Transport Legislation Amendment Act (No. 3) 1995
No. 174 of 1995
CONTENTS
| Section |
| 1. | Short title |
| 2. | Commencement |
| 3. | Amendments of the Air Navigation Act 1920 |
| 4. | Amendments of the Seafarers Rehabilitation and Compensation Act 1992 |
| 5. | Amendment of other Acts |
SCHEDULE 1
AMENDMENTS OF THE AIR NAVIGATION ACT 1920
SCHEDULE 2
AMENDMENTS OF THE SEAFARERS REHABILITATION AND COMPENSATION ACT 1992
SCHEDULE 3
AMENDMENT OF OTHER ACTS
PART 1—AMENDMENT OF THE CIVIL AVIATION ACT 1988
PART 2—AMENDMENTS OF THE FREEDOM OF INFORMATION ACT 1982
Transport Legislation Amendment Act (No. 3) 1995
No. 174 of 1995
An Act to amend the law relating to transport, and for other purposes
[Assented to 16 December 1995]
The Parliament of Australia enacts:
Short title
1. This Act may be cited as the Transport Legislation Amendment Act (No. 3) 1995.
Commencement
2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Section 4 and Schedule 2 are taken to have commenced on 1 July 1995.
Amendments of the Air Navigation Act 1920
3. The Air Navigation Act 1920 is amended as set out in Schedule 1.
Amendments of the Seafarers Rehabilitation and Compensation Act 1992
4. The Seafarers Rehabilitation and Compensation Act 1992 is amended as set out in Schedule 2.
Amendment of other Acts
5. The Acts specified in Schedule 3 are amended as set out in that Schedule.
———————
SCHEDULE 1 Section 3
AMENDMENTS OF THE AIR NAVIGATION ACT 1920
1. After section 19:
Insert:
“PART 2A—INVESTIGATION OF ACCIDENTS ETC.
“Division 1—Preliminary
Meaning of accident
“19AA.(1) For the purposes of this Part, an accident in relation to an aircraft occurs if:
(a) as a result of an occurrence associated with the operation of the aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, a person dies or suffers serious injury while in the aircraft or while in contact with the aircraft or anything attached to the aircraft or anything that has detached from the aircraft; or
(b) the aircraft is missing; or
(c) there are reasonable grounds for believing that the aircraft has incurred damage or structural failure; or
(d) the aircraft is inaccessible and there are reasonable grounds for believing the aircraft has been damaged; or
(e) as a result of an occurrence associated with the operation of the aircraft which takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, the aircraft incurs damage or structural failure that adversely affects the structural strength, performance, or flight characteristics of the aircraft to a significant extent.
“(2) Paragraph (1)(a) does not extend to death or serious injury that:
(a) arises from natural causes; or
(b) is self-inflicted; or
(c) is caused or inflicted by the action of a person not performing duties or functions associated with the operation of the aircraft; or
(d) is suffered by a stowaway while hiding in a part of an. aircraft not usually accessible to crew or passengers when all external doors and hatches of the aircraft are closed.
“(3) For the purposes of this section:
(a) a death includes any injury to a person that results in the death of the person within 30 days after the occurrence associated with the operation of an aircraft; and
(b) a serious injury does not include an injury covered by paragraph (a).
SCHEDULE 1—continued
Meaning of serious incident
“19AB. For the purposes of this Part, a serious incident is an occurrence associated with the operation of an aircraft that affects or could affect the safety of the operation of the aircraft or that involves circumstances indicating that an accident nearly occurred.
Meaning of incident
“19AC. For the purposes of this Part, an incident is an occurrence, other than an accident or a serious incident, associated with the operation of an aircraft that affects or could affect the safety of the operation of the aircraft or another aircraft.
Meaning of safety deficiency
“19AD. For the purposes of this Part, a safety deficiency is constituted by any situation related to aviation that can reasonably be regarded as having the potential to affect adversely the safety of aviation.
Meaning of responsible person
“19AE. For the purposes of this Part, a responsible person, in relation to an aircraft, is one or more of the following:
(a) each member of the crew of the aircraft;
(b) if the owner of the aircraft is not a member of the crew—the owner;
(c) if the operator of the aircraft is not a member of the crew—the operator;
(d) if the hirer of the aircraft is not a member of the operating crew—the hirer;
(e) a person performing an air traffic control service in relation to the aircraft;
(f) a person who is licensed as an aircraft maintenance engineer under the Civil Aviation Regulations who does any work in relation to the aircraft;
(g) a person who is a member of a ground handling crew in relation to the aircraft.
Meaning of cockpit voice recording
“19AF.(1) A reference in this Part to a cockpit voice recording is a reference to:
(a) a recording, made by the use of a cockpit voice recorder, of any words spoken during a flight of an aircraft by a person on the flight deck of the aircraft; and
(b) includes a reference to any transcript or summary of such a recording.
SCHEDULE 1—continued
“(2) A reference in this Part to a cockpit voice recording made during the flight of an aircraft is a reference to a cockpit voice recording made during any period (whether before, during, or after that flight) in which the cockpit voice recorder was required to be operated in connection with that flight under:
(a) the Civil Aviation Regulations; or
(b) the Civil Aviation Orders.
General definitions
“19AG. In this Part, unless the contrary intention appears:
accredited representative means a person appointed by a Contracting State to participate in the investigation of an accident or serious incident.
adviser means a person appointed by a Contracting State for the purpose of assisting its accredited representative in an investigation.
air safety record means all or any of the following:
(a) all statements (whether oral or in writing) taken from persons by an investigator in the course of an investigation under this Part including any record of such a statement;
(b) all communications between persons involved in the operation of an aircraft;
(c) medical or private information regarding persons (including deceased persons) involved in an accident, serious incident or incident;
(d) cockpit voice recordings and transcripts from such recordings;
(e) flight data recording and transcripts from such recordings;
(f) opinions expressed by a person in the analysis of information including flight data recorder information.
Airservices Australia means Airservices Australia established by the Air Services Act 1995.
air traffic control service has the same meaning as in the Civil Aviation Regulations.
air safety officer means:
(a) the Secretary; or
(b) the Director; or
(c) an investigator appointed under subsection 19GC(2); or
(d) a delegate of the Director under section 19GE who is not an investigator; or
(e) any other person who performs or provides services in relation to an investigation under this Part or in relation to air safety records.
SCHEDULE 1—continued
appropriate court means a court of a State or Territory other than a tribunal, authority or other person having the power to require the production of documents or the answering of questions.
Civil Aviation Safety Authority means the Civil Aviation Safety Authority established by the Civil Aviation Act 1988.
cockpit voice recorder means a sound recording device installed in an aircraft for the purpose of recording spoken communications within the aircraft or between members of the crew of the aircraft and other persons. constable has the same meaning as in the Crimes Act 1914.
court includes a tribunal, authority or person having the power to require the production of documents or the answering of questions but does not include a Royal Commission or an inquiry instituted by a House of the Parliament or both Houses of the Parliament.
crew member, in relation to a flight of an aircraft, means a person who:
(a) at the time when the flight took place, was employed under a contract of service, or engaged under a contract for services, by the operator of the aircraft; and
(b) was assigned for duty on the aircraft for the purposes of the flight.
Director has the meaning given by section 19GA.
document includes a record.
evidential material means a document, a part or component of an aircraft or other thing relevant to the investigation of an accident, serious incident, incident or safety deficiency under this Part.
flight data recorder means a recording device installed in an aircraft for the purpose of recording information relating to the operation of the aircraft.
investigator has the meaning given by section 19GC.
investigation means an investigation under this Part of:
(a) the circumstances surrounding any accident, serious incident or incident involving or affecting an aircraft that occurs in Australian territory; or
(b) any safety deficiency involving or affecting an aircraft that arises in Australian territory; or
(c) the circumstances surrounding any accident, serious incident or incident involving or affecting an Australian aircraft outside Australian territory; or
(d) any safety deficiency that arises involving or affecting an Australian aircraft outside Australian territory.
magistrate means a magistrate of a State or Territory that has entered into an arrangement with the Commonwealth under section 19HQ.
SCHEDULE 1—continued
occupier, in relation to premises, includes a person present at premises who apparently represents the occupier.
officer of Customs has the same meaning as in the Customs Act 1901.
person assisting the investigator, in relation to the execution of a warrant, means a person authorised by the investigator to assist in the execution of the warrant.
person assisting the investigator, in relation to the entry of accident site premises, means a person authorised by the investigator to assist in entering the accident site premises under Division 6.
premises includes a place and a conveyance.
Royal Commission means a Commission that has been commissioned by the Governor-General, by Letters Patent under the Royal Commissions Act 1902 or of any other power, to conduct an inquiry and includes any member of such a Commission.
State of design, in relation to an aircraft, means the country having jurisdiction over the organizations responsible for the design of that type of aircraft.
State of manufacture, in relation to an aircraft, means the country having jurisdiction over the organization responsible for the final assembly of the aircraft.
State of registration, in relation to an aircraft, means the country in whose register of aircraft the aircraft is entered.
State of the operator, in relation to an aircraft, means the country in which the principal place of business of the aircraft operator is situated or, if the aircraft operator has no place of business, the country in which the principal place of residence of the aircraft operator is situated.
warrant premises means premises in relation to which a warrant is in force.
“Division 2—Reporting of accidents etc.
Reporting of accidents and serious incidents
“19BA.(1) If:
(a) an accident or serious incident occurs and the aircraft involved is an Australian aircraft; or
(b) an accident or serious incident occurs in Australian territory and the aircraft involved is not an Australian aircraft;
each responsible person who is aware of the accident or serious incident must inform the Director of the occurrence of the accident or serious incident as soon as is reasonably practicable and by the quickest means possible.
SCHEDULE 1—continued
“(2) If:
(a) either:
(i) an accident or serious incident occurs and the aircraft is an Australian aircraft; or
(ii) an accident or serious incident occurs in Australian territory and the aircraft involved is not an Australian aircraft; and
(b) an officer of the Civil Aviation Safety Authority or an officer of Airservices Australia who is not a responsible person in relation to the aircraft and who becomes aware of the accident or serious incident referred to in subparagraph (i) or (ii);
must report the accident or serious incident that they become directly aware of to the Director as soon as is reasonably practicable and by the quickest means possible.
“(3) A person who intentionally or recklessly contravenes subsection (1) or (2) is guilty of an offence.
Penalty: Imprisonment for 6 months.
“(4) A person who is required by subsection (1) or (2) to report to the Director the occurrence of an accident or serious incident must, as soon as is reasonably practicable, give the Director a written report setting out the following details:
(a) the type, model, nationality and registration marks of the aircraft;
(b) the name of the owner of the aircraft;
(c) the name of the aircraft operator (if any);
(d) if, at the time of the accident or serious incident, the aircraft was under hire—the name of the hirer;
(e) the name of each pilot, and of each other member of the crew, of the aircraft when the accident or serious incident occurred;
(f) the day and time of day of the accident or serious incident;
(g) if when the accident or serious incident happened, the aircraft was engaged in a flight:
(i) the place at which the flight commenced; and
(ii) the place at which the flight ended or at which it was intended the flight would end; and
(iii) the purpose of the flight;
(h) except where the accident or serious incident occurred at an airport—the position of the aircraft after the accident or serious incident described by the reference to a defined geographical point;
SCHEDULE 1—continued
(i) except where the accident or serious incident occurred at an airport—the latitude and longitude of the position referred to in paragraph (h);
(j) so far as is known to the person giving the report, the number of persons on board the aircraft when the accident or serious incident occurred;
(k) in the case of an accident—if, as a result of the accident, a person has died or been seriously injured:
(i) the number of members of the crew (if any) who have died or been seriously injured and, if known to the person giving the report, the names of those members; and
(ii) the number of passengers (if any) who have died or been seriously injured and, if known to the person giving the report, the names of those passengers; and
(iii) the number of other persons (if any) who have died or been seriously injured and, if known to the person giving the report, the names of those persons;
(l) the nature of the accident or serious incident, as far as is known;
(m) in the case of an accident—the nature and extent of damage to the aircraft;
(n) in the case of an accident—the physical characteristics of the area in which the accident occurred.
“(5) A person who intentionally or recklessly contravenes subsection (4) is guilty of an offence.
Penalty: 30 penalty units.
“(6) If, when a person is required by subsection (4) to give a report, any of the details specified in that subsection are not known to the person:
(a) the person must include in the report a statement specifying those details; and
(b) the person must, as soon as is reasonably practicable after the person becomes aware of those details, give the Director a written report setting out those details.
“(7) A person who intentionally or recklessly contravenes subsection (6) is guilty of an offence.
Penalty: 30 penalty units.
“(8) For the purposes of subsection (1) or (2), the Director may be informed by telephone or facsimile.
SCHEDULE 1—continued
“(9) It is sufficient compliance with subsection (1), (2), (4) or (6) if the report required by the subsection concerned to be given to the Director is given to a person who is a delegate of the Director.
Notification to Contracting State
“19BB.(1) If, in relation to an aircraft involved in an accident or a serious incident, a Contracting State is:
(a) the State of registration of the aircraft; or
(b) the State of the operator of the aircraft; or
(c) if the aircraft is registered in a Contracting State which is not the State of manufacture—the State of manufacture of the aircraft; or
(d) if the aircraft is registered in a Contracting State which is not the State of manufacture—the State of design of the aircraft;
the Director must send to that Contracting State a written notification in accordance with subsection (2) and, if subsection (3) is applicable, in accordance with subsection (3).
“(2) The written notification required by this subsection is a notification:
(a) setting out the details contained in any report given for the purpose of subsection 19BA(4); and
(b) indicating the nature of the investigation or inquiry that is being conducted into the circumstances surrounding the accident or serious incident.
“(3) If a report is given for the purpose of subsection 19BA(6), the written notification required by subsection (1) is a notification including the details contained in that report.
“(4) If any of the details required by section 19BA to be included in a report under that section are not known to the Director when the Director sends a notification under subsection (1) but they subsequently become known to the Director, the Director must send to the Contracting State a written notification setting out those details as soon as reasonably practicable after the details become known to the Director.
Reporting of incidents
“19BC.(1) If:
(a) an incident occurs and the aircraft involved in, or affected by, the incident is an Australian aircraft; or
(b) an incident occurs in Australian territory and the aircraft involved in, or affected by, the incident is not an Australian aircraft;
SCHEDULE 1—continued
each responsible person who is aware of the incident must give the Director written notice of the occurrence of the incident within 48 hours after the incident occurs.
“(2) If:
(a) an incident occurs and the aircraft involved in, or affected by, the incident is an Australian aircraft; or
(b) an incident occurs in Australian territory and the aircraft involved in, or affected by, the incident is not an Australian aircraft;
an officer or employee of the Civil Aviation Safety Authority or an officer or employee of Airservices Australia who is not a responsible person in relation to the aircraft and who is directly aware of the incident must give the Director notice in writing of the incident within 48 hours after the incident.
“(3) A person who intentionally or recklessly contravenes subsection (1) or (2) is guilty of an offence.
Penalty: 30 penalty units.
“(4) A written notice for the purposes of subsection (1) or (2) must set out the following details:
(a) the type, model, nationality and registration marks of the affected aircraft;
(b) the name of the owner of the aircraft;
(c) the name of the aircraft operator (if any);
(d) if, at the time of the incident, the aircraft was under hire—the name of the hirer;
(e) the name of each pilot, and of each other member of the crew, of the aircraft when the incident occurred;
(f) the day and time of day of the incident;
(g) if, when the incident happened, the aircraft was engaged in a flight:
(i) the place at which the flight commenced; and
(ii) the place at which the flight ended; and
(iii) the purpose of the flight;
(h) except where the incident occurred at an airport—the position of the aircraft at the time of the incident described by reference to a defined geographical point;
(i) except where the incident occurred at an airport—the latitude and longitude of the position referred to in paragraph (h);
(j) the number of persons on board the aircraft when the incident occurred;
SCHEDULE 1—continued
(k) the nature of the incident;
(l) the physical characteristics of the area in which the incident occurred.
“Division 3—Investigation of accidents, serious incidents, incidents and safety deficiencies
Object of Division
“19CA. The object of this Division is, by the establishment of a system of investigation for determining the circumstances surrounding any accident, serious incident, incident and safety deficiency, to prevent the occurrence of other accidents, serious incidents, incidents and deficiencies. It is not part of the object of this Division:
(a) to provide the means of apportioning blame for the occurrence of an accident, serious incident, incident or safety deficiency; or
(b) to provide the means of determining the liability of any person in respect of an accident, serious incident, incident or safety deficiency.
Director’s power to investigate accidents etc.
“19CB.(1) The Director may investigate:
(a) the circumstances surrounding any accident, serious incident or incident that occurs involving or affecting an aircraft in Australian territory; and
(b) any safety deficiency involving or affecting an aircraft that arises in Australian territory; and
(c) the circumstances surrounding any accident, serious incident or incident involving or affecting an Australian aircraft outside Australian territory; and
(d) any safety deficiency that arises involving or affecting an Australian aircraft outside Australian territory.
“(2) Subsection (1) does not impose on the Director any duty to investigate a particular accident, serious incident, incident or safety deficiency.
“(3) The Director is not subject to any liability whatever for failing to investigate a particular accident, serious incident, incident or safety deficiency.
Director’s power to obtain information etc.
“19CC.(1) For the purposes of an investigation under this Part, the Director may, by written notice given to a person:
SCHEDULE 1—continued
(a) require the person to attend before the Director and answer questions relating to matters relevant to the investigation; and
(b) require the person to produce to the Director a specified document, or a specified part or component of an aircraft, or any other thing relevant to the investigation to the Director.
“(2) A notice under subsection (1) must be signed by the Director and must specify the time and place at which the person is required to attend before the Director or produce the document, part or component of an aircraft or other thing relevant to the investigation.
“(3) When a person attends before the Director in accordance with a requirement under paragraph (1)(a), the Director may require the person to answer questions on oath or affirmation. For that purpose, the Director may:
(a) require the person to take an oath or make an affirmation that the answers the person will give to the Director’s questions will be true; and
(b) administer an oath or affirmation to the person.
“(4) A person to whom a requirement under paragraph (1)(a) or (1)(b) is given must not, without reasonable excuse:
(a) fail to attend before the Director in accordance with the requirement; or
(b) refuse to take an oath or make an affirmation when required by the Director to do so; or
(c) refuse or fail to answer a question lawfully put to the person by the Director; or
(d) fail to produce to the Director the document, or specified part or component of an aircraft or other thing in accordance with the requirement.
Penalty: 30 penalty units.
“(5) The Director may:
(a) retain a document produced in accordance with a notice under subsection (1) for so long as is reasonable and necessary for the purposes of the investigation; and
(b) make copies of, or take extracts from, such a document; and
(c) retain a part or component of an aircraft produced in accordance with a requirement under subsection (1) for so long as is reasonable and necessary for the purposes of the investigation.
SCHEDULE 1—continued
“(6) It is not a reasonable excuse for a person’s refusal or failure to:
(a) answer a question; or
(b) produce a document; or
(c) produce a part or component of an aircraft or other thing;
that the giving of an answer, or the production of the document, part, component or thing, as the case may be, may tend to incriminate the person or make the person liable to a penalty.
“(7) If a person objects to:
(a) answering a question put to the person by the Director; or
(b) producing a document to the Director; or
(c) producing a part or component of an aircraft or other thing to the Director;
on the ground that the answer to the question, or the production of the document, part or component or thing, as the case may be, may tend to incriminate the person or make the person liable to a penalty, subsections (8) to (10) have effect.
“(8) The person is not relieved of the obligation to answer the question or produce the document, part, component or thing, as the case may be.
“(9) The answer to the question, the production of the document, part, component or thing, or any information or thing obtained as a direct or indirect consequence of the answer to the question or the production of the document, part, component or thing is not admissible in evidence against the person in a criminal proceeding or in a proceeding for the recovery of a penalty.
“(10) Subsection (9) does not render an answer inadmissible in evidence in proceedings in respect of the falsity of the statement.
“(11) A person who attends before the Director in accordance with a requirement under paragraph (1)(a) or (b) is entitled to be paid, in relation to that attendance, fees and allowances for expenses fixed by, or calculated in accordance with, the regulations.
Powers of entry to premises
“19CD.(1) For the purposes of conducting an investigation, an investigator may:
(a) enter any premises to inspect any thing relating to an aircraft; and
(b) inspect any document found on the premises; and
(c) take copies of, and make extracts from, any document found on the premises; and
SCHEDULE 1—continued
(d) require any person on the premises to make available any document kept on the premises, to provide information and to answer questions.
“(2) The powers of an investigator under subsection (1) may only be exercised:
(a) with the consent of the occupier of the premises; or
(b) under a warrant issued under section 19CE in respect of the premises.
“(3) An investigator is not entitled to exercise any powers under subsection (1) in relation to premises if:
(a) the occupier of the premises has required the investigator to produce his or her identity card for inspection by the occupier; and
(b) the investigator fails to comply with the requirement.
“(4) Before obtaining the consent of a person for the purposes of paragraph (2)(a), the investigator must inform the person that he or she may refuse to consent.
“(5) If the investigator obtains the consent of a person for the purposes of paragraph (2)(a), he or she must ask the person to sign a written acknowledgment:
(a) of the fact that the person has voluntarily given consent; and
(b) of the day on which, and the time at which, the person gave consent.
Search warrants
“19CE.(1) An investigator conducting an investigation may apply to a magistrate for a warrant under this section in relation to particular premises.
“(2) Subject to subsection (3), the magistrate may issue a warrant to search the premises if the magistrate is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or may be within the next 72 hours, material that is evidential material in relation to the investigation at the premises.
“(3) The magistrate must not issue the warrant unless an investigator has given the magistrate, either orally (on oath or affirmation) or by affidavit, any further information the magistrate may require about the grounds on which the issue of the warrant is being sought.
“(4) A warrant issued under this section must:
(a) specify the purposes for which it is issued; and
(b) describe the premises to which it relates; and
(c) describe the kinds of evidential material that may be searched for under the warrant; and
SCHEDULE 1—continued
(d) state the name of the investigator responsible for executing the warrant; and
(e) state the period for which the warrant remains in force, which must not be more than 7 days; and
(f) state whether the warrant may be executed at any time or only during particular hours.
The things that are authorised by search warrant
“19CF.(1) A warrant that is in force in relation to premises authorises the investigator executing the warrant and a person assisting the investigator:
(a) to enter the warrant premises and, if the premises are a conveyance, to enter the conveyance, whatever it is; and
(b) to search the premises for the kinds of evidential material specified in the warrant, and to seize things of that kind found at the premises; and
(c) to exercise any of the powers of an investigator referred to in paragraphs 19CD(1)(b), (c) and (d).
“(2) If the warrant states that it may be executed during particular hours, the warrant must not be executed outside those hours.
“(3) A power referred to in this section or in section 19CH or 19CJ may only be exercised in a manner that the investigator believes, on reasonable grounds, to be in accordance with any safety procedures applicable at the premises.
Specific powers available to investigators executing warrants
“19CG.(1) The investigator executing a warrant or a person assisting the investigator may:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing;
take photographs (including video recordings) of evidential material at the premises.
“(2) If a warrant in relation to premises is being executed, the investigator executing the warrant and a person assisting the investigator may, if the warrant is still in force, complete the execution of the warrant after all of them temporarily stop its execution and leave the premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in writing.
SCHEDULE 1—continued
“(3) If:
(a) the execution of a warrant is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force;
the execution of the warrant may be completed.
Use of equipment to examine or process things
“19CH.(1) The investigator executing a warrant or a person assisting the investigator may bring to the warrant premises any equipment reasonably necessary for the examination or processing of things found at the premises in order to determine whether they are things that may be seized under the warrant.
“(2) If:
(a) it is not practicable to examine or process the things at the warrant premises; or
(b) the occupier of the premises consents in writing;
the things may be moved to another place so that the examination or processing can be carried out in order to determine whether they are things that may be seized under the warrant.
“(3) If things containing electronically stored information are moved to another place for the purpose of examination or processing under subsection (2), the investigator executing the warrant must, if it is practicable to do so:
(a) inform the occupier of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
“(4) The investigator executing the warrant or a person assisting the investigator may operate equipment already at the warrant premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized under the warrant if the investigator or person assisting believes, on reasonable grounds, that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
Use of electronic equipment at premises
“19CJ.(1) The investigator executing a warrant or a person assisting the investigator may operate electronic equipment located at the premises to see whether evidential material is accessible by doing so if he or she believes, on reasonable grounds, that the operation of the equipment can be carried out without damage to the equipment.
SCHEDULE 1—continued
“(2) If the investigator executing the warrant or a person assisting the investigator, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can, by using facilities at the premises, be put in documentary form, operate the facilities to put the material in that form and seize the documents so produced; or
(c) if the material can be transferred to a disk, tape or other storage device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the material to the storage device and take the storage device from the premises.
“(3) The investigator executing the warrant may seize equipment under paragraph (2)(a) only if it is not practicable to put the material in documentary form as mentioned in paragraph (2)(b) or to copy the material as mentioned in paragraph (2)(c).
“(4) If the investigator executing the warrant or a person assisting the investigator believes, on reasonable grounds, that:
(a) evidential material may be accessible by operating electronic equipment at the premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action under this subsection, the material may be destroyed, altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by locking it up, placing a guard or otherwise.
“(5) The investigator executing the warrant or a person assisting the investigator must give notice to the occupier of the premises of his or her intention to secure equipment and of the fact that the equipment may be secured for up to 24 hours.
“(6) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert; whichever happens first.
“(7) If the investigator executing the warrant or a person assisting the investigator believes on reasonable grounds that the expert assistance will not be available within 24 hours, he or she may apply to the magistrate who issued the warrant for an extension of that period.
SCHEDULE 1—continued
“(8) The investigator executing the warrant or a person assisting the investigator must give notice to the occupier of the premises of his or her intention to apply for an extension, and the occupier may be heard in relation to the application.
“(9) The provisions of this Division relating to the issue of warrants apply, with such modifications as are necessary, to the issuing of an extension.
Retention of things which are seized
“19CK.(1) Subject to any contrary order of a court if the thing was seized under a warrant issued under section 19CE, the investigator must return it if:
(a) the reason for its seizure no longer exists or it is no longer required for the purposes of the investigation; or
(b) the period of 60 days after its seizure ends;
whichever occurs first, unless the thing is the subject of a dispute as to ownership.
“(2) If a thing is seized under a warrant issued under section 19CE, at the end of the 60 days specified in paragraph (1)(b) the investigator must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
Court of summary jurisdiction may permit a thing to be retained
“19CL.(1) If a thing is seized under a warrant issued under section 19CE, and:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order of a court under this section;
the investigation has not been completed, the investigator may apply to a court of summary jurisdiction for an order that he or she may retain the thing for a further period.
“(2) If the court is satisfied that it is necessary for the investigator to continue to retain the thing for the purposes of an investigation, the court may order that the investigator may retain the thing for a period specified in the order.
“(3) Before the court hears the application, it may require notice of the application to be given to such persons as the court thinks fit.
SCHEDULE 1—continued
Announcement before entry
“19CM.(1) Before the investigator executing a warrant or a person assisting the investigator enters premises under paragraph 19CF(1)(a), the investigator or person assisting the investigator must:
(a) announce that he or she is authorised by the warrant to enter the premises; and
(b) give any person at the premises an opportunity to allow entry into or onto the premises.
“(2) The investigator executing a warrant or a person assisting the investigator is not required to comply with subsection (1) if he or she believes, on reasonable grounds, that immediate entry to the premises is required to ensure that the effective execution of the warrant is not frustrated.
Availability of assistance and use of force in executing a warrant
“19CN. In executing a warrant:
(a) the investigator executing the warrant may obtain such assistance; and
(b) the investigator or a person who is assisting the investigator in executing the warrant may use such force against persons and things;
as is necessary and reasonable in the circumstances.
Details of warrant to be given to occupier
“19CP. If a warrant in relation to premises is being executed and the occupier of the premises is present at the premises, the investigator executing the warrant must make available a copy of the warrant to the occupier.
Copies of seized things to be provided
“19CQ.(1) Subject to subsection (2), if an investigator executing a warrant or a person assisting the investigator seizes under a warrant:
(a) a document, film, computer file or other thing that can be readily copied; or
(b) a storage device, the information in which can be readily copied; the investigator or person assisting must, if requested to do so by the occupier of the premises who is present when the warrant is executed, give a copy of the thing or the information to that occupier as soon as practicable after the seizure.
“(2) Subsection (1) does not apply if the thing that has been seized was seized under paragraph 19CJ(2)(a) or(b).
Compensation for damage to electronic equipment
“19CR.(1) If:
SCHEDULE 1—continued
(a) damage is caused to an instrument or other equipment as a result of being operated as mentioned in section 19CJ; and
(b) the damage was caused as a result of:
(i) insufficient care being exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care being exercised by the person operating the equipment;
compensation for the damage is payable to the owner of the instrument or other equipment.
“(2) Compensation is payable out of money appropriated by the Parliament for the purpose.
“(3) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises and his or her employees and agents, if they were available at the time, had provided any warning or guidance as to the operation of the instrument or other equipment that was appropriate in the circumstances.
Offence of making false statements in applications for warrant
“19CS. An investigator must not make, in an application for a warrant, a statement that the investigator knows to be false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
Report of investigation
“19CT. When an investigation has been completed, the Director must give the Secretary a written report of the investigation and, if required by the Secretary, any relevant documents or things.
Publication of report etc.
“19CU.(1) Subject to subsection (2), no part of a report or other document given to the Secretary under section 19CT may be published without the written approval of the Secretary.
“(2) The Secretary may cause to be published any information contained in a report or document given to the Secretary under section 19CT if he or she considers the publication of the information desirable in the interest of the promotion of aviation safety.
“Division 4—Australian investigations in which other Contracting States have an interest
Accredited representatives of Contracting States
“19DA.(1) This section has effect if:
SCHEDULE 1—continued
(a) an accident or serious incident has occurred in Australia; and
(b) a Contracting State is a relevant State in relation to the aircraft, or an aircraft, involved in the accident or serious incident (the aircraft involved).
“(2) A Contracting State is a relevant State for the purposes of this section if:
(a) the State is the State of registration of the aircraft involved; or
(b) the State is the State of the operator of the aircraft involved; or
(c) the State is the State of manufacture of the aircraft involved and the Director has requested the State to participate in an investigation of the accident or serious incident; or
(d) if the State of design is not the State of manufacture—the State is the State of design of the aircraft involved and the Director has requested the State to participate in an investigation of the accident or serious incident; or
(e) at the request of the Director, the State has provided information or facilities, or has made available advisers, to assist the Director in the investigation of the accident or serious incident.
“(3) If a relevant State appoints an accredited representative to participate in the investigation of the accident or serious incident, that representative:
(a) may participate in the investigation; and
(b) may ask questions of persons who attend before the Director pursuant to a requirement under paragraph 19CC(1)(a); and
(c) must be given access to any information obtained by the Director and relevant to the investigation.
Delegation of conduct of investigation
“19DB.(1) If:
(a) an accident or serious incident occurs in Australian territory; and
(b) in relation to the aircraft, or one of the aircraft, involved in the accident or serious incident, the State of registration or the State of the operator is a Contracting State;
the Director may delegate his or her powers in relation to the investigation, or a specified part of the investigation, of the accident or serious incident to a person nominated by the State of registration or the State of the operator.
“(2) If the Director makes a delegation under subsection (1), then, in relation to the investigation, or part of the investigation, as the case may be:
SCHEDULE 1—continued
(a) the provisions of this Part have effect as if a reference to the Director were a reference to the person to whom the delegation is made; and
(b) the other provisions of this Part have effect as if the delegation had been made under section 19GE.
Participation in investigation by advisers
“19DC.(1) If:
(a) an accident occurs in Australian territory; and
(b) citizens of a relevant Contracting State who are on board the aircraft, or one of the aircraft, involved in the accident die as a result of the accident;
subsections (2), (3) and (4) apply.
“(2) The Director may authorise an adviser to visit the scene of the accident.
“(3) The Director must, at the request of the adviser, give the adviser access to all factual information obtained by the Director and relevant to the investigation of the accident conducted by the Director.
“(4) The Director must, at the request of the adviser:
(a) provide the adviser with such information as the Director possesses relating to the identification of the citizens referred to in paragraph (1)(b); and
(b) provide the adviser with reasonable assistance in relation to the identification of those citizens.
“(5) A Contracting State is a relevant State for the purposes of this section if, in relation to the aircraft, or one of the aircraft, involved in the accident:
(a) the State is the State of registration of the aircraft; or
(b) the State is the State of the operator of the aircraft; or
(c) the State is the State of manufacture of the aircraft and the Director has requested the State to participate in an investigation of the accident; or
(d) if the State of design is not the State of manufacture—the State is the State of design of the aircraft and the Director has requested the State to participate in an investigation of the accident; or
(e) at the request of the Director, the State has provided information or facilities, or has made available advisers, to assist the Director in the investigation of the accident.
SCHEDULE 1—continued
Provision of investigation reports to certain Contracting States
“19DD. If:
(a) an accident or serious incident has occurred in Australian territory; and
(b) the aircraft, or one of the aircraft, involved in the accident or serious incident was registered in a Contracting State; and
(c) the Director has given the Secretary a report of an investigation by the Director of the circumstances of the accident or serious incident;
the Minister must, as soon as practicable, forward a copy of the report to each of the following countries that is a Contracting State:
(d) the State of registration of the aircraft;
(e) The State of the operator of the aircraft;
(f) the State of manufacture of the aircraft;
(g) the State of design of the aircraft;
(h) any Contracting State that provided information, facilities or advisers in relation to the investigation;
(i) if a citizen of a Contracting State was on the aircraft and died as a result of the accident and an accredited representative or adviser of the Contracting State participated in the investigation—that Contracting State.
Provision of information to Contracting State that conducts investigation
“19DE. If:
(a) an accident, serious incident or incident occurs in Australian territory; and
(b) a person conducts an investigation of that accident, serious incident or incident under a law of a Contracting State or under an appointment by a Contracting State;
the Director, at the request of the Contracting State, must give the Contracting State any factual information that is available to the Director and relevant to the investigation.
Further investigation of accident etc.
“19DF.(1) If, after an investigation of an accident, serious incident or incident has been completed, new and significant information relating to the accident, serious incident or incident becomes available, the Director must:
(a) if the investigation was conducted by the Director—conduct a further investigation of the circumstances surrounding the accident, serious incident or incident; or
SCHEDULE 1—continued
(b) if the investigation was conducted under a law of a Contracting State or under an appointment by a Contracting State—give the Contracting State any new factual information that is available to the Director and relevant to an investigation of the circumstances of the accident, serious incident or incident.
“(2) This Part has effect in relation to a further investigation referred to in paragraph (l)(a) as if the investigation were conducted under subsection 19CB(1).
“Division 5—Accidents and serious incidents outside Australian territory
Investigation of accidents and serious incidents that occur to Australian aircraft outside Australian territory
"19EA.(1) This section applies if:
(a) an accident or serious incident has occurred in the territory of a Contracting State other than Australia; and
(b) Australia is, in relation to the aircraft:
(i) the State of registration; or
(ii) the State of the operator; or
(iii) the State of manufacture; or
(iv) the State of design.
“(2) If the Minister has received a notification of the accident or serious incident from the Contracting State to which this section applies, the Minister may:
(a) if the Contracting State has delegated the whole or any part of the conduct of the investigation to Australia—appoint an investigator to conduct the whole or any part of the investigation so delegated; or
(b) otherwise—appoint an accredited representative to participate in the investigation instituted by the Contracting State into the circumstances surrounding the accident.
“(3) If the Minister has appointed, under subsection (2), an accredited representative to participate in an investigation conducted into the circumstances surrounding an accident or serious incident, the Minister may appoint advisers to assist the accredited representative so appointed.
Investigation of accidents etc. that occur outside Australian territory to which section I9EA does not apply
“19EB.(1) If:
(a) an accident or serious incident has occurred outside Australian territory; and
SCHEDULE 1—continued
(b) section 19EA does not apply; and
(c) Australia has, at the request of the Contracting State that conducts the investigation into the circumstances surrounding the accident or serious incident, provided information, facilities or advisers to that State in relation to the investigation;
the Minister may appoint an accredited representative to participate in the investigation.
“(2) If:
(a) an accident or serious incident that involves an Australian aircraft in the territory of a country that is not a Contracting State; or
(b) the location of an accident that involves an Australian aircraft outside Australian territory cannot definitely be established as being in the territory of a Contracting State;
the Minister:
(c) may appoint an investigator to institute and conduct an investigation into the circumstances surrounding the accident or serious incident; or
(d) may, with the consent of another Contracting State, delegate the whole or any part of the conduct of the investigation to an investigator appointed by the Contracting State.
Investigation of incidents occurring outside Australian territory
“19EC. If an incident occurs outside Australian territory to an Australian aircraft, the Minister may authorise an investigator to conduct an investigation into the circumstances surrounding the incident.
Powers of investigators
“19ED.(1) This section applies if an investigator referred to in subsection 19EA(2) or 19EB(2) conducts in Australian territory the whole or a part of an investigation referred to in subsection 19EA(2) or 19EB(2).
“(2) The investigator has, in relation to the whole or the part, as the case may be, of the investigation conducted in Australian territory, the powers, duties and immunities of the Director under this Part.
Provision of information to Contracting State that conducts investigation
“19EE.(1) This section applies if:
(a) an accident, serious incident or incident occurs outside Australian territory to an aircraft; and
SCHEDULE 1—continued
(b) a Contracting State, other than Australia, conducts an investigation into the circumstances surrounding the accident, serious incident or incident.
“(2) If this section applies, the Director must, upon the request of the Contracting State, give the Contracting State any information that is available to the Director and is relevant to the investigation.
“(3) If this section applies, the Director may authorise an investigator (authorised investigator) to conduct an investigation in Australian territory into the circumstances surrounding the accident, serious incident or incident.
“(4) An authorised investigator has, in relation to an investigation under subsection (3), the powers, duties and immunities of the Director under this Part.
“Division 6—Powers in relation to accident sites
General definitions
“19FA.(1) In this Division:
access period means the period beginning on the day when an investigator first enters the accident site premises and ending on the day specified by the Director in a written determination as the last day of the access period in relation to a particular accident.
“(2) An access period under this Part must not exceed such period as is necessary and reasonable for the purposes of the investigation of the particular accident.
Accident site
“19FB. A reference in this Division to an accident site is a reference to:
(a) a site where an accident has occurred; or
(b) a site on which there is an impact point caused by an aircraft that has been involved in an accident; or
(c) a site on which there is an aircraft that has been involved in an accident;
together with such area around the paragraph (a), (b) or (c) site as is determined by the investigator to be reasonably necessary to facilitate the investigation of the accident and securing of the site.
Accident site premises
“19FC. A reference in this Division to accident site premises is a reference to:
SCHEDULE 1—continued
(a) premises on which there is an accident site; or
(b) premises which it is necessary to enter to get to premises on which there is an accident site.
Accident site powers
“19FD. A reference in this Division to an accident site power is a reference to a power to do all or any of the following:
(a) leave and re-enter the accident site premises at any time during the access period;
(b) take control of and secure the accident site during the access period;
(c) search the accident site;
(d) take photographs (including video recordings), or sketches, of the accident site or the aircraft or any other thing on or in the site;
(e) inspect or examine a thing;
(f) take samples of a thing;
(g) measure a thing;
(h) take equipment to the accident site and operate the equipment;
(i) remove the aircraft, parts of the aircraft, the aircraft wreckage, goods, baggage, any thing from the accident site premises and exercise any of the powers referred to in paragraphs (e), (f) or (g), take photographs (including video recordings) or subject the thing to testing.
Power of entry to accident site
“19FE.(1) An investigator or person assisting may:
(a) with the consent of the occupier of accident site premises; or
(b) subject to the provisions of this Division, without the consent of the occupier of accident site premises;
enter the premises and exercise, on the premises, any accident site powers for the purposes of investigating a particular accident.
“(2) An investigator or a person assisting the investigator is not entitled to exercise any powers in the circumstances referred to in subsection (1) in relation to accident site premises if:
(a) the occupier of the premises has required the investigator to produce his or her identity card for inspection by the occupier; and
(b) the investigator fails to comply with the requirement.
“(3) When requesting the consent of an occupier for the purposes of paragraph (1)(a), the investigator must inform the person that the investigator has a power of entry and accident site powers under this Division even if the occupier refuses to give his or her consent.
SCHEDULE 1—continued
“(4) If the investigator obtains the consent of an occupier for the purposes of paragraph (1)(a), he or she must ask the person to sign a written acknowledgment:
(a) of the fact that the person has voluntarily given consent; and
(b) of the day on which, and the time at which, the occupier gave consent.
Announcement before entry
“19FF. Before an investigator or a person assisting the investigator enters accident site premises, the investigator or person assisting the investigator must:
(a) announce that he or she is authorised by this Division to enter the premises; and
(b) give any occupier at the premises an opportunity to allow entry into or onto the premises.
Availability of assistance and use of force in entering accident site premises
“19FG. In entering accident site premises without the consent of the occupier of the premises:
(a) an investigator may obtain such assistance; and
(b) the investigator or a person who is assisting in entering the premises may use such force against the occupier and things;
as is necessary and reasonable in the circumstances.
Offence of entering etc. an accident site without permission
“19FH. If the perimeter of an accident site has been secured under subsection 19FE(1), a person must not enter or remain on the site without the permission of the investigator.
Penalty: 10 penalty units.
“Division 7—Custody, protection and removal of aircraft
Removal of or interference with aircraft
“19FJ.(1) If an accident occurs to an aircraft in Australian territory, the aircraft or the aircraft wreckage and any thing in the aircraft or wreckage is to be taken to be in the custody of the Director.
“(2) An aircraft or aircraft wreckage or any thing that was in the aircraft or wreckage that is in the custody of the Director under subsection (1) must not be intentionally or recklessly removed or otherwise interfered with except:
SCHEDULE 1—continued
(a) with the permission of the Director; or
(b) as provided by subsections (3), (4) and (5).
Penalty: Imprisonment for 6 months.
“(3) This section does not prevent any action necessary for all or any of the following:
(a) the extrication of persons. animals and mail from the wreckage of an aircraft;
(b) the protection of the wreckage from destruction by fire or other cause;
(c) the prevention of immediate danger to the safety of persons or property;
(d) the removal of the aircraft or the aircraft wreckage and its contents to a place of safety when the aircraft crashes on water or is wrecked on water;
(e) if the aircraft has come from within Australian territory and the written agreement of the Director has been obtained to the removal of goods or baggage—the removal of goods or baggage under the supervision of a constable;
(f) if the aircraft has come from outside Australian territory and the written agreement of the Director has been obtained to the removal of goods or baggage—the removal of goods or baggage from the vicinity of the aircraft on a clearance by or with the consent of an officer of Customs.
“(4) The Director may authorise any person, so far as is necessary for the purposes of any investigation:
(a) to take measures for the preservation of the aircraft or aircraft wreckage; and
(b) to have access to, examine, remove or otherwise deal with the aircraft or aircraft wreckage; and
(c) to make records by photographic or other means of any material evidence which can be removed, effaced, lost or destroyed.
“(5) The Director may, so far as is necessary for the purposes of any investigation:
(a) remove parts of an aircraft or aircraft wreckage for testing; or
(b) test any parts of an aircraft or aircraft wreckage; or
(c) test any goods or baggage that was carried by an aircraft.
“(6) Parts of an aircraft, aircraft wreckage, goods or baggage may be tested to destruction by testing conducted under subsection (5).
SCHEDULE 1—continued
Protection of Director etc. from liability in certain cases
“19FK. The Director, an investigator or any other person is not subject to any action, claim or demand by, or any liability to, any person in respect of anything done or omitted to be done in good faith and without negligence arising from the Director having taken custody of the aircraft under subsection 19FJ(1).
Aircraft etc. of Contracting State to remain undisturbed on request
“19FL.(1) If:
(a) a Contracting State, other than Australia, is the State of registration or the State of the operator of an aircraft to which an accident has occurred in Australian territory; and
(b) the Director receives from that State a request that the aircraft, its contents, and any other evidence remain undisturbed until such time as an inspection has been carried out by an accredited representative appointed by that State;
the Director must, subject to subsection (4), take such steps as are reasonably necessary and practicable to comply with the request, including the facilitation of access to the aircraft, contents or evidence, as the case may be.
“(2) If:
(a) a Contracting State, other than Australia, is the State of manufacture or the State of design of an aircraft to which an accident has occurred in Australian territory; and
(b) the Director receives from that State a request that the aircraft remain undisturbed until such time as an inspection of the aircraft has been carried out by an accredited representative appointed by that State;
the Director must, subject to subsection (4), comply with that request so far as that compliance is reasonably practicable.
“(3) In determining whether compliance is reasonably practicable for the purposes of subsection (2), the Director is to have regard to:
(a) the proper conduct of the investigation into the circumstances surrounding the accident; and
(b) the avoidance of undue delay in returning the aircraft to normal service.
“(4) If the aircraft, its contents or evidence lies in a restricted or prohibited area (including a temporarily restricted or prohibited area) the Director may refuse access to an accredited representative appointed under subsection (2) or (3) to that area but must, if reasonably practicable, arrange removal of the aircraft, its contents or evidence, as the case may be, to a point outside that area for the purpose of access.
SCHEDULE 1—continued
Release of aircraft etc. from custody of Director
“19FM.(1) This section applies when the retention of an aircraft, parts of the aircraft or aircraft wreckage, goods, baggage or any other thing carried on an aircraft involved in an accident is no longer necessary for the purposes of an investigation under this Part.
“(2) Subject to subsections (3) and (4), if this section applies, the Director must release custody of the aircraft, parts, wreckage, goods, baggage or other thing, as the case may be:
(a) if the aircraft is an Australian aircraft—to the owner of the aircraft, parts, wreckage, goods, baggage or other thing or a person authorised in writing by the owner to take custody on behalf of the owner; or
(b) otherwise—to the person or persons duly designated by the State of registration.
“(3) If, upon completion of the Director’s investigation under this Part:
(a) another Department; or
(b) an agency of the Commonwealth; or
(c) a State or Territory Government; or
(d) an agency of a Slate or Territory;
requests in writing the custody of the aircraft, parts of the aircraft, aircraft wreckage, goods, baggage or any other thing carried on an aircraft involved in an accident for the purposes of an investigation under another law of the Commonwealth or a law of a State or Territory, subsection (4) applies.
“(4) The Director must release the aircraft, parts of the aircraft, aircraft wreckage, goods, baggage or other thing into the custody of that Department, agency or Government.
“Division 8—Administration
Director of Air Safety Investigation
“19GA.(1) The Secretary may, by notice in writing, designate a particular office within the Department as the office whose occupant is the Director of Air Safety Investigation.
“(2) The person who, from time to time, holds, or is acting in, the office designated under subsection (1) is the Director of Air Safety Investigation.
Functions of Director
“19GB. The functions of the Director are:
(a) to ensure the effective operation of this Part; and
(b) to perform, on behalf of Australia, the obligations Australia has to a Contracting State under this Part; and
SCHEDULE 1—continued
(c) to perform such duties and exercise such powers as are imposed or conferred upon the Director under this Act or the regulations or under any other law of the Commonwealth; and
(d) to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (c).
Investigators
“19GC.(1) The Director is an investigator.
“(2) The Director may, from time to time, appoint other persons to be investigators.
Identity cards
“19GD.(1) The Director must have, and must issue to every other investigator, a card identifying the holder as an investigator for the purposes of this Part.
“(2) An identity card must:
(a) be in an approved form; and
(b) incorporate a recent photograph of the person.
“(3) As soon as practicable after a person ceases to be an investigator the person must return the card to the Director.
Penalty for a contravention of subsection (3): 1 penalty unit.
Delegation by Director
“19GE. The Director may, in writing, delegate to:
(a) an officer of the Department; or
(b) an investigator who is not an officer of the Department;
all or any of the Director’s powers under this Act or the regulations.
“Division 9—Miscellaneous
Disclosure of information by Director for aviation safety purposes
“19HA.(1) The Director may, if the Director thinks it is necessary for the purposes of aviation safety, disclose information acquired by the Director or an air safety officer in the performance of his or her functions or duties or in the exercise of his or her powers under this Part to any other person.
“(2) The Director may, if the Director thinks it is desirable in the interest of the promotion of aviation safety, publish any information except a report or document that is given to the Secretary under section 19CT.
SCHEDULE 1—continued
“(3) A publication under subsection (2) must not identify a person by name.
Powers in relation to aircraft accidents, serious incidents and incidents
“19HB. The powers and functions of a Commonwealth agency or a person (other than a member of the Australian Federal Police) under another law of the Commonwealth that would allow the agency or person to investigate any matters in relation to an aircraft accident, serious incident or incident are to be exercised and performed subject to this Part.
Disclosure of air safety records to a court or person
“19HC.(1) Subject to subsections (2) to (6), a person who is or has been an air safety officer must not, except for the purposes of this Part, directly or indirectly:
(a) disclose to any person, or to a court, the whole or any part of an air safety record; or
(b) produce to any person, or to a court, the whole or any part of an air safety record.
Penalty: 30 penalty units.
“(2) This section does not apply to an air safety record that is a cockpit voice recording.
“(3) This section does not apply to criminal proceedings, investigations relating to a criminal offence or a proceeding relating to bail.
“(4) Subsection (1) does not apply to the disclosure of an air safety record to the Secretary under section 19CT.
“(5) Subsection (1) does not apply to the disclosure of an air safety record to another person under section 19HA.
“(6) Subsection (1) does not prohibit an air safety officer from disclosing an air safety record to a court if an order is made under subsection (8).
“(7) A person may apply to an appropriate court in the State or Territory for an order that an air safety record must be disclosed to a court or produced to a court.
“(8) If the appropriate court is satisfied that the public interest in the disclosure or production of the air safety record outweighs the adverse domestic and international impact such disclosure or production may have on the investigation to which the record relates or to any future investigations, the court must order such disclosure.
SCHEDULE 1—continued
“(9) If the appropriate court makes an order under subsection (8), then that court must also make an order that restricts access to the air safety record to:
(a) the person or persons constituting the court; and
(b) the parties to the proceedings (including any interveners); and
(c) the parties’ legal representatives; and
(d) specified witnesses for the purposes of the proceeding;
unless the court is satisfied that such an order would not be in the interests of justice or would not be desirable in the interests of the court performing its functions.
Compliance with subpoenas etc.
“19HD.(1) Subject to subsection (3), an air safety officer is not obliged to comply with a subpoena or similar direction of a court in relation to civil proceedings to:
(a) attend and answer questions relating to an accident, serious incident or incident; or
(b) attend and produce any part of an air safety record relating to an accident, serious incident or incident;
within 6 months after the day of the accident, serious incident or incident (the 6 month period).
“(2) A person who has obtained a subpoena or similar direction from a court that does not have to be complied with because of subsection (1) may apply to that court for an order that the subpoena or similar direction be complied with.
“(3) If the court is satisfied, in the circumstances of the case, that it is desirable, in either the interests of justice or the performance by the court of its functions, for the officer to attend and answer questions or to attend and produce air safety records within the 6 month period, the court must order that the officer comply with the subpoena or similar direction.
Evidence of cockpit voice recordings—criminal proceedings
“19HE. A cockpit voice recording made during the flight of an aircraft operated by an Australian operator is not admissible in evidence in any criminal proceedings in an Australian court against a crew member.
Evidence of cockpit voice recordings—civil proceedings
“19HF.(1) Subject to subsection (3), a cockpit voice recording made during the flight of an aircraft operated by an Australian operator is not admissible in any civil proceedings in an Australian court.
SCHEDULE 1—continued
“(2) A party to damages proceedings may, at any time before the determination of the proceedings, apply to the court in which the proceedings have been instituted for an order that a cockpit voice recording, or part of a cockpit voice recording, made during the flight of an aircraft, be admissible in evidence in the proceedings.
“(3) If an application is made to a court under subsection (2), the court must:
(a) examine the cockpit voice recording; and
(b) if it is satisfied:
(i) that, if a material question of fact in the proceedings will not be able to be properly determined from other evidence available to the court; and
(ii) that the cockpit voice recording, or a part of the cockpit voice recording, if admitted in evidence in the proceedings, will assist in the proper determination of that material question of fact; and
(iii) that, in the circumstances of the case, the public interest in the proper determination of that material question of fact outweighs the public interest in protecting the privacy of members of crews of aircraft;
the court may order that the cockpit voice recording, or that part of the cockpit voice recording, as the case may be, be admissible in evidence in the proceedings.
“(4) If the court makes an order referred to in subsection (3), the cockpit voice recording is, despite subsection (1), admissible in evidence in the proceedings.
“(5) In this section:
Australian court means an appropriate court in Australia.
damages proceedings means proceedings in an Australian court for
damages in respect of personal injury, death or damage to property.
Examination by a court of a cockpit voice recording under subsection 19HF(3)
“19HG.(1) This section applies if a court examines a cockpit voice recording under subsection 19HF(3).
“(2) The only persons who may be present at the examination are:
(a) the person or persons constituting the court, other than the members of the jury (if any); and
(b) the legal representatives of the parties to the proceedings; and
SCHEDULE 1—continued
(c) such other persons (if any) as the court directs.
“(3) The court may direct that the cockpit voice recording or the part of the cockpit voice recording, or any information obtained from the recording or part of the recording, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such persons, as the court specifies.
Where a court makes an order under subsection 19HF(3)
“19HH.(1) This section applies if a cockpit voice recording, or part of a cockpit voice recording, made during the flight of an aircraft is admitted as evidence in proceedings under an order under subsection 19HF(3).
“(2) The cockpit voice recording, or that part of the cockpit voice recording, is not evidence for the purpose of the determination of the liability in the proceedings of a crew member.
“(3) If there are 2 or more defendants in the proceedings of whom at least one is a crew member and the remaining defendant or defendants are not crew members, the cockpit voice recording, or that part of the cockpit voice recording, is evidence for the purpose of determining whether or not any crew member has been negligent for the purposes only of determining the liability in the proceedings of any defendant who is not a crew member.
“(4) The court may direct that the cockpit voice recording or the part of the cockpit voice recording, or any information obtained from the recording or part of the recording, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such persons, as the court specifies.
Cockpit voice recording etc. not to be ground for disciplinary action
“19HJ.(1) A person is not entitled to take any disciplinary action against an employee of the person on the basis of information in a cockpit voice recording or any part of a cockpit voice recording or information obtained from such a recording or any part of such a recording.
“(2) This section has effect despite any other law or anything in any agreement.
Disclosure of cockpit voice recordings
“19HK. Subject to section 19HD, a person (other than a person who is a Commonwealth officer within the meaning of the Crimes Act 1914) must not intentionally or recklessly publish or communicate to any person:
SCHEDULE 1—continued
(a) a cockpit voice recording or any part of a cockpit voice recording; or
(b) any information obtained from a cockpit voice recording or any part of a cockpit voice recording;
otherwise than in the course of an investigation into an accident, serious incident or incident involving an aircraft conducted under this Part or for the purposes of, or in connection with:
(c) criminal proceedings, other than criminal proceedings of the kind referred to in section 19HE; or
(d) civil proceedings of the kind referred to in section 19HF.
Penalty: Imprisonment for 6 months.
Sections 19HE and 19HF not to affect admissibility of other evidence
“19HL. Nothing in sections 19HE and 19HF affects the admissibility in any proceedings of evidence of words spoken by a person on the flight deck of an aircraft other than evidence constituted by a recording made by the use of a cockpit voice recorder or by a transcript or summary of such a recording.
Determination of standards
“19HM.(1) The Director may, by order published in the Gazette, determine that matters specified in the order constitute:
(a) a flight data recorder standard; or
(b) a cockpit voice recorder standard;
in relation to an aircraft or a class of aircraft.
“(2) Without limiting the generality of subsection (1), a matter may be specified by reference to:
(a) a standard published by the Standards Association of Australia; or
(b) a standard in force in a foreign country.
Day of effect of standards
“19HN. A standard under section 19HM takes effect on the day on which the order establishing the standard is published in the Gazette or on such later day as is specified in the order.
Standards to be disallowable instruments
“19HP. Standards under section 19HM and orders revoking, varying or modifying standards are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.
SCHEDULE 1—continued
Arrangements with States, Australian Capital Territory,
Northern Territory and Norfolk Island
“19HQ. The Governor-General may make arrangements with the Governor of a State, the Australian Capital Territory Executive, the Administrator of the Northern Territory or the Administrator of Norfolk Island for the exercise of powers and the performance of functions under this Act by officers of that State or Territory.
Compensation for acquisition of property
“19HR.(1) If, apart from this section, the operation of this Part would result in the acquisition of property from a person otherwise than on just terms, there is payable to the person by the Commonwealth such reasonable amount of compensation as is agreed on between the person and the Commonwealth or, failing agreement, as is determined by a court of competent jurisdiction.
“(2) Any damages or compensation recovered, or other remedy given, in a proceeding instituted otherwise than under this section must be taken into account in assessing compensation payable in a proceeding instituted under this section and arising out of the same event or transaction.
“(3) In this section, acquisition of property and just terms have the same respective meanings as in paragraph 51(xxxi) of the Constitution.”.
2. Section 27A:
Repeal the section.
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SCHEDULE 2 Section 4
AMENDMENTS OF THE SEAFARERS REHABILITATION AND COMPENSATION ACT 1992
1. Section 108:
Repeal the section.
2. Part 8 (heading):
Omit “AND FINANCE”.
3. Division 3 of Part 8:
Repeal the Division.
4. After section 125:
Insert:
Annual Report
“125A.(1) The Authority must, as soon as practicable after the end of each financial year, prepare and give to the Minister a report of its operations during the financial year.
“(2) The Minister must cause a copy of each such report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.”.
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SCHEDULE 3 Section 5
AMENDMENT OF OTHER ACTS
PART 1—AMENDMENT OF THE CIVIL AVIATION ACT 1988
1. Section 32AL:
Repeal the section.
PART 2—AMENDMENTS OF THE FREEDOM OF INFORMATION ACT 1982
2. Schedule 3:
Omit “Air Navigation Regulations, subregulation 283(1)”.
3. Schedule 3:
Insert in alphabetical order:
“Air Navigation Act 1920, subsection 19CU(1)”.
[Minister’s second reading speech made in—
Senate on 29 June 1995
House of Representatives on 28 November 1995]