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PROPOSED CHANGES TO THE TRANSPORT SAFETINVESTIGATION REGULATIONS, INCLUDINGAMENDED CONFIDENTIAL REPORTING PROVISIO

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October2012

Summary

The Australian Transport Sa ety Bureau (ATSB)recently sought the views o stakeholders (theconsultation period expired on 27 July 2012) inrelation to two proposed legislative changes:

The dra t Transport Sa ety Investigation(Voluntary and Confdential ReportingScheme) Regulation 2012 (Dra t TSIRegulation) to replace the current REPCONconfdential reporting regulations.

An amendment to the Transport Sa etyInvestigation Regulations 2003 (TSIRegulations 2003) to incorporate are erence to the new International MaritimeCasualty Investigation Code (Code).

Confdential Reporting

Current position There are currently two separate schemes

or voluntary confdential reporting: frstly,the REPCON aviation scheme under the AirNavigation (Confdential Reporting) Regulations2006 and, secondly, the REPCON marinescheme under the Navigation (ConfdentialMarine Reporting Scheme) Regulations 2008.There is no existing scheme or the rail industry.

Both schemes provide a means or any person,who has a legitimate reason to keep theiridentity confdential, to report sa ety concernsto the ATSB. Thus, in order to encourage

reporting, the person, and any person re erredto in the report, have their identity protected.

The ATSB will remove any in ormation romthe report that identifes individuals be orecontacting the operator in question or theircomments. The report is then orwarded to therelevant Commonwealth, State and Territorytransport regulators so that they can pursueappropriate action.

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Proposed position

The Dra t TSI Regulation willcreate a multi-modal scheme to beadministered by the ATSB which willbe applicable to the air, marine andrail industries jointly. The proposedscheme will be based on the existingaviation and maritime schemesand retain the REPCON name. Theproposed amendments include:

The unctions o the ATSB: the ATSB will identi y issuesarising in reports that mighta ect the transport industryand will communicate theseto the stakeholders a ectedwithout identi ying any relevantindividuals.

What may be reported: anyconcerns or issues that a ect,or might a ect, transport sa ety

will be a reportable sa etyconcern. This avoids prescriptionwhich may reduce what isdeemed a reportable sa etyconcern, thereby limiting thenumber o reports submitted.

What may not be reported:due to the confdentialityrequirements o reports, somematters may not be reported;

or example, reports o a serious

and imminent risk to healththat requires an immediateresponse; industrial relationsissues; or reports containingmatters involving any criminalconduct (as opposed to onlythose attracting custodialsentences over two years as inthe current schemes). This isbecause an adequate responseto these issues will most likelyrequire someones identity to be

disclosed (and confdentiality

thus not guaranteed). REPCONwill avoid making adversein erences against an individual.I there is a problem where actionshould be taken against anindividual, REPCON may not bethe best avenue to pursue.

Issues

Reaction within the transport industryto the proposals appears to be

positive as the objectives behindthe existing REPCON schemes havenot been substantially altered. Thedi erent parts o the industries mayalso learn rom the reports o sa etyconcerns that contain trans erablelessons. A ull summary o thestakeholders consulted can be oundon the ATSB website.

Status o proposals

A ter issues arising rom theconsultation are addressed, the ATSBwill fnalise the dra t TSI Regulations.Then subject to the approvalo the Minister o In rastructureand Transport and the GovernorGeneral, the dra t TSI Regulationswill be made into law and tabled inParliament so as to come into e ecton 1 January 2013.

International maritime casualty investigation code

Current position

The approach to sa ety investigationstaken by the Transport Sa etyInvestigation Act 2003 (Act) and theCode are largely the same.

The Act states that the powers o

the ATSB should be exercised in amanner consistent with Australiasobligations under internationalagreements.

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The amendment will be subject tothe same legislative approach as theamendments made to the REPCONschemes above, although as yet noexpected date has been set or the

amendment to come into e ect.

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The Code currently states that itsobjective is to provide a commonapproach or States to adopt in theconduct o marine sa ety investigationsand that this aim will be achievedby States applying consistentmethodology in their practices andproviding reports to the IMO.

Proposed position

It is proposed that Regulation 5.3

o the TSI Regulations 2003 beamended to incorporate a re erenceto Regulation 6 o Chapter XI-Io SOLAS. Parts II and III containthe mandatory standards andrecommended practices or marinesa ety investigations. A re erence tothese Parts in the TSI Regulations2003 will mean that the ATSBwill be required to have regardto the mandatory standards andrecommended practices o the IMO

when exercising their powers, therebyhelping to align the two regimes.

Issues

This proposal will not alter thebasic unctions o the ATSB and theamendment is not likely to have asubstantial e ect on stakeholders.However, ormalising the link withthe Code will send a clear messageabout the importance placed on

sa ety investigations by the ATSB.The Code represents a best practiceapproach and re erence to it in theTSI Regulations 2003 will highlightthe ATSBs stance on identi yinghazards and risks to sa ety thatrequire action.

Status o proposals

The amendment will be subject tothe same legislative approach as the

amendments made to the REPCON

schemes above, although as yet noexpected date has been set or theamendment to come into e ect.

For more in ormation, please contactRobert Springall , Partner, on+61 (0)3 8601 4500 orrobert.springall@h w.com, or yourusual HFW contact. Assisted bytrainee Thomas Morgan .

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For more in ormation,please also contact:Gavin Vallely Melbourne PartnerT: +61 (0)3 8601 4523gavin.vallely@h w.comNic van der ReydenMelbourne AssociateT: +61 (0)3 8601 4534nic.vanderreyden@h w.comJenny BazakasMelbourne AssociateT: +61 (0)3 8601 4599

jenny.bazakas@h w.com

Francis BurgessMelbourne AssociateT: +61 (0)3 8601 4531

rancis.burgess@h w.comStephen ThompsonSydney PartnerT: +61 (0)2 9320 4646stephen.thompson@h w.comHazel BrewerPerth PartnerT: +61 (0)8 9422 4702hazel.brewer@h w.com

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