Feb 12, 2009

Transport Safety Investigation Amendment Bill 2009

Transport Safety Investigation Amendment Bill 2009


 The second Bill I introduce to the Parliament is the Transport Safety Investigation Amendment Bill 2009. As I stated when I introduced the Civil Aviation Amendment Bill, the Transport Safety Investigation Amendment Bill fulfils undertakings in the Government’s National Aviation Policy Green Paper. The Bill will amend the Transport Safety Investigation Act 2003 and enhance the independence of the Australian Transport Safety Bureau (ATSB) by establishing it as a statutory agency within my portfolio. The ATSB will have a Commission structure and the new body will come into being on 1 July 2009.

Australia has an impressive safety record and the ATSB’s accident investigation role is a fundamental part of Australia’s transport safety framework. Under the Transport Safety Investigation Act 2003, the Executive Director of the ATSB already conducts systemic ‘no-blame’ investigations into aviation, marine and rail accidents and incidents with the objective of identifying contributing safety factors. The lessons arising from those investigations are used to prevent future accidents and incidents through the implementation of safety action by the industry and the Government. By making the ATSB a separate statutory agency, public confidence can be strengthened in Australia’s commitment to advance transport safety.

While I am confident that the ATSB has operated successfully as a Division of the Department of Infrastructure, Transport, Regional Development and Local Government, I believe that the future safety of Australian transport will be enhanced by this measure. In 2007 Mr Russell Miller AM was tasked by the then Government to review the relationship between the Civil Aviation Safety Authority (CASA) and the ATSB. In finding there was room for improvement in the way the agencies interact, Mr Miller addressed the ATSB’s governance structure and recommended that the Government move to clarify the ATSB’s independence as the national safety investigation agency. The Government accepted this key recommendation, which received strong support from industry.

Investigations that are independent of transport regulators, government policy makers, and the parties involved in an accident, are better positioned to avoid conflicts of interest and external interference. Consistent with international standards, this Bill leaves no doubt that investigations will be conducted without fear or favour and findings will be transparent and objective. Standard 5.4 of Annex 13 to the International Convention on Civil Aviation (the Chicago Convention) states:

The accident investigation authority shall have independence in the conduct of the investigation and have unrestricted authority over its conduct.

Enhanced independence will result from a combination of factors. The ATSB will alone be responsible for administering the functions of the Transport Safety Investigation Act 2003 and exercising its investigation powers. There will be the capacity for the Minister to provide notice of his or her views on the strategic direction for the ATSB, to which the ATSB must have regard. However, other than the ability for the Minister to require the ATSB to investigate a particular matter, the ATSB will not be subject to a direction from anyone with respect to the exercise of its powers and functions.

The creation of a statutory agency will also give the ATSB discretion and responsibilities in its own right under the Public Service Act 1999 and Financial Management and Accountability Act 1997 with respect to the management of its staff and resources. The ATSB will, therefore, have operational independence with respect to the exercise of its investigation powers and functional independence with respect to the administration of its resources.

The ATSB will consist of a full-time Chief Commissioner who will also be the Chief Executive Officer of the agency, and two part-time Commissioners. Commissioners will be appointed by the Minister and they will have an appropriate mix of skills and expertise. Additional Commissioners can be appointed as necessary for major investigations or where a particular skill or expertise is required. The powers in the Act will be vested in the ATSB for overarching responsibilities such as determining which transport safety matters to investigate and publishing reports. Powers relating to day to day investigation activities such as entry to an accident site premises will be vested in the Chief Commissioner. Both the Chief Commissioner and the ATSB will have the ability to delegate powers, as appropriate, for the purpose of carrying out investigations.

A new power that the ATSB will have to assist with its function of improving transport safety is the power to require responses within 90 days to any formal recommendations that it makes. This requirement will provide confidence that the ATSB’s safety recommendations are being properly considered and addressed.

In addition to the function of improving transport safety through investigations and communicating the results of those investigations, the ATSB will have a function involving cooperation. The ATSB will be required to cooperate with similar agencies around the world to ensure there is coordination when investigating a transport accident or incident in cases where another country is in some way connected. Domestically, the ATSB will be required to cooperate with Commonwealth and State and Territory agencies having functions concerning transport safety, or who are affected by the ATSB’s function of improving transport safety. Other agencies, such as the police or a transport safety regulator, are likely to have an interest in conducting investigations into some accidents or incidents that the ATSB is investigating. It is intended that those agencies should continue to be able to conduct their own separate investigations and that there be cooperation to allow this to occur. However, the ATSB will need to preserve the ‘no-blame’ nature of its investigations.

The Transport Safety Investigation Act 2003 already states that it is not an object of the Act to apportion blame or provide the means to determine liability in relation to a transport accident or incident. With the translation of the objects of the current Act into the functions for the ATSB, the Act will state that apportioning blame and determining liability is not a function of the ATSB. Investigations that may result in punitive action will not necessarily have safety information freely flowing to them because there is an apprehension of a penalty by the persons subject to the investigation. This is recognised internationally by Annex 13 to the Chicago Convention and similar International Maritime Organisation instruments.

If the ATSB is to conduct systemic investigations, in the overriding interest of improving future safety, it must have access to all the available information. To preserve the free-flow of information to its investigations, the ATSB will need to maintain an appropriate degree of separation from processes that could result in a punitive outcome, an award of damages to one party against another or an adverse inference being made about a person subject to an investigation. The existing provisions in the Act for the protection of safety information, such as aviation cockpit voice recorders and witness statements, provide part of the framework for the ATSB to prevent itself being involved in the apportionment of blame or the determination of liability. Commissioners, ATSB staff members and consultants will be subject to the requirement to protect this type of information.

The Bill provides for transitional provisions so that investigations commenced under legislation existing before the new laws come into effect on 1 July 2009, can be continued by the ATSB. For investigations already completed, the ATSB or the Chief Commissioner, as required, will be able to exercise powers in relation to such things as the disclosure of information. The Bill also provides for the ATSB to perform the functions of the Executive Director under other legislation such as the Inspector of Transport Security Act 2006 and regulations made under the Navigation Act 1912 and the Air Navigation Act 1920 establishing confidential reporting schemes. With respect to the confidential reporting schemes, the Bill provides for a regulation making power to consolidate those schemes under the Transport Safety Investigation Act 2003 in the future.

The introduction of the Transport Safety Investigation Amendment Bill 2009 will serve to maintain and improve the already excellent safety record of the Australian aviation, marine and rail transport industries by establishing the ATSB as a separate statutory agency. Strengthening the independence of the ATSB in this way will facilitate better interaction with the transport industry and other agencies and demonstrate the Government’s strong commitment to ongoing and important improvements in Australia’s transport safety framework.