2002 
 
 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA 

 

HOUSE OF REPRESENTATIVES 
 
 

TRANSPORT SAFETY INVESTIGATION BILL 2002 

TRANSPORT SAFETY INVESTIGATION

(CONSEQUENTIAL AMENDMENTS) BILL 2002 
 
 

EXPLANATORY MEMORANDUM 
 
 

TRANSPORT SAFETY INVESTIGATION BILL 2002 
 

OUTLINE 

The purpose of the Transport Safety Investigation Bill (TSI Bill) is to maintain and improve transport safety in the aviation, marine and rail modes by providing for the: 

reporting of transport safety matters;

conduct of safety investigations by the Australian Transport Safety Bureau (ATSB);

making of safety action statements, including safety recommendations to address safety deficiencies identified by investigations; and

publication of investigation results. 

Arrangements in the Bill are based on the principles of international best practice for investigation currently adopted in the aviation and marine transport sectors. Such investigations are: 

independent - of other interests such as regulatory and commercial ones;

no-blame - in conduct and outcome to encourage cooperation and reporting on safety; and

open - involving a wide dissemination of findings and the fair treatment of directly involved parties. 

This Bill consolidates the ATSBs investigation powers in Part 2A of the Air Navigation Act 1920 and the Navigation (Marine Casualty) Regulations under the Navigation Act 1912 into one piece of legislation. The powers under those pieces of legislation will be repealed upon the enactment of the TSI Bill (refer to notes on clauses of the Transport Safety Investigation (Consequential Amendments) Bill 2002 in this Explanatory Memorandum. In addition, the TSI Bill introduces international best practice investigation to the rail industry on the interstate system consistent with the Commonwealths constitutional powers and the Intergovernmental Agreement on Rail Safety signed with the states and Northern Territory in 1996. 

Having one piece of legislation for investigation will serve to: 

clarify the ATSBs roles and responsibilities in relation to its objectives for investigations;

update and standardise objectives and administrative arrangements for the conduct of investigations, including a common process for investigation reports;

provide consistent treatment of sensitive information obtained during safety investigations, including disclosure of such safety information in courts and coronial inquests and for Freedom of Information purposes; and

facilitate appropriate multi-modal cooperation with other bodies such as through Memoranda of Understanding and cross-modal use of ATSB investigation expertise. 

The Bill has seven parts. 

Part 1 - Preliminary: This Part includes the objects of the Bill, its application, both inside and outside Australia, adoption of Chapter 2 of the Criminal Code, relationship with other laws, and constitutional limitations on powers and functions. Definitions in the Bill are broadly described to cater for multi-modal requirements and also to avoid unintentionally restricting the ATSBs ability to investigate a particular safety matter. The Bill is intended to prevail over other Commonwealth and State laws to the extent of any inconsistency when necessary to meet the objects of the Bill. Its provisions reflect the Commonwealths primary role within constitutional limits with respect to aviation and large ships and a role in rail investigations on the interstate rail system, which includes those aspects of the intrastate system that may have an effect on the interstate system. 

Part 2 - Administration: This Part provides for the creation of the office of the Executive Director of Transport Safety Investigation which has a range of powers under the Bill to conduct safety investigations, including powers of delegation to appropriately qualified people. There is express provision covering independence of action by the Executive Director. Neither the Minister whose portfolio includes responsibility for the ATSB nor the relevant Departmental Secretary may give direction on the exercise of powers under the Bill. This Part also includes provision for Australias compliance with international aviation and marine agreements. Regulation will describe international obligations for marine safety investigation arrangements such as the Code for the Investigation of Marine Casualties and Incidents, adopted by the Assembly of the International Maritime Organisation in resolution A.849(2) and those for aviation under the 1944 Convention on International Civil Aviation. Annex 13 to the latter (Chicago) Convention prescribes standards and recommended practices for accident and incident investigation adopted by the International Civil Aviation Organisation in 1951 and subsequently. 

Part 3 - Compulsory reporting of accidents etc.: Under this Part, people responsible for reporting must report matters related to safety. Non-reporting may result in a penalty of up to a maximum of 6 months imprisonment for immediately reportable matters. Regulation will identify matters to be reported, people responsible for reporting, nominated officials to receive reports and the manner of reporting, having regard to existing arrangements and efficiency and effectiveness. 

Part 4 - Investigations and reports: Division 1 of this Part provides for the Executive Director to investigate transport safety matters which are listed in Clause 23 and describes circumstances in which the Executive Director cannot investigate certain transport safety matters. To appreciate the full scope of the ATSBs powers to investigate under the Bill, these matters should also be considered in conjunction with Clause 11 in Part 1, which describes the constitutional boundaries of investigating under the Bill. The Division also makes it an offence to hinder an investigation. Division 2 provides for the publication of investigation reports where this is necessary or desirable for transport safety, the release of confidential draft reports, and protection of the draft report from further release including disclosure for the purposes of legal proceedings or disciplinary actions. The Bill clarifies that draft reports are not admissible in evidence in civil or criminal proceedings, including coronial inquiries. The same provision applies to final reports (with the exception of coronial inquiries). 

Part 5 - Investigation powers: This Part provides the powers to investigate, to require attendance before the Executive Director to answer questions etc., access to relevant premises, including accident sites, the detention of transport vehicles, issue of warrants, protection and handling of evidential material and penalties for non-compliance with some provisions to allow unimpeded conduct of a safety investigation and to encourage the free flow of information relating to the improvement of safety. Additionally, this Part provides a mechanism for the release of evidential material that is not OBR information or restricted information, by the Executive Director to other agencies. 

Certain provisions in this Part also prevent self-incrimination being used as an excuse for not complying with the requirements under this Part but make any information and evidential material provided under those provisions, inadmissible in evidence against the person in civil or criminal proceedings. 

Regulations will provide for the form of identity cards, and payment of witness expenses for attending before the Executive Director. 

Part 6 - Protection of OBR information and restricted information: Sensitive information collected during the course of an investigation is separated into two Divisions under this Part. Division 1 deals with on-board recording (OBR) information, which cannot be used in criminal proceedings against a crew member. The use of OBR information in civil proceedings and coronial inquiries will be subject to different restrictions. Other sensitive information collected during an investigation is afforded another level of protection and is referred to as restricted information in Division 2. Division 3 confirms that the information gathering powers of the Commonwealth Parliament and Royal Commissions are not affected. 

Part 7 - Miscellaneous: This Part provides confirmation of the common law general immunity for the exercise of powers under the Bill, arrangements for ATSB staff members participation in coronial inquiries, compensation for acquisition of property and provision for the making of regulations. Regulation will provide further details on payment of fees for ATSBs attendance at coronial inquiries. 

Financial impact statement 

Existing Budget allocations for aviation and marine investigations will be unaffected by this Bill. However, additional funding for rail investigations will be required and would need to be sought for 2003-2004. The minimum amount required is estimated to be $0.75 million per annum. This would enable four to six medium complexity rail investigations to be conducted each year. The funding arrangements would be similar to that accorded to aviation and marine accident investigations, whereby extra funds may be required if a major accident occurs justifying a very complex inquiry. 

Regulation impact statement 

A Regulation Impact Statement (RIS) has been prepared for the rail component of the Bill only. The Office of Regulatory Review (ORR) was also consulted on the requirement to prepare a RIS for the provisions applying to the aviation and marine transport modes, including on additional provisions that were incorporated following a period of external consultation on an exposure draft of the Bill. However, ORR advised that a RIS was not required because it considered that the provisions applying to the aviation and marine transport modes were not sufficiently different from existing arrangements to have a significant effect on business.

Regulatory Impact Statement Commonwealth Rail Safety Investigation Legislation 

1. Problem 

1.1 Background 

On 13 April 2000, the Minister of Transport and Regional Services issued a media release relating to the tabling of the Governments response to four reports on land transport issues that had been approved by Cabinet. The Minister said, inter alia: 

. . . rail safety is a priority and the Government will legislate to enable the Australian Transport Safety Bureau to independently investigate accidents and incidents on the interstate rail system. The reports of such systemic, no-blame investigations will be publicly released by the ATSB to allow the rail industry to benefit from the lessons learned. 

The rail industry has historically developed on a State basis with vertically integrated government-owned rail authorities and without the intention of it becoming a seamless national activity. However, the rail industry has changed significantly over the last ten years. The carriage of passengers and freight by rail is now seen as an important national and commercial activity in which State boundaries increasingly have no meaning. Privately owned corporations trade, new rail operators travel, and new track owners rail networks and control systems routinely operate across State borders. Initiatives to establish an interstate corridor are well advanced with the States and Northern Territory (NT) agreeing on the geographical limits of the Defined Interstate Rail Network in the context of the ATC National Rail Summit Communique, 10 September 1997 and in the 1999 IGA for National Rail Uniformity. In response to a need recognised in the 1993 Standing Committee on Transport (SCOT) report, A National Approach to Rail Safety Regulation, the rail industry is now moving toward national codes of practice and other means of standardisation. However, the adoption of such harmonised measures, including all aspects of rail safety, is currently dependent upon the cooperation and agreement of the various States, NT, and individual rail industry organisations. Rail safety investigations and the recommendations arising out of such investigations, currently rest with State and NT rail accreditation authorities. The standardisation of the investigation of rail accidents, incidents and safety deficiencies is seen as a measure to enhance rail safety but an area that is considered not to have progressed sufficiently. This concern was acknowledged in a communique issued by the Australian Transport Council (ATC) on 19 May 2000, which stated inter alia: 

Ministers note Rail Group strategic issue 8 that: participants in the rail industry do not openly investigate and share safety problems and findings within a no blame safety culture. As a result, mistakes are often repeated, with consequential loss of life and injury, thus reducing rails competitive safety/social advantage over road. In developing safety procedures and priorities, there is a need to better define and reflect community concern for the avoidance of major accidents particularly those with injuries and fatalities to fare-paying passengers. 

Deregulation of transport in overseas countries has prompted the review and reform of national rail safety regimes. Those reforms have been characterised by a number of common features, including the provision for independent investigation. independent rail investigations are conducted in a number of countries including Canada, New Zealand, Sweden, and the USA. 

The 1996 Inter-governmental Agreement (IGA) in relation to National Rail Safety was signed by the Commonwealth, the States and the NT formalising ATC endorsement of the recommendations of the 1993 SCOT report. In the development of that report, the need for a separate investigatory agency was discussed at some length. There were divided views as to whether national arrangements should incorporate such an agency.  

Despite the differences, ATC agreed that:

prescribed accidents/incidents should be reported to the national agency;

there is a need for a national approach to independent rail safety investigations;

any proposed legislation shall provide the opportunity for an Accredited Owner, Accredited Operator or a Party to seek the appointment of an independent investigator to investigate an accident or other serious incident involving interstate rail operations in which death or major damage occurs (later became clause 8 of the IGA);

an accident investigation capability should be included in the national arrangements; and

there should be a national research/data base facility.  

Since the IGA was signed two reports have been submitted to the Commonwealth Government, which make specific reference and recommendations on the investigation of rail accidents: 

1 The House of Representatives Standing Committee on Communications, Transport and Micro-economic Reform, Tracking Australia (Neville Report, July 1998) recommended, inter alia, that the Commonwealth establish a national rail incident investigation unit.  

2 A report by an independent industry group Revitalising Rail (Smorgon Report, April 1999) recommended that the regulators should be prepared to transfer its investigation function to an independent, and possibly multi-modal, agency. 

Two further reports have been submitted to ATC: 

3 The report, independent Investigation and Open Reporting of Rail Occurrences (prepared for Rail Group by the Rail Accident and Incident Investigation Task Group, March 1999 and endorsed by ATC in April 1999), acknowledged that: 

Most investigation reports are prepared by the parties involved in the occurrence following internal investigation. Such investigations may be perceived as biased or done in such a way that avoids or fails to expose evidence of system failures. If the investigations were undertaken by external investigators with no association with the parties involved, the investigation would be said to be independent.  

That report also observed that under current State laws, there are no requirements for reports to be made public. It recommended that, if written in a style suitable for open reporting, safety investigation reports should be made public in order to allow for safety lessons to be more broadly communicated at all levels throughout the industry, and to demonstrate to the public that actions have or will be taken to address any identified safety deficiencies. 

4 The independent Review of Rail Safety Arrangements in Australia (Booz-Allen & Hamilton Report, Sept 1999) recommended that the ATC ministers agree that a separate Rail Safety Investigations Authority would be set up with the necessary investigation powers and research and analytical capability as an independent unit within the Australian Transport Safety Bureau (ATSB) in order to ensure that regulators themselves are subject to appropriate scrutiny in the case of any major accident or incident. 

Standards Australia has recently completed its work with industry and governments to develop a proposed standard on rail safety incident investigation as part of the AS 4292 series on Rail Safety Management. Agreement to include the draft document as a standard could not be reached as some members of the committee considered that their organisation, or those that they represented, would not be able to meet the intent of the standard or that it could potentially be used against them in a legal context. As a result, AS 5022, Guidelines for Railway Safety Investigation, was released in June 2001. The ATSB considers that, in its current form, the guidelines inadequately reflect best practice procedures for safety investigation in some areas. The Bureaus concerns about the inadequacies of that document are a reflection of similar concerns about the inadequacies of the current State-based arrangements for rail safety investigations and are described in more detail in later sections of this paper. As AS 5022 is a set of guidelines only, there are no legal requirement for compliance with the principles contained in that document. In addition, only some States call up the Australian Standard Railway Safety Management (AS 4292) in their respective rail safety legislation. As such, even if the document had been published as a standard, there would be no legal requirement for some States to comply with that standard.  

1.2 Problem being addressed 

In all industries, it is recognised that safety improvements come about, in no small measure, by the objective analysis of accidents, incidents and safety deficiencies, and applying the lessons learnt from that analysis. Open and independent investigations of safety occurrences in high risk industries such as aviation, shipping, and the offshore oil industry, is accepted internationally as the most effective system in terms of safety outcomes and the public interest.  

There is currently no international rail body equivalent to that of the International Civil Aviation Organisation (ICAO) or the International Maritime Organisation (IMO), which may be used as the benchmark of worlds best practice. This could be attributed to the fact that rail is essentially a land-locked activity and not a truly global activity as is aviation and marine. However, even this argument is becoming increasingly fragile with, for example, rail trade and passenger transport activity spanning the European and Asian continents and similarly throughout the countries of both North and South America. In the aviation and marine spheres, both ICAO and IMO have set international standards and recommended practices for, amongst other things, the conduct of independent safety investigations. There are currently 185 signatories to the 1944 Chicago Convention, which includes Annex 13 to the convention, Aircraft Accident and Incident Investigation - International, Standards and Recommended Practices. Most countries, including Australia, the US, Canada and New Zealand, have incorporated those best practice principles of Annex 13, including systemic no-blame investigation methodology and open reporting, into their international and domestic legislation. Over 150 countries are signatories to the IMO, including Australia, where Assembly Resolutions A.849 (20) and A.884 (21) make provision for the conduct of investigations into marine casualties and near misses. The investigation principles promoted by the IMO are similar to those of ICAO. 

In order to illustrate the specific problems being addressed, the international and largely generic practices and procedures of both ICAO and IMO have been used as the benchmark against which to compare current practices in rail safety investigations in Australia. A number of shortcomings are evident in the Australian context, and are detailed below. 

1. Currently, one of the few completely independent forms of rail safety investigation is through a judicial inquiry with the powers of a Royal Commission. Such investigations are only appointed in the event of a major accident, usually involving the loss of life of fare-paying passengers. Judicial inquiries are inevitably lengthy and expensive to conduct and are often adversarial and legalistic in nature. While they have the virtue of being open to the public, they are also subject to selective reporting by the media. Aviation and marine transport modes have demonstrated that an independent, technical investigation produces better safety outcomes. Publishing the reports of such investigations meets the dual purposes of public accountability of the investigation and ensures the industry is provided with the detailed analysis of the circumstances and contributing factors to the accident. 

2. Other than judicial inquiries, rail accident investigations are generally carried out by either (a) State and NT accreditation authorities; or (b) by rail companies under reporting requirements of individual State and NT legislation. This gives rise to potential conflicts of interest in which the investigator may have a direct involvement in part of the causal chain which led to an accident. In addition, officers of the regulator may be investigating an accident or incident that may have regulatory or organisational deficiencies as contributing factors, which reflect adversely on their organisation. Accident investigations conducted by an individual company may also present conflicts of interest similar to those previously described and are often engineering-focussed, blame-based and non-systemic. Such investigations tend to be focussed on legal and financial aspects, relating to limiting liability or the recovery of costs from other parties. This can lead, in turn, to pressure on individuals or teams to modify reports at the behest of those higher in the chain of responsibility. It also leads to a potential reluctance to publicly issue reports and their findings. Such a demonstrable conflict of interest leads to a lack of public confidence in an introverted system of accident investigation, which is perceived to be neither disinterested nor transparent.  

3. There is a lack of a uniform approach to rail safety investigation. In some cases, the powers and protections offered by some State and NT legislation, do not provide the appropriate scope to fully explore all the safety issues and potentially limit the future free flow of safety information where an investigation for the purpose of a prosecution and the safety investigation process are not able to be clearly separated.  

4. Accidents are random events that cannot be predicted either in location or time. Each authority of itself, does not have the 'critical mass' of accidents to justify the resources of a specialist independent investigation system. This in turn leads to limited exposure to investigation techniques and a dilution of expertise. For example, in the 1993 SCOT report, the NSW State rail authority acknowledged that in ideal circumstances, the separation of the regulatory and investigation function is desirable but that budgetary and other constraints render such an approach impractical as it often involves duplication, with an associated cost.  

5. It has become increasingly and publicly unacceptable to make advancements in rail safety based solely on the analysis of historical events that have, at times, had tragic consequences. The contemporary approach to investigation recognises the importance of identifying safety hazards before they become factors in accidents or incidents. The investigation of occurrences that could have affected or might affect transport safety provides valuable opportunities to seek proactive solutions to safety hazards. Such occurrences may not have been the result of the unsafe operation of a transport vehicle itself, for example, there may have been a loss of train control communications or signalling functionality that does not result in a reportable occurrence but where safety margins have nevertheless been reduced. 

While the principles of systemic investigation and open reporting are seen as desirable by the States and NT, there is no uniform procedure or clearly defined mechanism for proactive investigations.  

The Commonwealth has a major stake in rail safety in interstate trade. A Commonwealth Government Business Enterprise owns and operates track and train control (Australian Rail Track Corporation). The Commonwealth considers it vital to foster independent and objective investigations in the interest of cost effective rail transport and public safety and accountability. However, there is no current legal mechanism that allows the Commonwealth to investigate in its own right. In contrast, the Transportation Safety Board of Canada is responsible, under discrete legislation, for the investigation of rail safety occurrences on the national network and the international routes that cross into Canada from the USA. Canada has a similar mix to Australia of both federal and provincial railway networks. While the TSB does not specifically investigate in the provinces, agreements are in place with a number of those provinces in which the TSB renders assistance as required.

The publishing and public dissemination of rail safety reports produced by or on behalf of the State and NT rail safety accreditation authorities, is discretionary. The majority of State/Territory rail safety legislation does not require reports to be made public. There have been very few independent investigations and fewer truly public reports. As such, many of the important safety messages are not reaching the working level or the travelling public. As a result, there is limited opportunity to apply relevant safety lessons in other parts of the rail industry in order to ensure an acceptable level of safety throughout the industry and eliminate duplicated effort. Such duplicated effort may have a direct and significant human and financial cost. In contrast, for example, all safety investigation reports completed by the ATSB in the aviation and marine spheres are made public. There have been many examples of where findings and recommendations arising from those public reports within Australia have been embraced internationally. Even within Australia, lessons learnt have been incorporated in a number of ways including, but not limited to, amendments to regulations and recommended practices, changes to design and maintenance, and the restructure of relevant organisations to better support and enhance safety within those organisations. Issues of commercial advantage arising from the release of reports are viewed as secondary to the importance of reducing or eliminating safety risks. 

1.3 Risk 

Accidents are random events that cannot be predicted.  

In 1998, 15, 336 rail occurrences were reported from four States (NSW, Victoria, Queensland, South Australia). Of these 2,728 or 18%, were categorised as major occurrences involving serious injury, death or significant damage (Rail Accident and Incident Investigation Task Group, March 1999). The majority of those categorised as major occurrences were investigated internally by the companies involved and reports of the findings were provided to the respective accreditation authorities. The remainder of the occurrences were reported in limited detail to the accreditation authorities and were used to identify trends. Only six of the occurrences were considered by accreditation authorities to warrant independent investigation. 

The interstate network, as it is currently defined, accounts for approximately 8,000 kilometres of the total rail network in Australia, or approximately 20% of that network. The Australian Rail Track Corporation (ARTC), a Commonwealth government business enterprise which commenced operations on 1 July 1998, owns and/or controls approximately half of that network. In the second half of 1998, a total of 501 occurrences were reported to ARTC. In 1999, a total of 1,176 occurrences were reported, of which 31 were categorised as major occurrences. It is considered that the remainder of the interstate corridor would experience a similar number of occurrences each year. 

The Australian rail system hauls about one-third of the total net tonne kilometres of freight of the national rail task, a figure that has increased by 36% from 1988 to 1997. Interstate freight tonnage has increased by 27% in the last decade (Australasian Rail Association website) which amounts to a total annual revenue of approximately $500 million. In addition, over 700,000 passengers are carried on interstate journeys each year (Australasian Rail Association). 

The social cost of rail accidents in 1988 was assessed at around $100 million per annum (ATC 1993 report). The independent Review of Rail Safety Arrangements in Australia (Booz-Allen & Hamilton Report, Sept 1999) observed that in 1993, the cost of rail accidents was comparable to that of air accidents. While that figure has not been updated, it is expected to be considerably higher in 2000, particularly if insurance costs are taken into consideration. While this figure is considered to be low compared with the social cost of road accidents and travel by rail is regarded as a safe mode of transport, it is significant in absolute terms. 

Except for a handful of examples, investigation reports produced by companies, accreditation authorities and even some independent inquiries that have been instigated by the States, have not conformed to accepted best-practice safety investigation principles. For example, individuals continue to be named in most reports particularly if they have been completed by the company involved, the no-blame philosophy is not reflected as those reports often continue to attribute a single causal factor, and there are few public examples of proactive investigations of safety occurrences. In addition, there have only been a few independent inquiries as there is a general view that only serious accidents need an independent approach. The risk associated with these identified inadequacies is that the investigation reports do not lend themselves well to public dissemination, they do not guarantee that safety issues from an organisational and systemic perspective have been explored fully, and only a limited number of serious occurrences are investigated. The lack of a proactive approach means that death, serious injury or property damage has often already occurred before anything is done about it. 

A national database of rail safety occurrences is currently being developed by the Commonwealth with assistance from the States and NT. It is intended that the database will provide a national overview of the safety health of the rail industry, something that has not previously been achievable under the State-based arrangements. It will also assist the States, NT and the Commonwealth to take a more considered and strategic approach to any emerging rail safety issues, and will play a role in the ongoing monitoring of the national codes of practice once they have been implemented. Despite the intended benefits of such an initiative, the States and NT are currently under no legal obligation to investigate anything other than predominantly defined events ie. accidents and incidents in which death or injury has occurred to persons or where damage has occurred to, or defects have been identified in, rolling stock or track infrastructure. 

2. Objectives 

2.1  Objectives of government action 

To enhance rail safety by creating a national rail safety investigation regime that meets best practice, including: 

objectivity arising from;

independence from regulatory and commercial concerns

unrestricted authority over the conduct of investigations

the adoption of a systemic approach where appropriate;

the sole objective to improve safety and not to attribute blame or liability;

certainty arising from;

uniform procedures

a high level of public accountability through public reporting of all investigations

a mechanism for proactive safety investigation; and

a high level of centralised expertise. 

2.2 Existing regulation/policy 

States and NT 

All States and NT have railway legislation, making provision for the operation of railways under their individual jurisdictions. Such legislation covers all aspects of rail operations under their separate jurisdictions including financial and safety issues that, in turn, includes the investigation of rail occurrences. The same authorities that oversee regulations, both commercial and operational, conduct investigations of accidents and incidents under their respective legislation.  

State and NT rail accreditation authorities have been invited to utilise the expertise and independence of the ATSB. While some States have indicated that they would utilise this offer, others have not responded. Further, it is at the various authorities discretion whether or not they invite the ATSB to lead or assist in an investigation. Under such an arrangement, the ATSB is bound by the State and NT legislation and there is no guarantee of open reporting. Officers of the ATSB have been involved in rail accident investigations on six occasions at the invitation of the States between 1997 and 2002. 

Commonwealth 

There is currently no specific power to regulate rail safety investigation at a Commonwealth level. However, there are a number of general powers which, together, can be used to support legislation regulating most, if not all, rail operations. 

Through ATC, the Commonwealth has led the States and NT in promoting an Australia-wide, uniform rail policy. This includes developing a consistent approach to safety issues, including accident investigation. The Commonwealth is a signatory, with all other State and NT administrations, to the Inter-governmental agreement in relation to rail safety.

Inter-governmental agreement (IGA) in relation to national rail safety 

Clause 4 of the 1996 IGA states that: 

Legislation shall be passed or appropriate administrative action under existing legislation taken as soon as practicable by the Parties which allows for the application of the Australian Rail Standard and any additional requirements notified in Clause 7 as the basis for accrediting safe operations by interstate rail Operators and Owners. 

Clause 8 of the IGA states that any proposed legislation: 

shall provide the opportunity for an Accredited Owner, Accredited Operator or a Party to seek the appointment of an independent investigator to investigate an accident or other serious incident involving interstate rail operations in which death or major damage occurs. 

As noted previously, the Commonwealth is a Party to the IGA. 

Australian Standard - Guidelines for Railway Safety Investigation  

Rail accreditation authorities and the rail operators, through Standards Australia, have developed AS 5022 Guidelines for railway safety investigation, closely modelled on the existing Commonwealth marine and aviation procedures. However, as previously discussed, there is no legal requirement for compliance with this guideline by the States and NT, further contributing to a lack of uniformity. 

3  Options 

3.1 Status quo  

Continue to conduct investigations under State and NT legislation with the rail industry carrying out the majority of those investigations and with the balance conducted by State and NT accreditation authorities. The Commonwealth (ATSB) would continue to be invited to participate in or conduct independent rail investigations at the discretion of the State and NT accreditation authorities. 

3.2 Self-regulation 

The introduction of a system of self-regulation requiring rail operators, individually or collectively, to undertake investigations, with no State, NT or Commonwealth involvement, is an option.  

3.3 Quasi-regulation 

Quasi regulation would involve no legislative powers. Rail safety investigation could be conducted in accordance with national codes of practice and/or Australian Standards/Guidelines, or through the development of Memoranda of Understanding between the Commonwealth, States and NT. 

3.4 Commonwealth government regulation 

The Commonwealth to use its Constitutional powers to set up a national investigator with coercive powers in relation to rail safety investigations on the interstate track and those parts of the intrastate track that have a safety impact on interstate operations, analogous to existing Commonwealth aviation and marine investigation legislation.  

4 Impact Analysis 

4.1 Groups affected by the problem and proposed solutions 

There are four general groups to be considered:

the general public;

State/Territory governments (Departments of Transport and their accreditation authorities);

the rail industry; and

the Commonwealth. 

The general public has the right to expect that rail occurrences involving death or injury of train crew or the public, major damage, or damage to the environment, are properly investigated and that significant factors contributing to those occurrences are fully determined. The general public also has the right to expect that any resulting safety lessons, which assist to prevent further similar occurrences, are made public. 

Legislation and the application of rail safety investigation methodology varies considerably between State and NT Governments. The interstate operators are seeking uniform standards and a uniform approach to rail safety. This includes a uniform approach to rail safety investigations and that such investigations should be separate from the regulatory functions of the accreditation authorities.  

The Commonwealth has an existing pool of resources and a proven track record in systemic no-blame investigations in the aviation and maritime spheres. The consistent application of these principles to the rail industry would meet the stated objectives as outlined in section 2.2 Objectives of government action.  

4.2 Self regulation 

Rail operators and track owners already have an obligation to investigate under their own management, accidents and incidents involving company property, systems and/or staff. They have the appropriate technical expertise and operating knowledge of the industry and, in particular, their own company. In addition, it may be argued that they possess a sufficient degree of self-preservation and commitment to safety to ensure that they conduct thorough rail safety investigations. 

The implementation of this option would necessitate a repeal of current State-based legislation, which requires the rail industry to operate in a co-regulatory environment, a process designed to apply external safeguards to an otherwise self-regulated industry. 

This option does not meet the objectives of independence and objectivity as it would not cater for the often multiple interests in a rail safety investigation. These interests would be as diverse as accreditation authorities, track owners, operators, maintenance providers, employee representatives, occupational health and safety representatives, and the travelling public. Issues related to conflicts of interest and the competing goals of safety and commercial viability are not likely to be adequately addressed, or be seen to be adequately addressed, under such a regime. There may be reluctance to share information in relation to the findings of an investigation if it is seen to erode a competitive advantage. All of these concerns may potentially result in an inherent lack of confidence in the industrys ability to investigate itself. 

Further requirements with their attendant costs would be imposed on the industry, in order that an appropriate level of expertise for the investigation of safety issues is assured. Such a regime would result in greater pressure to conduct judicial inquiries in the absence of any formalised system to ensure that public accountability is at least assured following serious accidents (Refer to section 1.2 Problem being addressed for other issues related to the use of judicial inquiries). 

4.3 Quasi regulation 

Quasi-regulation relies heavily on the cooperation and agreement of all the parties involved and is not legally binding. Therefore, this option would not wholly meet the objective of a consistent approach to rail safety investigation. 

Whilst the agreement and adoption of national codes of practice for the defined interstate network is progressing, with parts of the national code implemented during 2001 and additional parts due to be implemented during 2002, those codes do not address the specific issue of rail safety investigation. The codes were predominantly developed to address efficiency issues with passenger and freight operations. Although safety issues are inherently intertwined with operational issues, it is considered that rail safety investigation should be kept at arms length from a document that sets operational standards and which may itself be under scrutiny during a safety investigation. 

As with self-regulation, quasi-regulation will not satisfy the necessary requirements in relation to the powers and protections that must be afforded to investigators and affected parties to ensure that the primary objective of safety is able to be rigorously pursued in order to benefit the industry and the travelling public. 

Given the continued fragmented nature of the industry and the strong interests of the States and NT, it is unreasonable to expect that the States and NT could come to an agreement with the Commonwealth on the narrow issue of rail safety investigation, when other rail reform issues remain unresolved after eight years of the current reform agenda. This was recently illustrated when it has become apparent that the views held by the States, NT and the rail industry on the proposed draft Australian standard on Railway Safety Investigation, were extremely varied in respect to fundamental issues such as definitions, investigation methodology, and reporting.  

Quasi-regulation in the form of MOUs between the Commonwealth, the States and NT, may be beneficial in so far as it may help to clearly define the roles and responsibilities of each party in the event of a rail safety investigation on the interstate system. This, in turn, may reduce duplicated effort and resources and any inconvenience to the rail industry as a result of an unnecessary further layer of investigation. It may also allow for a strategic approach in relation to the expertise that may be required to reside within a Commonwealth investigatory agency and which may be able to be sourced externally. An MOU may also provide for a cooperative approach in respect of the uniform training and development of investigators. 

4.4 Explicit Commonwealth legislation 

Commonwealth legislation would apply only to improve safety of the interstate rail system. State and NT authorities would maintain jurisdiction to investigate intrastate operations, including urban networks, where the interstate system is not affected. 

The rail industry is a high-risk operation with the potential to significantly impact on public safety and environmental integrity. 

The introduction of proposed Commonwealth legislation may be viewed as the most formal and potentially complicated option to implement. However, this option will meet the objectives as a legal framework provides certainty, consistency and specific safety investigation provisions such as ensuring confidentiality, protection against self-incrimination, transparency, and requirements to divulge relevant information overriding other requirements not to divulge such information. As litigiousness increases, the protections of such legislation may be the only way to ensure that information from witnesses and other relevant parties to a safety investigation is forthcoming. 

In a currently dynamic rail industry, competition and horizontal structures are replacing vertical, government-controlled structures. As a result, critical interface and other safety issues have been raised for an expanding number of operators in both above and below rail operations. An objective, independent, rail safety investigation capability, supported by relevant Commonwealth legislation, is required in this environment to ensure that such safety issues are properly identified and adequately addressed.  

The introduction of explicit Commonwealth legislation with rail safety investigations conducted by an independent agency such as the ATSB, has great potential to bolster public confidence in the rail industry. With the ATSBs proven track record in other modes of transport investigation, many expensive judicial inquiries resulting from the publics lack of confidence in the integrity of an investigation conducted by interested parties, including the accreditation authorities, may be averted.  

Some accreditation authorities, while welcoming ATSB assistance, believe that the ATSB needs to prove the effectiveness of its investigation methodology to the industry, prior to mandating it through legislation. Some authorities view such a proposal as resulting in more unnecessary power over the States by the Commonwealth and that any proposed Commonwealth legislation goes against the intent of the IGA. 

The introduction of any proposed Commonwealth legislation will come with attendant administrative costs and, if not handled adequately, has the potential to result in a further player added to the already multiple interests to a rail safety investigation. The Commonwealth would need to fund its own investigation capacity (estimated to be a minimum of $0.75 million per annum). The funding arrangements would need to be similar to those accorded to aviation and marine accident investigations, whereby extra funds may be made available if a major inquiry justifies supplementary expenditure. The cost of any rail safety investigation that falls within Commonwealth jurisdiction would be wholly funded by the Commonwealth and therefore has the potential to reduce the States and NT costs for investigation and the need for the States to have the same level of investigation resources.  

The legislation will clearly state the roles and responsibilities of the State/Territory governments, rail owners and rail operators in such matters as: 

accident and incident reporting requirements to the Commonwealth;

the requirement to provide information to the Commonwealth for rail safety investigations; and

the Commonwealths authority/powers over accident sites and custody of wreckage. 

Reporting protocols as referred to above, would need to be established in order to eliminate duplication of effort resulting in an unnecessary cost to the industry. An industry education campaign would need to be conducted and appropriate literature would need to be distributed to ensure maximum awareness, understanding and cooperation with the new Commonwealth regime. These initiatives could be funded by the Commonwealth at an estimated cost of $0.75 million per annum.  

The adoption of an independent organisation reporting publicly significantly reduces the public expectation for judicial inquiries. Experience of equivalent Commonwealth marine legislation, which makes provision for judicial inquiries, is that the last marine accident to be subject to a judicial inquiry occurred in 1985. Since that time, all serious accidents have been investigated and reported on by specialist Commonwealth investigators. This includes accidents involving fatalities and major pollution incidents.  

Whilst Commonwealth legislation would provide explicit powers for the Commonwealth to investigate for rail safety, any benefits or reforms arising from those rail safety investigations would rely largely on the cooperation of the State accreditation authorities and the rail industry. It is not intended that the Commonwealth would have the power or responsibility for implementing safety reforms on the interstate rail system. If such powers were granted to the Commonwealth, the Commonwealth investigation agency would, by default, become a quasi regulator and in so doing would not be truly independent. It is intended that the rail safety legislation would provide for the Commonwealth to identify and communicate safety deficiencies to the relevant action agency, with any response from action agencies, including any intended safety action being taken by the action agency, being placed on the public record. This is similar to the arrangements in the aviation sphere. As the ATSB is regarded as an independent and credible investigation agency, records show, for example, that approximately 80% of its recommendations have been accepted by the aviation industry. This approach is also similar to that of royal commissions of inquiry, in which there is no legal authority to enforce the adoption of recommendations. However, business reality and common sense suggests that such recommendations cannot be simply ignored and must be dealt with and acted upon appropriately. 

As the introduction of explicit Commonwealth rail safety investigation legislation is just one element of a wider package of reform in the rail industry, it is not possible to separate the positive outcomes of sound rail safety investigation principles from those of other changes taking place within the rail industry. It is expected that these reforms which include such things as increased standardisation in procedures and technology and improvements in infrastructure, will compliment this legislation.  

4.5 Impact in terms of costs and benefits