The Bill deals with the ATSB Executive Director's modal powers with respect to: mandatory reporting of and the conduct of independent safety investigations into transport safety matters; the making of safety action statements, including safety recommendations; and the publication of safety investigation reports and other safety material. The Bill reinforces the ATSB's role as a multi-modal safety body similar to the Canadian Transportation Safety Board and the National Transportation Safety Board (NTSB) in the United States.

The Bill replaces and aligns the existing legislative authority for ATSB aviation and marine safety investigations contained in Part 2A of the Air Navigation Act 1920 and in the Navigation (Marine Casualty) Regulations under the Navigation Act 1912. It also provides for Australia's compliance with international aviation and shipping agreements, including Annex 13 to the Chicago Convention and International Maritime Organisation (IMO) resolutions.

Interstate rail safety investigation is also included in recognition of rail's growing importance. In recent years there has been tremendous change in the rail industry in Australia. This has included the change from predominantly state-based vertically integrated public ownership to increasingly commercialised and privatised entities trading across state borders. The Commonwealth has sold the Australian National Railways Commission and its share in the National Rail Corporation and is supporting the growing role of the Australian Rail Track Corporation in respect of national rail infrastructure.

The Government wishes rail reform to progress and to see rail's efficiency improve and its carriage of freight and passengers increase. But amidst rapid change, it is important that there be no diminution of safety. One proven means of maintaining and improving safety is to independently investigate accidents and incidents and publicly report on any necessary safety action. The Government has accepted the view of the House of Representatives Standing Committee on Communications, Transport and Microeconomic Reform that the Commonwealth through the ATSB should have an investigation role on the interstate rail system. This is consistent with the provisions of the 1996 Intergovernmental Agreement on Rail Safety, which encourages Commonwealth, State and Territory governments to enact legislation for rail safety. However, at this time the Government is not proposing to legislate to regulate interstate rail - regulation will continue to be managed at the state level.

There continues to be few truly independent state investigations of serious interstate rail occurrences and a number of state reports have not been made public. Most investigations continue to be conducted through State and Territory regulators and/or the operators involved in the occurrence which, as noted in the NSW Glenbrook inquiry, raises issues of real or perceived conflict-of-interest. NSW reports examined by the Glenbrook Commissioner also fell short of best practice in not getting to the root causes of why an accident occurred. An independent ATSB role in interstate rail investigation will foster better practice and safety across the industry. The ATSB may still undertake intrastate rail investigations if requested to do so under state legislation.

The key principles of best practice safety investigation reinforced by the Bill include operational independence free from external pressures and conflicts of interest along with professionalism, skill and objectivity. Without these, the transport industry may be less confident and willing to accept and act upon the recommendations of an investigation. The public may insist on a much more expensive judicial inquiry.

Central, is ATSB's independence from parties or actions that may have been directly involved in the safety occurrence or that had some influence on the circumstances or consequences of that occurrence. For example, the ATSB must be free to investigate and comment on any significant role of the regulator in a particular occurrence and as such must not itself play a regulatory role in the industry. The Executive Director is also not subject to a direction by the Minister or the Secretary in relation to the exercise of powers under the Bill. The Minister can direct that an investigation be initiated

(BM - Come off the grass!  The Executive Director is Independent?  He is a staff member of the Department of Transport, for heavens' sake.  He has no security of tenure.  We can have no confidence at all that he will find that failings in other parts of the Department of Transport - such as AirServices or CASA or |ARTC - caused or contributed to an accident).

More complex safety investigations, where a significant safety benefit is judged likely, will be conducted systemically. Looking beyond the proximal causes of an accident or incident to an understanding of underlying factors, such as organisational issues, has the potential to reveal aspects of broader safety issues that may need to be addressed. Professor James Reason's model of hazards and defences has been adopted by key international bodies such as International Civil Aviation Organization and the International Maritime Organisation as the recommended investigation methodology. According to Reason, most accidents and incidents involve human factors and in 90 per cent of such cases no malice is intended.

Often referred to as the 'no-blame' approach, it does not equate with `no responsibility'. It simply means that disciplinary action and criminal or liability assessment are not part of an ATSB safety investigation and should, if necessary, be progressed through separate parallel processes. Witnesses, particularly operational crew who may be in possession of vital safety information, must be free to provide this information to the ATSB without fear of self-incrimination or retribution. The TSI Bill provides protection for these individuals to enable safety investigators to better understand causal factors in order that future accidents may be prevented. Placing restrictions on the disclosure and use of such information obtained under the provisions of the Bill is also consistent with Australia's international obligations.

For those few transport occurrences where malice may be involved, regulators, police and others may conduct a parallel investigation to ascertain blame or fault so that deliberate wrongdoing is not tolerated. This is an important part of a `just culture'.

While maintaining a separate process, the Government wishes the ATSB under the Bill to continue its current practice of liaising with other agencies in order that, to the extent possible, the objectives of all agencies may be met. Cooperation and communication between federal agencies is the only way to work effectively. Lack of cooperation between agencies was a concern in the 1996 TWA 800 accident in the US in which a 747 crashed shortly after takeoff from New York with the loss of 230 lives.

In the early stages of that investigation, it was not clear whether the crash was the result of an operational problem or of a criminal act. The NTSB experienced difficulties when the Federal Bureau of Investigation, conducting its own investigation, seized evidence without informing the NTSB. This action denied the NTSB, the technical experts in transport accident investigation, a timely opportunity to view and analyse evidence.

On 11 September 2001 the cause of the aircraft crashes was clearly terrorist activity. The NTSB immediately accepted a secondary role and provided expert assistance to the FBI in any way it was able. Following the American Airlines Airbus 300 accident in New York last November, in which 265 lives were lost, it was initially unclear whether criminal activity was involved. However, a public announcement was made early in the investigation stating that the NTSB would remain the lead agency until evidence of criminality was established. Based on this, the two agencies are currently seeking to conclude a Memorandum of Understanding covering future situations and this is also the model that the ATSB will follow with Australian police agencies.

In relation to liaison with other agencies such as regulatory authorities or occupational health and safety agencies, ATSB would maintain a primary investigation role but seek to cooperate where possible as covered in clause 10 of the Bill. In a case of terrorism, the ATSB would not seek to investigate and the Australian Federal Police would therefore have clear priority. The Bill acknowledges the legitimate activities of state coroners and other agencies in relation to investigation. The ATSB will seek to minimise unnecessary duplication of investigation activities through the revision and development of Memoranda of Understanding and related protocols with coroners and other agencies, for example, in relation to physical evidence.

While much of the Bill provides for the protection of information gathered during the course of an investigation, other provisions provide for its controlled disclosure for safety purposes. There is provision for a `directly involved party' process whereby a copy of a draft investigation report may be provided to persons or organisations with relevant knowledge. This process allows those persons to view the draft report and make submissions to ensure that it is factually correct. In some cases this is required under Annex 13. Severe penalties have been introduced for the unapproved disclosure of draft reports. This is because such disclosure, as occurred with the ATSB's Whyalla Airlines report, could be seriously misleading, unfairly tarnish reputations and could impede the crucial future free flow of safety information to the ATSB

(BM - Yes, maybe.  But why the severe penalties for merely copying draft reports?  Many business offices have a routine practice of copying information received in the mail before it is passed to anyone.  That is a very good means of preventing malpractice.  Under Section 26(2)(a) a person who merely makes a copy of a draft report is liable to two years imprisonment - regardless of intent.).

The Bill provides under clause 21 that the Executive Director has discretionary power to investigate unless the Minister directs that a particular investigation be initiated. In practice, a determination about whether to investigate and to what extent, will be influenced primarily by the potential safety value that may result from investigating a particular accident or incident in light of resources available for investigation. While final investigation reports must be published, if an investigation is terminated before it is finalised the reasons for doing so must be published.

The Bill contains specific provisions for the treatment of On-Board Recording or OBR information, covering cockpit voice recorders and like devices installed purely for safety purposes. OBR information may only be disclosed under limited

circumstances. In recognition of the potentially vital evidence that it may contain, OBR information is generally admissible in criminal and coronial proceedings.

However, consistent with existing aviation arrangements and international agreements, there can be no OBR use in proceedings against crew members.

The Government believes that genuine respect and cooperation between the ATSB and state and territory coroners' courts is extremely important given their overlapping roles and joint mission and should be enhanced through memoranda of understanding after the passage of the TSI Bill. Coroners provide the Bureau with often crucial autopsy and pathology evidence. The Bill provides coroners with greater certainty in relation to the disclosure by the ATSB of OBR information and physical evidence for the purposes of coronial inquiries. Final investigation reports may be admitted as evidence in coronial inquiries and, at the request of the coroner, ATSB investigators will be made available to provide expert opinion or factual information arising from their involvement in an investigation.

It is important that investigators have sufficient power to act quickly to access, preserve and collect evidence at accident sites and in transport vehicles that are referred to in the Bill as `Special premises'. Delays could mean the loss of critical evidence because it has perished or has been removed, damaged or changed in some way. Those provisions are generally consistent with current legislation in the marine and aviation transport modes and reflect similar legislation in other countries.

Sensitive information gathered in the course of a safety investigation conducted under the provisions of the Bill is referred to as `Restricted Information'. Restricted Information cannot be disclosed for the purposes of a criminal investigation except for an offence against the Bill. These provisions reinforce the notion that safety investigation processes and those relating to criminal prosecutions should be separate.

Further guidance on Immediate and Routine Reportable Matters is to be provided in the regulations. Responsible persons for the purposes of mandatory reporting will normally include only those with an operational connection to the transport vehicle such as the crew, the owner or operator of the transport vehicle, or persons performing vehicle control duties such as Air Traffic Control. In marine and rail modes it may be more efficient and desirable in some instances to report through regulatory bodies.

ATSB recommendations arising from the identification of safety issues will usually be couched in broad terms that address the desired safety outcome but do not prescribe in detail the means to achieve it. This is generally better left to regulators and other organisations with the technical knowledge and consultative processes to make appropriate risk-based and cost-effective safety changes within their modes.

The Commonwealth Parliament and Royal Commissions are not bound by information restriction provisions within the Bill. Although it would be expected that inquiries would seek to maintain protection for sensitive ATSB safety information. Current arrangements under the Freedom of Information Act 1982 do not provide certainty for the protection of ATSB records relating to investigations which, if made available, may adversely affect current or future investigations. This situation is to be rectified by amending the Freedom of Information Act at the same time as the TSI Act comes into force to exempt OBR and Restricted Information for FoI purposes.

The introduction of the TSI Act will serve to maintain and improve the already excellent safety outcomes of the Australian aviation, marine and rail transport industries. The Act will have a safety benefit for both industry and fare-paying passengers by providing the means for the ATSB to conduct best practice safety investigations in all three modes and thereby help to prevent future accidents. Consequential amendments are made in a short separate Amendment Bill.

2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

TRANSPORT SAFETY INVESTIGATION (CONSEQUENTIAL AMENDMENTS) BILL 2002

2 0 JUN 2002

SECOND READING SPEECH

Wilson Tuckey – Minister for Regional Services, Territories and Local Government

Circulated by authority of the Minister for Transport and Regional Services, the Honourable John Anderson, MP)

TRANSPORT SAFETY INVESTIGATION (CONSEQUENTIAL AMENDMENTS) BILL

This Bill is consequential to the Transport Safety Investigation Bill 2002 (the main Bill) and repeals the modal-specific provisions in parts of the Air Navigation Act 1920 and the Navigation Act 1912 that enable the Australian Transport Safety Bureau (the ATSB) to conduct aviation and marine safety investigations. This Bill also provides for transitional arrangements to allow aviation investigations completed or in progress when the main Bill commences and when Part 2A Air Navigation Act 1920 is repealed, to continue to be subject to Part 2A of that Act. Similar transitional arrangements are proposed to be made for marine investigations through regulations to repeal the Navigation (Marine Casualty) Regulations 1990.

This Bill makes cooperation with the Executive Director of the ATSB part of the object of the Air Services Act 1995, the Civil Aviation Act 1988 and the Australian Maritime Safety Authority Act 1990. In the former two Acts this replaces a similar reference to cooperate with the former Bureau of Air Safety Investigation.

There is also a consequential amendment to the Freedom of Information Act 1982. Safety information protected under Subclauses 53(1), 53(2), 60(1), 60(2) and 60(3) of the main Bill is to be exempt from the Freedom of Information Act 1982 in accordance with Section 38 of that Act. The protection of this safety information is necessary in order to comply with Australia's international obligations such as under paragraph 5.12 of Annex 13 of the Convention on International Civil Aviation.

Confidentiality of information is vital to ensure free flow of information to the ATSB. It is particularly important where information has been compelled despite witness self-incrimination and in respect of on-board recording information such as cockpit voice recordings.

This Bill is an important adjunct to the Transport Safety Investigation Bill.

TEXT ENDS