Commonwealth Numbered Regulations - Explanatory Statements

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NAVIGATION (CONFIDENTIAL MARINE REPORTING SCHEME) REGULATIONS 2004 2004 NO. 95

Subsection 425(1) of the Navigation Act 1912 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act or for the conduct of any business under the Act. Subsection 425(1) goes on to detail some matters which, in particular, the regulations may provide for. Paragraphs 425(1)(db) and (e) refer to matters that are relevant for the making of the Regulations:

(db)       the safe navigation and operation of ships;

(e)       the safety of persons, including pilots, going on or coming from, or on board, ships.

In July 2001 the Great Barrier Reef Shipping Review Steering Committee (the Committee) released the Review of Ship Safety and Pollution Prevention Measures in the Great Barrier Reef. The review was initiated in recognition of the potential impacts of shipping on the unique values of the Great Barrier Reef and the need for continuous improvements in regulatory arrangements and operational practices for shipping in the region.

In the review the Committee addressed the matter of provision of information on marine incidents. The Committee considered the success of confidential reporting systems in the aviation industry in the USA, the UK, Canada and Australia. It was considered that a maritime confidential reporting system would be helpful to identify unsafe operating practices, ships with deficient equipment, or idiosyncratic handling characteristics. Recommendation 36 of the review recommended that the Australian Transport Safety Bureau (ATSB) establish a confidential marine incident reporting scheme.

In accepting the recommendation in the review, the Federal Government considered that the safety value of a Confidential Marine Reporting Scheme would extend beyond the borders of the Great Barrier Reef. The Government announced on 13 May 2003 that the ATSB would establish the scheme and accept safety reports from persons connected with shipping in Australian waters. The regulations establishing the scheme are made under the Navigation Act 1912 and therefore include ships on interstate and overseas voyages and other ships to which the Act applies.

The purpose of the Regulations is, therefore, to establish a scheme to encourage mariners and others associated with the marine industry to voluntarily report safety-related matters. The Executive Director of Transport Safety Investigation, a statutory office holder established in accordance with section 12 of the Transport Safety Investigation Act 2003, is the prescribed person to whom reports are made. The Executive Director of Transport Safety Investigation is the Executive Director of the ATSB.

The scheme encourages reports by assuring the reporter that their identity will remain confidential. Reports under the scheme are de-identified by removing personal information that could identify the reporter and other individuals, as soon as practicable, to ensure confidentiality. For example, a report may be de-identified as soon as it is no longer considered necessary or desirable to contact the reporter. Confidentiality is a primary element of voluntary reporting systems as people may otherwise be reluctant to report their concerns for fear of retribution.

The scheme seeks to meet its objective of improving maritime safety through:

(a) forwarding de-identified reports to the Australian Maritime Safety Authority for possible follow up action; and

(b) disseminating the de-identified information from the reports to the marine industry to promote an awareness of safety issues.

Details of the Regulations are attached.

The Regulations commenced on the date of their notification in the Gazette.

Authority: Subsection 425(1) of the Navigation Act 1912.

Attachment

Details of the Navigation (Confidential Marine Reporting Scheme) Regulations 2004

Regulation 1       Name of Regulations

This regulation provides that the Regulations are the Navigation (Confidential Marine Reporting Scheme) Regulations 2004.

Regulation 2       Commencement

This regulation provides that the Regulations commence on the date of their notification in the Gazette.

Regulation 3       Definitions

This regulation provides definitions of the following terms used in the Regulations: Act, Confidential Marine Reporting Scheme or CMRS, Executive Director, mandatory reporting requirement, Marine Orders, reportable safety issue, reporter, TSI Act, unlawful interference with a ship.

Regulation 4       Application

This regulation makes it clear that the Regulations apply to marine activities associated with the operation or safety of a ship to which the Navigation Act 1912 (the Act) applies. For example, subsection 2(l) of the Act states:

Except in so far as the application of this section is expressly excluded by a provision of this Act, this Act does not apply in relation to:

(a) a trading ship proceeding on a voyage other than an overseas voyage or an inter-State voyage;

(b) an Australian fishing vessel proceeding on a voyage other than an overseas voyage;

(ba) a fishing fleet support vessel proceeding on a voyage other than an overseas voyage;

(c) an inland waterways vessel; or

(d) a pleasure craft;

or in relation to its owner, master or crew.

Regulation 5       Establishment and purposes of the scheme

This regulation establishes the Confidential Marine Reporting Scheme (CMRS). Under subregulation 5(2) the scheme is administered by the Executive Director. The Executive Director is defined under regulation 3 as the person for the time being holding, occupying or performing the duties of the position of Executive Director of Transport Safety Investigation referred to in section 12 of the Transport Safety Investigation Act 2003 (TSI Act). The Executive Director referred to in section 12 of the TSI Act is the Executive Director of the Australian Transport Safety Bureau, which manages the CMRS. Regulation 19 allows the Executive Director to delegate powers, functions and duties associated with the administration of the scheme.

Subregulation 5(3) outlines the purpose for establishing the scheme which is to provide a confidential reporting scheme for maritime safety issues and to use the reports received under the scheme to identify unsafe procedures, practices or conditions in order to prevent or lessen the likelihood of maritime accidents.

Regulation 6       Powers and Functions of the Executive Director

This regulation outlines the powers and functions of the Executive Director as the administrator of the CMRS. These functions and powers are given effect by the other regulations.

Regulation 7       Who may make a report - general

This regulation sets out who is able to make a report under the CMRS. The categories of persons who can report has been left broad. Allowing for a broad category of persons to report ensures that as much safety information as possible can be provided to the Executive Director by the maritime industry or persons who observe activities of the industry. It also increases the effectiveness of the confidentiality aspect of the scheme, as it is less likely that people in the industry are able to speculate on who made the report.

Some persons who have obligations to report safety incidents within the maritime industry under other legislation are limited in the matters that they may report under the CMRS. These limitations are addressed by regulation 8.

Regulation 8       Who may make a report - persons with other reporting obligations

This regulation limits for some persons, in the maritime industry, the reports they may make under the CMRS. Under the regulation a person who has an obligation to make a report under a mandatory reporting requirement must not use the CMRS to make the report. A mandatory reporting requirement is defined under regulation 3 as:

A requirement to report a matter under any of the following:

(a) section 151, 190A, 268, 269, 269A or 417 of the Act;

(b) subsection 18(1) or 19(1) of the TSI Act;

(c) Part 32, Provision 9.2.3 or Part 54, Provision 8.2.1 of the Marine Orders;

(d) section 107 of the Occupational Health and Safety (Maritime Industry) Act 1993.

Certain persons such as Masters and Pilots may be required to report a safety issue under the provisions listed above. It would be inappropriate to allow them to confidentially report the issue under the CMRS. To do so could undermine the mandatory reporting schemes. However, the regulation does not apply to persons who are not required to make a report under legislation prescribed by the definition of a mandatory reporting requirement.

Regulation 13 sets out the process for dealing with a report that should have been reported in accordance with the legislation listed under the definition of a mandatory reporting requirement.

Regulation 9       What may be reported?

Subregulation 9(1) lists the matters that are reportable safety issues which can be reported under the CMRS.

Subregulation 9(2) lists the matters which are not reportable safety issues for the purposes of the CMRS. Unlawful interferences with a ship (defined in regulation 14) and industrial relations issues are not be reportable safety issues. It is not the role of the Executive Director to monitor security or industrial relations issues. Further, a matter that a person is required to report under a mandatory reporting requirement is not be reportable safety issue for that person.

Regulation 10       How are reports to be made?

This regulation sets out the procedure for making a report under the CMRS. It must be made to the Executive Director in a form and manner approved by the Executive Director and a report that is not made in writing must be reduced to writing by the Executive Director. This occurs where a report is made over the telephone to the Executive Director, in which case the Executive Director has to reduce the oral report to writing.

Subregulation 10(4) lists the information to be included in a report. It is mandatory for the reporter to provide his or her name, the preferred means by which they wish to be contacted and a description of the matter comprising the reportable safety issue. It is preferable that the scheme avoids dealing with anonymous reports. However, subregulation 11(3) provides a means of accepting an anonymous report where the safety issue warrants further attention and can be independently verified.

Regulation 11       Processing of reports

This regulation prescribes the conditions that must be met for a report to be accepted under the CMRS. It also provides for the manner in which a report is to be dealt with that is not accepted under the CMRS.

Regulation 12       Dealing with reports that have been accepted

If a report has met the conditions set in subregulations 11(2) or (3) and has been accepted under the CMRS then regulation 12 addresses the manner in which that report is to be dealt with.

Paragraph 12(a) requires the Executive Director to determine what information contained in the report is to be included in databases maintained for the purposes of the CMRS. This is done having regard to regulation 18, which require the Executive Director, to the extent practicable, to ensure that information that identifies, or tends to identify, the reporter or any person referred to in the report, is not kept on the database after the report has been progressed. This measure is included as an aspect of the confidential nature of the scheme.

Paragraph 12(b) places an obligation on the Executive Director to ensure that the report is destroyed after he or she considers that it is no longer necessary or desirable to keep the report for the purposes of keeping in contact with the reporter. This measure is also be included as an aspect of the confidential nature of the scheme. It seeks to ensure that information about the reporter is not kept on record after it is no longer necessary.

Regulation 13       Dealing with reports that should have been made under a mandatory reporting requirement

Subregulation 8(1) states that a person who has an obligation to make a report under a mandatory reporting requirement must not use the CMRS to make the report. However, it is conceivable that such a person may mistakenly make a report to the CMRS of a matter they have an obligation to report elsewhere under a mandatory reporting requirement. Regulation 13 sets down the procedure for dealing with reports made by persons who should have made the report under a mandatory reporting requirement.

Regulation 13 requires that, if practicable, the Executive Director must inform the reporter of the reporter's obligations under the mandatory reporting requirement. The regulation then provides the Executive Director with options for dealing with the report which should have been reported by legislative requirement elsewhere. The options available to the Executive Director are to:

(a)       forward the report to the person to whom the matter should have been reported under the mandatory reporting requirement;

(b)       if the report is forwarded under paragraph (a), keep a copy;

(c)       if the report is not forwarded under paragraph (a), keep or destroy the report.

The Executive Director is given a few options so that he or she may manage administratively any potential problems arising from receiving a safety report of a matter by someone who had a legal obligation to report that matter elsewhere. For example, before making a decision to forward on a report to the appropriate authority the Executive Director is likely consider whether this would be incriminatory to the person that made the report. The Executive Director would consider the likely harmful impact on the CMRS of incriminating a person who inadvertently makes a report to the CMRS that they should have reported elsewhere.

If it is necessary, the regulations do not stop the Executive Director from passing on information which is not personal information.

Regulation 14       Dealing with reports relating to unlawful interference

This regulation provides the procedure for dealing with a report of an unlawful interference with a ship. The Executive Director has to send the report to an APS employee performing a maritime security function within the Department of Transport and Regional Services. Unlawful interference, defined in subregulation 14(2), is excluded from the matters that may be reported to the CMRS under subregulation 9(2). If an unlawful interference is reported to the CMRS regulation 14 ensures that security concerns can be dealt with.

Regulation 15       When the Executive Director may contact reporter

This regulation states that the Executive Director may contact the reporter if it is necessary or desirable to do so for the purpose of the Regulations. Regulation 15 lists some circumstances where it might be appropriate for the Executive Director to contact the reporter, such as when it is necessary to seek clarification or more information about the report.

Regulation 16       Forwarding Information to AMSA

One of the primary ways in which the CMRS is intended to improve maritime safety is to make the Australian Maritime Safety Authority (AMSA) aware of unsafe procedures, practices or conditions by forwarding de-identified reports to the Authority. Subregulations 16(1) and (2) allows for this where the Executive Director considers that it is necessary or desirable to do so in the interests of maritime safety.

AMSA is made aware of the safety issue but the identity of the reporter is kept confidential. The confidentiality assurance is given under subregulation 16(3) which provides that, to maintain the confidentiality of reporters, the Executive Director must ensure that, to the extent practicable, information that identifies, or tends to identify, the reporter is not included in any information sent by the Executive Director.

It is recognised that occasionally it may not be possible to remove information that identifies the reporter and at the same time ensure that AMSA is adequately informed of the safety issue. If this occurs, subregulation 16(4) provides that the information must not be sent without the consent of the reporter.

Subregulation 16(5) allow the Executive Director to send information that identifies, or tends to identify, any other person referred to in the report if the Executive Director considers it necessary or desirable to do so in the interests of maritime safety. The regulations provide the Executive Director with the power to exercise this discretion but generally the Executive Director seeks to remove all personal information from the report. It is where the removal of the personal information about another person identified in the report would prevent AMSA from taking safety action, which is deemed necessary, that the Executive Director would exercise the discretion to include the personal information in the forwarded report.

Regulation 17       Use of Information without consent of reporter

This regulation provides that the Executive Director may use information contained in the reports (other than personal information within the meaning of the Privacy Act 1988) without the consent of the reporter for purposes related to the scheme such as to issue information briefs or alert bulletins to the maritime industry. Apart from forwarding information to AMSA for follow up action, disseminating information about safety issues through the marine industry is an additional means of enhancing the safety culture.

While regulation 17 does detail some uses of information without the consent of the reporter, the regulation is not exhaustive in its listing of possible uses. As the note in regulation 17 states, information contained in a report (including personal information within the meaning of the Privacy Act 1988) might be used or disclosed to prevent or lessen a serious and imminent threat to the life or health of the reporter or for the enforcement of a criminal law, law imposing a pecuniary penalty or for the protection of the public revenue. First and foremost the Executive Director will be seeking to protect the confidentiality of the reporter, as this is integral to ensuring that faith is maintained in the scheme in the long term. However, clearly there may be overriding circumstances where it may be necessary to disclose personal details, such as when a person's life is in imminent danger.

Regulation 18       Databases

A database system for storing CMRS information is established. Regulation 18 requires that the Executive Director must ensure that to the extent practicable, information that identifies, or tends to identify, a reporter or any person referred to in a report is not stored permanently in any database maintained for the purpose of the CMRS. In practice the information stored on the database is encrypted and the details of the reporter or any other person referred to in the report are deleted as soon as practicable to ensure the confidentiality of the persons involved.

Regulation 19       Delegation by Executive Director

This regulation empowers the Executive Director to delegate any power, function or duty of the Executive Director under the CMRS (other than the power of delegation) to a person engaged to perform duties in the Department of Transport and Regional Services. A delegate must comply with any directions of the Executive Director.