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TRANSPORT SAFETY INVESTIGATION AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 149 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 149
Issued by authority of the Minister for Infrastructure, Transport, Regional Development and Local Government
Transport Safety Investigation Act 2003
Transport Safety Investigation Amendment Regulations 2009 (No. 1)
Section 71 of the Transport Safety Investigation Act 2003 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
The Regulations amend the Transport Safety Investigation Regulations 2003 (the Principal Regulations) in response to the Transport Safety Investigation Amendment Act 2009 (TSIA Act) and the Aviation Legislation Amendment (2008 Measures No.2) Act 2009 (ALA Act). Both Acts make amendments to the regulation making powers in the Act. The TSIA Act and the ALA Act both received Royal Assent on 26 March 2009 and the relevant provisions in those Acts commence on 1 July 2009.
Subsections 4(1) and 4(2A) of the Acts Interpretation Act 1901, read together, provide that regulations may be made between the passing and commencement of an Act, as long as such regulations do not commence before the Act upon which they rely for their authority. The regulations commence on 1 July 2009.
The relevant provisions in the ALA Act amend Part 3 of the Act, which provides for the mandatory reporting of aviation, marine and rail accidents and incidents to the Australian Transport Safety Bureau (ATSB). In support of these amendments, the Regulations specify the particulars that need to be provided when a person with reporting responsibilities makes a report of an Immediately Reportable Matter (IRM) (an accident or serious incident).
The Regulations also prescribe the particulars that are to be provided by a person with reporting responsibilities when additional information is sought about an IRM or Routine Reportable Matter (RRM) (an incident) to supplement an initial report. The Regulations do not change the list of IRMs and RRMs that must be reported, only the particulars which must be provided when a matter is reported. These particulars are predicated on the ATSB’s need to know what happened, who was involved, where it happened and why it happened.
The main purpose of the TSIA Act is to amend the Act to establish the ATSB as a statutory Agency under the Public Service Act 1999. Some of the regulation making powers in the Act are affected, and new regulation making powers have been introduced. For example, new paragraph 12AA(1)(a) in the Act provides for improving transport safety by receiving reports of transport safety matters, reportable matters, and other safety information that is prescribed by the regulations. The Regulations amend the Principal Regulations to prescribe the ‘other safety information’ to mean information received through the confidential reporting schemes administered by the ATSB under other legislation. The Regulations also prescribe the criteria that must be met for the ATSB, the Chief Commissioner of the ATSB and the Chief Executive Officer of the ATSB to delegate powers under the Act.
The following documents are incorporated by reference in the Regulations:
· Forms 31/14 and 31/15 of the Marine Orders – Part 31: Ship surveys and certification, Issue 6 (Order No. 6 of 2006), available at htpp://www.comlaw.gov.au.
The Department of Infrastructure, Transport, Regional Development and Local Government provided the aviation, marine and rail industries with the opportunity to comment on detailed proposals to amend the Principal Regulations. There was broad consensus for the proposed changes.
A Regulatory Impact Statement (RIS) was not required. A RIS (Exemption), reference number 10349, has been obtained from the Office of Best Practice Regulation.
Details of the Regulations are set out in the Attachment.
The Act does not specify any prerequisite conditions that need to be met before the power to make the Regulations can be exercised.
The Regulations commence on 1 July 2009 to coincide with the commencement of the relevant provisions in the TSIA Act and the ALA Act.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Authority: Section 71 of the Transport Safety Investigation Act 2003.
Attachment
Details of the Transport Safety Investigation Amendment Regulations 2009 (No. 1)
Regulation 1............................................ Name of Regulations
Regulation 2............................................ Commencement
SCHEDULE 1...................... AMENDMENTS
Item [1]................................................... After regulation 2.5
Item [2]................................................... Subregulation 2.6(1)
Item [3]................................................... Subregulation 2.6(1)
Item [4]................................................... Paragraph 2.6(1)(q)
Item [5]................................................... Subregulation 2.6(2)
Item [6]................................................... Subregulation 2.6(2)
Item [7]................................................... Paragraph 2.7(a)
Item [8]................................................... After regulation 3.4
Item [9]................................................... Regulation 3.5
Item [10]................................................. Paragraph 3.6(a)
Item [11]................................................. After regulation 4.4
Item [12]................................................. Regulation 4.5
Items [13] and [14]................................. Paragraphs 4.5(a) and 4.5(b)
Items [15] and [16]................................. Subparagraphs 4.5(b)(vii), (x), (xi) and (xii)
Item [17]................................................. Paragraph 4.6(a)
Item [18]................................................. Paragraph 4.6(b)
Item [19]................................................. Subregulation 4.7(2)
Items [20] and [21]................................. Regulation 5.1, heading and regulation 5.1
Item [22]................................................. After regulation 5.1
Items [23] and [24]................................. Regulation 5.2, heading and regulation 5.2
Item [25]................................................. After regulation 5.2
Item [29]................................................. After regulation 5.4
Item [33]................................................. Subregulation 5.6(5)
This regulation provides that the title of the Regulations are the Transport Safety Investigation Amendment Regulations 2009 (No. 1) (the Regulations).
This regulation provides that the Regulations commence on 1 July 2009. The date of commencement is to take account of the commencement date of 1 July 2009 for amendments to the Transport Safety Investigation Act 2003 (the Act) made by the Transport Safety Investigation Amendment Act 2009 (TSIA Act) and the Aviation Legislation Amendment (2008 Measures No. 2) Act 2009 (ALA Act). Both Acts make amendments to the regulation making powers in the Act.
This regulation provides that Schedule 1 of the Regulations amends the Transport Safety Investigation Regulations 2003 (the Principal Regulations).
Item 1 inserts a new regulation 2.5A after regulation 2.5 in the Principal Regulations. The new regulation is made for the purpose of subsection 18(1) of the Act. The ALA Act amends subsection 18(1) to allow the regulations to prescribe the particulars that must be reported when an immediate report of an Immediately Reportable Matter (IRM) is made. Regulation 2.3 of the Principal Regulations prescribes the IRMs that must be reported for the aviation mode of transport. The prescribed matters include accidents, such as death or serious injury, as well as serious incidents, such as where flight into terrain is narrowly avoided. In accordance with section 18 of the Act, these matters must be reported as soon as is reasonably practicable by a responsible person prescribed in the regulations. Regulation 2.5 prescribes a responsible person to include crew members, operators and air traffic controllers.
The purpose of prescribing the relevant particulars that must be reported when a report of an IRM is made is to ensure that the Australian Transport Safety Bureau (ATSB) receives adequate information in relation to an IRM, rather than just a report of the occurrence of an IRM. Reports of IRMs in accordance with subsection 18(1) are used by the ATSB to determine whether the IRM is one that is to be investigated under the Act. The ATSB needs to have sufficient information in order to make a decision about whether or not to investigate.
The information in subregulation 2.5A(2) is limited to the information which provides an overview of the what, where, when, how and why the aviation IRM occurred. The amended subsection 18(1) of the Act makes it clear that the particulars are reportable only to the extent that they are known by the person reporting them.
Regulation 2.6 prescribes the information that must be made in a written report to be reported within 72 hours under subsection 19(1) of the Act for an aviation IRM or a Routine Reportable Matter (RRM). As noted under item 1, IRMs are accidents and serious incidents and are prescribed in regulation 2.3 for aviation. RRMs are incidents. They are prescribed in regulation 2.4 for the aviation mode of transport.
The amendment made by item 2 to regulation 2.6 accommodates new subsections 19(4) and 19(5) of the Act, introduced by the ALA Act. New subsections 19(4) and (5) allow the ATSB to seek additional information about an IRM or RRM after an initial written report has been submitted in accordance with subsection 19(1). The responsible person who provides the initial report in accordance with subsection 19(1) may not know all the details of the IRM or RRM. The ability of the ATSB to require additional information is necessary in order to be able to ensure the information in the accident and incident database is adequate and correct with respect to each IRM or RRM. Importantly, this additional information assists with future research and analysis of accident and incident data, including trend analysis and safety issue identification.
The new subsections work so that the ATSB can issue a notice to a person with reporting responsibilities requiring them to provide a written report of information in relation to an IRM or RRM. The information to be provided by the person is the information prescribed in regulation 2.6, to the extent that it is within the person’s knowledge. However, in accordance with new subsection 19(5), the ATSB will only be able to require the report from the person with reporting responsibilities if:
(a) the person has knowledge of the IRM or RRM and the person did not make the initial report to the ATSB or other prescribed reporting agency; or
(b) the person made the initial report in accordance with subsection 19(1) but they have additional information which was not communicated in the initial report.
The particulars prescribed for the receipt of a written report for the purpose of subsection 19(4) are the same as those for the receipt of the initial report in accordance with subsection 19(1).
Item 3 amends subregulation 2.6(1) of the Principal Regulations. The amendment changes the terminology for consistency.
Item 4 amends paragraph 2.6(1)(q) so that only that information required for the ATSB safety incident database with respect to emergency locator transmitters needs to be reported. The ATSB does not need to know the manufacturer and model of the transmitter, as previously prescribed.
The effect of the amendment made by item 5 to subregulation 2.6(2) is the same as that made by item 2 to regulation 2.6(1). Subregulation 2.6(2) prescribes a limited set of particulars which must be provided in a written report of a collision with an animal, including a bird. The amendment made by item 5 means that these particulars are prescribed for the purpose of both subsections 19(1) and new subsection 19(4) of the Act as introduced by the ALA Act..
Item 6 amends subregulation 2.6(2) of the Principal Regulations. The amendment changes the terminology for consistency.
Item 7 removes the reference in paragraph 2.7(a) to ‘other than a special investigator’ from the prescription of a ‘staff member’ as a nominated official for the purpose of receiving reports of IRMs and RRMs. A person does not need to be excluded on the grounds that they have been appointed as a ‘special investigator’ under the new section 63E of the Act, introduced by the TSIA Act. If a person meets the definition of a ‘staff member’ as defined by section 3 of the Act (also amended by the TSIA Act) then they are a suitable person for receiving a report as a nominated official.
For operational purposes, the ATSB continues to maintain a dedicated team of staff members for receiving notifications.
Item 8 inserts a new regulation 3.4A after regulation 3.4 in the Principal Regulations. The new regulation is made for the purpose of subsection 18(1) of the Act. The ALA Act amends subsection 18(1) to allow the regulations to prescribe the particulars that must be reported when an immediate report of an IRM is made. Regulation 3.3 of the Principal Regulations prescribe the IRMs that must be reported for the marine mode of transport. The prescribed matters include accidents, such as death or serious injury, as well as serious incidents, such as a ship nearly being stranded, or involved in a collision. In accordance with section 18 of the Act, these matters must be reported as soon as is reasonably practicable by a responsible person prescribed in the regulations. Regulation 3.4 prescribes a responsible person to include the master of the ship, the owner or operator and the agent of the ship.
The purpose of prescribing the relevant particulars that must be reported when a report of an IRM is made is to ensure that the ATSB receives adequate information in relation to an IRM, rather than just a report of the occurrence of an IRM. Reports of IRMs in accordance with subsection 18(1) are used by the ATSB to determine whether the IRM is one that is to be investigated under the Act. The ATSB needs to have sufficient information in order to make a decision about whether or not to investigate.
The particulars required by subregulation 3.4A(2), for the purpose of making an immediate report of a marine IRM, are those that are detailed in Form 31/14 of the Marine Orders – Part 31: Ship surveys and certification, Issue 6 (Order No.6 of 2006). The information included in Form 31/14 is the information that the Australian Maritime Safety Authority (AMSA) prescribes for reports it receives of maritime incidents. The information sought in accordance with Form 31/14 includes a description of the reportable matter, the location where the matter occurred, the date and time when the matter occurred and the ship’s details.
AMSA staff members are prescribed as nominated officials under regulation 3.6 of the Principal Regulations for the purpose of receiving reports of IRMs under the Act. It is accepted practice in the maritime industry that reports go to AMSA and then AMSA passes the report on to the ATSB in accordance with regulation 3.7. In this context, the information that AMSA prescribes in Form 31/14 meets the ATSB’s needs for the purpose of providing the ATSB with information to assess which IRMs should be investigated.
The amended subsection 18(1) of the Act makes it clear that the particulars are reportable only to the extent that they are known by the person reporting them.
Regulation 3.5 prescribes the information that must be made in a written report to be reported within 72 hours under subsection 19(1) of the Act for a marine IRM (there are no RRMs for marine). As explained for item 8, IRMs are accidents and serious incidents. They are prescribed in regulation 3.3 for the marine mode of transport.
Item 9 amends regulation 3.5 to accommodate new subsections 19(4) and 19(5) of the Act, introduced by the ALA Act. New subsections 19(4) and (5) allow the ATSB to seek additional information about an IRM after an initial report has been submitted in accordance with subsection 19(1). The responsible person who provides the initial report in accordance with subsection 19(1) may not know all the details of the IRM. The ability of the ATSB to require additional information is necessary in order to be able to ensure the information in the accident and incident database is adequate and correct with respect to each IRM. Importantly, this additional information will assist with future research and analysis of accident and incident data, including trend analysis and safety issue identification.
The new subsections work so that the ATSB can issue a notice to a person with reporting responsibilities requiring them to provide a written report of information in relation to an IRM. The information to be provided by the person is the information prescribed in regulation 3.5, to the extent that it is within the person’s knowledge. However, in accordance with new subsection 19(5), the ATSB will only be able to require the report from the person with reporting responsibilities if:
(a) the person has knowledge of the IRM and the person did not make the initial report to the ATSB or other prescribed reporting agency; or
(b) the person made the initial report in accordance with subsection 19(1) but they have additional information which was not communicated in the initial report.
Similar to regulation 3.4A, which prescribes the particulars that must be reported for an immediate report of an IRM (see item 8 above), the amendment to regulation 3.5 prescribes particulars for written reports sought under section 19 of the Act by incorporating AMSA’s requirements. The particulars prescribed for a written report are those particulars prescribed in Form 31/15 of the Marine Orders – Part 31: Ship surveys and certification, Issue 6 (Order No.6 of 2006). Form 31/15 requires a report of more detailed information than Form 31/14. When a responsible person is making a written report in accordance with section 19, it will be at a time when they have been able to collect more information.
The reason for the amendment to paragraph 3.6(a) in the marine context is the same as that for the amendment to paragraph 2.7(a) in the aviation context explained at item 7.
Item 11 inserts a new regulation 4.4A after regulation 4.4 in the Principal Regulations. The new regulation is made for the purpose of subsection 18(1) of the Act. The ALA Act amends subsection 18(1) to allow the regulations to prescribe the particulars that must be reported when an immediate report of an IRM is made. Regulation 4.3 of the Principal Regulations prescribe the IRMs that must be reported for the rail mode of transport. The prescribed matters include accidents, such as death or serious injury and collisions between rail vehicles resulting in serious damage. In accordance with section 18 of the Act, these matters must be reported as soon as is reasonably practicable by a responsible person prescribed in the regulations. Regulation 4.4 prescribes a responsible person to include crew members, operators and track access providers.
The purpose of prescribing the relevant particulars that must be reported, when a report of an IRM is made, is to ensure that the ATSB receives adequate information in relation to an IRM, rather than just a report of the occurrence of an IRM. Reports of IRMs in accordance with subsection 18(1) are used by the ATSB to determine whether the IRM is one that is to be investigated under the Act. The ATSB needs to have sufficient information in order to make a decision about whether or not to investigate.
In accordance with paragraph 4.4A(2)(a), the information required to be given for an IRM is the information required to be given to an authority of a State or Territory in which the reportable matter occurred. This arrangement recognises that the States and Territories are responsible for rail regulation and have their own set of reporting requirements. By referring to the reporting requirements of the relevant State or Territory in which the reportable matter occurred, the Principal Regulations avoid duplicating regulatory requirements.
Paragraph 4.4A(2)(b) only prescribes particulars for the situation where there is nothing prescribed by a State or Territory in which the reportable matter occurred.
The amended subsection 18(1) of the Act makes it clear that the particulars are reportable only to the extent that they are known by the person reporting them.
Regulation 4.5 prescribes the information that must be made in a written report to be reported within 72 hours under subsection 19(1) of the Act for a rail IRM (there are no RRMs for rail). As noted under item 11, IRMs are accidents and are prescribed in regulation 4.3 for rail.
Item 12 amends regulation 4.5 to accommodate new subsections 19(4) and 19(5) of the Act, introduced by the ALA Act. New subsections 19(4) and (5) allow the ATSB to seek additional information about an IRM after an initial report has been submitted in accordance with subsection 19(1). The responsible person who provides the initial report in accordance with subsection 19(1) may not know all the details of the IRM. The ability of the ATSB to require additional information is necessary in order to be able to ensure the information in the accident and incident database is adequate and correct with respect to each IRM. Importantly, this additional information will assist with future research and analysis of accident and incident data, including trend analysis and safety issue identification.
The new subsections work so that the ATSB can issue a notice to a person with reporting responsibilities requiring them to provide a written report of information in relation to an IRM. The information to be provided by the person is the information prescribed in regulation 4.5, to the extent that it is within the person’s knowledge. However, in accordance with new subsection 19(5), the ATSB will only be able to require the report from the person with reporting responsibilities if:
(a) the person has knowledge of the IRM and the person did not make the initial report to the ATSB or other prescribed reporting agency; or
(b) the person made the initial report in accordance with subsection 19(1) but they have additional information which was not communicated in the initial report.
The particulars that are prescribed for the receipt of a written report for the purpose of subsection 19(4) are the same as those for the receipt of the initial report in accordance with subsection 19(1).
Items 13 and 14 amend paragraphs 4.5(a) and 4.5(b) of the Principal Regulations. The amendment changes the terminology for consistency.
Items 15 and 16 amend the Principal Regulations to remove references to information from paragraph 4.5(b) which is not relevant for the purposes of reporting rail IRMs. It is noted, however, that paragraph 4.5(b) only prescribes information for reporting in the case where there is nothing required to be reported by the relevant State or Territory rail safety authority where the IRM occurred.
The reason for the amendment to paragraph 4.6(a) in the rail context is the same as that for the amendment to paragraph 2.7(a) in the aviation context, and paragraph 3.6(a) in the marine context, explained at items 7 and 10, respectively.
Item 18 amends paragraph 4.6(b) of the Principal Regulations. It prescribes as a nominated official ‘an employee of a State or Territory authority to which reports of reportable matters must be given’ instead of ‘an employee of a State or Territory rail safety regulator’. The amendment is necessary because State and Territory rail regulators are not necessarily the only authorities that receive reports of reportable matters. For example, in New South Wales reports of matters the equivalent of the rail IRMs, prescribed in regulation 4.3, are reported immediately to the Office of Transport Safety Investigations.
The purpose of the amendment to regulation 4.7 is to address the situation in rail where the employee of a State or Territory rail safety authority receives a report of an IRM and seeks to notify the ATSB in accordance with regulation 4.7. The ATSB may decide that it is not going to investigate the matter, in which case it may not be necessary for the employee of the rail safety authority to pass on the full report. The amendment to regulation 4.7 provides for the ATSB to advise the employee of the rail safety authority that the full report is not required, absolving the person from having to forward the report.
This arrangement reflects the structure of the rail safety framework in Australia, where it is the States and the Northern Territory that have the responsibility for rail safety regulation and therefore maintain databases on rail accidents and incidents. In this context, it is not always necessary for the ATSB to have a copy of the written report of an IRM that it does not investigate.
Items 20 and 21 amend regulation 5.1 of the Principal Regulations to accommodate changes to the Act brought about by TSIA Act. The powers and functions in the Act are no longer vested in the Executive Director of Transport Safety Investigation (Executive Director). They are now vested in the ATSB (comprising the Chief Commissioner and two part-time Commissioners), the Chief Commissioner alone and the Chief Executive Officer (CEO). The powers and functions of the ATSB and the Chief Commissioner are investigation related and predominantly the same as those previously vested in the Executive Director. The same criteria should therefore be satisfied for the delegation of the ATSB’s or the Chief Commissioner’s powers, which they are able to delegate in accordance with new subsections 63B(2) and 63C(5) of the Act, respectively.
Item 22 inserts a new provision to establish criteria required to be satisfied for the delegation of the CEO’s powers in the Act under new section 63D. The TSIA Act amends the Act to vest powers in the CEO with respect to administration of the ATSB as a statutory Agency. New section 63D provides for the CEO to delegate his or her powers under the Act. The criteria prescribed for a person to be delegated powers is the person’s knowledge of, and experience in implementing, the requirements of the Financial Management and Accountability Act 1997 (FMA Act) and the Public Service Act 1999 (PS Act). This criterion is prescribed,because the ATSB will be a statutory Agency under the PS Act and a prescribed Agency under the FMA Act and the CEO’s powers are administrative in nature with respect to these Acts.
Items 23 and 24 amend regulation 5.2 to accommodate a change in structure to the Act made by the TSIA Act. The provision for the appointment of a special investigator is in new section 63E instead of the previous section 14. The criteria for the appointment of a special investigator has not changed.
The TSIA Act amends the Act to provide for a list of functions for the ATSB in new section 12AA. Paragraph 12AA(1)(a) provides for improving transport safety by receiving reports of transport safety matters, reportable matters, and other safety information that is prescribed by regulation. For the purpose of paragraph 12AA(1)(a), item 25 inserts new regulation 5.2A to prescribe the ‘other safety information’ to mean information received through the aviation and marine confidential reporting schemes administered by the ATSB under other legislation. Clause 107 of Schedule 1 of Part 3 of the TSIA Act provides for the ATSB and the Chief Commissioner administering the powers and functions under the same legislation as that which is prescribed in regulation 5.2A.
Items 26, 27 and 28 amend regulation 5.3 to accommodate a change in structure to the Act made by the TSIA Act. The provision for the prescription of international obligations is new section 12AD instead of the previous section 17. The international obligations prescribed have not changed.
Item 29 inserts new regulation 5.4A in support of the new subsection 19(4)—inserted into the Act by the TSIA Act. Under subsection 19(4) the Chief Commissioner may require additional information in relation to a reportable mater (see the explanation under items 2, 9 and 12). Subsection 19(4) provides for regulations to be made to prescribe the means by which the additional information may be reported. For this purpose, e-mail, electronic lodgement over the internet and facsimile and post, are prescribed.
Items 30, 31 and 32 amend regulation 5.6 to accommodate the change to the Act introduced by the TSIA Act, whereby the position of the Executive Director no longer exists. The powers previously vested in Executive Director that required the making of regulations are now vested in the ATSB and the Chief Commissioner. References to the Executive Director in the Principal Regulations have therefore been replaced with references to the ATSB and the Chief Commissioner.
Item 33 amends subregulation 5.6(5) to change the name of the Department of Employment and Workplace Relations to the Department of Education, Employment and Workplace Relations to reflect its current title.
Items 34, 35, 36 and 37 amend subregulation 5.6(6) and regulations 5.7, 5.8 and 5.9 to accommodate the change to the Act, introduced by the TSIA Act, whereby the position of the Executive Director no longer exists. The powers previously vested in Executive Director that required the making of regulations are now vested in the ATSB and the Chief Commissioner. References to the Executive Director in the Principal Regulations have therefore been replaced with references to the ATSB and the Chief Commissioner.