Commonwealth Numbered Regulations - Explanatory Statements

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NAVIGATION (MARINE CASUALTY) AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 199

Statutory Rules 2002 No. 199

Issued by the Authority of the Minister for Transport and Regional Services

Navigation Act 1912

Navigation (Marine Casualty) Amendment Regulations 2002 (No. 1)

Subsection 425(1) of the Navigation Act 1912 (the Act) provides that the Governor-General may make regulations for the purposes of the Act, including for and in relation to the investigation of, and reporting on, casualties affecting ships and entailing loss of life on or from ships (paragraph 425(1)(ea)).

Regulation 15 of the Navigation (Marine Casualty) Regulations 1990 (the principal Regulations) provides a regime for the protection of information gathered for purposes of a no-blame marine safety investigation. Subregulation 15(1) essentially prohibits an investigator from divulging information specified under subregulation 15(1A). to any person, except in accordance with provisions of regulation 15.

The purpose of the Regulations is to ensure that the confidentiality regime under regulation 15 of the principal Regulations applies to the production of documents to courts as well as disclosure of information in general and to make consequential amendments. This will ensure the future freeflow of safety information to the Australian Transport Safety Bureau (ATSB) for the purposes of marine safety investigations.

Following the Federal Court's decision in Christoforidis v Cygnet Bulk Carriers SA [2002] FCA 690, it was considered necessary to clarify the intent of subregulation 15(1). The court interpreted subregulation 15(1) as not preventing the production of documents to courts for purposes of court proceedings that have been instituted. The Regulations clarify the Government's intent with respect to this subregulation.

The Regulations also:

•       Bring the list of information to which sub-regulation 15(1) applies in line with provisions in the Air Navigation Act 1920 for the protection of safety information collected in the course of a no-blame transport safety investigation (see Item 4 of the Schedule); and

•       Consolidate the independence of an investigation conducted by the ATSB into a marine occurrence. This outcome is achieved by making the Executive Director rather than the Secretary a person who can receive information under subregulation 15(1), receive a report from the Inspector under subregulations 16(1) and 16(5), and be able to cause a marine investigation report to be printed and published under subregulation 16(6) (see items 4, 8, 9 and 10 respectively).

Details of the regulations are contained in the Attachment.

The regulations commenced upon gazettal.

ATTACHMENT

Clause 1 Name of Regulations

This clause provides that the Regulations are the Navigation (Marine Casualty) Amendment Regulations 2002 (No. 1).

Clause 2 Commencement

This clause provides that these Regulations commence on gazettal.

Clause 3 Amendment of Navigation (Marine Casualty) Regulations

This clause provides that Schedule 1 amends the Navigation (Marine Casualty) Regulations.

Schedule Amendments

Item 1 - subregulation 3(1), after definition of Inspector

This item inserts a definition for the term 'investigation' into subregulation 3(1) to ensure there is no ambiguity about its meaning.

Item 2 - subregulation 15(1)

This item amends subregulation 15(1) to clarify the scope of the restriction on inspectors or investigators divulging information to which the subregulation applies. The amendment makes it clear that inspectors and investigators are also to be restricted from producing a document containing information to which the subregulation applies. The amendment was necessary in view of the inconsistent interpretation of this provision by courts in the past. In particular, Tamberlin J's interpretation of subregulation 15(1) in Christoforidis v Cygnet Bulk Carriers SA [2002] FCA 690 could have had an adverse impact on the future free-flow of safety information to the ATSB if the provisions were not going to be applied to information required to be produced to a court. The amendment clarifies that the confidentiality provisions are applicable to the production of documents to a court, so as to ensure information collected by the ATSB will not be used for the purposes of blame apportioning court proceedings, except in accordance with the regime set out under subregulations 15(3) to 15(8).

Item 3 - subregulation 15(1)

The item reflects the amendment in Item 2. The reference to a court has been added to ensure that the restriction on an inspector or investigator divulging information, or producing a document containing information, to which the subregulation applies, is also applicable where a court is involved as well as any person. The amendment better reflects the ATSB's intent to protect information that is required to be kept confidential, in order to ensure the future free-flow of safety information to the ATSB for the purposes of no-blame safety investigations.

Item 4 - Paragraph 15(1)(c)

This item makes an amendment to paragraph 15(1)(c) to make the Executive Director of the ATSB, rather than the Secretary, a person to whom the Inspector or an investigator may divulge the type of information to which subregulation 15(1) applies. The amendment consolidates the independence of the ATSB in accordance with current Government policy.

Item 5 - subregulation 15(1A)

This item amends subregulation 15(1A) by bringing the list of information to which subregulation 15(1) applies in line with provisions in the Air Navigation Act 1920 for the protection of safety information collected in the course of a no-blame transport safety investigation. The amendment standardises the protection of information obtained by an inspector or investigator during an aviation or marine investigation.

Item 6 - subregulation 15(2)

This item amends subregulation 15(2) by providing that a person to whom documents are produced, as well as to whom information is divulged, under subregulation 15(1), and any person under the control of that person, will be subject to the same rights and obligations under that subregulation as if the person were an inspector or investigator. The reference to 'documents produced' is added to make subregulation 15(2) consistent with subregulation 15(1) which has been amended to cover the production of documents as well as the divulging of information.

Item 7 - after subregulation 15(6)

This item inserts a new subregulation 15(6A), which provides that an order by a court under subregulation 15(5), ordering or authorising the disclosure of information, may require information to be disclosed to a court The insertion of subregulation 15(6A) clarifies that the regime under subregulations 15(3) to 15(8), regarding applications to a court to authorise or order the disclosure of information, is intended to apply to disclosure of information to the court itself as well as disclosure to any person seeking information. This amendment is in response to the Christofiridis decision and is consistent with the amendments to subregulations 15(1) and 15(2).

Item 8 - subregulation 16(1)

This item amends subregulation 16(1) so that the Executive Director, rather than the Secretary, may receive a report from the Inspector during an investigation. The amendment consolidates the independence of the ATSB in accordance with current Government policy.

Item 9 - paragraph 16(5)(b)

This item amends paragraph 16(5)(b). Previously subregulation 16(5) required the Inspector to give a copy of the final report to the Secretary. However, paragraph 17(a) provides that an investigation ends when the Inspector gives the Executive Director a final report under subregulation 16(5). The amendment to paragraph 16(5)(b) provides for the Inspector giving the final investigation report to the Executive Director rather than the Secretary. The amendment will consolidate the independence of the ATSB, and at the same time remove the inconsistency with paragraph 17(a).

Item 10 - subregulation 16(6)

This item amends subregulation 16(6) so that the Executive Director, rather than the Secretary, will have the power to cause a marine investigation report to printed and published. The amendment consolidates the independence of the ATSB, and is consistent with the amendments proposed in items 4, 8 and 9.