2002

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

SENATE

TRANSPORT SAFETY INVESTIGATION BILL 2002

EXPLANATORY MEMORANDUM

Amendments and New Clauses to be Moved on behalf of Senator ##

(Circulated by authority of ##)

TRANSPORT SAFETY INVESTIGATION BILL 2002

OUTLINE

The purpose of these amendments is to amend the wide and intrusive powers of investigation contained in the Bill, in particular in relation to private aircraft, when compared with the balanced approach taken in Part 2A inserted in 1995 the Air Navigation Act 1920 in relation to the investigation of accidents. The Senate Standing Committee for the Scrutiny of Bills has already commented on one such aspect, namely the power to enter "special premises" without a warrant and without the occupant's consent", in relation to its open ended application to "vehicles".

FINANCIAL IMPACT STATEMENT

The amendments should not affect the validity of the Financial Impact Statement included in the Explanatory Memorandum for the Transport Safety Investigation Bill 2002.

NOTES ON AMENDMENTS

Clause 3 Definitions

This amendment inserts a definition of “administrative decision” referred to in the proposed amendments to clause 27 and 47, and the proposed new clause 59A.

It also amends the key concept of "special premises". When read with the proposed amendments to clause 22, this would correct the present open-ended reference to vehicles as far as aircraft is concerned.

Clause 13 Delegation

These amendments extend the existing prohibition upon delegation, so as to also prohibit the Executive Director from delegating his or her powers under section 32. Section 32 contains extraordinary powers that should accordingly be exercised by the Executive Director personally.

Clause 22 Restriction on investigation of transport safety matters

This amendment would restrict investigations involving private aircraft to cases where a person dies or suffers serious injury or another aircraft not involved in private operations is involved.

Clause 24 Offence to hinder etc an investigation

These amendments remove the open-ended references extending the offence to situations where an investigation has not been commenced, and to omissions. These references operate to dilute the requirements of 'recklessness' (as defined by section 5.4 of the Schedule to the Criminal Code Act 1995.)

Clause 27 Reports not admissible in evidence.

The proposed reference to “administrative decisions” reinforces the notion that reports are to be used for safety purposes only and that while there may be relevant messages that arise from a report it should be used in a constructive way such as retraining, changing procedures etc.

Clause 32 Executive Director may require persons to attend and answer questions etc.

This provision empowers the Executive Director to, among other things, require a person to attend before the Executive Director and answer questions put by any person to the person. These amendments limit the obligation to answer to only those questions that are put to the person by the Executive Director. These amendments also add a "without reasonable excuse" element to the offence created by the provision, in order to bring it into line with the comparable provision inserted in 1995 as section 19CC(4A) of the Air Navigation Act 1920.

Clause 33 Power to enter special premises without consent or warrants

No such intrusive power was included in the 1995 amendments to the Air Navigation Act 1920 and its deletion is proposed.

Clause 35 Power to enter any premises with a warrant

This is an open-ended provision extending to using force to effect entry. It was not expressly included in the 1995 amendments to the Air Navigation Act 1920. At the least, the owner or occupier must be given an opportunity to have any objections by him or her considered.

Clause 42 False statements etc in application for warrant etc

As a matter of drafting the adjective "investigation" before "warrant" is unnecessary. Other clauses in Division 4 of Part 5 do not use the adjective, though some of the headings do.

Clause 47 Self-incrimination an excuse

This amendment extends the protection provided by sub-clause 2 to individuals in relation to consideration of any administrative decision that may adversely affect their interests.

Clause 59A Use of OBR in certain administrative decisions

This amendment extends the protection of persons from use of OBR in consideration of any administrative decision that may adversely affect their decision.

Clause 64 Immunity

Deletion is proposed. If what is done is authorised under the Bill, such a provision is not necessary. If what is done is not authorised, immunity should not be conferred simply because the person concerned thinks he or she has the power. This would encourage a disregard for such protections as given under the Bill.

2002

The Parliament of the

Commonwealth of Australia

SENATE

TRANSPORT SAFETY INVESTIGATION BILL 2002

(Senator )

(1) Clause 3 Definitions

Insert a definition of "administrative decision" as follows:

"administrative decision means a decision to which the Administrative Decisions (Judicial Review) Act 1977 applies, and includes a decision to which that Act would apply if the decision was not included in any of the classes of decisions set out in Schedule 1 to that Act."

Amend the definition of “special premises” by omitting: “(b) a vehicle” and inserting in its stead “(b) a vehicle involved in an accident that is an investigable matter.”

(2) Clause 13 Delegation

Subclause (2)

Amend subclause (2) by omitting "14 or 25" and substituting "14, 25 or 32", so that subclause (2) reads:

"(2) The Executive Director must not delegate his or her powers under section 14, 25 or 32."

Subclause (3)

Omit

(3) Clause 22 Restriction on investigation of transport safety matters

Add a new subclause (4) reading:

"(4) A transport safety matter cannot be investigated under this Act if the matter involves or is related to an aircraft that is employed in private operations as specified in regulation 2(7)(d) of the Civil Aviation Regulations 1988 unless as a result a person dies (or suffers serious injury) or another aircraft not engaged in such private operations is involved."

(4) Clause 24 Offence to hinder etc an investigation

Subclause (1)

Amend subclause (1)(b) by omitting paragraph (b)(ii) so that paragraph (b) reads:

"(b) the person is reckless as to whether the conduct will adversely affect an investigation that is being conducted at that time; and"

Amend subclause (1)(c) by omitting "(whether or not the investigation had commenced at the time of the conduct)"

Subclause (5)

Delete

(5) Clause 27 Reports not admissible in evidence

Heading

Amend heading to read:

"Reports not admissible in evidence and not to be considered in certainadministrative decisions"

Subclause 27(1)

Amend subclause 27(1) to read:

"Final Report

(1) A report under section 25:

(a) is not admissible in evidence in any civil or criminal proceedings; and

(b) must not be taken into account in any administrative decision that may adversely affect the interests of a person to whom the report directly or indirectly relates."

Subclause 27(3)

Amend subclause 27(3) to read:

"Draft Report

(3) A draft report under section 26:

(a) is not admissible in evidence in any civil or criminal proceedings; and

(c) must not be taken into account in any administrative decision that may adversely affect the interests of a person to whom the report directly or indirectly relates."

(6) Clause 32 Executive Director may require persons to attend and answer questions etc.

Subclause (1)

Amend subclause (1)(a) by omitting "any person" and substituting "the Executive Director", so that paragraph (a) reads:

"(a) require a person to attend before the Executive Director and answer questions put by the Executive Director to the person relating to matters relevant to the investigation; or"

Subclause (5)

Amend subclause (5) by inserting the words “without reasonable excuse", so that subclause (5) reads:

"(5) A person to whom a requirement is given in accordance with this section must not, without reasonable excuse:" .. .. ..

(7) Clause 33 Power to enter special premises without consent or warrants

Delete

(8) Clause 35 Power to enter any premises without a warrant

Amend subclause (2) so that it reads:

“(2)Before entering premises under an investigation warrant, the Executive Director must:

(a) announce that the Executive Director proposes to enter the premises; and

(b) consider any objections by the owner or occupier to the entry; and

(9) Clause 42 False statements etc in application for warrant etc

Delete the word "investigation"

(10) Clause 47 Self-incrimination not an excuse

Subclause 47(2)

Amend the final line of subclause 47(2) to read:

"are not admissible in evidence against the person in any civil or criminal proceedings, and must not be taken into account in any administrative decision that may adversely affect the interests of a person to whom the material directly or indirectly relates."

(11) Clause 59 Use of OBR information in coronial inquiries

Insert after clause 59 a new clause 59A as follows:

"59A Use of OBR information in certain administrative decisions

OBR information, and any information or thing obtained as a direct or indirect result of the use of OBR information, must not be taken into consideration in any administrative decision that may adversely affect the interests of a person to whom the information or thing directly or indirectly relates.

(12) Clause 64 Immunity

Delete clause 64.