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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TRANSPORT SAFETY INVESTIGATION AMENDMENT BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Infrastructure and Transport,
the Honourable Anthony Albanese, MP)
TRANSPORT SAFETY INVESTIGATION AMENDMENT BILL
OUTLINE
The Transport Safety Investigation Amendment Bill proposes amendments to the Transport
Safety Investigation Act 2003 (TSI Act) to:
· give state and territory government Ministers with a responsibility for rail a right to
request the Australian Transport Safety Bureau (ATSB) to conduct an investigation
in their jurisdiction; and
· clarify the ATSB's capacity to conduct investigations within, or to or from, a
Commonwealth Territory;
· provide that On-Board recording and restricted information may be disclosed in
accordance with the regulations.
The first two proposed amendments relate to the implementation of commitments contained
in the Intergovernmental Agreement on Rail Safety Regulation and Investigation Reform (the
IGA). The IGA was signed at the Council of Australian Governments (COAG) meeting on
19 August 2011 and is available online at http://www.coag.gov.au.
In addition to the separate establishment of a National Rail Safety Regulator (NRSR), the
IGA commits the ATSB to becoming the national rail safety investigator. Fulfilment of this
commitment does not require extensive amendments to the TSI Act as the Act already
provides the ATSB with the necessary jurisdictional coverage. The ATSB has been
investigating rail occurrences under the TSI Act since 1 July 2003.
However, in accordance with agreed policy, the ATSB has limited the focus of its
investigation to the rail track that is the defined interstate rail network, running from Brisbane
to Perth and Adelaide to Darwin. The confined jurisdiction acknowledges that rail has been
the responsibility of the states and territories.
This environment will change by 1 January 2013 when the NRSR comes into being through
complementary state and territory legislation. In the new operating environment, the ATSB
will need to have the same national jurisdiction as the regulator to fulfil its corresponding role
as the national investigator.
The proposed amendment to provide for the states and territories with the statutory means to
request the ATSB to conduct an investigation, recognises the contribution the states and
territories will make to the expansion of the ATSB's investigation activities. In accordance
with the IGA, states will pay for ATSB investigatory services in their jurisdiction or, if they
already have an established investigator, meet their own costs and contribute their
investigation services.
The amendment relating to the ATSB's capacity to investigate within a territory would be
made to clarify the ATSB's existing jurisdiction in this area.
The final amendment in the Bill provides that it is a defence to any prohibition on copying or
disclosing restricted information and On-Board Recording (OBR) information if it is done so
by a person performing functions or exercising powers under, or in connection with, the TSI
Act or Regulations. Restricted information covers information obtained or generated through
an investigation as well as information produced as a confidential report. OBR information
includes information from a cockpit voice recorder. The main purpose of the amendment is
to clarify the position with respect to regulations made under the TSI Act that contain ATSB
functions or powers.
FINANCIAL IMPACT STATEMENT
The cost of an investigation, arising from a request from a state or territory Minister, will be
met by the relevant state or territory. The cost incurred will vary depending upon the scale of
the investigation.
Clarifying the ATSB's capacity to conduct investigations within, or to or from, a
Commonwealth Territory will have no financial impact.
More generally, the Commonwealth Government has contributed $11.2 million to the ATSB
to enable it to prepare for a national role as Australia's no-blame rail and maritime safety
investigator. By 1 January 2013, the ongoing costs of conducting rail investigations outside
the interstate track will be met through cost recovery from the states and territories or through
the commitment of existing resources retained by a state and made available to the ATSB by
agreement.
In New South Wales and Victoria, where there are existing safety investigation bodies,
agreements will be put in place to provide for the states to make their resources available to
the ATSB.
The amendment addressing the disclosure of restricted information in accordance with the
regulations will have no financial impact.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation (OBPR) has advised that a Regulation Impact
Statement (RIS) is not required (OBPR Reference: 12994).
As a part of the process for deciding on the ATSB as the national rail safety investigator, a
RIS was prepared by the National Transport Commission. The RIS can be accessed at:
http://www.ntc.gov.au.
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Statement of Compatibility with Human Rights
The Bill is compatible with human rights. It provides a defence a defence to the prohibition
on disclosure of restricted information where the disclosure is in accordance with the
regulations. To the extent that the disclosure involves personal information the right to
privacy may be engaged. However, this will be the subject of any prescribed regulations
rather than the subject of the Bill itself. The regulations will be subject to the requirement to
provide a statement of compatibility with human rights.
However, to the extent that any regulations do engage the right to privacy they are expected
to advance the right. The object of the restricted information provisions is to ensure the free-
flow of information to the ATSB for safety purposes. The provisions achieve this by
protecting rights such as privacy.
The Bill is fully compatible with human rights as defined in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Minister for Infrastructure and Transport, the Hon Anthony Albanese MP
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NOTES ON CLAUSES
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the Transport Safety
Investigation Amendment Act 2012.
Clause 2 - Commencement
This clause provides that:
· sections 1 to 3 of the Act commence on the day the Act receives the Royal Assent;
· schedule 1 (which contains the amending provisions) will commence on the later of:
(a) the day after this Act receives the Royal Assent; and
(b) 18 December 2012.
The timing of 18 December 2012 is intended to coincide with the anticipated start date for the
other national rail safety reforms, including the commencement of the national rail safety
regulator.
Clause 3 - Schedule(s)
This clause provides that each Act that is specified in a Schedule to this Bill is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other item has
effect according to its terms.
SCHEDULE 1
Amendments
Items 1 & 2
Section 11 of the Transport Safety Investigation Act 2003 (TSI Act) provides the limitations
for the exercise of powers under the Act in relation to each of the aviation, maritime and rail
transport modes by making reference to relevant constitutional heads of power. For rail,
subsection 11(3) states that the powers in the Act, so far as they relate to rail vehicles and rail
transport, can only be exercised in relation to matters including:
· rail transport conducted in the course of trade or commerce among the states; and
· rail vehicles and rail track owned or operated by a constitutional corporation.
The Constitution's interstate trade and commerce power (s.51(i)) and constitutional
corporations power (s.51(xx)) already provide sufficient jurisdiction for the ATSB to conduct
safety investigations in the Australian rail industry. The industry's commercial nature means
that practically all rail vehicles are owned or operated by constitutional corporations (i.e.
foreign corporations and trading and financial corporations formed within the
Commonwealth).
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While noting the broad jurisdictional coverage provided by the references to the interstate
trade and commerce power, and the corporations power, subsection 11(3) also refers to the
territories power in the Constitution (s.122). Paragraph 11(3)(b) states that the powers in the
Act can be exercised in relation to rail transport conducted to or from the Northern Territory.
The wording is inconsistent with the wording for comparative provisions governing the
aviation and maritime modes of transport. Subparagraphs 11(1)(b)(ii) and 11(2)(b)(ii) state
that the powers in the Act can be exercised in relation to air/marine navigation within a
territory, or to or from a territory.
For consistency, it is proposed that subsection 11(3) should be amended so the reference to
the Territories power for rail is consistent with the references in similar subsections for
aviation and maritime. The amendment would avoid any confusion surrounding the ATSB's
jurisdiction in relation to rail travel occurring within the territories.
In this regard, item 1 of the Bill would omit paragraph 11(3)(b) of the Act. Item 2 would
insert a new paragraph 11(3)(c)(ia). The new paragraph would clarify that the powers in the
Act could be exercised in relation to rail transport conducted within a territory, or to or from a
territory.
Item 3
Item 3 of the proposed Bill would insert new section 21A into the TSI Act. Section 21A
would provide for state and territory Ministers, who have a responsibility for rail safety, with
a power to request the ATSB to commence a TSI Act investigation into a rail transport safety
matter occurring in their jurisdiction. Once the request is received, the ATSB is obliged to
make a decision under section 21 of the TSI Act as to whether it will investigate the matter.
In responding, the ATSB must take into account the reasons set out in the request and any
resourcing arrangement in place to cover the requested investigation.
As a matter of practice, it should be extremely rare for a State or Territory Minister to need to
issue a request. Provided the necessary resourcing arrangements are in place, the ATSB will
be performing its function in the rail safety system and meeting expectations to investigate
serious accidents and more minor occurrences where there are potential systemic hazards and
risks.
The Intergovernmental Agreement on Rail Safety Regulation and Investigation Reform (the
IGA) sets out the expectations for the national rail safety investigator. Clause B5 requires
that while having regard to the need for an investigation to advance transport safety, the types
of matters the ATSB will investigate will generally include:
(a) accidents involving fatalities, including significant accidents at level crossings;
(b) significant mainline derailments and collisions;
(c) significant incidents involving passenger train operations which had the potential to
result in fatalities or a significant derailment or collision.
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Similar to equivalent investigation bodies around the world the ATSB is not resourced to
investigate every possible rail safety occurrence. The categories above will be primary
trigger points for the ATSB to conduct an investigation. However, the ATSB will also seek
to identify additional occurrences for investigation which are indicative of emerging hazards
and risks that have the potential to lead to more serious consequences in the rail safety
system. The ATSB will be assisted in fulfilling this function by having access to all
notifications of accidents and incidents.
Items 4 & 5
Items 4 and 5 propose, respectively, to omit paragraphs 53(3)(a) and 60(4)(a) of the TSI Act
and replace them with new paragraphs to provide a defence to any prohibition on copying or
disclosing restricted information and On-Board Recording (OBR) information. The defence
is available if the copying or disclosing was done by a person performing functions or
exercising powers under, or in connection with, the TSI Act or Regulations.
The definition of restricted information in subsection 3(1) of the TSI Act covers information
obtained or generated by the ATSB in the course of conducting a transport safety
investigation under the Act. Restricted information also covers information from a report
provided in accordance with a confidential reporting scheme established through regulations
made under section 20A. OBR information includes information from an aircraft's cockpit
voice recorder.
The prohibitions on copying and disclosing OBR and restricted information exist in the TSI
Act is to encourage persons to cooperate with the ATSB in a safety investigation knowing
that the information they provide will not be used against them. Similarly, in confidential
reporting, the prohibitions on disclosure are to encourage persons who fear reprisal to make a
report.
However, while there needs to be limitations on copying and disclosing OBR and restricted
information, there also needs to be some exceptions in order for investigations and
confidential reporting to be effectively able to communicate safety issues to the industry.
Existing paragraphs 53(3)(a) and 60(4)(a) already provide a defence with respect to
performing functions or exercising powers under or in connection with the Act. The
amendment would add to this by including a reference to performing functions and exercising
powers under or in connection with the regulations as well.
Regulation 5.7 of the Transport Safety Investigation Regulations 2003 already provides for
disclosing OBR information that contains personal information in accordance designated
international agreements. Similarly, regulation 5.8 of the Regulations provides for disclosing
restricted information that contains personal information in accordance with designated
international agreements. Regulation 5.8 also allows for the disclosure of restricted
information containing personal information where it is provided to an authority with
responsibility for transport safety matters (however, information coercively acquired is
excluded).
The amendment will also be applied to new regulations which are proposed to be made in
accordance with section 20A of the Act to establish a voluntary and confidential reporting
scheme for the aviation, maritime and rail industries.
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The new scheme will replace the existing aviation scheme under the Air Navigation
(Confidential Reporting) Regulations 2006 and the existing maritime scheme under the
Navigation (Confidential Marine Reporting Scheme) Regulations 2008. There is no existing
national scheme for rail.
The new regulations will need to provide a regime for management and disclosure of
restricted information that is confidential reporting information. It is necessary that a person
who is exercising powers or performing functions under the regulations have defence to the
general prohibition on disclosure under the Act.
Item 6
Item 6 states that proposed new section 21A of the TSI Act, to be inserted by item 3, would
apply in relation to a transport safety matter occurring on or after the commencement
provisions in clause 2 of the Bill. This would be the latter of:
(a) the day after this Act receives the Royal Assent; and
(b) 18 December 2012.
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