments that this allows a
court to:
ensure that the "audience" is restricted to only
those persons necessary and keeps out other parties, for example,
the media, who may take the OBR information out of context or use
it for purposes other than relating to the
proceedings.(17)
Presumably relevant courts have inherent power
to punish a breach of a restriction order through their legislation
and rules as no offence for a breach is created by the Bill.
Even where OBR information is lawfully
disclosed, a person cannot take disciplinary action against an
employee 'on the basis of OBR information': new
section 54. However, it is not clear whether OBR
information could be used in conjunction with other
evidence to support a disciplinary action.
OBR information is not admissible as evidence in
any criminal proceedings against a crew member of a transport
vehicle, other than proceedings under the Act (for example a
prosecution under new section 18 for failure to
report an incident): new section 55
New section 51 allows the
Executive Director to disclose OBR information if they consider is
'necessary or desirable for the purposes of transport safety'. If
this information contains personal information,(18)
those elements can be only disclosed in circumstances to be
prescribed in regulations.
New section 56 restricts the
admissibility of OBR information in civil
proceedings.(19) New subsection 56(1)
allows OBR information to be admitted in civil proceedings
only if the Executive Director has issued a new
section 50 certificate and that the court has
made an order under new subsection
56(3).(20) Essentially new subsection
56(3) requires the court to be both satisfied
that that the OBR information is the only source of evidence
regarding a material fact and that the public interest
outweighs any adverse impact of such disclosure on any current or
future investigation. OBR information admitted under new
section 56 cannot be used as evidence in determining any
liability of a crew member of the transport vehicle: new
section 58.
New section 59 allows a coroner
to request OBR information held by the Executive Director. Access
must be granted unless the Executive Director believes the coroner
s access to the information is likely to interfere with any
investigation to which the OBR information relates. The explanatory
memorandum comments:
For example, a particular transport safety
matter may still be under investigation at the time of a coronial
inquiry into that same or related matter. In such cases, the
Executive Director may consider it inappropriate to disclose the
requested OBR information at that time as it may prejudice that
investigation if that information was made public before the
investigation was completed.(21)
If the OBR information is obtained by the
coroner, he or she can only disclose it in the context of coronial
proceedings if they consider the information is relevant to
proceedings, cannot be obtained by an alternative means, and where
any adverse impact on a safety investigation is outweighed by the
public interest. Even if it is so disclosed, the coroner may issue
directions to prohibit or restrict publication and communication of
the OBR information to any person. Contravention of a direction is
an offence carrying a penalty of up to 2 years imprisonment:
new subsection 59(5).
Subject to some exceptions, new
subsections 60(1)-(3) prohibit a person who is or has been
a staff member,(22) or who has been authorised to access
restricted information under new section 62, from
making a record of restricted information, or disclosing the
information to any person. Restricted information is defined in
new section 3, but generally covers various types
of sensitive information acquired or made in the course of an
investigation. Disclosures or copying are permitted if they are
done by persons performing functions under the Act: new
subsection 60(4). Disclosure is also permitted by the
Executive Director in civil or criminal courts under limited
circumstances: new subsections 60(4)-(6). If
disclosure is prohibited by new section 60, a
court cannot order them to disclose it: new subsection
60(8). Any information from a prohibited disclosure is not
admissible in any civil or criminal court: new subsection
60(8).
The Executive Director may disclose restricted
information if they consider this is 'necessary or desirable for
the purposes of transport safety': new section
61.(23) If this information contains personal
information those elements can only disclosed in circumstances to
be prescribed in regulations.
The powers of Parliament and Royal Commissions
to obtain information are not bound by Part 6: new section
63.
New section 64 provides that,
in exercising powers under the Act, a person is not liable for any
act or omission done in good faith. Such protections are fairly
common in various types of Commonwealth regulatory legislation, eg
Quarantine Act 1908, Australian Sports Drug Agency Act 1990,
Fisheries Management Act 1991.
New sections 65-68 deal with
the issue of staff members potentially appearing before a criminal
or civil court or coronial inquiry. The effect of new
sections 65-66 is that the Executive Director may prevent
a court from compelling a current or past staff member to attend a
court and answer questions in relation to an investigation. The
explanatory memorandum comments:
It is considered important, in the interests of
maintaining trust and a free flow of safety information, that any
current or former staff member who is involved, or has
been involved, in the investigation of a transport safety matter
(including those having access to OBR and restricted
information), should maintain a distance from the judicial
system, the focus of which is primarily on blame or liability. It
was considered appropriate to include former staff members
in this provision to ensure that the confidentiality of sensitive
information, including OBR and restricted information, is
maintained in the interests of transport safety.
Also, current staff members cannot be compelled
by a court to give 'expert opinion' in civil or criminal
proceedings relating to transport safety. However, the protection
given to staff under new sections 65-66 do not
apply to coronial inquiries. If a staff member does provide expert
opinion at a coronial inquiry or is otherwise covered by the
protection of new section 65 regarding
non-compellability, they are entitled to legal representation at
that inquiry: new section 68.
New section 70 is a standard
provision regarding the payment of compensation for acquisition of
property where compensation would be required under paragraph
51(xxxi) of the Commonwealth constitution.
Transport accident investigation is a highly
specialised and unique process that sits within the province of
international interest and applications. As such it requires
strongly proscribed procedures, as provided for in the legislation,
and largely tested already in practice. In general, the proposed
legislation makes allowance for the quick gathering of evidence and
subsequent analysis to enable resolution of safety issues in the
interest of the travelling public and in accordance with
international practices and agreements. The creation of the office
of the Executive Director of Transport Safety Investigation may
involve some changes to the administration of ATSB. Given a history
of controversy within safety regulation generally, the Executive
Director may well be a pivotal figure.
As mentioned in the background section of this
digest, the Bill will give the ATSB extensive new powers over rail
safety matters, an area that has previously largely been the
province of State agencies. The explanatory memorandum quite
clearly flags that this has caused concern at least amongst some
States for the following reasons:(24)
-
- the proposal would result in more unnecessary power over the
States
-
- the initiative is contrary to the intent of the 1996 IGA
-
- the current regime is adequate and there is a wish to maintain
discretionary powers over the terms of reference and whether or not
individual investigation reports are publicly released
-
- the States and NT are progressively improving their rail safety
legislation to embrace the principles of open, independent,
no-blame , systemic investigations, and
-
- the ATSB needs to prove the effectiveness of its investigation
methodology to the industry, prior to mandating it through
legislation.
-
- The formation of an 'integrated multi-modal Commonwealth
transport safety bureau' was recommended by the 1999 review of BASI
conducted by Paul Mc Grath and Ms Loretta Power. See http://www.atsb.gov.au/review/
Note that the creation of a single transport safety office to
conduct investigations for all modes has been a long held policy
objective: see James, ML. 1995 'Acceptable Transport Safety'
Research Paper no.30 1995-96 Department of the
Parliamentary Library http://www.aph.gov.au/library/pubs/rp/1995-96/96rp30.htm
- ATSB Annual Review, p. 3. See http://www.atsb.gov.au/pdf/anreview2001.pdf
- ibid.
- Subject to the various constitutional and other limitations
expressed in the Bill.
- Explanatory memorandum, p. 27.
- Standing Committee on Transport.
- Australian Transport Council.
- Note however that under new subsection 11(3), that the powers
of the Act cannot be exercised with respect to international
matters. According to the explanatory memorandum to the Bill, this
mainly reflects the lack of any relevant international agreements
regarding rail safety.
- This term is defined in new section 23 but
encompasses a very wide range of matters including 'something that
occurred that might affect transport safety'.
- Current the Department of Transport and Regional Services.
- At p. 44.
- This commonly called 'derivative use immunity'.
- At pp. 63-64.
- At p. 67.
- This includes a coroner.
- The certificate must state that disclosure 'is not likely to
interfere with any investigation (carried under the Act)'.
- At p. 68.
- As defined in the Privacy Act 1988
- New section 56 restrictions do not apply to
coronial inquiries.
- These requirements are additional to the restrictions on the
disclosure of OBR information for purposes of
civil proceedings under new subparagraph 53(3)(d).
- At page 70.
- This covers all APS officers involved in the excise of powers
under the Act or any person who has been delegated any of the
Executive Director's powers.
- This would not be an offence under new subsection
60(1) due to the operation of new subparagraph
60(4)(a).
- At p. 28.
Matthew L James and Angus Martyn
27 August 2002
Bills Digest Service
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