Failure of a Responsible Person to Report under Sections 18 and 19 of the Transport Safety Investigation Act 2003
Where it is apparent that a Responsible Person has failed to provide a report in accordance with the requirements in sections 18 or 19 of the TSI Act, the circumstances of the apparent failure will be assessed to determine the appropriate action to be taken. Appropriate action will be based on two options:
(a) educate the responsible person, or class of responsible persons, to ensure compliance in the future; or
(b) refer the apparent breach to the Australian Federal Police (AFP) for investigation, with the potential for a brief of evidence to be provided by the AFP to the Commonwealth Director of Public Prosecutions (CDPP) to assess for possible prosecution action. In certain circumstances, the referral may instead be made to state police force, or to a police force with jurisdiction to investigate the apparent breach.
The ATSB's policy is that the option of education is to be used where the apparent breach does not meet the criteria for referring it to the AFP for investigation. However, it is expected that there will be relatively few circumstances where the matter is referred to the AFP. The matter must be serious.
Where there is an apparent breach of section 18 or 19 of the TSI Act it is likely that it would only be considered serious if:
(a) the Responsible Person was aware of their reporting obligations, or should have in the circumstances been aware of their reporting obligations, and there is evidence to indicate that the Responsible Person:
i. deliberately decided not to report in accordance with their obligations; or
ii. was reckless in their failure to report; and
(b) the matter or matters required to be reported:
i. had serious safety consequences, or narrowly avoided serious safety consequences, for a person or persons and is a matter or matters that the ATSB would investigate; or
ii. constituted a number of less serious matters, but which because of their number represent a poor approach to safety reporting by the Responsible Person; and
(c) an investigation by the AFP, with potential prosecution by the CDPP, is thought necessary to deter:
i. the Responsible Person from failing to report in the future; or
ii. other Responsible Persons from failing to report.
As a minimum, the circumstances should be consistent with the above criteria for the matter to be referred to the AFP with the intention of it then being prosecuted by the CDPP.