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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.