Commonwealth Numbered Regulations - Explanatory Statements

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NAVIGATION (CONFIDENTIAL MARINE REPORTING SCHEME) REGULATIONS 2008 (SLI NO 278 OF 2008)

EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 278

Issued by Authority of the Minister for Infrastructure, Transport, Regional Development and Local Government

Navigation Act 1912

Navigation (Confidential Marine Reporting Scheme) Regulations 2008

Subsection 425(1) of the Navigation Act 1912 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act or for the conduct of any business under the Act. Subsection 425(1) goes on to detail certain matters which the regulations may provide for. In particular, paragraphs 425(1)(db) and (e) specify that regulations may be made by providing for and in relation to the safe navigation and operation of ships and the safety of persons, including pilots, going on or coming from, or on board, ships.

The Regulations replace the existing Navigation (Confidential Marine Reporting Scheme) Regulations 2004, which established a confidential marine reporting scheme to identify safety concerns such as unsafe operating practices, ships with deficient equipment, or idiosyncratic handling characteristics. The scheme was known as the Confidential Marine Reporting Scheme (CMRS) and was operated by the Australian Transport Safety Bureau (ATSB).

The Navigation (Confidential Marine Reporting Scheme) Regulations 2008 continue to provide the Australian maritime industry with a confidential reporting scheme. However, since the CMRS was established in 2004, an aviation confidential reporting scheme (REPCON) was introduced and included a number of modifications in its framework under the Air Navigation (Confidential Reporting) Regulations 2006. The Navigation (Confidential Marine Reporting Scheme) Regulations 2008 integrate the improved modifications from REPCON into the marine scheme, and allow for the consistent administration of both confidential reporting regimes.

The Regulations continue to provide confidentiality for a reporter to encourage persons to report safety concerns. Additionally, the Regulations also provide confidentiality for any person referred to in a report about a safety concern. Confidentiality for any person referred to in a report enables the scheme to be directed towards providing information to the industry to address a safety issue rather than prosecuting individuals. Keeping the focus of the scheme on improving safety systems rather than penalising individuals limits the possibility of the scheme being used for vexatious purposes and reputations being unnecessarily tarnished.

Concerns involving a serious and imminent threat to a person’s health or life, or about a serious crime, are not be reportable under the Regulations. Such concerns should be reported directly to the responsible body (e.g. the Police). The scheme’s restrictive confidentiality requirements, covering both the reporter and any person referred to in the report, make it inappropriate for the scheme to collect information about these matters. It would be unacceptable for the confidentiality requirements to restrict information from release that could prevent an imminent death or serious injury or resolve a serious crime. As these matters are not reportable, they do not receive a guarantee of confidentiality.

For administrative and promotional purposes, the title of the marine scheme has been changed to REPCON Marine so that it uses the same branding as the aviation scheme. The scheme is still operated by the ATSB with the powers and functions in the Regulations still vested in Executive Director of Transport Safety Investigation who is the Executive Director of the ATSB.

The Regulations apply to ships on interstate and overseas voyages and other ships to which the Act applies. Due to the jurisdictional limitations under the Act, the scheme does not apply to pleasure craft, inland waterways vessels or fishing vessels (unless they are involved in an incident concerning a ship to which the Act does apply).

The Department consulted internally and with other Commonwealth Government agencies including the Australian Maritime Safety Authority, the Australian Maritime Group (comprising State and Territory maritime regulatory bodies) and with industry groups encompassing unions and shipowners. Broad agreement for the Regulations was reached.

A Regulatory Impact Statement was not required

Details of the Regulations are attached.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

The Regulations commenced on 2 February 2009.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Authority: Subsection 425(1) of the Navigation Act 1912.

Attachment

Details of the Navigation (Confidential Marine Reporting Scheme) Regulations 2008

Part 1.................................... Preliminary. 4

Regulation.......................... 1. Name of Regulations. 4

Regulation.......................... 2. Commencement 4

Regulation.......................... 2A. Repeal and Transitional 4

Regulation.......................... 3. Application. 4

Regulation.......................... 4. Interpretation. 5

Part 2.................................... REPCON Marine. 6

Regulation.......................... 5. Establishment and Purposes of Scheme. 6

Regulation.......................... 6. Powers and functions of Executive Director 7

Part 3.................................... Reporting. 7

Regulation.......................... 7. What may be reported?. 8

Regulation.......................... 8. How are reports to be made?. 10

Regulation.......................... 9. Can a report be made orally?. 10

Part 4.................................... Assessment and acceptance of reports. 11

Regulation.......................... 10. Processing of reports. 11

Regulation.......................... 11. Dealing with reports that have been accepted. 12

Regulation.......................... 12. Reports the making of which may have constituted an offence 14

Part 5.................................... Disclosure and use of reports and information in reports. 14

Regulation.......................... 14. Disclosure of personal information in reports. 14

Regulation.......................... 15. Opportunity to comment on reports in certain circumstances 17

Regulation.......................... 16. Report not to be ground for disciplinary action etc. 18

Regulation.......................... 17. Reports not to be admissible in evidence. 18

Part 6.................................... Reports relating to terrorist acts. 19

Regulation.......................... 18. Reports relating to terrorist acts. 19

Regulation.......................... 19. Authorisation of disclosures of personal information for this Part 20

Part 7.................................... Miscellaneous. 20

Regulation.......................... 20. Delegation by Executive Director 20

 


Part 1.         Preliminary

The Navigation (Confidential Marine Reporting Scheme) Regulations 2008 adopts the structure used in the Air Navigation Confidential Reporting Regulations 2006 (AirNCR Regulations 2006) to provide for the consistent administration of the schemes.

Regulation  1. Name of Regulations

This regulation provides that the title of the Regulations is the Navigation (Confidential Marine Reporting Scheme) Regulations 2008 (new NCMarineRS Regulations 2008).

Regulation  2. Commencement

This regulation provides that the Regulations commence on 2 February 2009.

Regulation  2A. Repeal and Transitional

This regulation repeals the Navigation (Confidential Marine Reporting Scheme) Regulations 2004 (the NCMarineRS Regulations 2004). In addition, regulation 2A provides for the transitional arrangements for any reportable safety concerns received under the NCMarineRS Regulations 2004 before they are repealed. Such reports continue to be covered by the provisions of the repealed legislation. All reports received on or after 2 February 2009 are processed in accordance with the provisions of the new Regulations.

Regulation  3. Application

Regulation 4 makes the Regulations applicable to the same maritime activities as those that were under the former NCMarineRS Regulations 2004. The relevant activities are those associated with the operation or safety of a ship to which the Act applies. Subsection 2(1) of the Act states that, unless expressly excluded by another provision of the Act, the Act does not apply in relation to:

(a)  a trading ship proceeding on a voyage other than an overseas voyage or an inter‑State voyage; or

(b)  an Australian fishing vessel proceeding on a voyage other than an overseas voyage; or

(ba)  a fishing fleet support vessel proceeding on a voyage other than an overseas voyage; or

(c)  an inland waterways vessel; or

(d)  a pleasure craft;

or in relation to its owner, master or crew.

Regulation  4. Interpretation

Subregulation 3(1) provides definitions of various terms used in the Regulations. It includes a definition of personal information by reference to the meaning given by subsection 6(1) of the Privacy Act 1988, which defines personal information to mean:

information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

In addition to the terms defined in subregulation 3(1), the note at the end of the subregulation advises of a list of terms from the Navigation Act 1912 (the Act) which are relevant to the Regulations. The terms are as follows:

Authority means the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990.

Equipment, in relation to a ship, includes every thing or article belonging to or to be used in connexion with, or necessary for the navigation and safety of, the ship and, in particular, includes boats, tackle, pumps, apparel, furniture, life-saving appliances, spars, masts, rigging, sails, fog signals, lights, signals of distress, signalling lamps, pilot ladders, radio equipment, medicines, medical and surgical stores and appliances, fire prevention, detecting and extinguishing appliances, inert gas systems, echo-sounding devices, mechanical pilot hoists, buckets, compasses, charts, axes, lanterns and gear and apparatus for loading or unloading, or otherwise handling, cargo.

Port includes place and harbour.

Radio equipment includes radio navigational aid equipment.

Ship means any kind of vessel used in navigation by water, however propelled or moved, and includes:

(a) a barge, lighter or other floating vessel;

(b) an air-cushion vehicle, or other similar craft, used wholly or primarily in navigation by water;

(c) an off-shore industry mobile unit;

but (except in Part IIIA, in section 192B, in Division 1, 3, 4, 5, 6, 10, 11 or 13 of Part IV, in Part VII or IX, in Division 1, 3 or 4 of Part X or in Part XI) does not include an off-shore industry mobile unit that is not self-propelled.

 

 

 

Subregulation 3(2), a provision not in the former NCMarineRS Regulations 2004, requires that information obtained or generated in the course of verifying or clarifying the initial REPCON Marine report is dealt with in the same way as the initial report. The confidentiality requirements in the Regulations are applied to information obtained for the purpose of verifying and clarifying the initial report, ensuring the scheme is not compromised through an unsanctioned disclosure of personal information.

 

Part 2.         REPCON Marine

Part 2 creates the REPCON Marine confidential reporting scheme and identifies the purpose of the scheme. It nominates the Executive Director of Transport Safety Investigation (Executive Director), as the administrator of the scheme. The Executive Director’s powers and functions are specifically identified.

Regulation  5. Establishment and Purposes of Scheme

Regulation 5 creates a scheme entitled REPCON Marine, replacing the Confidential Marine Reporting Scheme (CMRS) established under the former NCMarineRS Regulations 2004. The change of name to REPCON Marine is to ensure administrative and promotional consistency with the aviation confidential reporting scheme, REPCON, established under the AirNCR Regulations 2006.

The new REPCON Marine scheme is still administered by the Executive Director, whose office is established under subsection 77(1) of the Public Service Act 1999 for the purpose of administering the Transport Safety Investigation Act 2003 (TSI Act). The Executive Director of Transport Safety Investigation is also the Executive Director of the Australian Transport Safety Bureau (ATSB). Regulation 20 allows the Executive Director to delegate powers, functions and duties associated with the administration of the scheme. REPCON Marine is managed by persons who are ATSB staff members delegated the relevant powers, functions and duties.

Subregulation 5(3) outlines the primary purposes of the scheme. The primary purposes are essentially the same as that of the former CMRS, being to provide a scheme for the confidential reporting of maritime safety concerns and to use the reports made under the scheme to identify unsafe procedures, practices or conditions in order to facilitate safety awareness and action.

Subregulation 5(4) recognises that some reports about maritime safety concerns may have implications for maritime security and that such issues should be brought to the attention of the appropriate organisation. These may be issues related to the combination of measures and human and material resources intended to safeguard against an unlawful interference with maritime transport or offshore facilities as defined in section 11 of the Maritime Transport and Offshore Facilities Security Act 2003 (MTOFS Act). However, it is not intended that REPCON Marine is to be a confidential reporting scheme directed towards maritime security matters. Subregulation 5(4) is only intended to acknowledge that security issues may occasionally be a by–product of reports about safety concerns.

The former NCMarineRS Regulations 2004 did not state a secondary purpose for the scheme. However, former regulation 14 did require the Executive Director to send a report about ‘an unlawful interference with a ship’ to an appropriate APS employee in the Department to deal with the security aspect. Regulation 18 from the new NCMarineRS Regulations 2008 requires similar action to be taken, however, the term ‘terrorist act’ is used instead of ‘an unlawful interference with a ship’.

Regulation  6. Powers and functions of Executive Director

The powers and functions of the Executive Director as the administrator of the former CMRS were contained in regulation 6 under the former NCMarineRS Regulations 2004. These functions and powers were given effect by other specific regulations in the former NCMarineRS Regulations 2004.

The new regulation 6 essentially contains the same powers and functions of the Executive Director had as administrator of the former CMRS. An apparent difference, however, is that the power to send reports to the Australian Maritime Safety Authority (AMSA) is not specifically mentioned.

Under paragraph 6(f) of the former NCMarineRS Regulations 2004, reference was made to the power to send information from reports to AMSA. Regulation 16 of the former NCMarineRS Regulations 2004 detailed the nature of this power. The regulation enabled the Executive Director to make AMSA aware of unsafe procedures, practices or conditions through the forwarding of de-identified reports, the aim being to enable correction of these unsafe practices whilst maintaining confidentiality. The NCMarineRS Regulations 2004 also provided more generic functions and powers for forwarding information to other agencies.

The new regulation 6 for the NCMarineRS Regulations 2008 acknowledges generic functions and powers, including issuing information briefs and alert bulletins and publishing reviews of information. While it is intended that AMSA will always receive de-identified information from a report, other organisations such as State and Territory maritime authorities may also be provided with de-identified information in the interests of encouraging safety action.

Regulation 14 ensures the scheme’s confidentiality requirements are applied in all circumstances.

 

Part 3.         Reporting

Regulation 7 of the former NCMarineRS Regulations 2004 identified who may report safety matters under the CMRS scheme. The categories were broad, with the aim being to enable anyone with knowledge of unsafe procedures, practices or conditions to report such matters. As anyone with knowledge of an unsafe matter may report, the content of former regulation 7, stating this fact, is not necessary and is omitted from the new Regulations.

 

 

The content of regulations 8 and 13 of the former NCMarineRS Regulations 2004 is also omitted from the new Regulations. The former Regulations prohibited persons who have a mandatory requirement placed on them under other legislation from reporting a safety matter using CMRS. Regulations 8 and 13 unnecessarily complicated the former NCMarineRS Regulations 2004. Their omission from the new Regulations does not change the fact that persons with mandatory reporting requirements under other legislation still have to report in accordance with that legislation.

Further, under subregulation 10(1), before accepting a report under REPCON Marine, the Executive Director must believe that REPCON Marine is the most suitable avenue for making the report. If a reporter had a mandatory obligation to report a matter under other legislation (e.g. the Act or the TSI Act), then the Executive Director would encourage the reporter to comply with the other legislation.

Essentially, new Part 3 for the REPCON Marine scheme is concerned with:

regulation 7: the safety concerns that may be reported; and

regulations 8 and 9: the requirements for making written and oral report.

This Part also specifically identifies matters that are not reportable safety concerns, such as serious crimes and serious and imminent threats to health or life. These concerns are not reportable and are not guaranteed protections of confidentiality.

Regulation  7. What may be reported?

Regulation 7 provides a list of matters that constitute reportable safety concerns under REPCON Marine. Regulation 7 provides for the reporting of the same types of matters that used to be prescribed in regulation 9 of the former NCMarineRS Regulations 2004.

Subregulation 7(1) addresses what may be reported under the REPCON Marine scheme. The subregulation adopts the wording and structure of the AirNCR Regulations 2006 for identifying matters in relation to the safety of a ship that may be reported under REPCON Marine. These matters, which are by definition reportable safety concerns, are identified under the general descriptors:

(a) an incident or circumstance that affects the safety of maritime navigation — with examples provided;

(b) a procedure, practice or condition that a reasonable person would consider endangers, or, if not corrected would endanger, the safety of maritime navigation — with examples provided;

(c) failure to comply with the requirements in the Act or its associated regulations in relation to certain specific matters; or

(d) any other matter that endangers, or could endanger, the safety of maritime navigation.

 

However, these reportable safety concerns need to be read together with the exclusions contained in subregulation 7(2). These matters are the same as those identified in subregulation 7(2) of the AirNCR Regulations 2006. Similar to subregulation 9(2) of the former NCMarineRS Regulations 2004, the new Regulations exclude:

(b) terrorist acts; and

(c) industrial relations matters.

Industrial relations matters were specifically excluded by subregulation 9(2) of the former NCMarineRS Regulations 2004. However, instead of a ‘terrorist act’, former subregulation 9(2) used to exclude ‘unlawful interferences with a ship’, which was defined in former subregulation 14(2). The new Regulations for REPCON Marine use the term ‘terrorist act’ (as defined by subsection 100.1(1) of the Criminal Code Act 1995 (Criminal Code) – see regulation 3) because these are the acts reportable to relevant authorities in accordance with Part 9 of the MOTFS Act. The change for the purpose of the REPCON Marine scheme is to ensure consistency with the national maritime security legislation.

Subregulation 7(2) does not refer to mandatory reporting requirements (which used to appear in former subregulation 9(2) of the former NCMarineRS Regulations 2004), as provisions relating to mandatory reporting requirements are not be included in these Regulations (see the discussion above in relation to the omission of content from former regulations 8 and 13 of the NCMarineRS Regulations 2004).

Two new exclusions to the reportable safety concerns are detailed in subregulation 7(2):

(a) matters showing a serious and imminent threat to a person’s health or life; and

(d) conduct that may constitute an offence against the law of the Commonwealth, or of a State or a Territory and that is punishable by a maximum penalty of imprisonment for life or more than 2 years.

With respect to paragraph 7(2)(a), reports showing a serious and imminent threat to a person’s health or life would be of an urgent and grave nature where there is unlikely to be an opportunity to conduct a full inquiry before some sort of action is taken to lessen or prevent the threat. The Executive Director is not in the best position to act on such a report. Under the Regulations, if the Executive Director receives a report indicating a serious and imminent threat to a person’s health or life, the Executive Director would normally ask the reporter to report the matter to a more appropriate authority (e.g. the Police). However, if it seems unlikely that the reporter will pass on the information, the Executive Director is not prevented from releasing the information to lessen or prevent the serious and imminent threat to a person’s health or life. Reports of this nature are therefore excluded from the confidentiality requirements under regulation 14.

 

For example, the Executive Director should not be required to receive a report, and maintain confidentiality with respect to that report, concerning a Master of a ship preparing to perform duties while heavily intoxicated. Such action is not only a serious offence under the Act, but it also endangers others. The Executive Director would be placed in an untenable position if required to accept such reports and then maintain an unwavering level of confidentiality with respect to them.

Paragraph 7(2)(d) also excludes matters that constitute an offence against the law of the Commonwealth, a State or a Territory that is punishable by a maximum penalty of imprisonment for life or more than 2 years, from matters that are reportable safety concerns. Such offences are serious and, as such, the confidentiality provisions of regulation 14 are not applicable in preventing these matters from being disclosed to the appropriate authorities.

Regulation  8. How are reports to be made?

Subregulation 8(1) requires a report to be made to the Executive Director in a form and manner approved by the Executive Director. An approved reporting form is available on the ATSB’s website at http://www.atsb.gov.au. This is noted at the end regulation 8.

Subregulation 8(2) lists the information to be included in a report. It is mandatory for the reporter to provide his or her name, the reporter’s preferred means by which they wish to be contacted, and a description of the matter comprising the reportable safety concern.

Regulation 10 of the former NCMarineRS Regulations 2004 used to deal with the details of what must be included in a report. Paragraph 10(4)(d) provided guidance for the reporter with respect to supplying extra details if known. The new Regulations do not include the content of this paragraph, as the failure to include the information contained in former paragraph 10(4)(d) did not stop the report from being accepted. However, in practice under the REPCON Marine scheme, the reporting form contains fields prompting the reporter to supply information of the type identified in the former paragraph 10(4)(d).

The content of subregulation 10(1) of the former NCMarineRS Regulations 2004 is not included in the new Regulations. Former subregulation 10(1) referred to who may make a report. However, as noted above, as anyone could make a report, this specification is unnecessary and omitted from the new Regulations.

Regulation  9. Can a report be made orally?

Regulation 9 reproduces the content of subregulation 10(3) from the former NCMarineRS Regulations 2004. Regulation 9 envisages that a person may make an oral report, such as over the telephone. However, the Executive Director must reduce the oral report to writing. As paragraph 10(1)(c) requires the Executive Director to have a reasonable belief that the report is true before accepting it, the Executive Director, as part of the process of being satisfied of this, needs to seek to confirm that the written record of the oral report is accurate.

 

Part 4.         Assessment and acceptance of reports

Part 4 identifies when a report will be accepted into the REPCON Marine scheme, and once accepted or rejected, what must happen with respect to that report. Part 4 also specifically identifies the process of dealing with a false or vindictive report that has been knowingly submitted by a reporter.

Regulation  10. Processing of reports

Regulation 10 substitutes for the content of regulation 11 of the former NCMarineRS Regulations 2004. Former regulation 11 prescribed the conditions that needed to be met before a report could be accepted. It also provided for the manner in which a report that was not accepted under the NCMarineRS Regulations 2004 was to be dealt with.

Regulation 10 for the new REPCON Marine scheme addresses the same matter but in a more streamlined fashion, to promote ease of administration. Essentially, regulation 10 adopts the processing requirements used in the AirNCR Regulations 2006 to provide consistency in the multimodal confidential reporting system.

Subregulation 10(1) requires the Executive Director to accept a report if the following conditions are met:

(a) he or she is satisfied that REPCON Marine is the most suitable avenue for making the report; and

(b) he or she reasonably believes that the matter described in the report is a reportable safety concern; and

(c) he or she reasonably believes the report to be true.

Paragraph 10(1)(a) is necessary to ensure that REPCON Marine does not impede the effectiveness of other reporting schemes in the maritime industry. For example, a person who has an obligation to make a report of a safety matter under subsections 18(1) or 19(1) of the TSI Act should be deterred from using the REPCON Marine scheme to subvert their obligations under that Act. It is unlikely that the Executive Director would accept a report of a matter by someone who had an obligation to report it under the TSI Act. The purpose of the scheme established under the TSI Act, would be defeated if the person was allowed to report the matter exclusively under the REPCON Marine scheme. In making such an assessment, the Executive Director will ensure that the reporter is made aware that reporting the matter under the REPCON Marine scheme does not absolve them of any compulsory reporting requirement they may have under another legislative system.

Other examples of the REPCON Marine scheme potentially not being the most suitable avenue for a person to make a report could include a situation where a person does not require the confidentiality of REPCON Marine, or where the person is working for a marine operator that has an appropriate reporting scheme to deal with the issue. However, if the person desired the confidentiality and independence of REPCON Marine, or the Executive Director believed that the reporter would not report the matter elsewhere, then the Executive Director is likely to consider the REPCON Marine scheme as the most suitable avenue for the person to make the report. In the case where the Executive Director does not accept the report, the Executive Director is able to forward information from the report to a more suitable recipient, provided it is done in accordance with regulation 14, which contains the schemes confidentiality requirements. Paragraph 10(2)(a) confirms the Executive Director’s ability to do this. As a matter of practice, the Executive Director consults with the reporter about the action he or she intends to take with an unaccepted report.

Paragraphs 10(1)(b) and 10(1)(c) require the Executive Director to reasonably believe that the report constitutes a reportable safety concern and is true before accepting it. In practice, when the Executive Director receives a report, an assessment is made about whether what has been reported constitutes a reportable safety concern under regulation 7. The Executive Director then seeks to verify the information contained in the report. This may involve contacting the reporter and other involved parties to discuss its contents, while keeping firmly in mind the need to protect personal information in accordance with regulation 14. It is rare for the Executive Director to be able to accept an anonymous report because of the difficulties that are associated with assessing its reliability.

Subregulation 10(2) identifies the process that the Executive Director must follow if a report is not accepted. Paragraph 10(2)(a) requires the Executive Director to determine whether to disclose any information from the report and act accordingly. This is a broad power to deal with the report. However, a report that is not accepted is still subject to the confidentiality provisions as stipulated under regulation 14. Regulation 15, which gives a person or authority mentioned in a report an opportunity to comment before the report is disclosed to AMSA, and regulation 18, which identifies how reports relating to terrorist acts should be processed, also affects any decision made under paragraph 10(2)(a). Finally, as paragraph 10(2)(b) requires the eventual destruction of an unaccepted report in accordance with subregulation 10(3), paragraph 10(2)(a) requires the Executive Director to consider whether any information should first be disclosed.

Subregulation 10(3), in effect, places a requirement on the Executive Director to ensure that he or she does not retain a report that has not been accepted. The requirement is included for the Executive Director to dispose of unaccepted reports as a measure to ensure the confidentiality of the scheme is maintained. Subregulation 10(3) requires the Executive Director to return to the reporter the report or that part that they supplied, or if a part was supplied by another person, to return that part to the other person. The Executive Director also has the option to destroy the report, or any part of the report. However, the obligation on the Executive Director to dispose of an unaccepted report is subject to regulation 12, which requires retention of a report for the purpose of a possible future prosecution, where it is determined that the reporter knew that the information they supplied was false or misleading.

Regulation  11. Dealing with reports that have been accepted

Regulation 11 substitutes for the content of regulation 12 in the former NCMarineRS Regulations 2004. Regulation 11 adopts the requirements for dealing with accepted reports as provided for in the AirNCR Regulations 2006 to provide consistency in the multimodal confidential reporting system.

Regulation 11 identifies how a report accepted under subregulation 10(1), and the information contained therein, is to be dealt with by the Executive Director. The measures advised of in regulation 11 are included to preserve the confidential nature of the scheme.

Paragraph 11(1)(a) requires the Executive Director to determine what information, drawn from a report accepted under subregulation 10(1), is to be included in databases maintained for the purposes of REPCON Marine. As such information may contain personal information, subregulation 11(2) requires the Executive Director to ensure that personal information about a reporter, or any person referred to in the report, is only kept on any database for as long as it is necessary to keep in contact with the reporter or a person or organisation referred to in the report. Retaining personal information is also permitted should it be impracticable to remove such information from the report. Where personal information has been retained in the database, subregulation 11(3) requires the Executive Director to permanently erase that information when he or she is satisfied that this information is no longer necessary or desirable to be retained.

Paragraph 11(1)(b) requires the Executive Director to determine whether to disclose any information from the report and act accordingly. This is a broad power to deal with information in the report. The Executive Director is able to disclose information from a report as an information brief or alert bulletin to the industry so that safety issues may be addressed, or through direct contact with a person or organisation that is in the best position to immediately correct the safety matter. However, information in the report is still subject to the confidentiality provisions contained in regulation 14.

Regulation 15, which gives a person or authority mentioned in a report an opportunity to comment before the report is disclosed to AMSA, and regulation 18, which identifies how reports that concern a terrorist act should be processed, also affect any decision made under paragraph 11(1)(b). Finally, as paragraph 11(1)(c) requires the eventual destruction of the report in accordance with subregulation 11(4), paragraph 11(1)(b) requires the Executive Director to consider whether any information should first be disclosed.

Once the Executive Director has transferred the necessary information into any databases and determined whether to disclose any information, paragraph 11(1)(c) requires the Executive Director to deal with the report in accordance with subregulation 11(4). Subregulation 11(4) requires the Executive Director to return to the reporter the report or that part that they supplied, or if a part was supplied by another person, to return that part to the other person. The Executive Director also has the option to destroy the report, or any part of the report. To maintain confidentiality, these provisions require that the report as a whole, or any part thereof, must not be retained by the Executive Director. However, the obligation on the Executive Director to dispose of a report is subject to regulation 12, which requires retention of a report, for the purpose of any possible future prosecution, where it is determined that the reporter knew that the information they supplied was false or misleading.

Regulation  12. Reports the making of which may have constituted an offence

Regulation 12 introduces a new requirement into the marine confidential reporting regime. It is identical to regulation 12 in the AirNCR Regulations 2006.

The regulation requires the Executive Director to retain a report for a relevant period where he or she reasonably believes the making of the report constitutes an offence against section 137.1 of the Criminal Code. The relevant period is two years after the date that the report was made, or as long as required if a prosecution is commenced within that period. Section 137.1 of the Criminal Code makes it an offence for a person knowingly to supply false or misleading information to the Commonwealth, thereby acting as a deterrent against people who make vexatious or deliberately false or misleading reports. Regulation 12 is an important component of this deterrent, ensuring that evidential material necessary for proving the offence is not prematurely destroyed. This regulation operates in conjunction with paragraph 14(3)(a) and subregulation 17(2).

 

Part 5.         Disclosure and use of reports and information in reports

Part 5 contains provisions that deal with disclosure of personal information. Part 5 also deals with ‘use limitations’ on reports designed to protect the reporter, or other people identified within the report, from having the report used in certain administrative, court or tribunal proceedings. This part also ensures natural justice for a person or organisation referred to in a report, where the Executive Director proposes to forward a report to AMSA, by providing them with an opportunity to comment on the report before it is sent.

Part 5 adopts the structure and content of the AirNCR Regulations 2006 Part 5, with minor editorial changes. Of note, there is no regulation 13 in the new Regulations. This regulation is reserved for future use. In the AirNCR Regulations 2006, regulation 13 concerns Annex 13 (Aircraft Accident and Incident Investigation) to the Convention on International Civil Aviation, done at Chicago on 7 December 1944. Although there are some resolutions of the International Maritime Organization with respect to safety reporting systems, there are no equivalent international conventions to list in these Regulations for a marine confidential reporting scheme at this stage.

Regulation  14. Disclosure of personal information in reports

The requirements in regulation 14 apply to all reports, and therefore it operates with respect to disclosure of information contained in reports in accordance with paragraphs 10(2)(a) and 11(1)(b). When the Executive Director has received a report, paragraphs 10(2)(a) and 11(1)(b) require the Executive Director to determine whether to disclose information from that report and act accordingly. Subregulation 14(1) requires that the Executive Director remove all personal information from the disclosed information, except in the specific circumstances identified in subregulations 14(2), 14(3) and 14(4).

Therefore, subregulation 14(1) requires the removal of all personal information that may identify the reporter as well as anyone named in the report or able to be identified by information contained within the report. Confidentiality for the reporter is an integral element of the scheme necessary to encourage industry participation without fear of reprisal, whilst confidentiality for any person referred to in a report, or identifiable through the report, ensures that the scheme is directed towards providing information to the industry to address a safety issue rather than prosecuting individuals.

Subregulation 14(2), the first of the exceptions to the confidentiality principle, allows personal information to be disclosed where the personal information could not be removed without defeating the purpose of the disclosure. However, any person identifiable by the information is protected through two conditions that, together, must be met before such disclosure could be authorised under the Regulations. The first condition is that disclosure of personal information must be for a purpose of the scheme, as described in either subregulation 5(3) or 5(4). An example is disclosure for the purpose of facilitating safety action to stop an unsafe practice that has been identified through the report. The second condition is that the person to whom the information relates has to provide their consent before it can be disclosed.

Subregulation 14(3) contains three limited exceptions to the requirement not to disclose personal information: where a reporter knowingly gives false or misleading information, where the report is about a terrorist act, and where the disclosure is made to lessen or prevent a serious and imminent threat to a person’s health or life.

Paragraph 14(3)(a) operates in conjunction with regulation 12, which prevents the destruction of a report made by a reporter who knowingly provides false or misleading information (section 137.1 of the Criminal Code makes such acts an offence). Paragraph 14(3)(a) allows disclosure of personal information for an investigation where a person has knowingly supplied false and misleading information. It is important for the viability of the REPCON Marine scheme that it does not become an avenue for vexatious reporting. Subregulation 14(3) ensures this outcome is achieved by facilitating the use of section 137.1 of the Criminal Code as a deterrent.

Paragraph 14(3)(b) allows disclosure when a report is about a terrorist act (as defined in subsection 100.1(1) of the Criminal Code – see regulation 3). A terrorist act cannot be reported under the REPCON Marine; regulation 7(2) specifically excludes such matters from the possible safety concerns that may be reported. Protecting the identity of a person engaged in such activities would be inappropriate.

Paragraph 14(3)(c) allows disclosure where the Executive Director believes on reasonable grounds that disclosure is necessary to lessen or prevent a serious and imminent threat to a person’s health or life. Occurrences that identify a serious and imminent threat to a person’s health or life cannot be reported under REPCON Marine. Subregulation 7(2) specifically excludes such instances from being a reportable safety concern. Reports of this kind are of an extremely urgent nature where a person or many persons’ health or lives may be in danger. The scheme could not be justified if it encouraged such reports and applied its confidentiality regime to it. Further explanation on the rationale for this measure can be found in this Explanatory Statement for regulation 7.

Subregulation 14(4) allows disclosure of personal information from a report that was not accepted where the report relates to conduct that may constitute a possible offence against a law of the Commonwealth, or of a State or a Territory punishable by two or more years imprisonment. The information, and associated personal information, can be disclosed for the investigation of the possible offence. Evidence of serious crimes cannot be reported under REPCON Marine. Subregulation 7(2) specifically excludes such instances from being reportable safety concerns. The purpose of the scheme is to facilitate safety awareness and safety action through the dissemination of safety information that de-identifies the reporter and any person referred to in a report. Accepting and protecting reports about serious crimes does not fit within this objective.

Although the Executive Director is able to disclose personal information without consent in the limited circumstances described in subregulations 14(3) and 14(4), the Regulations do not mandate that the Executive Director must make the disclosure. The Executive Director is necessarily concerned to protect the scheme when making any decision, being aware that maintaining the industry’s trust in the scheme is vital to ensuring that the industry continues to use it.

Where the Executive Director does decide to disclose personal information from a report, subregulation 14(5) requires that a person, body or agency to whom personal information is disclosed must not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency. Wording similar to this caveat is in Information Privacy Principle (IIP) 11.3, under section 14 of the Privacy Act. However, the IIPs only apply to Commonwealth and Australian Capital Territory Government persons, bodies and agencies. Given that a guarantee of confidentiality is essential to the success of REPCON Marine, it is necessary that other persons, bodies and agencies who receive personal information in accordance with the scheme only use and disclose it in the manner intended.

The requirements described above, for the protection of personal information, are made more stringent than those provided in IIP 11, under section 14 of the Privacy Act, on the grounds that the privacy protections need to be tailored to suit the scheme. However, except for the tighter restrictions, the Regulations do not put the REPCON Marine scheme outside the regime of the Privacy Act.

Regulation 14 enhances the requirements for confidentiality prescribed in regulations 16 and 17 of the former NCMarineRS Regulations 2004. Confidentiality for a person referred to in a report is introduced into the new Regulations for REPCON Marine and, as explained above, this is to ensure the scheme is non-punitive and directed at identifying safety concerns that the industry needs to address. It is important that, where allegations are made against an individual, the individual is not exposed to any potential punitive processes where the identity of the person who made the allegation is protected and he or she cannot be questioned further about the allegation.

 

 

 

Regulation  15. Opportunity to comment on reports in certain circumstances

Where information from a report is intended to be sent to AMSA, regulation 15 introduces a new requirement with respect to preconditions which must be met before disclosure of the information. The regulation stipulates that if the Executive Director intended to forward information from a report to AMSA (subregulation 15(1)), the Executive Director has to first provide a person or organisation referred to in the report with a copy of the report (subregulation 15(2)). However, while doing so, the Executive Director needs to ensure that the requirements in regulation 14 are adhered to with respect to the disclosure of personal information.

The person or organisation is given 5 working days to comment on the report (subregulation 15(3)) and the Executive Director is required to consider those comments when deciding whether or not to send the information from the report to AMSA (subregulation 15(4)). This regulation is intended to provide an assurance to the parties who may be affected by AMSA’s assessment of the safety concern. A further assurance is the fact that the information must be de-identified in accordance with regulation 14.

Persons or organisations who may be affected must be advised of the Executive Director’s proposed decision to refer information derived from a report to AMSA. The regulation also ensures that a person or organisation identified in the report receives the opportunity to respond in accordance with the process of natural justice.

While the intention of regulation 15 is to allow potentially affected parties to comment on a report before it is sent to AMSA, subregulation 15(5) provides for exceptions to this process where giving a version of the report:

(a)    is likely to inhibit the Executive Director from achieving the purpose of the scheme which is detailed in regulation 5; or

(b)    damage REPCON Marine’s reputation for keeping information confidential and, consequently, reduce reporting under REPCON Marine; or

(c)    is not practicable in the circumstances.

The exceptions appropriately accommodate the operational nature of the maritime industry. A ship may only be in port in Australia for a 24 hour period or less. In these circumstances allowing a full 5 days for the master of a ship to comment on a REPCON Marine report before it is sent to AMSA, may mean that by the time the report is sent to AMSA, the ship has left and the reportable safety concern cannot be addressed. The exceptions ensure the purpose of the scheme can be met where these circumstances arise.

 

 

 

Regulation  16. Report not to be ground for disciplinary action etc

Regulation 16 is a new protection that reinforces the non-punitive nature of the scheme. Subregulation 16(1) prevents information from a report about a reportable safety concern being used by a person as the basis for taking disciplinary action against an employee of the person. Subregulation 16(2) also prevents information from a report about a reportable safety concern being used as the basis for making a decision of an administrative character against someone.

Confidential reporting schemes are one component of a safety system based on the principle of a ‘just culture’ to promote the advancement of transport safety. A ‘just culture’ encourages the reporting of safety related information and provides the protection of confidentiality and non-punitive response, where appropriate, to support the advancement of transport safety. The types of protections contained in regulation 16 serve as a means of seeking to ensure that REPCON Marine is ‘non-punitive’ in accordance with the concept of a ‘just culture’. These protections operate consistently in the REPCON Aviation and REPCON Marine schemes. Subregulation 16(3) clarifies that the reporting of an event does not quarantine that event from disciplinary or administrative proceedings it only quarantines the REPCON report from use in such proceedings. Instead, disciplinary and administrative proceedings need to gather their own evidence exclusive of REPCON Marine reports.

Regulation  17. Reports not to be admissible in evidence

Regulation 17 is a new regulation that prevents reports, or evidence of the content of a report, about a reportable safety concern from being admissible in evidence in a court or tribunal. The rationale for this provision is similar to the rationale for regulation 16. Information from reports about reportable safety concerns is intended to be used for the purpose of addressing safety issues and not as a source of evidence in court or tribunal proceedings. If information from reports about reportable safety concerns was inappropriately used, as evidence in a court or tribunal, a negative impact on the scheme may result because there is likely to be declining support for the scheme in the maritime industry. Parties involved in court or tribunal proceedings need to gather their own evidence separately from the REPCON Marine scheme.

However, regulation 17 contains two exceptions to the use limitation with respect to court proceedings. Subregulation 17(2) provides an exemption for proceedings in relation to whether the making of a report constituted an offence against section 137.1 of the Criminal Code. This ensures that, if necessary, court proceedings could be carried out to prosecute a person for intentionally providing false or misleading information and thereby deter vexatious reporters from abusing the scheme. This regulation operates in conjunction with regulation 12 and paragraph 14(3)(a).

The other exception is provided for in subregulations 17(3) and (4). Where an administrative action or disciplinary proceeding has been instituted using information derived from a REPCON Marine report, then that report, or evidence as to its content, should be admissible as evidence in an appeal against the outcome of the administrative or disciplinary proceeding (subregulation 17(4)). The report, or evidence as to its contents, should be available as evidence of the misuse of information from a REPCON Marine report. Additionally, in accordance with subregulation 17(3), for the evidence to be admitted, the Executive Director has to issue a certificate stating that there is not likely to be a negative effect on REPCON Marine or that any negative impact is outweighed by the public interest in permitting the use of the report.

Significantly, it is unlikely that an administrative decision or disciplinary action could be made, or taken, in the first place, against an individual based on a report about a reportable safety concern. The strong confidentiality requirements in regulation 14 mean that it would be difficult to disadvantage any individual using the de-identified information released.

 

Part 6.         Reports relating to terrorist acts

Part 6 deals with reports that relate to terrorist acts as defined in subsection 100.1(1) of the Criminal Code (see regulation 3). Paragraph 7(2)(b) specifically excludes terrorist acts from being matters that are reportable safety concerns. This Explanatory Statement in relation to regulation 7 explained the reasons for using the term terrorist act as defined in the Criminal Code instead of continuing to refer to ‘an unlawful interference with a ship’ as the former NCMarineRS Regulations 2004 did.

This Part identifies the required actions of the Executive Director on receiving a report of a terrorist act which is outside the matters reportable under the scheme.

Regulation  18. Reports relating to terrorist acts

Regulation 14 of the former NCMarineRS Regulations 2004 provided the procedure for dealing with a report of ‘an unlawful interference with a ship’ as well as identifying specific acts that fall under the category of unlawful interference with a ship. Regulation 18 of the new Regulations sets up a similar reporting requirement for the Executive Director. However, consistent with the change to the use of the term terrorist act to accord with the matters required to be reported under the MTOFS Act, the Executive Director is required to notify, to the extent they are contactable, the persons provided for in section 181 of that Act. The persons include:

(a)    the Secretary of the Department; and

(b)   where the terrorist act relates to a security regulated port (as defined by the MOTFS Act), the port operator; and

(c)    where the terrorist act relates to a security regulated ship (as defined by the MOTFS Act), the:

a.       ship operator; and

b.      master of the ship; and

(d)   where the terrorist act relates to a security regulated offshore facility (as defined by the MOTFS Act), the offshore facility operator.

Regulation  19. Authorisation of disclosures of personal information for this Part

Regulation 19 provides the necessary authorisation for the Executive Director to disclose personal information contained in a report that identifies a terrorist act, when the Executive Director is required or permitted to forward the report, or information from the report, to the appropriate authority or person in accordance with regulation 18.

Part 7.         Miscellaneous

Regulation  20. Delegation by Executive Director

Regulation 20 empowers the Executive Director to delegate any power, function or duty of the Executive Director under REPCON Marine (other than the power of delegation) to a person engaged to perform duties in the Department. A delegate must comply with any directions of the Executive Director.


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