TSI Act - Questions and 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 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 With the enactment of the TSI Act in 2003 the powers under the AN Act and the Marine Casualty Regulations were repealed.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.

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.

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.

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.

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.

The 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.

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.

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.

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 mode of transport. In aviation and rail 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.

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 rail and would include a non-serious injury or the aviation or rail vehicle suffering minor damage or structural failure that does not significantly affect the structural integrity, performance characteristics of the vehicle and does not require major repair or replacement of the affected components.

Routine reportable matters exist only for aviation and rail 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 transport mode 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.

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.

What is an 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.

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.

Can the ATSB disclose restricted information to a coroners court or for civil proceedings?

ANSWER:

Before the ATSB may disclose restricted information to a court (including a coroners court) the ATSB must first issue a certificate under subsection 60(5) of the TSI Act. The court must then make an order under subsection 60(6) of the TSI Act, which may include restrictions on secondary use or publication of the restricted information.

The ATSB does not automatically issue section 60(5) certificates. The test that the ATSB has to apply, with respect to providing the certificate issues a under subsection 60(5), is whether the ATSB can state the disclosure of the certificate information is not likely to interfere with any investigation. The ATSB’s position is that this test includes potential prejudice to the ATSB’s future investigations and reputational risk, particularly as the ATSB accesses sensitive information soon after transport safety incidents (including from the next of kin of deceased).

Before issuing a section 60(5) certificate the ATSB’s delegate may consider whether the disclosure of the restricted information:

• is consistent with the objects of the TSI Act;
• would interfere with the free-flow of information to any investigation under the TSI Act; or
• would otherwise prejudice any investigation.

Relevant to each of these considerations will be:

• the nature of the restricted information;
• the manner in which the restricted information was obtained;
• the purpose for which it may be used in the civil proceedings; and
• whether persons connected with the aviation, marine and rail transport industries that the ATSB investigates may be less cooperative in investigations if the disclosure was made for the purpose it was sought in the civil proceeding.
• the ATSB’s no-blame transport safety investigation functions (particularly as civil proceedings are typically concerned with apportioning and quantifying liability).

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.

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.

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.

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.

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.