COMMONWEALTH OF AUSTRALIA Official Committee
COMMONWEALTH OF AUSTRALIAOfficial Committee HansardSENATERURAL AND REGIONAL AFFAIRS AND TRANSPORTLEGISLATION COMMITTEEReference: Transport Safety Investigation Bill 2002THURSDAY, 24 OCTOBER 2002CANBERRABY AUTHORITY OF THE SENATE
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WITNESSESBILLS, Mr Kym Maynard, Executive Director, Australian Transport Safety Bureau,Department of Transport and Regional Services . 1BLACKBURN, Mr Thomas Dutton, Barrister, Australian and International PilotsAssociation. 21FILOR, Captain Christopher William, Deputy Director Surface Safety—Inspector ofMarine Accidents, Australian Transport Safety Bureau, Department of Transport andRegional Services . 1MACAULAY, Miss Kerryn, Team Leader, Transport Safety Investigation, AustralianTransport Safety Bureau, Department of Transport and Regional Services. 1MUNRO, Mr Boyd, Air Safety Australia . 15O’NEIL, Mr Michael, Legal Counsel (Industrial Relations), Australian andInternational Pilots Association. 21PIKE, Captain Frederick William, President, Aircraft Owners and PilotsAssociation. 39
Thursday, 24 October 2002SENATE—LegislationRRA&T 1SENATERURAL AND REGIONAL AFFAIRS AND TRANSPORT LEGISLATIONCOMMITTEEThursday, 24 October 2002Members: Senator Heffernan (Chair), Senator Buckland (Deputy Chair), Senators Cherry,Colbeck, Feris and O’BrienParticipating members: Senators Boswell, Brown, Carr, Chapman, Coonan, Eggleston,Evans, Faulkner, Ferguson, Harradine, Haris, Hutchins, Knowles, Lightfoot, Mason, SandyMacdonald, McLucas, Murphy, Payne, Ray, Stephens, Tchen, Tierney and WatsonSenators in attendance: Senators Buckland, Cherry, Colbeck, Ferris, Greig, Heffernan, Leesand StephensTerms of reference for the inquiry:Transport Safety Investigation Bill 2002Committee met at 3.58 p.m.BILLS, Mr Kym Maynard, Executive Director, Australian Transport Safety Bureau,Department of Transport and Regional ServicesFILOR, Captain Christopher William, Deputy Director Surface Safety—Inspector ofMarine Accidents, Australian Transport Safety Bureau, Department of Transport andRegional ServicesMACAULAY, Miss Kerryn, Team Leader, Transport Safety Investigation, AustralianTransport Safety Bureau, Department of Transport and Regional ServicesCHAIR—I declare open this public hearing of the Senate Rural and Regional Affairs andTransport Legislation Committee. The committee is meeting today to consider the TransportSafety Investigation Bill 2002. On 16 October 2002, the Senate referred the bill to thiscommittee for examination and report by Tuesday, 12 November 2002. The purpose of the billis to maintain and improve safety in all modes of transport by providing for a sound and bestpractice legislative basis. The committee has been asked to examine the bill and, particularly,report on the basis of concerns from aviation groups regarding the extent of consultation onthe bill.To date the committee has received seven written submissions, which the committee nowauthorises for publication. In addition, the committee has been forwarded several hundredshort comments on the bill by one of those making a submission today, Air Safety Australia.The committee also publishes these documents and will have them tabled with thecommittee’s report on the bill. Today’s hearing is public and open to all. A Hansard transcriptof the proceedings is being made. It will be available from the committee secretariat or via theParliament House Internet home page next week.It should be noted that the committee has authorised the recording, broadcasting andrebroadcasting of these proceedings, in accordance with the rules contained in the order of theSenate on 23 August 1990 concerning the broadcasting of committee proceedings. Before thecommittee commences taking evidence, let me place on the record that all witnesses areprotected by parliamentary privilege with respect to submissions made to the committee andRURAL AND REGIONAL AFFAIRS AND TRANSPORT
RRA&T 2SENATE—LegislationThursday, 24 October 2002evidence given before it. Any act by any person that may operate to the disadvantage of awitness on account of evidence given by him or her before the Senate or any committee of theSenate is treated as a breach of privilege.While the committee prefers to hear all evidence in public, if the committee accedes tosuch a request, the committee will take evidence in camera and record that evidence. Shouldthe committee take evidence in this manner, I remind the committee and those present that itis within the power of the committee at a later date to publish or present all or part of thatevidence to the Senate. The Senate also has the power to order production and/or publicationof such evidence. I should add that any decision regarding publication of in camera evidenceor confidential submissions would not be taken by the committee without prior reference tothe person whose evidence the committee may consider publishing. The first witnesses todayare the officers of the Australian Transport Safety Bureau.Mr Bills—Good afternoon, and thank you for giving us this opportunity to speak. As Iunderstand it, Senator Lees has referred the Transport Safety Investigation Bill 2002 to thecommittee as a result of representations from parts of the aviation industry concerned with theconsultation process and the possible impact of the bill. A main purpose of the TSI bill is toprovide the ATSB with a new power to conduct independent and professional no blame safetyinvestigations on the interstate rail network, and this reflects the growing importance andreform of interstate rail. Although existing ATSB powers for aviation and marine safetyinvestigation are relatively unchanged, other than to reflect the generic multimodal characterof the bureau’s work and to harmonise among the modes, some changes are proposed.The ATSB still intends to focus on fatal accidents, and accidents and incidents involvingcommercial—especially passenger—transport with most safety value. We submit that inreading the TSI bill it is misleading to take clauses out of their no blame safety context in thebill and regulations or to ignore the current legislation. An investigation by the ATSB isundertaken based on Australia’s international marine and aviation obligations, such as that inannex 13 to the Chicago Convention on International Civil Aviation, which states atparagraph 3.1:The sole objective of the investigation of an accident or incident shall be the prevention of accidentsand incidents. It is not the purpose of this activity to apportion blame or liability.The objects of the TSI bill at clause 7 and the link to annex 13 at clause 17 via regulationreflect this international commitment to investigate for no blame future transport safety.Clause 28 makes it clear that investigation powers may only be exercised for the purposes ofsuch an investigation. Clause 5.4 of annex 13 states:The accident investigation authority shall have independence in the conduct of the investigation andhave unrestricted authority over its conduct, consistent with the provisions of this Annex. Theinvestigation shall include (a) the gathering, recording and analysis of all available information on thataccident or incident; (b) if appropriate the issuance of safety recommendations; (c) if possible thedetermination of the causes; and (d) the completion of the Final Report.Clause 5.4.1 contains the recommendation:Any judicial or administrative proceedings to apportion blame or liability should be separate from aninvestigation conducted under the provisions of this Annex.The TSI bill represents a whole of government development and approval process,particularly involving the Attorney-General’s department and AGS with respect toCommonwealth legal policy and interpretation, the Office of Parliamentary Counsel withrespect to drafting practice and the Deputy Prime Minister’s transport portfolio. It is notsimply a product of the ATSB.RURAL AND REGIONAL AFFAIRS AND TRANSPORT
Thursday, 24 October 2002SENATE—LegislationRRA&T 3In response to suggestions that the ATSB will somehow become less cooperative orbecome some new form of police force, I would like to reiterate that ATSB powers may onlybe used as required in the course of a particular no blame safety investigation. Separateparallel inquiries should be undertaken by police and regulators, who may wish to ascribeblame or liability.The desirability of minimising disruption to transport vehicles is explicit in clause 16.Penalties for not reporting aviation accidents and serious incidents are in place now and havenot caused any problems; I refer to section 19BA(3) of the Air Navigation Act. The proposedTSI regulations will limit what needs to be reported. Clause 32 powers to interview andcompel evidence are in place now, even if there could be self-incrimination, and I refer tosection 19CC of the Air Navigation Act. The penalty for not complying is unchanged. Underthe TSI bill, an ATSB final report cannot be used in evidence in civil or criminal courts, otherthan in the special case of a coronial inquest.Under clause 24, a person who engages in unauthorised reckless conduct that adverselyaffects a safety investigation, where the conduct was not necessary for the several purposesdescribed in the clause, may commit an offence. It would not be expected that an ethical legaladviser would withhold information or conceal or tamper with evidence that fell within theambit of this clause.The Senate Standing Committee for the Scrutiny of Bills has separately reviewed the TSIBill to assess whether its clauses could be better drafted with regard to the proportionalitybetween its proposed powers, the object of their use and the checks and balances upon futureuse. The government will no doubt carefully consider that committee’s report, which wastabled yesterday afternoon.Analogous bodies to the ATSB overseas who have similar no blame safety investigationroles also have broader powers than agencies who may use evidence to review compliance,impose liability or prosecute. For example, the legislation governing New Zealand’s TransportAccident Investigation Commission, or TAIC, provides—other than for a private dwelling ormarae, where a warrant is required—that:. the Commission and any person authorised in writing for the purpose by the Commission shall havethe power to do the following:(a) To enter and inspect any aircraft, rail service vehicle, aerodrome, building or place where theCommission believes on reasonable grounds that it is necessary to do so for the purpose of investigatingan accident or incident .The powers after entry without warrant include seizing evidence, vehicles and other thingsthat TAIC believes, on reasonable grounds, will assist in establishing the cause of an accidentor incident.The TSI Bill requires a warrant for the entry of most premises without occupier’s consent.The proposed special premises powers—without consent or warrant—in clause 33 relate toaccident sites and vehicles. Should they be utilised, subclause 36(3) outlines what theexecutive director may do with respect to requiring the answering of questions or theproduction and seizure of evidential material that is:. directly relevant to the investigation concerned and the Executive Director believes, on reasonablegrounds, that it is necessary to seize the material in order to prevent it being interfered with or toprevent its concealment, loss, deterioration or destruction.Clause 39 also refers to vehicle powers in particular. Under clause 47, the legislation thenprotects any evidence gathered that is self-incriminating from being used in adversarial legalRURAL AND REGIONAL AFFAIRS AND TRANSPORT
RRA&T 4SENATE—LegislationThursday, 24 October 2002proceedings. There are further protections in part 6 of the TSI bill concerning the use ofrestricted information and OBR information. The explanatory memorandum to the billexplains that the clause 33 powers may be required when it is not practicable to establishownership in order to obtain consent or to obtain a warrant before vital evidence may perish.In a major accident involving substantial loss of life or a lesser occurrence involving possiblecommercial ruin there may be strong incentives to tamper with evidence that may be crucialto future safety.There has been substantial consultation on the TSI bill since an exposure draft was releasedin September 2001—and before. The focus of the bill on new rail investigation powers has ledto intense discussion with states, territories and the rail industry since April 2000 when theminister first made an announcement about the intention to legislate in that area. MinisterAnderson was directly engaged in this process at the Australian Transport Council meeting inMay 2001. While the states opposed Commonwealth legislation relating to their traditionalresponsibilities for rail safety, rail regulators are now working constructively with the ATSBto establish a memorandum of understanding to cover future cooperation and arrangements.The Australasian Railway Association and the Rail, Tram and Bus Union were consulted onthe legislation and support it, and the ARA has most recently linked its support to progresstoward one rail safety regulator for the national rail network.There has also been substantial discussion with senior coroners. A letter to me dated 22October 2002 from the Chief Magistrate of Tasmania, which he said was authorised by theheads of jurisdiction of all Australian state and territory coroners’ courts, states:. that the Bill in its current form is the product of detailed and constructive discussions between theAustralian Transport Safety Bureau and ourselves since approximately August, 2001 .and:. in our view, it is critically important that there not be any erosion of . the access entitlements toevidential material sought to be secured by the proposed legislation.The ATSB has started discussing a memorandum of understanding with coroners to maximisecooperation once the TSI bill and regulations are in place.Among the international bodies consulted, the Dutch Transportation Safety Board, the NewZealand TAIC and a senior member of ICAO replied, supporting and commending theproposed legislation. Consultation took place with marine stakeholders including the NationalMarine Safety Committee, state and Northern Territory bodies, the Australian Marine PilotsAssociation, the Australian Shipowners Association, Shipping Australia and relevant unions.Consultation took place with occupational health and safety stakeholders including theNational Occupational Health and Safety Commission and Comcare. There was alsoconsultation with Emergency Management Australia and the Department of Defence.Consultation with federal, state and territory police was broad, and detailed follow-updiscussions and correspondence occurred with the AFP, Victorian Police and NorthernTerritory Police. Very detailed consultation occurred with portfolio agencies—AMSA, CASAand Airservices—and the executive of the department was directly involved in this.It was not practicable for the ATSB to consult individually with every possible stakeholderin aviation, marine, rail, coronial, police, OH&S, state and territory government and othersectors. Nevertheless, consultation in the aviation sector was significant. CASA, Airservices,the Department of Defence, Qantas, Ansett, Virgin Blue, the Regional Airlines of AustraliaAssociation, the Aircraft Owners and Pilots Association of Australia, the HelicopterAssociation of Australia, the Aerial Agriculture Association of Australia, the AustralianFederation of Air Pilots, the Ansett Pilots Association, the Australian Airline Flight EngineersRURAL AND REGIONAL AFFAIRS AND TRANSPORT
Thursday, 24 October 2002SENATE—LegislationRRA&T 5Association, the Australian and International Pilots Association, the Civil Air OperationsOfficers Association of Australia and the Flight Attendants Association of Australia wereinvited to a workshop on the bill on 21 September 2001. They were also provided with anexposure draft of the bill and an explanatory memorandum, upon which any comment,concern or request for further briefing was sought.The minister and government were advised of the consultation and approved all aspects ofthe TSI bill, once clauses conformed with the Commonwealth’s legal policies as overseen bythe Attorney-General’s Department. The minister issued a media release about the TSI billwhen it was introduced on 20 June this year. The bill and explanatory memorandum wereplaced on the ATSB’s web site shortly thereafter. Despite the ATSB’s efforts, there was littleresponse from most aviation bodies until recently. This had suggested that they had no majorconcerns with the bill. However, following a campaign by Air Safety Australia, concern hasrecently been raised by AOPA, the Ultralight Federation, AIPA, AFAP, RAAA, and others.Mostly it has taken the form of adopting suggestions made by Mr Munro, which I havealready broadly addressed in these opening remarks.In addition, AIPA and AFAP, and a letter to the committee by Mr Peter Boughen, focus onprotections proposed to be given to cockpit voice recordings under generic on-boardrecording—OBR—provisions. Mr Boughen, for example, suggests that the bill should bechanged so that:. all parts of an OBR are always protected by Part 55 and that no person has the ability to change thestatus of an OBR in any way that removes the protection of Part 55.AIPA links its request for greater protection for CVR material to clause 5.12 of annex 13 tothe Chicago Convention. In contrast, coroners request that there be no diminution of access tosuch evidence in the TSI bill, and the RAAA has objected that:. there are restrictions on the amount of information which the ATSB has to provide even to courts.In RAAA’s view:. only courts should be allowed to refuse or limit access to material sought by subpoena.The current bill reflects a balance between the desire of pilots for absolute CVR protection,related to both their privacy and the fact that threat of prosecution could undermine access torecordings for future safety, and the legitimate requirements of the justice system. Such abalance is also to be found in the standards and recommended practices in annex 13 in clauses5.1, 5.4, 5.10, 5.11 and 5.12.Countries around the world utilise accident investigation evidence including CVR materialfor judicial inquiries as well as no blame investigations. Note 1 to paragraph 5.1 explicitlystates that, in relation to incidents, other types of investigations conducted by otherorganisations are not excluded. Paragraph 5.10 acknowledges that there must be coordinationbetween the investigator in charge and judicial authorities, including with recorders.Paragraph 5.12 refers to a judicial balancing act relating to disclosure. I have already referredto 5.4.The idea that a CVR recording could not be used in the case of a terrorist act or a majorcrime could seem to be o
The committee has been asked to examine the bill and, particularly, report on the basis of concerns from aviation groups regarding the extent of consultation on the bill. To date the committee has received seven written submissions, which the committee now authorises for publication. In addition, the
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