Sections 25A of the TSI Act requires a person, association or agency to provide a written response to a Safety Recommendation contained in a report released under section 25 of the TSI Act. The response is required within 90 days of the report being published. Responses to recommendations are published on the ATSB website.

Failure to respond may attract a penalty of up to 30 penalty points ($3,300 for a natural person and $16,500 for an incorporated organisation), and advice of any such failure to respond will be published on the ATSB website.

Policy

Responses to Safety Recommendations are to be provided within the timeframe (within 90 days of the report being published) as required by the TSI Act.

Where responses are not received, a decision about appropriate enforcement action is taken. Choice of an appropriate action is based on a graduated response that focuses on the primary objective to achieve an appropriate safety outcome, including to:

• continue to engage with the responsible person, or class of responsible persons, to ensure compliance; or if necessary
• refer the apparent breach to the Australian Federal Police (AFP) for investigation, with the potential for a brief of evidence to be provided by the AFP to the Commonwealth Director of Public Prosecutions (CDPP) to assess for possible prosecution action.

The ATSB's policy is that the option of continued engagement is used where the apparent breach does not meet the criteria for referring it to the AFP for investigation. The matter must be serious for a referral.

Criteria for referral

Where there is an apparent breach of section 25A of the TSI Act it is likely that it would only be considered serious if:
a) the person or organisation was aware of their obligations to respond, or should have in the circumstances been aware of their reporting obligations, and there is evidence to indicate that the person or organisation:

i.    deliberately decided not to respond in accordance with their obligations; or
ii.    was reckless in their failure to respond; and

b) the matter or matters that required a response:

i.    have the potential for serious safety consequences if not addressed; or
ii.    have the potential for less serious safety consequences but there is no other means to ensure that the person or organisation explains to the industry and the public how the matter or matters are being addressed; and

c) an investigation by the AFP, with potential prosecution by the CDPP, is thought necessary to:

i.    obtain compliance from the person now and in the future; or
ii.    deter other persons or organisations from failing to respond.