Transport Safety Investigation Act 2003

The Act affects every operator and crew member of an aviation, marine, or rail transport vehicle whose operations are caught by the Act and the regulations. That includes airlines and aircraft operators, air traffic controllers, masters and crew of vessels covered by the regime, train and locomotive operators, infrastructure managers, and certain employees and contractors performing safety-related work.

A "responsible person" is the person who is required to report under sections 18 and 19. The class of responsible persons is prescribed by regulations (commonly including pilots in command, masters of vessels, and rail safety workers, depending on the mode and the matter).

The ATSB itself is affected: its Commissioners, Chief Executive Officer (Part 2 Division 4), staff (Part 2 Division 5), and special investigators (section 63E) all act under the Act.

Coroners are affected: while a section 25 report is not admissible in civil or criminal proceedings, that exclusion does not apply to a coronial inquiry (section 27(2)). OBR information may be used in coronial inquiries within the constraints of section 59. ATSB staff may attend and be legally represented at coronial inquiries (sections 67 and 68).

Victims, families, and other interested persons interact with the Act through the draft report process under section 26 (the ATSB must give a draft of a report to a person to whom adverse comment is to be made), through victims' rights to access information, and through the regime under section 60 governing disclosure of restricted information.

A responsible person who has knowledge of an immediately reportable matter must report it to a nominated official as soon as is reasonably practicable, by the means and in the form prescribed (section 18). The penalty for failure is imprisonment for 12 months.

A responsible person who has knowledge of an immediately reportable matter or a routine reportable matter must, within 72 hours, give a written report containing the prescribed particulars to a nominated official (section 19). The penalty is 30 penalty units.

A person required to attend before the ATSB under section 32 must do so and must answer questions and produce evidential material. Self-incrimination is not an excuse (section 47), but the answer or production cannot be used against the individual in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings for an offence against the Act, the Crimes Act 1914, or the Criminal Code (the customary direct-use immunity).

It is an offence to hinder or obstruct an investigation (section 24). The fault element is recklessness as to whether the conduct will adversely affect the investigation.

Restricted information must not be disclosed except in the circumstances permitted by sections 60 to 62. OBR information must not be released, copied, or disclosed except as permitted by sections 50 to 53. Use of OBR information for disciplinary action is prohibited by section 54.

The ATSB itself has obligations: section 25 requires it to publish a report as soon as practicable after an investigation has been completed. Section 25A requires recipients of safety recommendations to respond. Section 26 requires draft reports to be provided to interested persons. Section 30 imposes obligations on the Chief Commissioner before entering premises.

The investigation powers in Part 5 are exercisable only for the purposes of an investigation (section 28). Inspectors must carry identity cards (section 29).

Section 32 confers the central coercive power: the ATSB may require a person to attend and answer questions, or to produce specified evidential material, where it considers it necessary for the purposes of an investigation. Section 33 allows the Chief Commissioner to enter "special premises" without consent or warrant where the investigation is into an immediately reportable matter and the Chief Commissioner believes on reasonable grounds that entry is necessary. Section 34 allows entry to any premises with the occupier's consent. Section 35 allows entry under an investigation warrant issued under section 40. Telephone or fax warrants are available under section 41 in urgent cases.

Section 36 sets out powers after entering premises, including search, seizure of evidential material, and operation of electronic equipment. Section 37 requires the occupier to provide facilities and assistance. The occupier is entitled to be present during the search (section 38).

The Chief Commissioner may make protection orders (section 43) directing that specified things, or things in a specified class, must not be removed or interfered with except with permission. Accident sites can be secured under section 44. Evidential material may be retained, tested, and dealt with under section 45.

Magistrates have specified powers under section 31 (issuing warrants and similar). Compensation is payable for damage to electronic equipment caused by ATSB action (section 46) and for the acquisition of property (section 70).

The ATSB has broad delegation powers (sections 63B, 63C, 63D). Special investigators may be appointed under section 63E.

The Act creates several offences. Failure to make an immediate report (section 18) carries imprisonment for 12 months. Failure to make a written report within 72 hours (section 19) carries 30 penalty units. Hindering an investigation (section 24) is an offence. Contravening a protection order (section 43(3)) is an offence. False statements in applications for warrants (section 42) are offences.

Strict offences attach to OBR and restricted information. Disclosure of OBR information outside the carefully framed exceptions in sections 51 to 53 is an offence. Disclosure of restricted information by Commissioners, staff members, and consultants is an offence under section 60.

The Act expressly provides that a section 25 report is not admissible in civil or criminal proceedings (section 27), with a carve-out for coronial inquiries. OBR information is inadmissible in criminal proceedings against crew members (section 55). It is admissible in civil proceedings only if the ATSB issues a certificate under section 50 and the court makes a public interest order under section 56(3) after an in camera examination under section 57. Where a public interest order is made, the procedure under section 58 governs use.

Immunity from civil liability is conferred by section 64 on persons doing or omitting to do anything in good faith in connection with the exercise of powers under the Act. ATSB Commissioners, staff members, and consultants are not compellable as witnesses where the ATSB has issued a certificate under section 65 (section 66).

A responsible person must make an immediate report under section 18 as soon as reasonably practicable after acquiring knowledge of the matter. A written report under section 19 must be made within 72 hours of acquiring knowledge.

The ATSB then decides whether to investigate (section 21) or whether the Minister has directed an investigation. Section 22 sets territorial and jurisdictional limits on the matters the ATSB may investigate.

During an investigation, the ATSB exercises Part 5 powers as needed. The Chief Commissioner must comply with the obligations in section 30 before entering premises and must comply with the warrant procedures in sections 35, 40, and 41.

When the investigation is complete, the ATSB must publish a report as soon as practicable (section 25). Where the report contains adverse comment about a person, the ATSB must give a draft to that person (section 26). Recipients of safety recommendations must respond under section 25A.

The voluntary reporting scheme under section 20A operates in parallel and runs on its own confidentiality and immunity terms set by regulation.

Section 10 deals with the relationship with other laws. The Act operates alongside but does not displace the regulatory regimes administered by the Civil Aviation Safety Authority under the Civil Aviation Act 1988 (Cth), by the Australian Maritime Safety Authority under the Navigation Act 2012 (Cth), and by the National Rail Safety Regulator under the Rail Safety National Law (in each State or Territory).

The separation between safety investigation and regulatory enforcement is critical. As Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 illustrates, a false report given to the ATSB under the Act can ground regulatory consequences under the Civil Aviation Act because the dishonest conduct itself (rather than the safety findings) is the basis for adverse action.

The Act expressly accommodates international obligations: section 12AD requires the ATSB to act consistently with Australia's international obligations, including those under ICAO Annex 13. Section 6 extends application outside Australia. Section 11 contains the constitutional limitations on powers and functions, locking the Act to a permitted Commonwealth head of power.

The Powers of Parliament and Royal Commissions are not affected (section 63). The Act sits below those forums.

OBR and restricted information protections operate against subpoenas: section 66 creates a non-compellability rule for ATSB personnel; section 27 makes section 25 reports inadmissible. This shapes how civil litigation arising out of an aviation, marine, or rail accident must be conducted: the parties cannot subpoena the ATSB for its working papers in the ordinary way.

Reports under section 18 are oral or by other prescribed means; section 19 reports are written and have a strict 72-hour clock. Both are offences if missed. The clock runs from when the responsible person acquires knowledge of the matter, not from the occurrence itself.

Self-incrimination is not an excuse for refusing to answer ATSB questions or produce material under section 32 (section 47), but the immunity is direct-use only. Derivative evidence may still be used, subject to the express OBR carve-outs in section 55. Witnesses required to attend the ATSB should obtain legal advice on the scope of the immunity.

OBR information is not automatically inadmissible in civil proceedings. It is inadmissible unless the ATSB issues a section 50 certificate and the court makes a section 56(3) public interest order. Plaintiffs in aviation civil claims who want OBR evidence must navigate that procedure carefully.

Section 27 is a powerful protection for the ATSB report, but it is not absolute. The carve-out for coronial inquiries (section 27(2)) means that the report is admissible in a coronial inquest, with consequential exposure of the underlying ATSB work.

Section 63 preserves the powers of Parliament and Royal Commissions. A Royal Commission can compel ATSB witnesses and material despite the section 66 non-compellability provision.

Special premises entry under section 33 requires the matter to be an "immediately reportable matter" (section 18). Entering ordinary premises requires consent (section 34) or a warrant (sections 35, 40, 41).

The protection order under section 43 is a powerful crime-scene-style tool but contravention is an offence. Operators and salvors at an accident site need to clear any movement of evidence with the ATSB.

A regional airline aircraft is involved in a runway excursion at a regional airport, with substantial damage to the aircraft. The captain (a "responsible person") reports immediately to the nominated official under section 18, and submits a written report within 72 hours under section 19. The ATSB declares an investigation under section 21. The Chief Commissioner enters the airport premises under section 33 (the matter is immediately reportable). The cockpit voice recorder is seized as OBR; it is protected by Part 6. Twelve months later, the ATSB publishes a section 25 report. A claimant in subsequent civil proceedings cannot tender the report (section 27) and cannot tender the OBR data unless the ATSB issues a section 50 certificate and the court makes a section 56(3) public interest order.

A pilot files a false ATSB written report. The pilot's commercial pilot's licence is later cancelled by the regulator. As Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 confirms, the regulator is entitled to take adverse action based on the dishonest filing (the conduct), without seeking to use the safety report as evidence of the underlying accident facts.

A heavy vehicle operator is required to attend before the ATSB under section 32 in a rail safety investigation. The operator answers questions even though some of the answers tend to incriminate. Under section 47, those direct answers cannot be used in any criminal proceeding against the individual other than proceedings for an offence against the Act.