Subsection 49(1) should not be read in isolation. The next two subsections say:
(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.
Nonetheless, an interesting question arises as to whether subsections (2) and (3) describe the
only circumstances in which the power under subsection (1) is exerciseable, or whether there is a residual discretion in other than those circumstances. That's a toughy. But whatever the answer to that question, it appears at least that if, for instance, the ED decides not to investigate something, he must make a declaration and the CVR/FDR information ceases to be the subject of the prohibitions upon disclosure and use in criminal proceedings.
Hmmmmm. Boyd might have something to say about that........