Questions & Answers
What is the purpose of the
Transport Safety Investigation Act?
ANSWER:
The Transport Safety
Investigation Act 2003 (TSI Act) originally commenced operation
on 1 July 2003. It underwent significant amendment on 1 July
2009.
The TSI Act establishes the establishes the Australian Transport
Safety Bureau (ATSB) as an independent Commonwealth Statutory
agency. The TSI Act consolidates best practice powers of
investigation in the aviation and marine modes of transport and
under this new legislation also applies them to rail.
Prior to the commencement of the TSI Act in 2003 the ATSB's
powers of investigation in aviation were contained in Part 2A of
the Air Navigation Act
1920 (AN Act). For marine the investigation powers were
contained in the Navigation (Marine Casualty) Regulations 1990
(Marine Casualty Regulations) under the Navigation Act
1912. With the enactment of the TSI Act in 2003 the powers
under the AN Act and the Marine Casualty Regulations were repealed.
However, investigations that have been completed or were started
before the enactment of the TSI Act are still covered by the former
legislation.
Similarly following the amendments in 2009 investigations
completed or were started before those amendments came into force
are covered either by the former legislation or the TSI Act as in
force from 1 July 2003 to 1 July 2009.
The ATSB's function is to improve safety and public confidence
in the aviation, marine and rail modes of transport through
excellence in:
- independent investigation of transport accidents and other
safety occurrences;
- safety data recording, analysis and research; and
- fostering safety awareness, knowledge and action.
An investigation conducted by the ATSB under the TSI Act is independent of other
interests, such as commercial and regulatory ones. The
investigation is no-blame in conduct and outcome, encouraging
cooperation and reporting on safety. A very important feature of
the TSI Act is the protection of sensitive safety information.
There is also a requirement for open reporting of investigation
findings under the Act which ensures those findings are
disseminated widely with the aim of improving transport safety.
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Will an ATSB investigation result
in a person or company being found liable for an
accident?
ANSWER:
Section 12AA (3) of the TSI Act clearly states that it
is not the function of the ATSB to:
- apportion blame for transport accidents or incidents;
- provide the means to determine the liability of any person in
respect of a transport accident or incident;
- assist in court proceedings between parties (except as
expressly provided for in the Act); or
- allow any adverse inference to be drawn from the fact that a
person is subject to an investigation under this Act;
An ATSB investigation is purely aimed at determining the factors
which led to an accident or safety incident so that lessons can be
learned and transport safety improved in the future. The ATSB's
ability to conduct an investigation with this objective would be
compromised if it sought to lay blame, as the future free-flow of
safety information could not be guaranteed. ATSB investigation
reports cannot be used in criminal or civil proceedings. Release of
sensitive safety information obtained by the ATSB is strictly
regulated.
Liability may arise in relation to an ATSB investigation if a
responsible person does not report an immediately reportable matter
(IRM) or routine reportable matter (RRM), or if a person
deliberately hampers an investigation, or releases sensitive safety
information without authorisation.
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Why are rail investigations
included in the TSI Act?
ANSWER:
Historically, the responsibility for ensuring safe rail travel
has rested with the States and the Northern Territory. However,
rail has increasingly developed as an interstate industry crossing
traditional boundaries and raising safety issues. Vesting the ATSB
with powers to investigate interstate rail safety matters enables
significant improvements to be made in rail safety through an
independent and credible investigation agency applying best
practice investigation methods. Further, ATSB investigation
findings will be disseminated widely with the aim to encourage
standardised safety improvements across borders.
ATSB rail investigation is an additional mechanism by the
Commonwealth to foster rail reform. The ATSB's powers to
investigate on the Defined Interstate Rail Network do not prevent
the Bureau from assisting jurisdictions to investigate intrastate
accidents and incidents if requested. The ATSB has been involved in
20 state rail investigations as at February 2011.
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What is a transport safety
matter?
ANSWER:
Section 23 of the TSI Act provides a list of
Transport Safety Matters. These are the matters that the ATSB may
investigate in the aviation, marine and rail modes of transport
under Section 21. Transport Safety Matters are:
- the transport vehicle being destroyed or damaged;
- the transport vehicle being abandoned, disabled, stranded or
missing in operation;
- a person dying as a result of an occurrence associated with the
operation of a transport vehicle;
- a person injured or incapacitated as a result of an occurrence
associated with the operation of the transport vehicle;
- the transport vehicle being involved in a near-accident;
- any property damaged as a result of an occurrence associated
with the operation of the transport vehicle;
- the transport vehicle being involved in an occurrence that
affected, or could have affected, the safety of the operation of
the transport vehicle; and
- something occurring that affected, is affecting, or might
affect transport safety.
The list of transport safety matters must be read with the other
sections of the Act that limit ATSB's jurisdiction to investigate.
Section 22 sets out the restrictions on the investigation of
transport safety matters requiring, for example, a connection with
Australia. Section 11 establishes the constitutional limitations
for when the Act can apply.
The investigation of a transport safety matter must be linked to
a constitutional head of power or be incidental to the execution of
any power in the constitution. For example: where the transport
operation is conducted in the course of trade and commerce with
other countries or among the States.
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When will the ATSB
investigate?
ANSWER:
The ATSB will not investigate every transport safety matter
reported to it. The ATSB follows a policy of selective
investigation which is similar to that of many equivalent
organisations overseas. Selective investigation concentrates the
ATSB's resources on investigations most likely to enhance transport
safety. Further, not all transport safety matters are required to
be reported to the ATSB. The
Transport Safety Investigation Regulations 2003 (TSI
Regulations) set out the occurrences that need to be reported for
each mode of transport.
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What is the role of the Chief
Commissioner?
ANSWER:
Section 12A of the TSI Act provides that the ATSB
consists of a Chief Commissioner and 2 or more Commissioners.
Section 15 of the TSI Act also requires there to be a Chief
Executive Officer (CEO) of the ATSB. The positon of CEO of the ATSB
is held by the Chief Commissioner.Under the TSI Act the powers of
investigation are vested in the Chief Commissioner.
Section 21 gives the Chief Commissioner the discretion to
investigate any transport safety matter. The Minister may also
direct the Chief Commissioner to conduct an investigation. However,
the Minister cannot prevent the Chief Commissioner from conducting
an investigation. Once the investigation is begun it is solely the
prerogative of the ATSB.
Thehe TSI Act permits the ATSB and the Chief Commissioner to
delegate powers under the Act. That has some limitations. In
general, to be delegated powers under the Act, a person must meet
certain requirements such as having safety investigation experience
or qualifications in the relevant mode of transport or relevant to
the matter being investigated. These requirements are set out in
the TSI Regulations. Some of the Chief Commissioner powers cannot
be delegated such as the publication of reports under section
25.
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Who is a responsible
person?
ANSWER:
A responsible person is a person listed in the TSI Regulations who is
required to report a transport safety matter. The TSI Regulations
provide a list of persons who, by the nature of their
qualifications, experience or professional association with a
particular transport vehicle, or number of transport vehicles,
would be likely to have knowledge of an immediately or routine
reportable matter for their associated mode of transport, should
one occur.
Under section 18 a responsible person who has knowledge of an
immediately reportable matter is required to report it to a
nominated official as soon as is reasonably practicable. The
responsible person must also provide a written report of an
immediately reportable matter or routine reportable matter within
72 hours of a transport safety matter occurring. A responsible
person is excused from the reporting requirements if they believe
on reasonable grounds that another responsible person has already
reported the matter to a nominated official.
A member of the public is not precluded from making a report,
however, they are not 'responsible persons' and are not subject to
penalties under sections 18 and 19 of the Act for not making a
report.
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Who is a nominated
official?
ANSWER:
A nominated official is a person listed in the TSI Regulations for
receiving reports of transport safety matters from responsible
persons. Because the ATSB has comprehensive responsibilities for
the investigation of aviation transport safety matters the primary
nominated official in this mode of transport is the ATSB itself.
The Australian Maritime Safety Authority (AMSA) is also listed as a
nominated official because it periodically receives reports through
its Australian Search and Rescue Coordination Centre.
In marine and rail the primary nominated officials are AMSA and
the State and Northern Territory rail safety regulators,
respectively. However, the ATSB is also listed as a nominated
official.
Nominated officials other than the ATSB are included so that
responsible persons can continue to report occurrences to the
organisations that they have in the past. To ensure that the ATSB
does receive notification of the occurrences the TSI Regulations
require AMSA and the State/Territory rail safety regulators to pass
on the reports they receive to the ATSB. AMSA and the State and
Northern Territory rail safety regulators are not required to do
this if they believe on reasonable grounds that a responsible
person has already reported to the ATSB.
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What is an immediately reportable
matter?
ANSWER:
An immediately reportable matter is a serious transport safety
matter that covers occurrences such as accidents involving death,
serious injury, destruction of, or serious damage to vehicles or
property or when an accident nearly occurred. Under section 18 of
the TSI Act, immediately reportable
matters must be reported to a nominated official by a responsible
person as soon as is reasonably practical. The reason for such a
requirement is the need for ATSB investigators to act as quickly as
possible is often paramount in order to preserve valuable evidence
and thus to determine the proximal and underlying factors that led
to a serious occurrence.
The list of immediately reportable matters for each mode of
transport is contained in the TSI Regulations.
Immediately reportable matters are the only transport safety
matters that need to be reported for the marine and rail modes of
transport. In aviation where the Commonwealth, and hence the ATSB,
has more comprehensive responsibilities for the investigation of
transport safety matters there is also a list of routine reportable
matters.
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What is a routine reportable
matter?
ANSWER:
A routine reportable matter is a transport safety matter that
has not had a serious outcome and does not require an immediate
report but transport safety was affected or could have been
affected. Under section 19 of the TSI Act a responsible person who
has knowledge of a routine reportable matter must report it within
72 hours with a written report to a nominated official.
The list of routine reportable matters are contained in the TSI Regulations. Routine
reportable matters only exist for aviation and would include a
non-serious injury or the aircraft suffering minor damage or
structural failure that does not significantly affect the
structural integrity, performance or flight characteristics of the
aircraft and does not require major repair or replacement of the
affected components.
Routine reportable matters exist only for aviation as the
Commonwealth has wide ranging responsibilities for aviation matters
because of the nature of the industry in which all aircraft are
subject to the same control. In the marine and rail transport modes
the ATSB concentrates on serious safety matters in relation to
international and/or interstate transport only as the Commonwealth
does not have sole responsibility for these modes.
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What information will the ATSB
release to the public about an investigation?
ANSWER:
Section 25 of the TSI Act requires that the Chief
Commissioner must publish a report as soon as practicable after an
investigation has been completed. The Chief Commissioner may also
publish a report prior to an investigation being completed if it is
necessary or desirable for the purposes of transport safety.
Some categories of sensitive safety information have
confidentiality provisions applying to them under the TSI Act. The
categories of information are on-board recording (OBR) information
(which includes cockpit voice recorders) and restricted information
(which includes witness interviews). Confidentiality provisions
apply to OBR information and restricted information because the
free-flow of safety information to the ATSB may be compromised in
the future if the disclosure and use of sensitive safety
information is not strictly controlled.
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What is a OBR?
ANSWER:
An OBR is an on-board recording and is the term used in the TSI Act to describe a recording
that consists of sounds and/or images of persons in the control
area of a transport vehicle. The other requirements include:
- The recording was made in order to comply with a law in force
in any country (Presently the OBRs that are made to comply with a
law in Australia are Cockpit Voice Recordings (CVRs) in aviation
and in marine Voyage Data Recorders are required on some
Ships).
- Any part of the recording was made at the time of the
occurrence of an immediately reportable matter that involved the
transport vehicle.
OBRs are primarily installed on transport vehicles for safety
purposes and it is acknowledged that they constitute an invasion of
privacy for the operating crew that most other employees in
workplaces are not subject to. The confidentiality provisions in
the TSI Act regarding OBRs recognise the context in which OBRs are
installed, which is to provide valuable safety information to
assist in determining the factors that relate to a serious
occurrence.
The TSI Act strictly controls the use of OBR information to
ensure it is not used for inappropriate purposes. Unless it is
otherwise permitted by the Act, section 53 makes it an offence for
any person to copy or disclose OBR information. The Act also
prevents the use of OBR information against crew members in
criminal proceedings and it cannot be used against employees for
disciplinary action. The use of OBR information is also heavily
restricted in civil proceedings. Before OBR information can be
disclosed or admitted in civil proceedings the Chief Commissioner
must issue a certificate stating the disclosure is not likely to
interfere with any investigation. This broad test means that it
will be unlikely that OBR information will be disclosed in civil
proceedings. In the unlikely event of a certificate being issued,
the court must conduct a public interest test under section 56 of
the TSI Act.
The only exception to the foregoing is a coronial inquest where
an OBR must be divulged to a coroner where the coroner requests it
and the Chief Commissioner believes the OBR will not have an
adverse impact on the investigation to which the OBR relates.
Under section 51 the Chief Commissioner has the power to
disclose OBR information in the interests of transport safety.
Normally this will only involve OBR information that is necessary
to properly describe the circumstances of the transport safety
matter in the final investigation report including conclusions and
safety recommendations drawn from the analysis of the OBR
information. Because of the extremely sensitive nature of OBR
information it will only be in exceptionally rare circumstances
that such information is disclosed other than as part of an ATSB
investigation report.
A recording only becomes an OBR on the occurrence of an
immediately reportable matter and the Chief Commissioner must issue
a declaration that the OBR is not to be treated as an OBR if the
ATSB does not investigate the immediately reportable matter. If the
Chief Commissioner does decide to investigate the immediately
reportable matter to which the OBR relates and the Chief
Commissioner is satisfied that any part of the OBR is not relevant
to an investigation then the Chief Commissioner must declare that
part not to be an OBR.
If an OBR ceases to be an OBR then, as a CVR, it will receive
the confidentiality protections of Part IIIB of the Civil Aviation Act
1988 (CA Act): Part IIIB of the CA Act covers all CVRs that are
not OBRs under the TSI Act.
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What is restricted
information?
ANSWER:
Restricted information, defined in section 3 of the TSI Act, covers various types of
information acquired by a staff member under or in connection with
the TSI Act, not including OBR information. Restricted information
is a subset of evidential material and is sensitive information
that may have an adverse impact on the free-flow of safety
information in the future if it was made freely available by the
ATSB for purposes other than transport safety, such as inquiries
that lead to prosecution or disciplinary action.
Examples of restricted information include:
- statements obtained from a person in the course of an
investigation (eg. witness interviews);
- medical or private information regarding persons involved in an
accident or incident being investigated;
- communications with a person involved in the operation of a
transport vehicle that is or was the subject of an investigation
(eg. air traffic control recordings);
- information recorded for the purpose of monitoring or directing
the transport vehicle that is the subject of an investigation (eg.
radar information, flight data recorders and voyage data
recorders);
- records of analysis of information or evidential material
acquired in the course of investigation (eg. human factors
analysis);
- Documents produced by requirement under the TSI Act.
Confidentiality provisions limit the circumstances in which
restricted information may be disclosed and used. Restricted
information cannot be used in criminal proceedings unless it is for
an offence against the TSI Act. It may only be used in civil
proceedings if the ATSB has issued a certificate stating that the
disclosure is not likely to interfere with any investigation and
the court is satisfied that the adverse domestic and international
impact that disclosure might have on current or future
investigations is outweighed by the public interest in the
administration of justice. This broad test means that it is
unlikely that restricted information will be disclosed in civil
proceedings other than coronial proceedings. Then, only information
that might assist the court better understand the ATSB's published
material, such as technical or other analysis, is generally
released. The ATSB would not generally release statements or
medical or personal information, for example.
Under section 61 the ATSB has the power to disclose restricted
information if he or she considers that it is necessary or
desirable for transport safety. An example of when the ATSB may
disclose restricted information in the interests of transport
safety would be when its inclusion in an investigation report is
necessary to properly describe the circumstances, conclusions and
safety recommendations of the transport safety matter. However,
restricted information that is or contains personal information
cannot be publicly disclosed by the ATSB.
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Why is there a penalty for
disclosure of draft investigation reports?
ANSWER:
Section 26 of the TSI Act imposes a maximum
penalty of 2 years imprisonment for a person who discloses the
contents of a draft report to any other person or to a court. There
is a maximum penalty of 20 penalty units for unauthorised copying
of the whole or any part of a draft report. However, the penalty
does not apply where copying or disclosure is necessary for the
purpose of preparing a submission to the ATSB on a draft report or
for taking steps to remedy safety deficiencies that are identified
in the draft report. In practice a person who receives a copy of
the draft report may wish to copy it and disclose its contents to
technical experts, legal representatives etc for input into that
persons submission to the ATSB on the draft report. It should be
noted though, that anyone who receives a copy of the draft report
is subject to the confidentiality requirements of the TSI Act.
The reason for the heavy penalties for unauthorised copying and
disclosure of a draft report is that it may contain information
that is subject to change as a result of internal and external
review and consideration of further evidence. In its draft form,
copying or disclosing the report may unjustly affect businesses and
reputations. This in turn could potentially impede and discourage
the crucial, future free-flow of safety information to the
ATSB.
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What is an accident
site?
ANSWER:
The term accident site is defined in section 3 of the TSI Act and means any of the
following sites associated with an accident:
- a site containing the transport vehicle or any of its
wreckage;
- a site where there is an impact point associated with the
accident;
- if the accident involved destruction or serious damage to
property (other than the transport vehicle) - a site containing
that property or any of its wreckage;
- together with such area around the site as the Chief
Commissioner determines to be reasonably necessary to facilitate
the investigation of the accident and securing the site.
However, to be an accident site, as stated, it must be a site
associated with an accident. Not all occurrences amount to the
definition of an accident under the TSI Act. Section 3 defines an
accident as an investigable matter involving a transport vehicle
where:
- a person dies or suffers serious injury as a result of an
occurrence associated with the operation of the vehicle;
- the vehicle is destroyed or seriously damaged as a result of an
occurrence associated with a transport vehicle; or
- any property is destroyed or seriously damaged as a result of
an occurrence associated with the operation of the vehicle.
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When will the ATSB allow access
to accident sites?
ANSWER:
Section 44 of the TSI Act states that the Chief
Commissioner may secure the accident site by whatever means the
Chief Commissioner considers appropriate. Once the accident site is
secured a person who enters the accident site or remains on the
accident site without the permission of the Chief Commissioner is
guilty of an offence. However exceptions allow access to the
accident site for rescue and other first response activities. First
response activities include firefighting, removal of deceased
persons or animals from the accident site and protection of the
environment from significant damage or pollution.
Along with the listed exceptions the Chief Commissioner must not
unreasonably withhold his or her permission for a person to enter
the accident site. The Chief Commissioner may, for example provide
his or her permission to allow the next of kin, police and
insurance agents to enter the site. However, such entry will need
to be under the supervision of the ATSB to ensure all critical
evidence is preserved. The provision ensures agencies who are
conducting separate investigations to the ATSB are nonetheless able
to work cooperatively.
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When can the ATSB exercise
special premises powers?
ANSWER:
Section 33 of the TSI Act allows the ATSB to enter
what is defined as special premises an accident
site or a vehicle without consent or a warrant. Once on the
premises the Chief Commissioner may exercise powers under section
36 for obtaining evidence. However, before exercising any of the
'premises powers', section 30 of the TSI Act requires the Chief
Commissioner to take reasonable steps to notify the occupier of the
purpose entry as well as produce an identity card. For special
premises, the Chief Commissioner must also take reasonable steps to
provide the occupier with a written notice setting out the
occupier's rights and obligations.
The 'special premises power' is limited to use for
investigations into immediately reportable matters and where there
are reasonable grounds for exercising these powers. The following
list of 'reasonable grounds' justifies the need to have the
'special premises powers'. Reasonable grounds would include:
- when access to the accident site or vehicle is regarded as
vital and time critical to the preservation and collection of
evidence relevant to an investigation and it is impracticable to
obtain a warrant or consent in sufficient time;
- when a vehicle needs to be quickly accessed before it is
removed to a less accessible location where relevant evidence may
be removed or destroyed;
- In a major transport accident involving large-scale loss of
life or damage, subsequent litigation can include criminal
proceedings and/or civil claims for billions of dollars. There may
therefore be strong incentives to tamper with evidence and
immediate powers of entry could be needed.
With regard to the seizure of evidential material under the
'special premises powers', section 36 requires that the material
seized must be directly relevant to the investigation concerned and
the Chief Commissioner must believe on reasonable grounds that it
is necessary to seize the material in order to prevent it being
interfered with or to prevent its concealment, loss, deterioration
or destruction.
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What is a protection
order?
ANSWER:
Section 43 of the TSI Act allows the Chief
Commissioner to issue a protection order to prevent evidence from
being removed or interfered with. Its issuance is intended to
ensure that all evidence that is necessary to effectively conduct a
proper investigation into a transport safety matter is fully
preserved. Where there is a serious occurrence involving a
transport vehicle a protection order may be issued to cover the
whole transport vehicle The protection order will prevent removal
or interference with evidence before the transport safety
investigation team has had an opportunity to assess what is
relevant.
Section 12AC of the TSI Act requires that the Chief
Commissioner, in exercising powers under the Act, must have regard
to the desirability of minimising any resulting disruption to
transport by means of transport vehicles. Having regard to this
requirement, a protection order will be lifted as soon as is
reasonably practicable to allow the transport vehicle to continue
its operation and thus minimise any adverse commercial
implications.
Where the Chief Commissioner is satisfied that a protection order
only needs to be issued to cover specified things on the transport
vehicle or in relation to a transport safety investigation
generally, section 43 will be used in this manner. The protection
order may apply, for example, to a specific piece of equipment on
board a ship, the flight data recorder on an aircraft or the
maintenance documentation relating to a rail vehicle. However, a
protection order can only be used where the transport vehicle has
been involved in a transport safety matter that the ATSB
investigates.
Although it is an offence to breach the protection order, as with
section 44 site securing powers exceptions to the enforcement of
the protection order include 'first response' activities necessary
for such things as safety of persons, firefighting, removal of
deceased persons or animals from the accident site and protection
of the environment from significant damage or pollution. Also, the
Chief Commissioner may provide permission for a person to remove or
interfere with evidence while the protection order is in place. The
Chief Commissioner must not unreasonably withhold the
permission.
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