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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Transport
Safety Investigation Bill 2002
No. ,
2002
(Transport and Regional
Services)
A Bill for an Act to provide for
investigation of transport accidents and other matters affecting transport
safety, and for related purposes
Contents
A Bill for an Act to provide for investigation of
transport accidents and other matters affecting transport safety, and for
related purposes
The Parliament of Australia enacts:
This Act may be cited as the Transport Safety Investigation Act
2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Sections 3 to 71 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by the Parliament and assented to. It will not be expanded
to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this Act receives
the Royal Assent, it commences on the first day after the end of that
period.
In this Act, unless the contrary intention appears:
accident means an investigable matter involving a transport
vehicle where:
(a) a person dies or suffers serious injury as a result of an occurrence
associated with the operation of the vehicle; or
(b) the vehicle is destroyed or seriously damaged as a result of an
occurrence associated with the operation of the vehicle; or
(c) any property is destroyed or seriously damaged as a result of an
occurrence associated with the operation of the vehicle.
accident site means any of the following sites associated
with an accident:
(a) a site containing the transport vehicle or any of its
wreckage;
(b) a site where there is an impact point associated with the
accident;
(c) if the accident involved destruction or serious damage to property
(other than the transport vehicle)—a site containing that property or any
of its wreckage;
together with such area around the site as the Executive Director
determines to be reasonably necessary to facilitate the investigation of the
accident and securing the site.
accident site premises means:
(a) an accident site; or
(b) premises that it is necessary to enter in order to get to an accident
site.
aircraft means any machine or craft used in air navigation,
however propelled or moved.
Australia, when used in a geographical sense, includes the
external Territories.
Australian aircraft means:
(a) an aircraft registered in Australia; or
(b) an aircraft owned by the Commonwealth, a State or a
Territory.
Australian court means a federal court or a court of a State
or Territory.
Australian defence aircraft means an aircraft used by the
Australian Defence Force but does not include an aircraft that is registered
under the Civil Aviation Regulations.
Australian defence ship means a ship used by the Australian
Defence Force.
Australian ship means:
(a) a ship registered in Australia under the Shipping Registration Act
1981; or
(b) an unregistered ship that has Australian nationality under
section 29 of that Act; or
(c) a ship owned by the Commonwealth, a State or a Territory.
Australian transport vehicle means:
(a) an Australian aircraft; or
(b) an Australian ship; or
(c) a rail vehicle operating in Australia.
civil proceedings means any proceedings before an Australian
court, other than criminal proceedings.
Note: Civil proceedings includes a coronial inquiry. See the
definition of court.
civil transportation facility means an installation in
Australia designed or used to facilitate the operation or maintenance of a
transport vehicle that is not an exempt transport vehicle.
Commonwealth entity means:
(a) the Commonwealth; or
(b) an authority of the Commonwealth; or
(c) a corporation in which the Commonwealth, or an authority of the
Commonwealth, has a controlling interest.
Commonwealth place means a place referred to in paragraph
52(i) of the Constitution, other than the seat of government.
constitutional corporation means:
(a) a corporation to which paragraph 51(xx) of the Constitution applies;
or
(b) a body corporate that is incorporated in a Territory.
control area means an area in a transport vehicle from which
essential operational activities are directed or controlled.
coroner means the head of the relevant State or Territory
coronial jurisdiction or a person directed by that head to conduct a coronial
inquiry.
coronial inquiry means a coronial inquiry, coronial
investigation or coronial inquest under a law of the Commonwealth, a State or a
Territory.
court includes any tribunal, authority, person or body that
has power to require the production of documents or answering of questions, but
does not include a Royal Commission, the Parliament or either House of the
Parliament.
crew member, in relation to OBR information, means any person
who had operational duties on board the transport vehicle at any time during the
recording period of the OBR.
criminal proceedings means criminal proceedings before an
Australian court.
damage includes structural failure.
disclose:
(a) in relation to information, includes divulge or communicate the
information in any way; and
(b) in relation to information contained in a document or other article,
also includes produce the document or other article, or make it available, for
inspection.
evidential material means anything that may be relevant to an
investigation.
Executive Director means the person occupying the position of
Executive Director of Transport Safety Investigation referred to in
section 12.
exempt foreign aircraft means an aircraft used in the
military, customs or police services of a foreign country.
exempt foreign ship means a ship used in the military,
customs or police services of a foreign country.
exempt transport vehicle means:
(a) an Australian defence aircraft; or
(b) an Australian defence ship; or
(c) an exempt foreign aircraft; or
(d) an exempt foreign ship.
expert opinion means an opinion that requires specialised
knowledge based on training, study or experience.
immediately reportable matter means an investigable matter
that is prescribed by the regulations for the purposes of this
definition.
international agreement means a treaty or agreement whose
parties are:
(a) Australia and a foreign country; or
(b) Australia and 2 or more foreign countries.
investigable matter means any transport safety matter that
can be investigated by the Executive Director under this Act.
investigation means an investigation under this
Act.
investigation warrant means a warrant under Division 4
of Part 5.
nominated official, in relation to a reportable matter, means
a person prescribed by the regulations under section 20 in relation to the
matter concerned.
non-staff member means a person who is not a staff
member.
OBR or on-board recording has the meaning given
by section 48.
Note: See also section 49 which allows the Executive
Director to declare that a recording is no longer an OBR.
OBR information means:
(a) an OBR or any part of an OBR; or
(b) a copy or transcript of the whole or any part of an OBR, including a
copy made before the occurrence of the reportable matter that caused the
recording to become an OBR; or
(c) any information obtained from an OBR or any part of an OBR.
occupier, in relation to premises, includes a person present
at the premises who apparently represents the occupier.
operational duties means duties or functions in connection
with the operation or safety of the transport vehicle.
power includes a function or duty.
premises includes any place or vehicle.
premises powers means:
(a) powers under Part 5 to enter premises; or
(b) powers under Part 5 that are exercisable after entering premises
under that Part.
rail vehicle means a vehicle that operates on a railway
(including a vehicle that does not have wheels).
railway means a system by which vehicles (including trams)
designed to transport passengers or goods are guided:
(a) by means of parallel rails; or
(b) by means of a single rail; or
(c) by any other means prescribed by the regulations.
reportable matter means an immediately reportable matter or a
routine reportable matter.
responsible person, in relation to a reportable matter, means
a person prescribed by the regulations for the purposes of this definition in
relation to the matter concerned.
restricted information means any of the following (but does
not include OBR information):
(a) all statements (whether oral or in writing) obtained from persons by a
staff member in the course of an investigation (including any record of such a
statement);
(b) all information recorded by a staff member in the course of an
investigation;
(c) all communications with a person involved in the operation of a
transport vehicle that is or was the subject of an investigation;
(d) medical or private information regarding persons (including deceased
persons) involved in a transport safety matter that is being or has been
investigated;
(e) in relation to a transport vehicle that is or was the subject of an
investigation—information recorded for the purposes of monitoring or
directing the progress of the vehicle from one place to another or information
recorded in relation to the operation of the vehicle;
(f) records of the analysis of information or evidential material acquired
in the course of an investigation (including opinions expressed by a person in
that analysis);
(g) information contained in a document that is produced to a staff member
under paragraph 32(1)(b) or 36(3)(a) or (4)(a).
routine reportable matter means an investigable matter that
is prescribed by the regulations for the purposes of this definition.
Royal Commission means a Commission that has been
commissioned by the Governor-General to conduct an inquiry, and includes any
member of such a Commission.
safety action statement means a statement:
(a) setting out any safety deficiencies identified during the course of an
investigation that should be addressed; or
(b) setting out any steps taken by persons to remedy safety deficiencies
identified during the course of an investigation.
Secretary means the Secretary of the Department.
ship means any vessel used in navigation by water, however
propelled or moved.
special investigator means a person appointed as a special
investigator under section 14.
special premises means:
(a) accident site premises; or
(b) a vehicle.
staff member means:
(a) the Executive Director; or
(b) an APS employee who is assisting the Executive Director in exercising
powers under this Act; or
(c) a person to whom the Executive Director has delegated any of the
Executive Director’s powers under this Act.
Note: For the definition of APS employee, see
section 17AA of the Acts Interpretation Act 1901.
State referral of power means the referral of a matter to the
Parliament of the Commonwealth as mentioned in paragraph 51(xxxvii) of the
Constitution.
transport means transport by means of a transport
vehicle.
transport safety means the safety of transport by means of
transport vehicles.
transport safety matter means a transport safety matter
specified in section 23.
transport vehicle means an aircraft, ship or rail
vehicle.
(1) This Act binds the Crown in each of its capacities.
(2) However, this Act does not make the Crown liable to be prosecuted for
an offence.
This Act extends to the external Territories.
This Act extends to acts, omissions, matters and things outside
Australia, unless the contrary intention appears.
(1) The main object of this Act is to improve transport safety by
providing for:
(a) the reporting of transport safety matters; and
(b) independent investigations into transport accidents and other
incidents that might affect transport safety; and
(c) the making of safety action statements and safety recommendations that
draw on the results of those investigations; and
(d) publication of the results of those investigations in the interests of
transport safety.
(2) Another object of this Act is that, during the investigation of a
transport safety matter under this Act, there be co-operation between the
Executive Director and any other Commonwealth agency or person having powers
under another law of the Commonwealth to also investigate the matter.
(3) The following are not objects of this Act:
(a) apportioning blame for transport accidents or incidents;
(b) providing the means to determine the liability of any person in
respect of a transport accident or incident;
(c) assisting in court proceedings between parties (except as expressly
provided by this Act);
(d) allowing any adverse inference to be drawn from the fact that a person
is subject to an investigation under this Act.
(1) Chapter 2 of the Criminal Code applies to all offences
against this Act.
Note: This Act contains various defences to offences against
this Act. See also Part 2.3 of the Criminal Code for other defences
that may apply to offences against this Act.
(2) Section 15.4 of the Criminal Code (extended geographical
jurisdiction—category D) applies to all offences against this
Act.
(1) This section applies if a maximum penalty is specified at the foot of
a provision of this Act, being a provision that is either:
(a) a section of this Act that is not divided into subsections;
or
(b) a subsection of a section of this Act.
(2) If the provision is expressed to create an offence, then the offence
is punishable, on conviction, by a penalty up to the maximum
specified.
(3) If the provision is not expressed to create an offence, then a person
who contravenes the provision is guilty of an offence against the provision that
is punishable, on conviction, by a penalty up to the maximum
specified.
Note 1: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Note 2: See also section 4B of the Crimes Act
1914.
State laws
(1) This Act is not intended to exclude the operation of any law of a
State or Territory to the extent that the law is capable of operating
concurrently with this Act.
Commonwealth laws
(2) This Act is intended to prevail over any other law of the Commonwealth
to the extent of any inconsistency.
Aircraft
(1) The powers in this Act, so far as they relate to aircraft and air
navigation, can only be exercised for the purpose of:
(a) improving the safety of air navigation conducted in the course of
trade or commerce with other countries or among the States; or
(b) improving the safety of air navigation:
(i) outside Australia; or
(ii) within a Territory, or to or from a Territory; or
(iii) within a Commonwealth place, or to or from a Commonwealth place;
or
(iv) on aircraft owned or operated by a constitutional corporation or
Commonwealth entity; or
(v) in respect of which a State referral of power is in operation;
or
(vi) in relation to any other matter with respect to which the Parliament
has power to make laws; or
(c) giving effect to an international agreement; or
(d) matters of international concern.
Ships
(2) The powers in this Act, so far as they relate to ships and marine
navigation, can only be exercised for the purpose of:
(a) improving the safety of marine navigation conducted in the course of
trade or commerce with other countries or among the States; or
(b) improving the safety of marine navigation:
(i) outside Australia; or
(ii) within a Territory, or to or from a Territory; or
(iii) within a Commonwealth place, or to or from a Commonwealth place;
or
(iv) on ships owned or operated by a constitutional corporation or
Commonwealth entity; or
(v) in respect of which a State referral of power is in operation;
or
(vi) in relation to any other matter with respect to which the Parliament
has power to make laws; or
(c) giving effect to an international agreement; or
(d) matters of international concern.
Rail vehicles
(3) The powers in this Act, so far as they relate to rail vehicles and
rail transport, can only be exercised for the purpose of:
(a) improving the safety of rail transport conducted in the course of
trade or commerce among the States; or
(b) improving the safety of rail transport conducted to or from the
Northern Territory; or
(c) improving the safety of rail transport:
(i) within a Commonwealth place, or to or from a Commonwealth place;
or
(ii) on rail vehicles owned or operated by a constitutional corporation or
Commonwealth entity; or
(iii) on railway tracks owned or operated by a constitutional corporation
or Commonwealth entity; or
(iv) in respect of which a State referral of power is in operation;
or
(v) in relation to any other matter with respect to which the Parliament
has power to make laws.
Section does not limit OBR information powers
(4) This section does not affect any powers in this Act that are expressly
conferred in relation to an OBR or OBR information.
Note: The definition of OBR in section 48
applies constitutional limitations to the provisions of this Act that apply
expressly to OBRs and OBR information.
Definition
(5) In this section:
outside Australia means outside the baseline from which the
breadth of the territorial sea is measured under section 7 of the Seas
and Submerged Lands Act 1973.
Note: A reference to Australia in any other provision of
this Act includes a reference to the coastal sea of Australia: see
section 15B of the Acts Interpretation Act
1901.
For the purposes of this Act, the Secretary must create the position of
Executive Director of Transport Safety Investigation under subsection 77(1) of
the Public Service Act 1999.
(1) Subject to this section, the Executive Director may, by writing,
delegate to any person such of the Executive Director’s powers under this
Act as are specified in the instrument of delegation.
Note 1: See also section 34AB of the Acts
Interpretation Act 1901, which deals with the effect of delegation
powers.
Note 2: Functions and duties can also be delegated. See the
definition of power in section 3.
Limitations on delegation
(2) The Executive Director must not delegate his or her power under
section 14 or 25.
(3) The Executive Director must not delegate his or her powers under
section 32 to anyone other than:
(a) an SES employee; or
(b) a person who holds or performs the duties of an APS Executive Level 1
or 2 position or an equivalent position; or
(c) a person employed by any authority or body constituted by or under a
law of the Commonwealth, where the skills and responsibilities that are expected
of the person are equivalent to, or exceed, the skills and responsibilities
expected of a person covered by paragraph (a) or (b); or
(d) a special investigator.
Note: For the definition of SES employee, see
section 17AA of the Acts Interpretation Act 1901.
(4) The Executive Director must not delegate his or her powers under
section 40 or 41 to anyone other than:
(a) an SES employee; or
(b) a person who holds or performs the duties of an APS Executive Level 1
or 2 position or an equivalent position; or
(c) a person employed by any authority or body constituted by or under a
law of the Commonwealth, where the skills and responsibilities that are expected
of the person are equivalent to, or exceed, the skills and responsibilities
expected of a person covered by paragraph (a) or (b).
(5) The Executive Director must not delegate his or her powers under
section 35 (in so far as that section applies to residential premises) to
anyone other than:
(a) an APS employee; or
(b) a person employed by any authority or body constituted by or under a
law of the Commonwealth.
(6) The Executive Director must not delegate powers to a person unless the
Executive Director is satisfied that the person is a suitable person to exercise
those powers.
Delegate to comply with directions
(7) In exercising powers under a delegation, the delegate must comply with
any directions of the Executive Director.
Interpretation
(8) A reference in this Act to the Executive Director, in a provision
relating to the exercise of any of the Executive Director’s powers,
includes a reference to a person to whom that power has been
delegated.
Example 1: If a provision of this Act allows the Executive
Director to require a person to attend before the Executive Director to answer
questions, then a delegate can require a person to appear before the delegate to
answer questions.
Example 2: If a provision of this Act imposes an obligation
on the Executive Director in connection with the exercise of a power of the
Executive Director, then the same obligation will apply to a delegate exercising
that power.
The Executive Director may, by writing, appoint a person as a special
investigator for the purposes of this Act if the Executive Director is satisfied
that the person satisfies the criteria prescribed by the regulations.
Note: The Executive Director may delegate most of his or her
powers under this Act to a special investigator: see
section 13.
Subject to section 21, the Executive Director is not subject to
directions from the Minister or the Secretary in respect of the exercise of the
Executive Director’s powers under this Act.
In exercising powers under this Act, the Executive Director must have
regard to the desirability of minimising any resulting disruption to transport
by means of transport vehicles.
The Executive Director must ensure that the Executive Director’s
powers under this Act are exercised in a manner that is consistent with
Australia’s obligations under international agreements that are identified
by the regulations for the purposes of this section.
(1) If a responsible person has knowledge of an immediately reportable
matter, then the person must report it to a nominated official as soon as is
reasonably practicable and by the means prescribed by the regulations.
Maximum penalty: Imprisonment for 6 months.
(2) Subsection (1) does not apply if the person believes, on
reasonable grounds, that another responsible person has already reported the
matter to a nominated official.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) does not apply if:
(a) the person has already reported the matter under the Navigation Act
1912 or the Protection of the Sea (Prevention of Pollution from Ships)
Act 1983; or
(b) the person believes, on reasonable grounds, that another responsible
person has already reported the matter under either of those Acts.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(1) If a responsible person has knowledge of an immediately reportable
matter or a routine reportable matter, then the person must within 72 hours give
a written report of the matter (containing the particulars prescribed by the
regulations) to a nominated official.
Maximum penalty: 60 penalty units.
(2) Subsection (1) does not apply if the person believes, on
reasonable grounds, that another responsible person has already given such a
report to a nominated official.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) does not apply if:
(a) the person has already reported in writing on the matter under the
Navigation Act 1912 or the Protection of the Sea (Prevention of
Pollution from Ships) Act 1983; or
(b) the person believes, on reasonable grounds, that another responsible
person has already reported in writing on the matter under either of those
Acts.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(1) The regulations must prescribe a list of the persons who are nominated
officials in relation to reportable matters.
(2) Persons may be identified in the list by name or by reference to a
particular position or office.
(1) Subject to section 22:
(a) the Executive Director may investigate any transport safety matter;
and
(b) the Executive Director must investigate a transport safety matter if
directed in writing by the Minister to do so.
Note: See also section 11, which puts constitutional
limits on the exercise of powers and functions under this Act.
(2) The Executive Director may discontinue an investigation at any
time.
(3) The Executive Director must, within 28 days of discontinuing an
investigation, make publicly available, by electronic or other means, a
statement setting out the reasons for discontinuing the investigation.
(1) A transport safety matter cannot be investigated under this Act
unless:
(a) the occurrence occurs in Australia; or
(b) the occurrence involves an Australian transport vehicle; or
(c) the occurrence occurs outside Australia, but evidence relating to the
occurrence is found in Australia; or
(d) the occurrence involves a ship or aircraft on the civil register of
another country and the appropriate authority of that country has requested the
Executive Director to conduct an investigation into the occurrence.
(2) Subject to subsection (3), a transport safety matter cannot be
investigated under this Act if the matter:
(a) involves, or relates to, an exempt transport vehicle; and
(b) does not involve, or relate to, any transport vehicle that is not an
exempt transport vehicle; and
(c) does not involve, or relate to, a civil transportation
facility.
(3) Subsection (2) does not prevent an investigation of a transport
safety matter that involves an Australian defence ship or Australian defence
aircraft if an appropriate authority in the Australian Defence Force has
requested the Executive Director to conduct an investigation into the matter. If
the Executive Director decides to investigate the matter, then the Executive
Director must publish, by electronic or other means, details of the
request.
(1) Each of the following occurrences involving a transport vehicle is a
transport safety matter for the purposes of this Act:
(a) the transport vehicle is destroyed;
(b) the transport vehicle is damaged;
(c) the transport vehicle is abandoned, disabled, stranded or missing in
operation;
(d) a person dies as a result of an occurrence associated with the
operation of the transport vehicle;
(e) a person is injured or incapacitated as a result of an occurrence
associated with the operation of the transport vehicle;
(f) any property is damaged as a result of an occurrence associated with
the operation of the transport vehicle;
(g) the transport vehicle is involved in a near-accident;
(h) the transport vehicle is involved in an occurrence that affected, or
could have affected, the safety of the operation of the transport
vehicle.
Other matters
(2) For the purposes of this Act, a transport safety matter
also includes something that occurred that affected, is affecting, or might
affect, transport safety.
(1) A person is guilty of an offence if:
(a) the person engages in conduct; and
(b) the person is reckless as to whether the conduct will adversely affect
an investigation:
(i) that is being conducted at that time; or
(ii) that could be conducted at a later time into an immediately
reportable matter; and
(c) the conduct has the result of adversely affecting such an
investigation (whether or not the investigation had commenced at the time of the
conduct); and
(d) the conduct is not authorised by the Executive Director.
Maximum penalty: Imprisonment for 6 months.
(2) Subsection (1) does not apply if the conduct was
necessary:
(a) to ensure the safety of persons, animals or property; or
(b) to remove deceased persons or animals from an accident site;
or
(c) to move a transport vehicle, or the wreckage of a transport vehicle,
to a safe place; or
(d) to protect the environment from significant damage or
pollution.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2). See subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) does not apply if the conduct was:
(a) the withdrawal of the person’s consent to the Executive Director
entering premises under section 34; or
(b) the refusal to give any assistance to the Executive Director (in
relation to that entry) after the withdrawal of that consent.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(4) The Executive Director must not unreasonably withhold an authorisation
under paragraph (1)(d).
(5) In this section:
conduct includes omission.
(1) The Executive Director must, as soon as practicable after an
investigation has been completed, publish, by electronic or other means, a
report in relation to the investigation.
(2) The Executive Director may, at any time before an investigation has
been completed, publish, by electronic or other means, a report in relation to
the investigation if he or she considers that the publication of the report is
necessary or desirable for the purposes of transport safety.
(3) A published report may include submissions that were made by persons
to the Executive Director in response to a draft report, safety action
statements or safety recommendations.
(4) A published report must not include the name of an individual unless
the individual has consented to that inclusion.
(5) In this section:
report means any one or more of the following:
(a) a report;
(b) safety action statements;
(c) safety recommendations.
(1) The Executive Director may provide a draft report, on a confidential
basis, to any person whom the Executive Director considers appropriate, for the
purpose of:
(a) allowing the person to make submissions to the Executive Director
about the draft report; or
(b) giving the person advance notice of the likely form of the published
report.
(2) A person who receives a draft report under subsection (1) or (4)
must not:
(a) make a copy of the whole or any part of the report; or
(b) disclose any of the contents of the report to any other person or to a
court.
Maximum penalty: Imprisonment for 2 years.
(3) Strict liability applies to the element of the offence against
subsection (2) that the draft report is received under subsection (1)
or (4).
(4) Subsection (2) does not apply to any copying or disclosure that
is necessary for the purpose of:
(a) preparing submissions on the draft report; or
(b) taking steps to remedy safety deficiencies that are identified in the
draft report.
Note: A defendant bears an evidential burden in relation to
a matter in subsection (4). See subsection 13.3(3) of the Criminal
Code.
(5) A person who receives a draft report under subsection (1) or (4)
cannot be required to disclose it to a court.
(6) A person who receives a draft report under subsection (1) or (4)
is not entitled to take any disciplinary action against an employee of the
person on the basis of information in the report.
(7) A draft report provided under subsection (1) must not include the
name of an individual unless the individual has consented to that
inclusion.
Final report
(1) A report under section 25 is not admissible in evidence in any
civil or criminal proceedings.
(2) Subsection (1) does not apply to a coronial inquiry.
Draft report
(3) A draft report under section 26 is not admissible in evidence in
any civil or criminal proceedings.
The powers in this Part may only be exercised for the purposes of an
investigation.
(1) The Executive Director must ensure that an identity card is issued to
every person who can exercise premises powers.
Note 1: Premises powers are exercised either by the
Executive Director or by a delegate of the Executive Director.
Note 2: For premises powers see
section 3.
Form of identity card
(2) The identity card must:
(a) be in the form prescribed by the regulations; and
(b) contain a recent photograph of the person.
Offence
(3) A person is guilty of an offence if:
(a) the person has been issued with an identity card for the purposes of
this section; and
(b) the person ceases to be a person who can exercise premises powers;
and
(c) the person does not return the identity card to the Executive Director
as soon as practicable.
Maximum penalty: 1 penalty unit.
(4) The offence under subsection (3) is an offence of strict
liability.
Note: For strict liability see
section 6.1 of the Criminal Code.
Defence: card lost or destroyed
(5) However, the person is not guilty of the offence if the identity card
was lost or destroyed.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (5). See subsection 13.3(3) of the Criminal
Code.
Identity card must be carried
(6) A person to whom an identity card is issued under this section must
carry it at all times when exercising premises powers.
The Executive Director is not entitled to exercise any powers under this
Part in relation to premises if:
(a) the occupier of the premises has required the Executive Director to
produce the Executive Director’s identity card for inspection by the
occupier; and
(b) the Executive Director fails to comply with the requirement.
(1) A power conferred on a magistrate by this Part is conferred on the
magistrate in a personal capacity and not as a court or a member of a court. The
magistrate need not accept the power conferred.
(2) A magistrate exercising such a power has the same protection and
immunity as if the magistrate were exercising that power as, or as a member of,
the court of which the magistrate is a member.
(3) A warrant under this Part in respect of premises in a State or
Territory may be issued by a magistrate of another State or Territory. This
subsection is enacted to avoid doubt.
(1) Where the Executive Director considers it necessary to do so for the
purposes of an investigation, the Executive Director may:
(a) require a person to attend before the Executive Director and answer
questions put by any person relating to matters relevant to the investigation;
or
(b) require a person to produce specified evidential material to the
Executive Director.
(2) Subsection (1) does not apply in relation to a person in his or
her capacity as a coroner.
(3) The requirement under subsection (1) must be by a notice in
writing. The notice must be signed by the Executive Director and must specify
the time and place at which the person is required to attend before the
Executive Director or produce the evidential material specified in the notice.
That time must be reasonable having regard to the circumstances.
(4) When a person attends before the Executive Director under
paragraph (1)(a), the Executive Director may require the questions to be
answered on oath or affirmation. For that purpose, the Executive Director
may:
(a) require the person to take an oath or make an affirmation that the
answers the person will give to the questions will be true; and
(b) administer an oath or affirmation to the person.
(5) A person to whom a requirement is given in accordance with this
section must not:
(a) fail to attend before the Executive Director in accordance with the
requirement; or
(b) refuse to take an oath or make an affirmation when required by the
Executive Director to do so; or
(c) refuse or fail to answer a question lawfully put to the person;
or
(d) fail to produce to the Executive Director the specified evidential
material in accordance with the requirement.
Maximum penalty: 30 penalty units.
Note: Self-incrimination is not an excuse for failing to
answer a question. See section 47.
(6) Strict liability applies to the element of the offence against
subsection (5) that the requirement is given in accordance with this
section.
(7) A person who attends before the Executive Director in accordance with
a requirement under paragraph (1)(a) or (b) is entitled to be paid, in
relation to that attendance, fees and allowances for expenses fixed by, or
calculated in accordance with, the regulations.
The Executive Director may enter special premises without the
occupier’s consent and without obtaining a warrant. The Executive Director
may do so with such assistance, and by such force, as is necessary and
reasonable.
(1) The Executive Director may enter any premises with the consent of the
occupier of the premises.
(2) Before obtaining the consent of a person to enter premises under this
Division, the Executive Director must inform the person that the person may
refuse consent.
(3) A consent of a person is not effective for the purposes of this
section unless the consent is voluntary.
(1) The Executive Director may enter any premises under an investigation
warrant.
(2) Before entering premises under an investigation warrant, the Executive
Director must:
(a) announce that the Executive Director is authorised to enter the
premises; and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(3) However, the Executive Director is not required to comply with
subsection (2) if the Executive Director believes on reasonable grounds
that immediate entry to the premises is required:
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the warrant is not
frustrated.
(4) If the occupier of the premises is present at the premises, the
Executive Director must make available to the occupier a copy of the warrant or
a copy of the form of warrant.
(5) In executing the warrant, the Executive Director may use such force
against persons and things as is necessary and reasonable in the
circumstances.
(1) After entering premises under this Division, the Executive Director
may do any of the following:
(a) search the premises, and any thing on the premises, for evidential
material;
(b) make photos, video recordings, sound recordings or other records of
the premises or evidential material;
(c) make copies of evidential material found on the premises;
(d) examine, take measurements of, conduct tests on, or take samples of,
evidential material;
(e) operate equipment on the premises in order to access evidential
material;
(f) in the case of evidential material that is equipment, operate the
evidential material;
(g) remove evidential material from the premises with the consent
of:
(i) if it is practicable to obtain the consent of the owner of the
material—the owner; or
(ii) if it is not practicable to obtain the consent of the owner of the
material—the occupier of the premises;
Note: See also subsection (2).
(h) secure evidential material, pending the obtaining of a warrant to
seize it;
Note: Under subsection (3), evidential material may be
able to be seized without a warrant if the premises are special
premises.
(i) take equipment and material onto the premises, and use it, for any of
the above purposes.
Obtaining consent
(2) Before obtaining the consent of a person to remove evidential material
from premises under paragraph (1)(g), the Executive Director must inform
the person of the purpose for which the material is required and that the person
may refuse consent. A consent of a person is not effective for the purposes of
that paragraph unless the consent is voluntary.
Special premises
(3) If the premises are special premises and entry is not under an
investigation warrant, the Executive Director may also:
(a) require a person on the premises to answer questions or produce
evidential material; and
(b) seize that evidential material, or any other evidential material found
on the premises, if the material is directly relevant to the investigation
concerned and the Executive Director believes, on reasonable grounds, that it is
necessary to seize the material in order to prevent it being interfered with or
to prevent its concealment, loss, deterioration or destruction.
Entry under an investigation warrant
(4) If the entry is under an investigation warrant, the Executive Director
may also:
(a) require a person on the premises to answer questions or produce
evidential material to which the warrant relates; and
(b) seize that evidential material or any other evidential material found
on the premises to which the warrant relates.
Offence
(5) A person is guilty of an offence if the person refuses or fails to
comply with a requirement under subsection (3) or (4).
Maximum penalty: 30 penalty units.
Note: Self-incrimination is not an excuse for failing to
answer a question. See section 47.
(6) Strict liability applies to the element of the offence against
subsection (5) that the requirement is under subsection (3) or
(4).
The occupier of premises in relation to which an investigation warrant is
being executed must provide the Executive Director and any person assisting the
Executive Director with all reasonable facilities and assistance for the
effective exercise of their powers.
Maximum penalty: 30 penalty units.
(1) If:
(a) an investigation warrant in relation to premises is being executed;
and
(b) the occupier of the premises is present at the premises;
then the occupier is entitled to observe the search being
conducted.
(2) The right to observe the search being conducted ceases if the occupier
impedes the search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
(1) This section applies if the Executive Director believes, on reasonable
grounds, that:
(a) evidential material is in or on a transport vehicle; and
(b) it is necessary to exercise other powers under this Division in order
to prevent the material from being removed from Australia or from being
interfered with or to prevent its concealment, loss, deterioration or
destruction.
(2) The Executive Director may stop and detain the vehicle for the purpose
of exercising those other powers. The Executive Director may do so with such
assistance, and by such force, as is necessary and reasonable.
(3) The Executive Director must not detain the vehicle for longer than is
necessary and reasonable to exercise those other powers.
Application for warrant
(1) The Executive Director may apply to a magistrate for a warrant under
this section in relation to premises.
Issue of warrant
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath, that there are reasonable grounds for suspecting
that:
(a) there is evidential material on the premises; or
(b) there may be evidential material on the premises within the next 72
hours.
(3) However, the magistrate must not issue the warrant unless the
Executive Director or some other person has given to the magistrate, either
orally or by affidavit, such further information (if any) as the magistrate
requires concerning the grounds on which the issue of the warrant is being
sought.
Content of warrant
(4) The warrant must:
(a) authorise the Executive Director, with such assistance and by such
force as is necessary and reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in section 36; and
(iii) to seize evidential material to which the warrant relates;
and
(b) state whether the entry is authorised to be made at any time of the
day or night or during specified hours of the day or night; and
(c) specify the day (not more than one week after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
Application for warrant
(1) If, in an urgent case, the Executive Director considers it necessary
to do so, the Executive Director may apply to a magistrate by telephone, fax or
other electronic means for a warrant under section 40 in relation to
premises.
(2) The magistrate may require communication by voice to the extent that
it is practicable in the circumstances.
(3) Before applying for the warrant, the Executive Director must prepare
an information of the kind mentioned in subsection 40(2) in relation to the
premises that sets out the grounds on which the warrant is sought.
(4) If it is necessary to do so, the Executive Director may apply for the
warrant before the information is sworn.
Issue of warrant
(5) If the magistrate is satisfied:
(a) after having considered the terms of the information; and
(b) after having received such further information (if any) as the
magistrate requires concerning the grounds on which the issue of the warrant is
being sought;
that there are reasonable grounds for issuing the warrant, the magistrate
may complete and sign the same warrant that the magistrate would issue under
section 40 if the application had been made under that section.
Obligations of magistrate and Executive Director once warrant
issued
(6) If the magistrate completes and signs the warrant:
(a) the magistrate must:
(i) tell the Executive Director what the terms of the warrant are;
and
(ii) tell the Executive Director the day on which and the time at which
the warrant was signed; and
(iii) tell the Executive Director the day (not more than one week after
the magistrate completes and signs the warrant) on which the warrant ceases to
have effect; and
(iv) record on the warrant the reasons for issuing the warrant;
and
(b) the Executive Director must:
(i) complete a form of warrant in the same terms as the warrant completed
and signed by the magistrate; and
(ii) write on the form the name of the magistrate and the day on which and
the time at which the warrant was signed.
(7) The Executive Director must also, not later than the day after the day
of expiry or execution of the warrant, whichever is the earlier, send to the
magistrate:
(a) the form of warrant completed by the Executive Director; and
(b) the information referred to in subsection (3), which must have
been duly sworn.
(8) When the magistrate receives those documents, the magistrate
must:
(a) attach them to the warrant that the magistrate completed and signed;
and
(b) deal with them in the way in which the magistrate would have dealt
with the information if the application had been made under
section 40.
Authority of warrant
(9) A form of warrant duly completed under subsection (6) is
authority for the same powers as are authorised by the warrant signed by the
magistrate.
(10) If:
(a) it is material, in any proceedings, for a court to be satisfied that
an exercise of a power was authorised by this section; and
(b) the warrant signed by the magistrate authorising the exercise of the
power is not produced in evidence;
the court must assume, unless the contrary is proved, that the exercise of
the power was not authorised by such a warrant.
(1) The Executive Director must not, in an application for an
investigation warrant, make a statement knowing that:
(a) the statement is false or misleading; or
(b) the statement omits any matter or thing without which the statement is
misleading.
Maximum penalty: Imprisonment for 2 years.
Note: This obligation applies also to delegates of the
Executive Director. See section 13, which provides that references to the
Executive Director include references to a delegate.
(2) Subsection (1) does not apply as a result of
paragraph (1)(a) if the statement is not false or misleading in a material
particular.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(3) Subsection (1) does not apply as a result of
paragraph (1)(b) if the statement did not omit any matter or thing without
which the statement is misleading in a material particular.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3): see subsection 13.3(3) of the Criminal
Code.
(4) The Executive Director must not:
(a) state in a document that purports to be a form of warrant under
section 41 the name of a magistrate unless that magistrate issued the
warrant; or
(b) state on a form of warrant under that section a matter that, to the
Executive Director’s knowledge, departs in a material particular from the
form authorised by the magistrate; or
(c) purport to execute, or present to another person, a document that
purports to be a form of warrant under that section that the Executive Director
knows:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by a
magistrate under that section; or
(d) give to a magistrate a form of warrant under that section that is not
the form of warrant that the Executive Director purported to execute.
Maximum penalty: Imprisonment for 2 years.
(5) Strict liability applies to the element of the offence against
paragraph (4)(a) or (c) that the document purports to be a form of warrant
under section 41.
(6) Strict liability applies to the element of the offence against
paragraph (4)(b) or (d) that the form of warrant is under
section 41.
(1) For the purpose of protecting evidence that might be relevant to an
investigation, the Executive Director may direct that specified things, or
things in a specified class of things, must not be removed or interfered with
except with the permission of the Executive Director.
(2) The Executive Director may revoke or vary such a direction.
(3) A person must not contravene such a direction.
Maximum penalty: Imprisonment for 12 months.
(4) Subsection (3) does not apply if the conduct concerned was
necessary:
(a) to ensure the safety of persons, animals or property; or
(b) to remove deceased persons or animals from an accident site;
or
(c) to move a transport vehicle, or the wreckage of a transport vehicle,
to a safe place; or
(d) to protect the environment from significant damage or
pollution.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (4). See subsection 13.3(3) of the Criminal
Code.
(5) The Executive Director must not unreasonably withhold a permission
under subsection (1).
(1) The Executive Director may secure the perimeter of an accident site by
whatever means the Executive Director considers appropriate.
(2) A person is guilty of an offence if:
(a) while the perimeter is secured, a person enters the accident site, or
remains on the accident site; and
(b) the person does not have the permission of the Executive Director to
do so.
Maximum penalty: 10 penalty units.
(3) Subsection (2) does not apply if the person entered the accident
site, or remained on the accident site:
(a) to ensure the safety of persons, animals or property; or
(b) to remove deceased persons or animals from the accident site;
or
(c) to move a transport vehicle, or the wreckage of a transport vehicle,
to a safe place; or
(d) to protect the environment from significant damage or
pollution.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(4) The Executive Director must not unreasonably withhold a permission
under paragraph (2)(b).
(1) This section applies to evidential material that:
(a) is produced to the Executive Director under section 32;
or
(b) is removed from premises under paragraph 36(1)(g); or
(c) is seized by the Executive Director under this Part.
(2) The Executive Director must provide a receipt for the
material.
(3) The Executive Director may make copies of the material.
(4) The Executive Director may examine or test the material, even though
that might result in damage or destruction of the material or a reduction in its
value.
(5) Subject to subsection (6), the Executive Director must return the
material when it is no longer needed for the purposes of an investigation.
However, if there is no owner or the Executive Director cannot, despite making
reasonable efforts, locate the owner, the Executive Director may dispose of the
material in such manner as the Executive Director thinks appropriate.
(6) If a relevant body requests in writing particular evidential material
for the purposes of:
(a) an investigation under another law of the Commonwealth or under a law
of a State or Territory; or
(b) a coronial inquiry;
then the Executive Director must make that material available to that body
unless, in the opinion of the Executive Director, making that material available
would be likely to interfere with any investigation to which the material
relates.
(7) However, the Executive Director must not make evidential material
available under subsection (6) to the extent that the material is, or
contains, OBR information or restricted information.
Note: Part 6 deals with the protection of OBR
information and restricted information.
(8) In this section:
owner includes an agent of the owner.
relevant body means:
(a) another Department; or
(b) an agency of the Commonwealth; or
(c) a State or Territory Government; or
(d) an agency of a State or Territory; or
(e) a coroner.
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in
section 36:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court of Australia for
such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of
data or addition of other data.
(1) A person is not excused from answering a question or producing
evidential material in response to a requirement under this Part on the ground
that the answer, or the production of the material, might tend to incriminate
the person or make the person liable to a penalty.
(2) However, if the person is an individual, then:
(a) the answer or the production of the material; and
(b) any information or thing (including any document) obtained as a direct
or indirect result of the answer or the production of the material;
are not admissible in evidence against the person in any civil or criminal
proceedings.
(3) Subsection (2) does not prevent an answer being admitted in
evidence in criminal proceedings in respect of the falsity of the
answer.
(4) Subsections (2) and (3) have effect despite anything else in this
Act.
(1) A recording is an OBR (or on-board
recording) for the purposes of this Act if:
(a) the recording consists of (or consists mainly of) sounds or images, or
sounds and images, of persons in the control area of a transport vehicle;
and
(b) the recording was made in order to comply with a law in force in any
country; and
(c) any part of the recording was made at the time of the occurrence of an
immediately reportable matter that involved the transport vehicle; and
(d) at least one of the following applies:
(i) any part of the recording was made while the transport vehicle was on
a constitutional journey, or was made incidentally to such a journey;
(ii) the recording was made in order to comply with a law of the
Commonwealth;
(iii) at the time when the recording was made, the transport vehicle was
owned or operated by a constitutional corporation or Commonwealth
entity;
(iv) the immediately reportable matter occurred when the transport vehicle
was on a route ordinarily used by transport vehicles on constitutional
journeys;
(v) the immediately reportable matter also involved another transport
vehicle that was on a constitutional journey, or was owned or operated by a
constitutional corporation or Commonwealth entity.
(2) A recording is also an OBR (or on-board
recording) for the purposes of this Act if:
(a) the recording consists of (or consists mainly of) sounds or images, or
sounds and images, of persons in the control area of a transport vehicle;
and
(b) the recording was made in order to comply with a law in force in any
country; and
(c) any part of the recording was made at the time of the occurrence of an
immediately reportable matter that involved the transport vehicle.
(3) An OBR (or on-board recording) does not
include a recording that is of a kind declared by the regulations not to be an
OBR for the purposes of this Act.
(4) In this section:
constitutional journey means:
(a) a journey in the course of trade or commerce with other countries or
among the States; or
(b) a journey within a Territory, or to or from a Territory; or
(c) a journey within a Commonwealth place, or to or from a Commonwealth
place.
(1) The Executive Director may, by published notice, declare that a
recording, or a part of a recording, identified in the notice is not to be
treated as an OBR on and after a date specified in the notice.
(2) If the Executive Director decides not to investigate the transport
safety matter to which an OBR relates, the Executive Director must, by published
notice, declare that the OBR is not to be treated as an OBR on and after a date
specified in the notice.
(3) If:
(a) the Executive Director decides to investigate the transport safety
matter to which an OBR relates; and
(b) the Executive Director is satisfied that any part of the OBR is not
relevant to the investigation;
the Executive Director must, by published notice, identify that part and
declare that part is not to be treated as an OBR on and after a date specified
in the notice.
(4) The Executive Director cannot revoke or vary a notice published under
this section.
(5) When an OBR, or part of an OBR, ceases to be an OBR because of a
notice published under this section, then any related OBR information also
ceases to be OBR information.
The Executive Director may issue a certificate in relation to OBR
information, stating that the disclosure of the information is not likely to
interfere with any investigation.
(1) The Executive Director may disclose OBR information to any person if
the Executive Director considers that the disclosure is necessary or desirable
for the purposes of transport safety.
(2) However, the Executive Director may only disclose OBR information that
is, or that contains, personal information in the circumstances prescribed by
the regulations.
(3) In this section:
personal information has the same meaning as in the
Privacy Act 1988.
The Executive Director may authorise a non-staff member to have access to
OBR information if the Executive Director considers that it is necessary or
desirable to do so.
Note: The non-staff member is subject to confidentiality
requirements of section 53.
(1) A person is guilty of an offence if:
(a) the person makes a copy of information; and
(b) the information is OBR information.
Maximum penalty: Imprisonment for 2 years.
(2) A person is guilty of an offence if:
(a) the person discloses information to any person or to a court;
and
(b) the information is OBR information.
Maximum penalty: Imprisonment for 2 years.
(3) Subsection (1) or (2) does not apply to:
(a) anything done by a person in exercising powers under this Act or in
connection with this Act; or
(b) copying or disclosure for the purposes of the investigation of any
offence against a law of the Commonwealth, a State or a Territory; or
(c) disclosure of OBR information to a court in criminal proceedings
against a person who is not a crew member; or
(d) disclosure to a court in civil proceedings where:
(i) the Executive Director issues a certificate under section 50 in
relation to the OBR information; and
(ii) the court makes a public interest order under subsection (4) of
this section in relation to the OBR information; or
(e) disclosure of OBR information in respect of which a coroner has made a
determination under subsection 59(2).
Note: A defendant bears an evidential burden in relation to
a matter in subsection (3). See subsection 13.3(3) of the Criminal
Code.
(4) If the court is satisfied that any adverse domestic and international
impact that the disclosure of the information might have on any current or
future investigations is outweighed by the public interest in the administration
of justice, the court may order such disclosure.
(5) The court may direct that OBR information, or any information obtained
from the OBR information, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such
persons, as the court specifies.
(6) If a person is prohibited by this section from disclosing OBR
information, then:
(a) the person cannot be required by a court to disclose the information;
and
(b) any information disclosed by the person in contravention of this
section is not admissible in any civil or criminal proceedings (other than
proceedings against the person under this section).
A person is not entitled to take any disciplinary action against an
employee of the person on the basis of OBR information.
OBR information, and any information or thing obtained as a direct or
indirect result of the use of OBR information, is not admissible in evidence in
criminal proceedings against a crew member (other than proceedings for an
offence against this Act).
(1) OBR information is not admissible in evidence in civil proceedings
unless:
(a) the Executive Director issues a certificate under section 50 in
relation to the OBR information; and
(b) the court makes a public interest order under subsection (3) of
this section in relation to the OBR information.
Note: See also section 59, which deals with the use of
OBR information in coronial inquiries.
(2) A party to the proceedings may, at any time before the determination
of the proceedings, apply to the court in which the proceedings have been
instituted for an order that OBR information be admissible in evidence in the
proceedings.
(3) If:
(a) such an application is made; and
(b) the Executive Director has issued a certificate under section 50
in relation to the OBR information;
then:
(c) the court must examine the OBR information; and
(d) if the court is satisfied that:
(i) a material question of fact in the proceedings will not be able to be
properly determined from other evidence available to the court; and
(ii) the OBR information or part of the OBR information, if admitted in
evidence in the proceedings, will assist in the proper determination of that
material question of fact; and
(iii) any adverse domestic and international impact that the disclosure of
the information might have on any current or future investigations is outweighed
by the public interest in the administration of justice;
the court may order that the OBR information, or that part of the OBR
information, be admissible in evidence in the proceedings.
(4) This section does not apply to a coronial inquiry.
(1) This section applies if a court examines OBR information under
subsection 56(3).
(2) The only persons who may be present at the examination are:
(a) the person or persons constituting the court, other than the members
of the jury (if any); and
(b) the legal representatives of the parties to the proceedings;
and
(c) such other persons (if any) as the court directs.
(3) The court may direct that the OBR information, or any information
obtained from the OBR information, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such
persons, as the court specifies.
(1) This section applies if OBR information is admitted as evidence under
subsection 56(3).
(2) The OBR information is not evidence for the purpose of the
determination of the liability in the proceedings of a crew member.
(3) The court may direct that the OBR information or any information
obtained from the OBR information, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such
persons, as the court specifies.
(1) If the coroner requests OBR information that is in the possession of
the Executive Director, then the Executive Director must make the information
available to the coroner unless, in the opinion of the Executive Director,
making the information available would be likely to interfere with any
investigation into the transport safety matter to which the OBR concerned
relates.
Coroner’s determination about disclosure
(2) After examining the OBR information in camera, the coroner may make a
determination that the information, or part of the information, should no longer
be protected from disclosure.
(3) The coroner cannot make such a determination unless the coroner
considers that:
(a) the information concerned is relevant to the inquiry and cannot be
obtained by other means; and
(b) any adverse domestic and international impact that the disclosure of
the information might have on any current or future investigations is outweighed
by the public interest.
Coroner’s direction about publication or
communication
(4) The coroner may direct that the OBR information or any information
obtained from the OBR information, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such
persons, as the coroner specifies.
(5) A person must not contravene such a direction.
Maximum penalty: Imprisonment for 2 years.
Staff members
(1) A person who is or has been a staff member is guilty of an offence
if:
(a) the person makes a record of information; and
(b) the information is restricted information.
Maximum penalty: Imprisonment for 2 years.
(2) A person who is or has been a staff member is guilty of an offence
if:
(a) the person discloses information to any person or to a court;
and
(b) the information is restricted information.
Maximum penalty: Imprisonment for 2 years.
Non-staff members
(3) A person who has, or had, access to restricted information under
section 62 must not:
(a) make a record of the information; or
(b) disclose the information to any person or to a court.
Maximum penalty: Imprisonment for 2 years.
Defences
(4) Subsection (1), (2) or (3) does not apply to:
(a) anything done by a person in performing functions under this Act or in
connection with this Act; or
(b) disclosure to a court in criminal proceedings for an offence against
this Act; or
(c) disclosure to a court in civil proceedings where:
(i) the Executive Director issues a certificate under subsection (5);
and
(ii) the court makes an order under subsection (6).
Note: A defendant bears an evidential burden in relation to
a matter in subsection (4). See subsection 13.3(3) of the Criminal
Code.
Certificate
(5) The Executive Director may issue a certificate in relation to
restricted information, stating that the disclosure of the information is not
likely to interfere with any investigation.
Courts
(6) If the court is satisfied that any adverse domestic and international
impact that the disclosure of the information might have on any current or
future investigations is outweighed by the public interest in the administration
of justice, the court may order such disclosure.
(7) The court may direct that the restricted information, or any
information obtained from the restricted information, must not:
(a) be published or communicated to any person; or
(b) be published or communicated except in such manner, and to such
persons, as the court specifies.
(8) If a person is prohibited by this section from disclosing restricted
information, then:
(a) the person cannot be required by a court to disclose the information;
and
(b) any information disclosed by the person in contravention of this
section is not admissible in any civil or criminal proceedings (other than
proceedings against the person under this section).
(1) The Executive Director may disclose restricted information to any
person if the Executive Director considers that the disclosure is necessary or
desirable for the purposes of transport safety.
(2) However, the Executive Director may only disclose restricted
information that is, or that contains, personal information in the circumstances
prescribed by the regulations.
(3) In this section:
personal information has the same meaning as in the
Privacy Act 1988.
The Executive Director may authorise a non-staff member to have access to
restricted information if the Executive Director considers that it is necessary
or desirable to do so.
Note: The non-staff member is subject to the confidentiality
requirements of section 60.
Nothing in this Part affects the information-gathering powers
of:
(a) the Parliament or a House of the Parliament; or
(b) a Royal Commission.
A person is not subject to any liability, action, claim or demand for
anything done or omitted to be done in good faith in connection with the
exercise of powers under this Act.
The Executive Director may issue a certificate stating that a specified
person who is or has been a staff member is involved, or has been involved, in
an investigation under this Act into a specified matter.
(1) A person who is or has been a staff member is not obliged to comply
with a subpoena or similar direction of a court to attend and answer questions
relating to an investigable matter if the Executive Director has issued a
certificate under section 65 for the person in relation to that
matter.
(2) A staff member is not compellable to give an expert opinion in any
civil or criminal proceedings in relation to a matter related to transport
safety.
(3) This section does not apply to a coronial inquiry.
(1) If a staff member appears as a witness in a coronial inquiry
and:
(a) the staff member is asked to give an expert opinion; or
(b) the Executive Director has issued a certificate under section 65
for the staff member in relation to a matter that is being investigated at the
coronial inquiry;
then the State or Territory concerned is liable to pay a fee to the
Commonwealth in respect of the expenses of that attendance.
(2) The amount of the fee, and the due date for payment, are to be
determined under the regulations.
(3) If the fee remains unpaid, then it can be recovered by the
Commonwealth as a debt in a court of competent jurisdiction.
(1) If a staff member appears as a witness in a coronial inquiry
and:
(a) the staff member is asked to give an expert opinion; or
(b) the Executive Director has issued a certificate under section 65
for the staff member in relation to a matter that is being investigated at the
coronial inquiry;
then the staff member is entitled to legal representation in respect of
that appearance.
(2) This section does not, by implication, affect any entitlement to legal
representation that a staff member has in circumstances not covered by
subsection (1).
(1) Staff members may exercise powers that are conferred on them by any
law of a State that relates to transport safety, provided that the law does not
provide that such powers may only be exercised by a staff member or
members.
(2) Staff members may exercise powers that are conferred on them by any
law of a Territory that relates to transport safety.
(1) If:
(a) apart from this section, the operation of this Act would result in the
acquisition of property from a person otherwise than on just terms;
and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the
Constitution;
then the Commonwealth is liable to pay compensation of a reasonable amount
to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the
compensation, the person may take proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines.
(3) Compensation is payable out of money appropriated by the
Parliament.
(4) In this section:
acquisition of property has the same meaning as in paragraph
51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of
the Constitution.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.