Federal Register of Legislation - Australian Government

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A Bill for an Act to amend legislation relating to aviation, and for related purposes
Administered by: Infrastructure and Transport
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Registered 04 Dec 2008
Introduced HR 03 Dec 2008

2008

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

AVIATION LEGISLATION AMENDMENT (2008 MEASURES NO.2)
BILL 2008

 

 

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Infrastructure, Transport, Regional Development and Local Government,
The Honourable Anthony Albanese, MP)

 


AVIATION LEGISLATION AMENDMENT (2008 MEASURES NO.2) BILL 2008

 

OUTLINE

 

The Aviation Legislation Amendment (2008 Measures No. 2) Bill 2008 would amend the Aviation Transport Security Act 2004 (the ATSA), the Civil Aviation Act 1988 (the CAA) and the Transport Safety Investigation Act 2003 (the TSIA). 

 

There are two sets of amendments to the ATSA under Part 1 of Schedule 1 to the Bill, which would: 

 

1.      broaden the existing information collection power under the ATSA to enable the Secretary to require aviation industry participants (e.g. airports and airlines) to provide aviation security information; and

 

2.      allow the Secretary to delegate all or any of his/her powers and functions under the ATSA to another Agency Head (or equivalent) of an Agency whose responsibilities include functions relating to national security.  The amendment would also allow the Agency Head to further sub-delegate the delegated functions and responsibilities to an SES Band 3 employee or acting SES Band 3 employee of the Agency.

 

The proposed amendment to the CAA under Part 2 of Schedule 1 to the Bill would allow for copying and disclosure of aircraft Cockpit Voice Recorder information for maintenance purposes through amendments to Part IIIB of the CAA. 

 

Part 3 of Schedule 1 to the Bill would amend the TSIA to provide for some changes to the penalties for offences for failing to report prescribed aviation, marine and rail accidents and incidents in accordance with Part 3 of the TSIA and allow for extra information to be required in relation to those accidents and incidents.

 

Part 4 of Schedule 1 to the Bill would contain technical amendments to deal with application and savings provisions in relation to the ATSA and the TSIA. 

 

FINANCIAL IMPACT STATEMENT

 

The amendments would have no significant financial impact on Government expenditure, therefore a Financial Impact Statement is not required.


NOTES ON CLAUSES

 

Clause 1: Short Title

 

Clause 1 is a formal provision specifying the short title of the Act which may be cited as the Aviation Legislation Amendment (2008 Measures No. 2) Act 2008.

 

Clause 2: Commencement

 

The Bill contains one schedule of amendments to the Act.  This clause would specify when the various provisions of the Bill are proposed to commence.  The time of the commencements of the particular provisions would be set out in a table in subclause 2(1).     

 

Item 1 of the table would provide that the preliminary provisions of the Bill (short title, commencement and effect of Schedules) would commence on Royal Assent. 

 

Item 2 of the table would provide that Part 1 of Schedule 1 (which contains the amendments to the ATSA) would commence on Royal Assent. 

 

Items 3 and 4 of the table would provide that Parts 2 and 3 of Schedule 1 (which contains the amendments to the CAA and the TSIA respectively) would commence on 1 July 2009.

 

Item 5 of the table would provide that Part 4 of Schedule 1 to the Bill (which deal with the application and savings provisions) would commence on Royal Assent. 

 

Clause 3: Schedule(s)

 

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  Any other item in a Schedule to this Act has effect according to its terms.

 


SCHEDULE 1 – AMENDMENTS

 

Schedule 1 would amend the Aviation Transport Security Act 2004, the Civil Aviation Act 1988 and the Transport Safety Investigation Act 2003. 

 

Part 1 – Amendment of the Aviation Transport Security Act 2004

 

Aviation Transport Security Act 2004

 

Overview of amendments to the Aviation Transport Security Act 2004 (the ATSA).

 

1.      The proposed amendments to the ATSA would enhance the information collection power of the Secretary under the Act and extend the Secretary’s delegation power to other relevant agencies. 

 

2.      The Secretary is currently empowered under the ATSA to collect security compliance information, which is information that relates to compliance or failure to comply with the Act.  This Bill would broaden the current information collection power to enable the Secretary to collect information which currently falls outside the scope of security compliance information (i.e. aviation security information).   

 

3.      This Bill would also extend the Secretary’s delegation powers under the ATSA to allow the delegation of his or her functions and responsibilities under the Act to another Agency Head of an agency with national security responsibilities and allow the Agency Head to further sub-delegate the delegated functions and responsibilities to an SES Band 3 employee or acting SES Band 3 employee of the Agency.  This is a necessary amendment to address the vulnerability of the Secretary currently being unable to delegate certain powers within the Act that, at times, may be appropriate to delegate to other authorities outside the Department. 

 

4.      Both amendments have been developed on a contingency basis and the Department has no immediate intention to exercise the powers contained under the proposed amendments on commencement.  However, the amendments would address vulnerabilities within Australia’s aviation security framework to ensure that in the event of an aviation incident, the Government is able to respond in an appropriate and timely manner.  Furthermore, in relation to the information collection amendment, the Department will consult widely on the scope of aviation security information before regulations are finalised. 

 

Item 1 – Section 4 (seventh paragraph)

Item 3 – Section 9  

Item 6 – At the end of section 108  

 

5.      These items are consequential to proposed new section 111 to be inserted by item 7, which would broaden the information collection power under the ATSA and enable the Secretary to collect aviation security information from aviation industry participants (AIPs) under prescribed circumstances.   

 

6.      Item 1 would amend section 4 of the ATSA, which provides a simplified outline of the Act, by inserting the words ‘and aviation security information’ after the words ‘security compliance information’. 

 

7.      Item 3 would insert a new definition under section 9 of the ATSA for the term aviation security information, which would have the meaning given by proposed subsection 111(1).  This definition is necessary for the purpose of new section 111 to determine the scope of the kinds of information that the Secretary may require from AIPs. 

 

8.      Section 108 provides a simplified overview of Part 7 of the Act, which deals with the information gathering powers contained in the Act.  Item 6 would amend section 108 to include the proposed amendment under item 7 which would enable the Secretary to collect aviation security information

 

Items 2, 4 and 5 – Section 9

 

9.      Proposed items 2, 4 and 5 would insert new definitions under section 9 of the terms Agency Head, national security and SES Band 3 employee for the purposes of proposed subsection 127(1) and section 127A to be inserted by items 8 and 9.

 

10.  The full definitions of these terms are found in the Public Service Act 1999, the National Security Information (Criminal and Civil Proceedings) Act 2004 and subsection 127A(4) respectively. 

 

Item 7 – At the end of Part 7  

 

11.  Subsection 109(2) of Part 7 of the ATSA currently empowers the Secretary to collect security compliance information from AIPs.  Any information that relates to compliance or failure to comply with the Act is considered to be security compliance information (subsection 109(1)). 

 

12.  Since the commencement of the ATSA in March 2005, there have been instances where it would have been useful if the Secretary had been able to collect information which currently falls outside the scope of security compliance information.   

 

13.  Item 7 would insert a new section 111 in Part 7 of the ATSA which would broaden the current information collection power under the Act to enable the Secretary to require AIPs to provide aviation security information

 

14.  Proposed subsection 111(1) would define aviation security information to mean information that is not security compliance information and is prescribed under the regulations.  New subsection 111(2) would provide (without limiting the regulation making power) the types of information which may be prescribed under the regulations under subsection 111(1), including: 

·        information relating to the screening of people, vehicles, goods or cargo;

·        information about the controls that apply, or to be applied, to airport areas and zones; and

·        information about activities undertaken, or to be undertaken, to ensure that persons who have not received clearance are not in cleared areas or cleared zones.

15.   Proposed section 111 is not intended to apply to personal information, and as such would not be prescribed under the Regulations pursuant to subsection 111(2).  This means that, for example, information such as passenger record names would not be capable of being prescribed under the Regulations.

 

16.  The Secretary may require AIPs to provide aviation security information if the Secretary believes, on reasonable grounds, that an AIP has such information, and such information must be given within the period and in the form and manner specified in the notice (proposed subsections 111(3) and (4)). The period set out in the notice must not be less than 14 days. 

 

17.  New subsection 111(5) would provide that the Secretary may specify the method by which the AIP must provide the information, including orally, in writing or by electronic submission. 

 

18.  Under subsection 111(6), it would be an offence not to comply with the Secretary’s notice under subsection 111(3).  An offence against subsection 111(3) would result in a penalty of 45 penalty units.  The proposed penalty of 45 points under subsection 111(6) is to achieve consistency with penalty provision under existing section 109 of the ATSA.   

 

19.  As indicated earlier, this amendment has been developed in response to previous instances where it would have been useful for the Department to have access to information (other than security compliance information) in determining whether new security measures are required, or existing measures need to be modified, as threats to aviation security change. 

 

20.  For example, information about screening (e.g. performance statistics, targets, incident reports) could provide transparency into screening performance and capability of screening authorities around Australia.  Such information would assist the Government in determining the effectiveness of individual participants, and potentially could allow for the Department to develop and introduce screening measures. 

 

21.  It is proposed that the scope of ‘aviation security information’ be prescribed under the regulations (rather than being defined under the ATSA) given the unpredictability of the aviation security environment.  This approach would allow greater flexibility to ensure that the kinds of information required from AIPs is of the type which is appropriate to correspond to the situation at hand, and is received in a timely manner. 

 

22.  The regulation making power contained under proposed subsection111(1) is also consistent with the broader framework of the ATSA as a whole which relies heavily on extensive regulation making powers. 

 

23.  While part of the offence content under new section 111 would be contained in delegated legislation, the delegation is to the regulations and not some other subordinate instrument which would ensure that the necessary parliamentary oversight (i.e. the Federal Executive Council) would be preserved.     

 

24.  Item 7 would also insert new section 112 in the Act, which would provide that whenever a person is required to give aviation security information, that person cannot be excused from giving the information on the grounds that it might incriminate them or expose them to a penalty.

 

25.  Proposed new subsection 112(2) would provide that the aviation security information given, the giving of that information, and any information, document or thing obtained as a result of giving the information, cannot be admitted as evidence in a criminal proceeding, or any other proceeding for the recovery of a penalty, against a natural person.  This protection does not extend to the giving of false or misleading information as provided under section 137.1 or 137.2 of the Criminal Code.

 

26.  This provision acknowledges that a coercive information-gathering power must be accompanied by appropriate protection for the informant.  This reinforces the concept that the processes of gathering aviation security information to improve aviation security, and those relating to judicial proceedings, particularly criminal proceedings, should be separate to ensure a continued free flow of aviation security information.  The provision of aviation security information should be encouraged to ensure that any security concerns are addressed prior to aviation security being compromised, or the general public endangered.

 

27.  Nothing in this Part prevents an agency from separately collecting and using security compliance information for the purpose of judicial or other proceedings. 

 

Item 8 – Subsection 127(1)

 

28.  Currently subsection 127(1) permits the Secretary to delegate his/her powers and functions under the ATSA to an SES employee, or acting SES employee, within the Department.   Item 8 would extend this power to permit the Secretary to delegate his/her powers and functions under the Act to Agency Heads (as defined under the Public Service Act 1999) with national security responsibilities.

 

29.  The amendment's intention is to put in place a mechanism to ensure the future flexibility of providing certain powers to other relevant agencies. This is necessary as there are certain powers within the Act that, at times, may be appropriate to delegate to other authorities outside the Department. It is considered a vulnerability of the aviation security framework that the Secretary does not currently have the ability to do so, especially for powers and functions that have a time critical element to them.

 

30.  For example, section 74D of the Act allows the Secretary to issue an incident control direction, which allows him/her to direct an aircraft to take a particular action, for instance to land at the nearest suitable airport. One of the intended uses of an incident control direction is to assist the Secretary in determining whether there has been a loss of civil control of an aircraft in the event of a hijacking.

 

31.  It is envisaged that this power may be delegated, after further extensive consultation, to Agency Heads within Agencies that have national security responsibilities. This would provide assistance in both pre-planned events or in prolonged emergency situations when relevant resources are limited or the Secretary is unavailable and would ensure that there are appropriate responses by the Government in a timely manner.

 

32.  This item only extends the delegation power to Agency Heads who have a national security function, for example those on the Secretaries Committee on National Security.  Due to the dynamic nature of the security environment, relevant agencies are not separately identified.  This approach ensures flexibility within the legislative framework to enable an appropriate response to often urgent situations. As a condition of the delegation, subsection 127(1A) would require the other Secretary to agree to the Secretary’s delegation in order for the delegation to have effect.

 

33.  Current subsection 127(3) applies to this item which states that in exercising the powers or functions under a delegation, the delegate must comply with any directions of the Secretary.

 

Item 9 – After section 127

 

34.  Item 9 would insert a new section 127A titled ‘Sub-delegation’. This item would allow the Agency Head of an Agency that the Secretary had delegated powers to under 127(1)(b) to sub-delegate the powers he/she had been delegated to an SES Band 3 level employee or acting SES Band 3 level employee (i.e. a Deputy Secretary) within his or her department/agency.  This sub-delegation power has been deliberately kept at a high level to ensure that these powers would be appropriately exercised.

 

35.  New subsection 127A(2) would provide that sections 34AA, 34AB and 34A of the Acts Interpretation Act 1901, which deal with delegations, the effect of delegations and the exercise of certain powers and functions by a delegate respectively, applies to the sub-delegation in the same way that it would apply if it were a delegation.

 

36.  Sub-section 127A(3) would ensure that a delegate who exercises a sub-delegation must comply with directions from the Agency Head of his/her Agency.

 


Part 2 – Amendment of the Civil Aviation Act 1998

 

Civil Aviation Act 1988

 

Overview of amendments to the Civil Aviation Act 1988

 

37.  The proposed amendments to the Civil Aviation Act 1988 (CAA) would insert new provisions into Part IIIB of the Act to allow for the copying and disclosure of aircraft Cockpit Voice Recorders (CVR) for the purpose of testing their functioning and reliability.  Presently, strict confidentiality requirements are imposed by Part IIIB of the Act to ensure the continued availability of CVR information in the future for ‘no-blame’ accident and incident investigations by the Executive Director of Transport Safety Investigation (Executive Director) under the Transport Safety Investigation Act 2003 (TSIA).  However, the confidentiality requirements could be interpreted as making it unlawful to copy or disclose a CVR for legitimate maintenance purposes.  The proposed amendments would clarify the situation while requiring that certain conditions must be met in order to track and control and track any copying or disclosure to preserve confidentiality.

 

38.  The need for these amendments is derived from a recommendation made by the Australian Transport Safety Bureau (ATSB) during the investigation of the fatal accident at Lockhart River in Queensland on 7 May 2005 in which all 15 people on board died.  There was no useable data on the CVR recovered from the aircraft which significantly hindered the investigation.  Problems with the CVR were not detected during maintenance checks.  The amendments allowing copying and disclosure of CVR information for functional and reliability testing purposes are intended to facilitate the implementation of improved maintenance checks that may reduce the frequency of undetected inoperative CVRs and their important information for fatal accident investigation for which they were designed.

 

Item 10 – Before paragraph 32AP(3)(a)

 

39.  This item would insert a new paragraph before current paragraph 32AP(3)(a).  Subsections 32AP(1) and (2) prescribe separate offences, which are both punishable by up to two years imprisonment, where a person either copies or discloses CVR information.  However, these restrictions do not apply to copying or disclosure that is carried out for purposes under subsection 32AP(3) such as for an investigation under the TSIA.

 

40.  Proposed new paragraph 32AP(3)(aa) would provide for a new exception to the restrictions in subsections 32AP(1) and (2).  A person would not be prevented from copying or disclosing CVR information that is for the purpose of checking whether equipment used to make a CVR recording is functioning and reliable provided certain conditions are met.  These conditions would be prescribed in proposed new subsection 32AP(3A), in accordance with item 11.

 

 

 

 

 

Item 11 – After subsection 32AP(3)

 

41.  This item would insert a new subsection after current subsection 32AP(3). The new subsection would prescribe the conditions that must be met before a CVR could be copied or disclosed for the purpose of checking the functioning and reliability of the CVR equipment.

 

42.  In accordance with proposed new paragraph 32AP(3A)(a) the person who copies or discloses the CVR would need to be authorised to do so in accordance with the Regulations.  In the interests of preserving confidentiality, the proposed requirement would limit the range of persons who might seek to access the information on the CVR.  The classes of persons that the regulations would likely prescribe would include a person issued with an aircraft maintenance engineer licence in the radio category, in accordance with regulation 31 of the Civil Aviation Regulations 1988 (CA Regulations), or a person being supervised by the licence holder in accordance with regulation 42ZC.  A person with an approval under regulation 30 of the CA Regulations or a person working on their behalf would also likely be approved.  Being able to prescribe the persons in the regulations would provide for the necessary flexibility when the class of persons in the industry needs to be updated.  A change might occur because of operational reasons in the industry.

 

43.  Proposed new paragraph 32AP(3A)(b) would introduce some conditions that must be met before the CVR information can be copied or disclosed by the authorised person.  Proposed subparagraphs (i) and (ii) would respectively require that the CVR does not relate to a reportable matter under the TSIA or an offence under the law of the Commonwealth, or of a State or Territory.  Proposed subparagraph (iii) would require that the crew members who might be recorded on the CVR are informed in writing that the CVR recording will be copied and disclosed for maintenance purposes before the recording is made.

 

44.  In order to ensure that an excessive burden is not placed on the authorised person, the conditions in subparagraphs (i), (ii) and (iii) would be prefaced by the proviso for the authorised person to ‘honestly and reasonably believe, on the information available to him or her, that the conditions exist.’  This means, for example, that the authorised person would not have to conduct an inquiry to determine that the CVR does not relate to an offence against a law of the Commonwealth, or of a State or Territory.  If an inquiry of this type was necessary the condition would be unworkable.  Instead, the authorised person must only hold an honest and reasonable belief on the information they have that the CVR does not relate to such an offence.

 

45.  The Criminal Code Act 1995 (Criminal Code) applies to the offences in subsections 32AP(1) and (2) and to the exceptions to those offences.  As already noted in the CAA for subsection 32AP(3) a defendant will bear the evidential burden in relation to a matter in the subsection covering defences to subsections 32AP(1) and (2).  This is in accordance with subsection 13.3 of the Criminal Code.  Subsection 13.3 of the Criminal Code will therefore also apply to the new defence which would be created to allow copying and disclosure for checking whether the equipment used to make a cockpit voice recording is functioning and reliable.  A defendant relying on the defence would have the evidential burden to adduce or point to evidence that suggests a reasonable possibility that the matters exist required for the defence.


Part 3 – Amendment of the Transport Safety Investigation Act 2003

 

Transport Safety Investigation Act 2003

 

Overview of amendments to the Transport Safety Investigation Act 2003

 

46.  The proposed amendments would predominantly affect Part 3 of the TSIA which provides for the mandatory reporting of accidents and incidents in the aviation, marine and rail modes of transport.  Some minor technical amendments would also be made to reflect current drafting practice by removing references to maximum penalties in the sections where these words appear with respect to a prescribed offence.  The removal of the words reflects updated drafting practice for offence provisions.

 

Item 12 – Section 3

Item 13 – At the end of section 3

 

47.  Item 12 would provide for the current section 3 to be one subsection of a new section.

 

48.  Item 13 would add a new subsection in section 3.  The proposed subsection would allow the regulations, with respect to the definitions of immediately reportable matter (IRM) and routine reportable matter (RRM) in section 3, to prescribe the matters by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force from time to time.  IRMs and RRMs are detailed in the regulations for the purpose of the mandatory reporting requirements contained in Part 3 of the Act.  IRMs incorporate matters that are accidents or serious incidents such as deaths and serious injuries while RRMs incorporate lesser safety incidents such as minor injuries or minor damage to a transport vehicle.  When prescribing in the regulations each of the IRMs and RRMs, it is necessary to refer to other legislative instruments and industry manuals and standards which define certain technical terms.  Where this occurs the term used to define an IRM or RRM should correlate with the meaning of the term used by the industry in its manuals and standards as are in force from time to time.

 

49.  An example of where the regulations currently incorporate a term that derives its meaning from another source is in regulation 4.2 of the Transport Safety Investigation Regulations 2003 (TSI Regulations).  The term ‘interstate rail network’ is defined by reference to what is specified in the Code of Practice for the Defined Interstate Rail Network.  As per the definition in regulation 4.2, the term is only able to incorporate what was in the Code of Practice as at 1 July 2003 when the Regulations were made.  However, since 2003 there has been further rail track added to the interstate network which cannot be recognised by the TSI Regulations without amendment.  The effect is that IRMs (presently there are no RRMs for rail) occurring on the track added since 2003 are not reportable.  The proposed new subsection to be included in section 3 of the TSIA would deal with this incongruity and others.

 

 

 

 

Item 14 – Section 9

 

50.  This item would repeal current section 9 of the TSIA.  Section 9 relates to the use of the term ‘maximum penalty’.  This section would no longer be required as items 22, 23 and 24 would remove all references to ‘maximum penalty’ with respect to an offence provision.  The proposed amendments are in accordance with current drafting practices.

 

Item 15 – Subsection 18(1)

 

51.  Item 15 would amend current subsection 18(1) to allow the regulations to prescribe the particulars that must be reported when an immediate report of an IRM is made.  Presently subsection 18(1) requires a responsible person (a person prescribed by the regulations) who has knowledge of an IRM to report the IRM to a Nominated Official (prescribed by the regulations) as soon as is reasonably practicable and by the means prescribed by the regulations.  The amendment would mean that when the Responsible Person makes the report under subsection 18(1), he or she would have to report particulars contained in the regulations.

 

52.  The purpose of this amendment would be to ensure that a nominated official (a person prescribed by the regulations) receives adequate information in relation to an IRM, rather than just a report of the occurrence of an IRM.  Reports of IRMs in accordance with subsection 18(1) are used by the Executive Director of Transport Safety Investigation (Executive Director) to determine whether the IRM is one that is to be investigated under the TSIA.  The Executive Director needs to have sufficient information in order to make a decision on whether or not to investigate.  In the aviation mode, the type of information likely to be prescribed in the regulations would be a subset of the information that is currently prescribed in regulation 2.6 of the TSI Regulations for written reports in response to section 19 of the Act.

 

Item 16 – Subsection 18(1) (penalty)

 

53.  Item 16 would omit the current penalty of 6 months imprisonment for failing to provide a report of an IRM as soon as is reasonably practicable, in accordance with subsection 18(1), and replace it with a penalty of 12 months imprisonment.  The change in penalty is proposed to be made as a result of a review of the penalties in Part 3 of the TSIA following the referral to the Australian Federal Police (AFP) of a number of alleged failures to report IRMs and RRMs by the operator of the aircraft involved in the fatal accident at Lockhart River in 2005.  In this case there was not sufficient evidence to support a criminal prosecution but the fact that the matter was investigated by the AFP is considered to have had a deterrent effect with respect to Responsible Persons failing to comply with their reporting obligations.

 

54.  The referral to the AFP afforded an opportunity to review the appropriateness and workability of the offences in Part 3 of the TSIA.  It became apparent that the 6 month penalty in subsection 18(1) was difficult to enforce because, when read with the statutory limitation period in section 15B of the Crimes Act 1914 (Crimes Act), a prosecution cannot be commenced more than 12 months after the occurrence of the offence.  Section 15B places a 12 month limitation for commencing a prosecution where the maximum penalty is 6 months or less imprisonment.  Changing the penalty to 12 months imprisonment in subsection 18(1) will alleviate this problem.   Under section 15B of the Crimes Act there is no limitation period for an offence where the penalty specified is greater than 12 months imprisonment.

 

55.  The enforcement difficulties with the current limitation became apparent because it was noted that the persons required to report IRMs and RRMs are those persons with knowledge of the occurrence of the reportable matter.  If the people with knowledge of the IRM or RRM do not report it, then the Executive Director has limited means to know in a timely manner that the IRM or RRM has occurred and that an offence may have been committed by it not being reported.  However, the evidence is sometimes revealed at a later date, such as during the investigation of another accident or incident.  The investigation of the fatal accident at Lockhart River is an example of where concerns were raised about the possibility of the operator failing to report a number of IRMs and RRMs alleged to have occurred more than 12 months before the concerns were raised.

 

56.  Non-reporting of IRMs and RRMs can be evidence of a poor approach to safety in an organisation and/or by individuals.  It is important that the offence for failing to report is appropriately structured so that the fact that there may be a delay in its discovery does not prevent action being taken to impose a penalty in order to deter the continuation of a poor approach to safety.  Further, because the immediate reports of IRMs received under section 18 are used to determine whether or not an investigation should be commenced, a failure to report can have a significant adverse effect on any investigation because of the potential for evidence to perish with any delay.  This may impact negatively on safety of other operators of transport vehicles in Australia and internationally as safety issues cannot be identified.

 

57.  Twelve months imprisonment is an appropriate penalty for this offence.  It is commensurate with the 12 month penalty in section 43 for breach of a protection order placed over evidence.  Breaching a protection order by removing or interfering with evidence can have a significant adverse effect on an investigation.  As noted above, failure to report an IRM, as soon as practicable, can also have a significant adverse effect on any investigation commenced.  Further supporting a 12 month penalty for this offence is that the higher penalty would be broadly consistent with higher penalties for similar offences in the Navigation Act 1912 for failing to report marine accidents.

 

Item 17 – Subsection 18(2)

 

58.  Item 17 would substitute current subsection 18(2) with a proposed new subsection 18(2).  The new subsection would still provide an exception to the requirement for a Responsible Person to report an IRM under subsection 18(1) where the Responsible Person believes on reasonable grounds that another Responsible Person has already reported the matter.  Additionally, the new subsection would add a further exception so that a Responsible Person will be excused where they believe on reasonable grounds that another responsible will, as soon as is reasonably practicable, report the matter.

 

 

59.  The amendment will accommodate agreed practices in company safety management systems where operational personnel report an IRM to their company safety manager with the expectation that the company will report the matter in accordance with section 18.  In this example, both the operational personnel and the company are Responsible Persons in accordance with TSI Regulations in regulations 2.5 (aviation), 3.4 (marine) and 4.4 (rail).

 

60.  The substituted subsection would also take account of the proposed amendment to subsection 18(1) where a Responsible Person would be required to report the particulars in relation to the IRM known to him or her, prescribed by the regulations.  Under the substituted subsection for subsection 18(2), a Responsible Person would not be excused from their obligation to report under subsection 18(1) if they did not believe, on reasonable grounds, that those prescribed particulars had been reported.

 

Item 18 – Paragraph 18(3)(b)

 

61.  Item 18 would amend current paragraph 18(3)(b).  The amendment would be consistent with the amendment that would be introduced by item 17.  A Responsible Person would be excused from reporting under subsection 18(1) if they believe on reasonable grounds that another Responsible Person will as soon as is reasonably practicable report the IRM under either the Navigation Act 1912 or the Protection of the Sea (Prevention of Pollution from Ships) Act 1983.

 

Item 19 – Subsection 19(1) (penalty)

 

62.  Item 19 would amend the penalty in subsection 19(1) of the TSIA to replace the current penalty of 60 units for the offence in the subsection with a penalty of 30 penalty units.  The change in penalty is proposed as a result of the review of penalties for Part 3 of the TSIA described for Item 16 of the Bill.  Increasing the penalty for subsection 18(1) to 12 months imprisonment and decreasing the penalty in subsection 19(1) to 30 penalty units would correct an anomaly that currently exists between the two offences.

 

63.  The offence in subsection 18(1) is meant to be the more serious offence, but the penalty in subsection 19(1), in terms of the current 60 penalty units, is notionally greater.  The 6 month imprisonment penalty in subsection 18(1), when converted into penalty units, in accordance with subsection 4B(2) of the Crimes Act, is 30 penalty units.  However, the offence in subsection 19(1) of failing to provide a follow up written report of an IRM, or the written report for an RRM (which are the smaller incidents the Executive Director is unlikely to investigate), both within 72 hours, does not have the potential to be as serious as failing to comply with subsection 18(1).

 

64.  The anomaly between sections 18 and 19, and the seriousness of the offence in subsection 18(1), needs to be addressed.  This can be achieved by the increase of the penalty for the offence in subsection 18(1) to 12 months imprisonment (proposed in Item 16), equating to 60 penalty units, and decreasing the penalty for the offence in subsection 19(1) to 30 penalty units.

 

 

Item 20 – At the end of section 19

 

65.  Item 20 would introduce four new subsections into section 19 regarding the provision of written reports for IRMs and RRMs.  Proposed new subsections 19(4) and (5) would allow the Executive Director to seek additional information about an IRM or RRM after an initial report has been submitted to the Executive Director in accordance with subsection 19(1) report.  The Responsible Person who provides the initial report in accordance with subsection 19(1) may not know all the details of the IRM or RRM.  The ability of the Executive Director to require additional information is necessary in order to be able to ensure the information in the accident and incident database is adequate and correct with respect to each IRM or RRM.  Importantly, this additional information will assist with future research and analysis of accident and incident data, including trend analysis and safety issue identification.

 

66.  The new subsections would work so that the Executive Director would be able to issue a notice to a Responsible Person to require them to provide a written report of information in relation to an IRM or RRM.  The information provided by the Responsible Person would include the particulars prescribed by the Regulations.  The type of information prescribed by the Regulations would be likely to include the type of information which is already reportable under subsection 19(1) and prescribed by TSI Regulations in regulations 2.6 (aviation), 3.5 (marine) and 4.5 (rail).  However, in accordance with proposed new subsection 19(5), the Executive Director would only be able to require the report from the responsible person if:

 

(a)    the Responsible Person has knowledge of the IRM or RRM and is a Responsible Person who did not make the initial report in accordance with subsection 19(1) or under the Acts referred to in paragraph 19(3)(a); or

 

(b)   the Responsible Person is the Responsible Person who made the initial report in accordance with subsection 19(1) or the Acts referred to in paragraph 19(3)(a) but they have additional information which was not communicated in the initial report.

 

67.  The proposed new subsection 19(6) would provide for a penalty of 30 penalty units for failing to comply with the notice to require additional information.  The Executive Director would be able to issue this notice under proposed new subsection 19(4).  The penalty of 30 penalty units is consistent with the proposed new penalty for subsection 19(1) for failing to supply the initial report.  It is also consistent with the penalty in section 32 of the TSIA for failing to comply with a written notice to supply evidential material or attend before the Executive Director.

 

68.  Proposed new subsection 19(6) would establish an offence, in relation to the obligation in proposed new subsection 19(4), where the detail of what is required to be reported would be prescribed in the regulations.  However, this is consistent with the offence that already exists for subsection 19(1) where the particulars to be included in the written report are prescribed by Regulations.  It is necessary that these types of particulars are prescribed in the Regulations rather than in the Act as they may need to be amended from time to time to address changes in reporting requirements to ensure safety issues are being properly identified.  Importantly, as a safeguard, any amendments to the Regulations would need to be considered by the Federal Executive Council before being made by the Governor-General.  The amendments, if made by the Governor-General, would be readily available to the industry.

 

69.  Proposed new subsection 19(7) would state that the prosecution of an offence for failing to provide a written report in accordance with subsection 19(1) could be commenced at any time within 6 years after the commission of the offence.  A limitation period of 6 years is proposed to displace the 12 month limitation period that would otherwise apply because of section 15B of the Crimes Act.  Item 16 in this Explanatory Memorandum advised of the restrictive impact this limitation has on enforcement in relation to the limited circumstances for discovering a failure to report an IRM or RRM.

 

70.  A limitation period of 6 years was considered appropriate for the offence in subsection 19(1).  In the case with the operator of the aircraft involved in the fatal accident at Lockhart River, the concerns about the alleged failures to report IRMs and RRMs arose up to four and a half years after the alleged commission of each offence.  Following their discovery, each alleged offence takes time to investigate and prepare a brief for any potential prosecution.  In this context a 6 year limitation period is appropriate in order to allow discovery of the offence and then collect the evidence to make a decision as to whether or not to pursue a prosecution.

 

71.  If a failure to provide the written report in accordance with subsection 19(1) was discovered more than 6 years after the alleged commission of the offence, there would be less interest in commencing a prosecution.  If the alleged offence happened more than 6 years ago, and there were no more alleged offences inside this period, it suggests the relevant person or organisation hasn’t been involved in any more accidents or incidents or, if they have, they have been reporting them.  This shows an improvement in their approach to safety.  In any event, if the incidents happened more than 6 years ago, obtaining the relevant evidence for a prosecution would be difficult.

 

Item 21 – Subsection 24(1) (penalty)

 

72.  Item 21 would change the penalty for the offence in section 24 of the TSIA from 6 months imprisonment to 12 months imprisonment.  At item 16 in this Explanatory Memorandum it was noted that the consequences of failing to report an IRM, as soon as reasonably practicable under subsection 18(1), could possibly include the Executive Director being restricted in his or her ability to conduct an investigation because evidential material may deteriorate or be destroyed during the delay.  The offence in section 24 may have similar consequences.  Section 24 involves a person engaging in reckless conduct which adversely affects an investigation.  The offence is meant to cover reckless conduct which adversely impacts on the integrity and/or availability of evidential material.  As the penalty for the offence in subsection 18(1) is proposed to be increased to 12 months imprisonment, the penalty for the offence in section 24 should also be increased to 12 months imprisonment as the consequences of the offences are similar.

 

 

 

Item 22 – Subsections 26(2), 29(3), 32(5) and 36(5)

Item 23 – Section 37

Item 24 – Subsections 42(1), 42(4), 43(3), 44(2), 53(1), 53(2), 59(5), 60(1), 60(2) and 60(3)

 

73.  These items would remove references in the existing offence provisions involving use of the term ‘maximum penalty’.  The proposed amendments are in accordance with current drafting practices.

 


 

Part 4-Application and savings provisions

 

Item 25 – Application of amendments of section 127 of the Aviation Transport Security Act 2004

 

74.  Item 25 would insert a savings provision to ensure that any existing delegations are not affected by proposed item 8.  This would be achieved by any existing delegations being as if they were a delegation under the amended item 8.

 

Item 26 – Application of Part 2 of this Schedule

 

75.  Item 26 would have the effect that items 10 and 11 would come into effect for the purpose of copying or disclosing CVR information, while checking the functioning and reliability of CVR equipment, on or after the commencement of Part 2 of the Schedule.  This would be 1 July 2009 in accordance with clause 2 of the Bill

 

Item 27 - Application of amendments of section 18 of the Transport Safety Investigation Act 2003

 

76.  Item 27 would have the effect that items 15 to 18 would come into effect for IRMs and RRMs occurring on or after the commencement of Part 3 of the Schedule.  This would be 1 July 2009 in accordance with clause 2 of the Bill.

 

Item 28 – Application of amendments of section 19 of the Transport Safety Investigation Act 2003

 

77.  Item 28 would have the effect that items 19 and 20 would come into effect for IRMs and RRMs occurring on or after the commencement of Part 3 of the Schedule.  This would be 1 July 2009 in accordance with clause 2 of the Bill.

 

Item 29 – Application of amendments of section 24 of the Transport Safety Investigation Act 2003

 

78.  Item 29 would have the effect that item 21 would come into effect in relation to conduct engaged in, prohibited by section 24, on or after the commencement of Part 3 of the Schedule.