From pages 6686 to 6689 of the proof Hansard of the House of Representatives for 19 September 2002, available at:
http://www.aph.gov.au/hansard/reps/dailys/dr190902.pdf
Mr SECKER (Barker) (11.49 a.m.)—I rise today to join the debate on the Transport Safety Investigation Bill 2002 and the Transport Safety Investigation (Consequential Amendments) Bill 2002, which have been designed to streamline, maintain and improve transport safety in Australia. In joining this debate, I have to say that I have been quite surprised by the concerted campaign that Air Safety Australia has run against this legislation. I have been contacted by a small number of my constituents expressing their concerns about this legislation after receiving material from Air Safety Australia.
I would like to take this opportunity to set a few things straight and hopefully allay some of my constituents’ fears. An urban myth has been put out by certain people that this piece of legislation has suddenly appeared in the House for debate. I want to make it very clear to my concerned constituents that that is just that—an urban myth. In September 2001—and we are talking about 12 months ago—an exposure draft of this bill was released. All major operators, organisations and associations in the aviation industry were invited to attend a multimodal consultation. Workshops were held on 21 September, only two days less than 12 months ago and stakeholders, including those associations and Air Safety Australia, were invited. There was also an open invitation to meet separately for those stakeholders who wished to discuss further aspects of the bill and I understand that this resulted in further consultation.
Additionally, all stakeholders were provided with a copy of the bill, the explanatory memorandum and the second reading speech a few days after the bill was introduced into parliament on 20 June 2002, some three months ago. At the same time, we advised these groups that the bill would be scheduled for debate during the spring 2002 sittings which, of course, are the current sittings. The bill, and associated documentation, was put on the Australian Transport Safety Bureau Internet site shortly after that time. I take this opportunity to express my surprise at Air Safety Australia’s claims that this bill has suddenly appeared on the House list because that is clearly quite nonsensical.
My constituents also expressed their concern that this bill will change the ATSB from a cooperative agency to a combative one like CASA. I have to say that this bill contains provisions which are very little changed from current legislation. I am referring to Part 2A of the Air Navigation Act 1920. I have sought briefing with regard to this claim and I have been assured that the ATSB intends to continue to pursue a cooperative approach with the aviation industry, particularly with respect to investigating aviation accidents and incidents.
The objects clause, along with several other provisions within this bill, specifically enshrines the practice of cooperation in legislation. The ATSB is only concerned with future safety and, as such, these powers are not able to be used against individuals or specific companies for any role that they play in safety in the transport industry.
I would also like to mention that many of the powers in this legislation would not need to be used routinely. However, these powers need to be available to the bureau to allow it to access information in a capacity which matches that of the potential to possible tampering of evidence in the event of a major transport disaster which involves loss of life and could result in the loss of millions of dollars. These provisions within the bill will also provide greater certainty with regard to the protection of information provided by persons to ATSB. I think it is very important that we provide that protection of information provided by those persons.
I have to say that the letter sent out on behalf of Air Safety Australia by Mr Boyd Munro has created quite a stir amongst the aviation community. It angers me to think that I now have to justify to my constituency why I want to support this piece of legislation purely because Mr Munro has incorrectly interpreted this bill and never to my knowledge sought to clarify his understanding of the bill or voice his concerns with the legislation to the ATSB. I think this is very irresponsible behaviour from someone who holds a very important position within the aviation community.
As I said previously, I have received a few phone calls from concerned constituents and, as of yesterday, six of those people have again contacted me voicing their concerns with the bill. I put it on record that I thank these people wholeheartedly for doing so. Without their input, I may not have been aware of the incorrect information that is currently being circulated throughout the community. I do take their concerns on board; they are genuine concerns from people within the industry. However, I am sure that if they discuss the issue further with the ATSB their fears may very well subside. I might add that there are many pilots who are very happy to see changes being made to the current legislation and see this piece of legislation as a step forward.
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I would now like to spend some time addressing the specific concerns which have been raised with me this morning. I am advised that there is a very real concern that this legislation will give the ATSB the power to enter any aircraft at any time. This is simply not true. The powers, as set out in clause 33, can only be exercised in relation to the investigation of an accident or incident, not at any time, as some people would believe.
The power is also limited to special premises, such as accident sites and vehicles.
The correspondence has also raised doubt as to the protection afforded to cockpit voice recordings. I received calls on that issue yesterday. It would appear that Air Safety Australia has incorrectly interpreted the provisions that relate to the treatment of cockpit voice recordings. The provisions that cover the confidentiality and the use of such recordings give more robust and less ambiguous protection in this bill than under current legislation. I also point out that it is not the ATSB’s role to regulate for mandatory installation of cockpit voice recorders. This role falls under CASA’s jurisdiction, and we all know this bill deals with only the ATSB. So that is another red herring that has been brought into this debate. However, were CASA to impose such a regulation, the TSI bill would afford operators with considerable protections, far better than they have now, as I mentioned.
Another concern raised with me has been about the supposed powers to interrogate operators that the TSI bill provides to the ATSB and other groups. I feel that this is a rather extreme interpretation, given that this bill is consistent with current legislation which gives the ATSB the power to interview people. We must remember that the role of the ATSB is to provide recommendations on safety, and I am not sure how they can do this if they are unable to interview parties who are involved. It simply has to be. It is true that matters could be referred on to the police, CASA and other organisations if the ATSB thought it necessary. However, these agencies
would then conduct their own investigations independently of the ATSB investigation. TSI clause 32 clearly states that any information gathered in an interview by the ATSB cannot be used for litigation or prosecution.
I think that bears repeating: any information gathered in an interview by the ATSB cannot be used for litigation or prosecution. It is simply to be used for fact-gathering to ensure that ATSB can make the best possible safety recommendations. Their interviews require interviewees to answer every question asked of them to ensure that ATSB collect the best evidence possible to provide those safety recommendations. As I have said previously, the interpretation that this legislation gives power to the ATSB to interrogate people is simply not correct. The points to remember are that this bill is consistent with current legislation and that any information gathered from any interviews at the ATSB cannot be used for the purpose of litigation or prosecution.
I am also concerned about the hysteria floating around about the so-called ‘imprisonment’ sections contained in the bill. I would like to make it clear that all penalties within the bill have been included on the advice of the Attorney-General’s Department and comply with Commonwealth criminal law policy. All of the six callers who rang me today had serious concerns about Mr Munro’s claims that to copy a draft report could result in two years imprisonment. I advise that in relation to this concern subclause 26(2) refers specifically to a draft investigation report produced by the ATSB. To use an analogy, we have the same sorts of penalties in a coroner’s report. Obviously, we do not want those draft reports printed and circulated in the community before they are accepted.
Subclause 26(4) provides instances where you can copy or disclose the report where you need to prepare a submission on the draft report or take steps to remedy safety deficiencies that are identified in the draft report. So there are a number of areas where you can copy the report but we certainly need some sort of penalty where it may be misused. No-one would think that for some inadvertent reprinting of a draft report you would get two years imprisonment. But you have to have some sort of penalty. If you have it at two weeks, for example, instead of two years, obviously it is not going to be any sort of deterrent. Two years is a maximum amount, not a minimum amount. It is not a mandatory amount.
Under the bill, only individuals or organisations that are considered to be directly involved or who had a direct influence on the circumstances of the occurrence or those whose reputation could be affected by the public release of the report’s findings will be provided with a draft report. This is to ensure that those parties have an opportunity to ensure that the report is factually correct. It is necessary for us to indicate within this legislation just how important confidentiality of such a report is. That is why, in order to ensure that these reports are treated with the utmost sensitivity and confidentiality, the bill includes the necessary considerable penalties.
Australia’s contracting to annex 13 to the Chicago Convention on International Civil Aviation provides the principles in relation to confidentiality which are adhered to by this bill.
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Constituents have also raised their concerns at the supposed ability of the executive director of the ATSB to seize an aircraft without the consent of the owner. I can certainly understand their concern. However, if we think a bit deeper about this assertion, we will determine that the only time this would ever happen would be in the event of an investigation into an accident or an incident. Clause 36 provides powers to the ATSB to seize a craft only in relation to an investigation into an accident or an incident. Clause 36(1)(g)(ii) indicates that these powers are to be used primarily to allow the retrieval of records and physical evidence at premises other than accident sites, and they apply only if it is not practicable to obtain the consent of the owner of the material to be collected as evidence. In addition, clause 36(3) indicates that these powers are limited to circumstances where important evidence for future safety may otherwise be concealed, lost, deteriorate or be destroyed. I am sure that even those who have contacted me with regard to these concerns would understand the necessity to be able to accurately assess what went wrong, with a view to recommending a safer transport future.
Airservices[sic] Australia is also concerned that the extension to include rail investigations will create enormous potential for conflict because the ATSB is federally aligned and the state rail departments fall under state jurisdictions. I have to say that this extension is entirely constitutional and is consistent with government policy.
We expect the relationship between the Commonwealth, states and territories on rail issues to be no different from the Commonwealth, states and territories relationship on marine issues where the ATSB currently investigates accidents and incidents.
The ATSB and the Rail Safety Consultative Forum recently progressed a memorandum of understanding between the ATSB and the state and territory rail regulators to address issues of cooperation, including the reduction
or elimination of duplication of activities. This is a positive step towards ensuring that the relationship in the rail industry is as workable and amicable as the relationship in the marine industry.
The ATSB is totally, as it should be, impartial in respect of determining the underlying factors that contribute to an accident or incident. I have mentioned previously that the role of the ATSB is not to apportion blame but rather to discover what happened and to make recommendations to ensure safer transportation in the future.
The role of the ATSB is about learning from its mistakes and seeing that it does not reproduce those mistakes in the future. It is not the ATSB’s role to determine whether the regulator or the service provider contributed to
the incident; its role is simply to report the facts of the incidents as they occur and to assess and recommend better and safer practices for future reference.
Previously, I have made it clear that whatever evidence the ATSB collects during interviews cannot be used to prosecute or litigate. These recommendations are then assessed by CASA, Airservices and the Department of Transport and Regional Services for decisions to be made regarding implementation. This is the exact process that has occurred with previous recommendations, such as safety recommendation R20000285—that the ATSB recommends that CASA consider widening its skill base within the compliance branch to ensure that CASA audit teams have expertise in all relevant areas, including human factors and management processes.
However, I spend today justifying to constituents why I want to support this bill. Earlier, they informed me in no uncertain terms of their displeasure regarding my support for this bill. I want to support this bill in the interests of safer travelling; safer travelling for all of those people who own planes and who contacted me today; safer travelling for their children, loved ones and friends; safer travelling for my staff who are required as part of their job to travel to Canberra; and safer travelling for all of us who fly, sail and travel by rail. I commend this bill to the House.
A lot of misinformation with regard to this bill has been put out to the community. This has unfairly created some concern with and distrust of what the government is trying to achieve. I hope that the previous part of my speech has served to address some of the concerns which my constituents have raised with me. However, other issues still need to be addressed. The independence of the ATSB has been questioned by Air Safety Australia and this serious issue now deserves some attention. The claim has been made that, if the ATSB were to be independent, the executive director would have to be appointed by someone outside the department for a fixed, non-renewable term. I am concerned with this claim and I want to take a few moments to address it.
This bill is simply concreting in law what is now current practice in operation. The ATSB is operationally independent—and I refer to clause 15 of the bill—and neither the minister nor the secretary can influence the executive director in respect of the manner or depth to which an investigation is conducted nor the contents of the final report. This bill, therefore, reinforces the level of independence in current legislation.
Contrary to Airservices[sic] Australia’s suggestion, the term of board members of the USA’s NTSB may be renewed after a five-year term. In fact, some board members have shown an interest in not only extending their term but also being appointed to a higher office. It is only the judicial officers and the Auditor-General who have a fixed term of appointment unless the appointment is terminated by an agreement by both houses of parliament.