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SLI 2012 No. 265 Regulations as amended, taking into account amendments up to Civil Aviation Legislation Amendment (Part 101) Regulation 2016
Administered by: Infrastructure, Transport, Cities and Regional Development
Registered 05 Oct 2016
Start Date 29 Sep 2016

Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012

Select Legislative Instrument No. 265, 2012

made under the

Transport Safety Investigation Act 2003 and the Air Navigation Act 1920

Compilation No. 1

Compilation date:                              29 September 2016

Includes amendments up to:            F2016L00400

Registered:                                         5 October 2016

 

About this compilation

This compilation

This is a compilation of the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012 that shows the text of the law as amended and in force on 29 September 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

1............ Name of regulation.............................................................................. 1

4............ Transitional......................................................................................... 1

5............ Definitions.......................................................................................... 1

6............ Information taken to be part of report.................................................. 2

Part 2—REPCON Scheme                                                                                               3

7............ Establishment and application of scheme............................................ 3

8............ Purposes of scheme............................................................................ 3

9............ Functions of ATSB............................................................................. 4

Part 3—Reporting                                                                                                                 5

10.......... What may be reported......................................................................... 5

11.......... How report must be made................................................................... 5

12.......... Information to be included in report.................................................... 5

Part 4—Accepting and dealing with reports                                                         6

13.......... Accepting report.................................................................................. 6

14.......... Dealing with report............................................................................. 6

15.......... Dealing with report containing false or misleading information.......... 7

Part 5—Use and disclosure of information                                                            8

Division 5.1—Use and disclosure by ATSB                                                      8

16.......... Disclosure of restricted information by ATSB.................................... 8

17.......... Named person or organisation to comment on report.......................... 8

Division 5.2—Restrictions on use and disclosure of information        10

18.......... Disciplinary action and making administrative decisions.................. 10

19.......... Information not admissible in evidence............................................. 10

20.......... Use to be for same purpose as for disclosure.................................... 11

Part 6—Information relating to criminal conduct                                           12

21.......... Information relating to terrorism or unlawful interference with aviation.. 12

Part 7—Miscellaneous                                                                                                       13

22.......... Delegation of powers of ATSB........................................................ 13

Endnotes                                                                                                                                    14

Endnote 1—About the endnotes                                                                            14

Endnote 2—Abbreviation key                                                                                15

Endnote 3—Legislation history                                                                             16

Endnote 4—Amendment history                                                                           17


Part 1Preliminary

  

1  Name of regulation

                   This regulation is the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

4  Transitional

             (1)  Despite section 3:

                     (a)  the Air Navigation (Confidential Reporting) Regulations 2006 continue to have effect in relation to reports made under those regulations before 20 January 2013; and

                     (b)  the Navigation (Confidential Marine Reporting Scheme) Regulations 2008 continue to have effect in relation to reports made under those regulations before 20 January 2013.

             (2)  For the reports mentioned in subsection (1), the ATSB or the Chief Commissioner may perform functions or exercise powers conferred on the Executive Director under the regulations mentioned in subsection (1).

5  Definitions

                   In this regulation:

Act means the Transport Safety Investigation Act 2003.

criminal conduct: see subsection 10 (3).

emergency services organisation includes the following:

                     (a)  a police force or service;

                     (b)  a fire service;

                     (c)  an ambulance service;

                     (d)  a service for dispatching a force or service mentioned in paragraph (a), (b) or (c).

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Note:          The States and Territories (other than South Australia) are each expected to enact laws that:

(a)    apply the Rail Safety National Law to the State or Territory; or

(b)    substantially correspond to the Rail Safety National Law.

REPCON scheme means the scheme established under section 7.

report means a report made under Part 3.

reportable safety concern: see subsection 10 (2).

terrorist act has the meaning given by section 100.1 of the Criminal Code.

transport safety authority means any of the following:

                     (a)  the Civil Aviation Safety Authority established by the Civil Aviation Act 1988;

                     (b)  the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990;

                     (c)  the Office of the National Rail Safety Regulator, established by the Rail Safety National Law;

                     (d)  an authority of a State or Territory, or any other body, that has functions relating to transport safety.

unlawful interference with aviation has the meaning given by section 10 of the Aviation Transport Security Act 2004.

Note:          Several other words and expressions used in this regulation have the meaning given by subsection 3 (1) of the Act. For example:

·      ATSB

·      Chief Commissioner

·      restricted information

·      staff member

·      transport safety

·      transport vehicle.

6  Information taken to be part of report

                   For this regulation, the following information is taken to be part of a report:

                     (a)  information obtained or generated by the ATSB in the course of considering a report;

                     (b)  records of the analysis of information contained in a report (including opinions expressed by a person in that analysis).

Part 2REPCON Scheme

  

7  Establishment and application of scheme

             (1)  For section 20A of the Act, a scheme (the REPCON scheme) is established for the voluntary and confidential reporting to the ATSB of issues that affect, or might affect, transport safety.

             (2)  The REPCON scheme applies in relation to the following:

                     (a)  for aircraft operations—manned aircraft, large RPA, medium RPA, small RPA, very small RPA and micro RPA;

                     (b)  for marine—marine operations to which Part 3 of the Transport Safety Investigation Regulations 2003 apply;

                     (c)  for rail—rail vehicles and rail transport covered by subsection 11 (3) of the Act.

             (3)  In this regulation:

large RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

medium RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

micro RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

very small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

8  Purposes of scheme

             (1)  The primary purpose of the REPCON scheme is to enable the ATSB to do the following:

                     (a)  provide a voluntary and confidential reporting scheme for issues that affect, or might affect, transport safety;

                     (b)  use the reports made under the scheme to identify unsafe procedures, practices or conditions;

                     (c)  give information to the aviation, maritime or rail industry, to a transport safety authority, or to an emergency services organisation, about an identified unsafe procedure, practice or condition to facilitate:

                              (i)  action and awareness about transport safety issues; and

                             (ii)  improvements in transport safety by other persons and organisations.

             (2)  An incidental purpose of the REPCON scheme is to enable the ATSB to give information about a transport security concern, mentioned in a report made under the scheme, to an appropriate person or organisation (including a transport safety authority or an emergency services organisation) to facilitate awareness of security issues.

Note:          Although the REPCON scheme is not established for the purpose of reporting security concerns, those concerns might be mentioned in reports made under the scheme.

9  Functions of ATSB

                   The ATSB’s functions in relation to the REPCON scheme include the following:

                     (a)  assessing and accepting reports of issues that affect, or might affect, transport safety;

                     (b)  dealing with reports in accordance with this regulation, including forwarding, destroying or returning reports;

                     (c)  reviewing information contained in reports, and publishing details of those reviews;

                     (d)  setting up and maintaining one or more databases for recording information contained in reports;

                     (e)  identifying issues and factors mentioned in, or arising from, reports that affect, or might affect, transport safety;

                      (f)  communicating issues and factors mentioned in paragraph (e) to relevant sectors of the transport industry, to transport safety authorities, to emergency services organisations and to the public;

                     (g)  issuing information briefs or alert bulletins that the ATSB believes are necessary or desirable in the interests of transport safety;

                     (h)  establishing committees to review the effectiveness of the scheme.

Note:          For rules relating to the disclosure of information contained in reports—see Parts 5 and 6.

Part 3Reporting

  

10  What may be reported

             (1)  A person may make a report to the ATSB about any reportable safety concern.

             (2)  A reportable safety concern is any issue that affects, or might affect, transport safety, other than the following:

                     (a)  matters showing a serious and imminent threat to transport safety or a person’s life or health;

                     (b)  industrial relations issues;

                     (c)  criminal conduct.

Note 1:       If an issue mentioned in paragraph (a) or (c) is mentioned in a report, personal information about the person making the report may be disclosed—see subsection 16 (3) and Part 6.

Note 2:       If a matter must be reported by a person under another law, such as under Division 1 of Part 3 of the Act, reporting the matter under the REPCON scheme will not relieve the person of the obligation to report the matter under the other law.

             (3)  For paragraph (2) (c), criminal conduct means an offence against a law of the Commonwealth, a State or a Territory, including the following:

                     (a)  a terrorist act;

                     (b)  an act of unlawful interference with aviation that constitutes an offence under the Aviation Transport Security Act 2004.

11  How report must be made

             (1)  The person making the report should give the report to the ATSB in writing.

Note:          A report may be given in the form available on the ATSB’s website at www.atsb.gov.au.

             (2)  However, if a report is initially made to the ATSB in a non‑written form (such as by telephone), the ATSB must reproduce the report in writing.

12  Information to be included in report

                   The person making the report must include the following information in the report:

                     (a)  the name of the person making the report;

                     (b)  a description of the reportable safety concern;

                     (c)  at least one of the following:

                              (i)  the person’s postal address;

                             (ii)  the person’s email address;

                            (iii)  the person’s telephone number;

                            (iv)  the person’s fax number.

Part 4Accepting and dealing with reports

  

13  Accepting report

                   The ATSB must accept a report if:

                     (a)  the ATSB is satisfied that the REPCON scheme is the most appropriate way to make the report; and

                     (b)  the ATSB reasonably believes that the matter described in the report is a reportable safety concern; and

                     (c)  the ATSB reasonably believes the report to be true.

14  Dealing with report

             (1)  Regardless of whether the ATSB accepts a report, the ATSB must:

                     (a)  decide what information in the report is to be included in a database maintained for the REPCON scheme, and include that information in the database; and

                     (b)  decide whether to disclose any information from the report in accordance with the Act and this regulation, and act accordingly; and

                     (c)  if the ATSB does not believe that the report includes false or misleading information—as soon as practicable:

                              (i)  for the part of the report given by the person taken to have made the report—destroy the part, or return it to the person; and

                             (ii)  if a part of the report was given by another person—destroy the part, or return it to that other person.

Note 1:       For rules relating to disclosure of information contained in reports—see Parts 5 and 6.

Note 2:       For reports that may include false or misleading information—see section 15.

Including restricted information in database

             (2)  For paragraph (1) (a), the ATSB may include restricted information that contains personal information in a database maintained for the REPCON scheme only if:

                     (a)  the removal of the restricted information from the report would adversely affect the quality of the information to be included in the database; or

                     (b)  the ATSB believes that it is necessary to keep in contact with the person who made the report, or a person or organisation mentioned in the report, and the restricted information is necessary for that purpose.

             (3)  The ATSB must remove restricted information that contains personal information from the database if:

                     (a)  the restricted information was included in a database for the purpose mentioned in paragraph (2) (b); and

                     (b)  the ATSB is satisfied that it is no longer necessary to keep the restricted information for that purpose.

15  Dealing with report containing false or misleading information

             (1)  If the ATSB reasonably believes that, in making the report, the person who made it has committed an offence under section 137.1 of the Criminal Code (False or misleading information), the ATSB must not:

                     (a)  destroy the report, or any part of it; or

                     (b)  return the report, or any part of it, to a person;

until 2 years after the day the report was made.

             (2)  If a prosecution for an offence against section 137.1 of the Criminal Code in relation to the report is commenced during those 2 years, the ATSB must not destroy, or return to a person, any part of the report that is required to be kept for the purpose of the prosecution, until that part of the report is no longer required for that purpose.

Part 5Use and disclosure of information

Division 5.1Use and disclosure by ATSB

16  Disclosure of restricted information by ATSB

             (1)  The ATSB must not disclose restricted information relating to a report unless:

                     (a)  the ATSB has removed all personal information from the information that is to be disclosed; or

                     (b)  subsection (2) or (3) applies.

Note:          For rules about non‑staff members accessing restricted information—see section 62 of the Act.

             (2)  The ATSB may disclose restricted information that contains personal information if:

                     (a)  it is not possible to remove the personal information from the information to be disclosed without defeating the purpose for which the ATSB proposes to disclose the information; and

                     (b)  the ATSB believes it necessary or desirable to disclose the information for a purpose mentioned in paragraph 8 (1) (b) or (c) or subsection 8 (2); and

                     (c)  before disclosing the information, the ATSB obtains the consent of the person to whom the personal information relates.

             (3)  The ATSB may disclose restricted information that contains personal information if:

                     (a)  the ATSB reasonably believes the disclosure is necessary for the purpose of reporting, investigating or prosecuting a possible offence against section 137.1 of the Criminal Code (False or misleading information); or

                     (b)  the ATSB reasonably believes that disclosure is necessary to reduce or prevent a serious and imminent threat to transport safety or a person’s life or health; or

                     (c)  the disclosure is in accordance with Part 6; or

                     (d)  the ATSB reasonably believes the disclosure is necessary for the purpose of reporting, investigating or prosecuting criminal conduct not mentioned in Part 6.

             (4)  Without limiting this section, the ATSB may disclose information under this section to a court.

17  Named person or organisation to comment on report

             (1)  This section applies if the ATSB proposes, in the interests of transport safety, to give information from a report to a transport safety authority or an emergency services organisation.

             (2)  Before giving the information to the transport safety authority or an emergency services organisation, the ATSB must:

                     (a)  give a copy of the report that satisfies the requirements of section 16 to any person or organisation mentioned in the report; and

                     (b)  invite the person or organisation to comment on the report within 5 business days after receiving the report.

Note:          business day is defined in the Acts Interpretation Act 1901.

             (3)  However, the ATSB is not required to give a copy of the report to a person or organisation if the ATSB reasonably believes that:

                     (a)  giving a copy of the report to the person or organisation is likely to:

                              (i)  reduce reporting under the REPCON scheme; or

                             (ii)  reduce the ability of the ATSB to achieve a purpose of the REPCON scheme; or

                     (b)  it is not practicable to comply with subsection (2).

Example for paragraph (b)

Waiting 5 business days for a response from the person or organisation would mean an urgent safety issue, or an emergency, could not be addressed.

             (4)  The ATSB must take into account any comments made by the person or organisation when deciding whether to give information from a report to a transport safety authority or an emergency services organisation.

Division 5.2Restrictions on use and disclosure of information

18  Disciplinary action and making administrative decisions

             (1)  A person must not use information in a report to:

                     (a)  take disciplinary action against an employee of the person; or

                     (b)  make an administrative decision under an Act, or an instrument made under an Act, against a person.

Note:          For rules about the use of information for these purposes—see section 19.

             (2)  Subsection (1) does not prevent disciplinary action being taken, or an administrative decision being made, against a person if the information on which the action or decision is based is obtained from a source other than a report.

19  Information not admissible in evidence

             (1)  A report, and evidence about the contents of a report, are not admissible in evidence in a court.

             (2)  However subsection (1) does not apply in proceedings in relation to whether a person committed an offence under section 137.1 of the Criminal Code (False or misleading information) in making the report.

             (3)  Subsection (1) does not prevent information obtained from a source other than a report from being admissible in evidence in a court.

             (4)  If, despite subsection 18 (1), a person uses information in a report to:

                     (a)  take disciplinary action against an employee of the person; or

                     (b)  make an administrative decision under an Act, or an instrument made under an Act, against a person;

the report, or evidence about the contents of the report, may be used, as evidence of the misuse of the information, in any appeal against the taking of the disciplinary action or the making of the administrative decision.

             (5)  Subsection (4) applies only if the ATSB issues a certificate stating that:

                     (a)  the use of a report, or evidence about the contents of the report, in specified proceedings is not likely to reduce reporting under the REPCON scheme; or

                     (b)  any reduction in reporting under the REPCON scheme that might occur because of the use of a report, or evidence about the contents of the report, in specified proceedings is outweighed by the public interest in the use of the report, or evidence about the contents of the report, in those proceedings.

20  Use to be for same purpose as for disclosure

                   A person, body or agency to whom restricted information that contains personal information is disclosed in accordance with this regulation must not use or disclose that information for a purpose other than the purpose for which the information was disclosed to the person, body or agency.

Part 6Information relating to criminal conduct

  

21  Information relating to terrorism or unlawful interference with aviation

Disclosure to Department

             (1)  If the ATSB receives information under the REPCON scheme that the ATSB reasonably believes relates to:

                     (a)  an act of unlawful interference with aviation that is an offence under the Aviation Transport Security Act 2004; or

                     (b)  a terrorist act involving or relating to transport, or a transport vehicle, to which the REPCON scheme applies;

the ATSB must tell the Department that the ATSB has received the information.

Note:          This information is not a reportable safety concern but may be incidentally mentioned in a report made under Part 3.

             (2)  If the Department requests that the information be given to the Department, the ATSB may comply with the request.

             (3)  The ATSB may disclose restricted information that contains personal information to the Department if necessary to comply with this section.

Disclosure for purpose of reporting, investigating or prosecuting

             (4)  The ATSB may disclose restricted information that contains personal information if the ATSB reasonably believes that the disclosure is necessary for the purpose of reporting, investigating or prosecuting an offence:

                     (a)  mentioned in paragraph (1) (a); or

                     (b)  involving an act mentioned in paragraph (1) (b).

             (5)  Without limiting subsection (4), the ATSB may disclose information under subsection (4) to a court.

Part 7Miscellaneous

  

22  Delegation of powers of ATSB

             (1)  The ATSB may, in writing, delegate a power of the ATSB under this regulation (other than this power of delegation) to the following:

                     (a)  the Chief Commissioner;

                     (b)  a staff member who has duties relating to the administration of the REPCON scheme.

             (2)  In exercising powers under a delegation, the delegate must comply with any directions of the ATSB.


Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

 

ad = added or inserted

o = order(s)

am = amended

Ord = Ordinance

amdt = amendment

orig = original

c = clause(s)

par = paragraph(s)/subparagraph(s)

C[x] = Compilation No. x

    /sub‑subparagraph(s)

Ch = Chapter(s)

pres = present

def = definition(s)

prev = previous

Dict = Dictionary

(prev…) = previously

disallowed = disallowed by Parliament

Pt = Part(s)

Div = Division(s)

r = regulation(s)/rule(s)

ed = editorial change

reloc = relocated

exp = expires/expired or ceases/ceased to have

renum = renumbered

    effect

rep = repealed

F = Federal Register of Legislation

rs = repealed and substituted

gaz = gazette

s = section(s)/subsection(s)

LA = Legislation Act 2003

Sch = Schedule(s)

LIA = Legislative Instruments Act 2003

Sdiv = Subdivision(s)

(md) = misdescribed amendment can be given

SLI = Select Legislative Instrument

    effect

SR = Statutory Rules

(md not incorp) = misdescribed amendment

Sub‑Ch = Sub‑Chapter(s)

    cannot be given effect

SubPt = Subpart(s)

mod = modified/modification

underlining = whole or part not

No. = Number(s)

    commenced or to be commenced

 

Endnote 3—Legislation history

 

Name

Registration

Commencement

Application, saving and transitional provisions

Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012

28 Nov 2012 (F2012L02281)

20 Jan 2013 (s 2)

 

Civil Aviation Legislation Amendment (Part 101) Regulation 2016

29 Mar 2016 (F2016L00400)

Sch 1 (items 103, 104): 29 Sept 2016 (s 2(1) item 1)

 

Endnote 4—Amendment history

 

Provision affected

How affected

Part 1

 

s 2.............................................

rep LA s 48D

s 3.............................................

rep LA s 48C

Part 2

 

s 7.............................................

am F2016L00400