Commonwealth legislation

Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012

In ForceCTH

Jurisdiction

Commonwealth

Act Number

265 of 2012

Collection

legislative instrument

Plain English Summary

6/10 complexity

This regulation creates the REPCON scheme: a voluntary, confidential reporting system run by the ATSB for safety issues in aviation (including remotely piloted aircraft), marine operations and rail. It sets how reports are made, accepted, stored in a database, and when restricted personal information may be disclosed, while barring use of reports for discipline or most court evidence except for narrow exceptions (eg. prosecutions, imminent threats, terrorism).

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What it does

Mechanically, the regulation creates and governs a voluntary, confidential reporting scheme administered by the Australian Transport Safety Bureau (ATSB), titled the REPCON scheme (see s 7). The instrument sets the scheme’s scope (air, marine and rail operations specified at s 7(2)), the ATSB’s functions in running the scheme (s 9), the form and mandatory content of reports (ss 11-12), acceptance criteria (s 13), handling and database rules (ss 6, 14), limits on disclosure and use of information (Part 5, especially ss 16, 18-20), procedures for reports that mention criminal conduct or terrorism (s 21), and a power for the ATSB to delegate administration functions (s 22). Transitional provisions preserve earlier industry-specific confidential reporting regulations for reports made before 20 January 2013 (s 4).

The regulation establishes the legal mechanics for information flow: individuals "may make a report" about any "reportable safety concern" (s 10(1)-(2)). Reports should be in writing or reproduced in writing by ATSB if given orally (s 11). Report content must include the reporter’s name and contact details plus a description of the concern (s 12). The ATSB must accept a report when it is satisfied the REPCON scheme is the most appropriate channel, the matter is a reportable safety concern and the ATSB reasonably believes the report to be true (s 13). Regardless of acceptance, the ATSB must decide what to include in a database and whether to disclose information under the Act and this regulation, and if not containing false or misleading material it must destroy or return parts of the report as soon as practicable (s 14(1)).

The instrument expressly treats certain categories as excluded from the “reportable safety concern” definition: matters showing a serious and imminent threat to safety or life, industrial relations issues and criminal conduct (s 10(2)). Where a report mentions a terrorist act or unlawful interference with aviation, the ATSB must tell the Department and may disclose restricted personal information to the Department (s 21(1)-(3)). The regulation also places rigid limits on use and admissibility of reports in legal or administrative proceedings: information in a report cannot be used to take disciplinary action or make administrative decisions (s 18), and reports and evidence about them are not admissible in court except in limited circumstances such as prosecutions for false or misleading reports (s 19).

Current sections

Direct links to the current provisions in Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

Part 1

Preliminary

Part 1—Preliminary

Name of regulation

1 Name of regulation

This regulation is the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

Transitional

4 Transitional

(1) Despite section 3: (a) the Air Navigation (Confidential Reporting) Regulations 2006 continue to have effect in relation to reports made under those regulations before 20 January 2013; and (b) the Navigation (Confidential Marine Reporting Scheme) Regulations 2008 continue to have effect in relation to reports made under those regulations before 20 January 2013. (2) For the reports mentioned in subsection (1), the ATSB or the Chief Commissioner may perform functions or exercise powers conferred on the Executive Director under the regulations mentioned in subsection (1).

Definitions

5 Definitions

In this regulation:

Act means the Transport Safety Investigation Act 2003.

criminal conduct: see subsection 10 (3).

emergency services organisation includes the following:

(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service for dispatching a force or service mentioned in paragraph (a), (b) or (c).

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Note: The States and Territories (other than South Australia) are each expected to enact laws that:

(a) apply the Rail Safety National Law to the State or Territory; or
(b) substantially correspond to the Rail Safety National Law.

REPCON scheme means the scheme established under section 7.

report means a report made under Part 3.

reportable safety concern: see subsection 10 (2).

terrorist act has the meaning given by section 100.1 of the Criminal Code.

transport safety authority means any of the following:

(a) the Civil Aviation Safety Authority established by the Civil Aviation Act 1988;
(b) the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990;
(c) the Office of the National Rail Safety Regulator, established by the Rail Safety National Law;
(d) an authority of a State or Territory, or any other body, that has functions relating to transport safety.

unlawful interference with aviation has the meaning given by section 10 of the Aviation Transport Security Act 2004.

Note: Several other words and expressions used in this regulation have the meaning given by subsection 3 (1) of the Act. For example:

 ATSB
 Chief Commissioner
 restricted information
 staff member
 transport safety
 transport vehicle.

Information taken to be part of report

6 Information taken to be part of report

For this regulation, the following information is taken to be part of a report: (a) information obtained or generated by the ATSB in the course of considering a report; (b) records of the analysis of information contained in a report (including opinions expressed by a person in that analysis).

Part 2

REPCON Scheme

Part 2—REPCON Scheme

Establishment and application of scheme

7 Establishment and application of scheme

(1) For section 20A of the Act, a scheme (the REPCON scheme) is established for the voluntary and confidential reporting to the ATSB of issues that affect, or might affect, transport safety. (2) The REPCON scheme applies in relation to the following: (a) for aircraft operations—manned aircraft, large RPA, medium RPA, small RPA, very small RPA and micro RPA; (b) for marine—marine operations to which Part 3 of the Transport Safety Investigation Regulations 2003 apply; (c) for rail—rail vehicles and rail transport covered by subsection 11 (3) of the Act. (3) In this regulation:

large RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

medium RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

micro RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

very small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

Purposes of scheme

8 Purposes of scheme

(1) The primary purpose of the REPCON scheme is to enable the ATSB to do the following: (a) provide a voluntary and confidential reporting scheme for issues that affect, or might affect, transport safety; (b) use the reports made under the scheme to identify unsafe procedures, practices or conditions; (c) give information to the aviation, maritime or rail industry, to a transport safety authority, or to an emergency services organisation, about an identified unsafe procedure, practice or condition to facilitate: (i) action and awareness about transport safety issues; and (ii) improvements in transport safety by other persons and organisations. (2) An incidental purpose of the REPCON scheme is to enable the ATSB to give information about a transport security concern, mentioned in a report made under the scheme, to an appropriate person or organisation (including a transport safety authority or an emergency services organisation) to facilitate awareness of security issues.

Note: Although the REPCON scheme is not established for the purpose of reporting security concerns, those concerns might be mentioned in reports made under the scheme.

Functions of ATSB

9 Functions of ATSB

The ATSB’s functions in relation to the REPCON scheme include the following: (a) assessing and accepting reports of issues that affect, or might affect, transport safety; (b) dealing with reports in accordance with this regulation, including forwarding, destroying or returning reports; (c) reviewing information contained in reports, and publishing details of those reviews; (d) setting up and maintaining one or more databases for recording information contained in reports; (e) identifying issues and factors mentioned in, or arising from, reports that affect, or might affect, transport safety; (f) communicating issues and factors mentioned in paragraph (e) to relevant sectors of the transport industry, to transport safety authorities, to emergency services organisations and to the public; (g) issuing information briefs or alert bulletins that the ATSB believes are necessary or desirable in the interests of transport safety; (h) establishing committees to review the effectiveness of the scheme.

Note: For rules relating to the disclosure of information contained in reports—see Parts 5 and 6.

Part 3

Reporting

Part 3—Reporting

What may be reported

10 What may be reported

(1) A person may make a report to the ATSB about any reportable safety concern. (2) A reportable safety concern is any issue that affects, or might affect, transport safety, other than the following: (a) matters showing a serious and imminent threat to transport safety or a person’s life or health; (b) industrial relations issues; (c) criminal conduct.

Note 1: If an issue mentioned in paragraph (a) or (c) is mentioned in a report, personal information about the person making the report may be disclosed—see subsection 16 (3) and Part 6.

Note 2: If a matter must be reported by a person under another law, such as under Division 1 of Part 3 of the Act, reporting the matter under the REPCON scheme will not relieve the person of the obligation to report the matter under the other law.

(3) For paragraph (2) (c), criminal conduct means an offence against a law of the Commonwealth, a State or a Territory, including the following: (a) a terrorist act; (b) an act of unlawful interference with aviation that constitutes an offence under the Aviation Transport Security Act 2004.

How report must be made

11 How report must be made

(1) The person making the report should give the report to the ATSB in writing.

Note: A report may be given in the form available on the ATSB’s website at www.atsb.gov.au.

(2) However, if a report is initially made to the ATSB in a non‑written form (such as by telephone), the ATSB must reproduce the report in writing.

Information to be included in report

12 Information to be included in report

The person making the report must include the following information in the report: (a) the name of the person making the report; (b) a description of the reportable safety concern; (c) at least one of the following: (i) the person’s postal address; (ii) the person’s email address; (iii) the person’s telephone number; (iv) the person’s fax number.

Part 4

Accepting and dealing with reports

Part 4—Accepting and dealing with reports

Accepting report

13 Accepting report

The ATSB must accept a report if: (a) the ATSB is satisfied that the REPCON scheme is the most appropriate way to make the report; and (b) the ATSB reasonably believes that the matter described in the report is a reportable safety concern; and (c) the ATSB reasonably believes the report to be true.

Dealing with report

14 Dealing with report

(1) Regardless of whether the ATSB accepts a report, the ATSB must: (a) decide what information in the report is to be included in a database maintained for the REPCON scheme, and include that information in the database; and (b) decide whether to disclose any information from the report in accordance with the Act and this regulation, and act accordingly; and (c) if the ATSB does not believe that the report includes false or misleading information—as soon as practicable: (i) for the part of the report given by the person taken to have made the report—destroy the part, or return it to the person; and (ii) if a part of the report was given by another person—destroy the part, or return it to that other person.

Note 1: For rules relating to disclosure of information contained in reports—see Parts 5 and 6.

Note 2: For reports that may include false or misleading information—see section 15.

Including restricted information in database (2) For paragraph (1) (a), the ATSB may include restricted information that contains personal information in a database maintained for the REPCON scheme only if: (a) the removal of the restricted information from the report would adversely affect the quality of the information to be included in the database; or (b) the ATSB believes that it is necessary to keep in contact with the person who made the report, or a person or organisation mentioned in the report, and the restricted information is necessary for that purpose. (3) The ATSB must remove restricted information that contains personal information from the database if: (a) the restricted information was included in a database for the purpose mentioned in paragraph (2) (b); and (b) the ATSB is satisfied that it is no longer necessary to keep the restricted information for that purpose.

Dealing with report containing false or misleading information

15 Dealing with report containing false or misleading information

(1) If the ATSB reasonably believes that, in making the report, the person who made it has committed an offence under section 137.1 of the Criminal Code (False or misleading information), the ATSB must not: (a) destroy the report, or any part of it; or (b) return the report, or any part of it, to a person; until 2 years after the day the report was made. (2) If a prosecution for an offence against section 137.1 of the Criminal Code in relation to the report is commenced during those 2 years, the ATSB must not destroy, or return to a person, any part of the report that is required to be kept for the purpose of the prosecution, until that part of the report is no longer required for that purpose.

Part 5

Use and disclosure of information

Part 1—Preliminary

1 Name of regulation

This regulation is the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

4 Transitional

5 Definitions

In this regulation:

Act means the Transport Safety Investigation Act 2003.

criminal conduct: see subsection 10 (3).

emergency services organisation includes the following:

(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service for dispatching a force or service mentioned in paragraph (a), (b) or (c).

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Note: The States and Territories (other than South Australia) are each expected to enact laws that:

(a) apply the Rail Safety National Law to the State or Territory; or
(b) substantially correspond to the Rail Safety National Law.

REPCON scheme means the scheme established under section 7.

report means a report made under Part 3.

reportable safety concern: see subsection 10 (2).

terrorist act has the meaning given by section 100.1 of the Criminal Code.

transport safety authority means any of the following:

(a) the Civil Aviation Safety Authority established by the Civil Aviation Act 1988;
(b) the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990;
(c) the Office of the National Rail Safety Regulator, established by the Rail Safety National Law;
(d) an authority of a State or Territory, or any other body, that has functions relating to transport safety.

unlawful interference with aviation has the meaning given by section 10 of the Aviation Transport Security Act 2004.

Note: Several other words and expressions used in this regulation have the meaning given by subsection 3 (1) of the Act. For example:

 ATSB
 Chief Commissioner
 restricted information
 staff member
 transport safety
 transport vehicle.

6 Information taken to be part of report

Part 2—REPCON Scheme

7 Establishment and application of scheme

large RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

medium RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

micro RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

very small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

8 Purposes of scheme

Note: Although the REPCON scheme is not established for the purpose of reporting security concerns, those concerns might be mentioned in reports made under the scheme.

9 Functions of ATSB

Note: For rules relating to the disclosure of information contained in reports—see Parts 5 and 6.

Part 3—Reporting

10 What may be reported

Note 1: If an issue mentioned in paragraph (a) or (c) is mentioned in a report, personal information about the person making the report may be disclosed—see subsection 16 (3) and Part 6.

Note 2: If a matter must be reported by a person under another law, such as under Division 1 of Part 3 of the Act, reporting the matter under the REPCON scheme will not relieve the person of the obligation to report the matter under the other law.

11 How report must be made

(1) The person making the report should give the report to the ATSB in writing.

Note: A report may be given in the form available on the ATSB’s website at www.atsb.gov.au.

(2) However, if a report is initially made to the ATSB in a non‑written form (such as by telephone), the ATSB must reproduce the report in writing.

12 Information to be included in report

Part 4—Accepting and dealing with reports

13 Accepting report

14 Dealing with report

Note 1: For rules relating to disclosure of information contained in reports—see Parts 5 and 6.

Note 2: For reports that may include false or misleading information—see section 15.

15 Dealing with report containing false or misleading information

Part 5—Use and disclosure of information

Division 5.1—Use and disclosure by ATSB

16 Disclosure of restricted information by ATSB

(1) The ATSB must not disclose restricted information relating to a report unless: (a) the ATSB has removed all personal information from the information that is to be disclosed; or (b) subsection (2) or (3) applies.

Note: For rules about non‑staff members accessing restricted information—see section 62 of the Act.

(2) The ATSB may disclose restricted information that contains personal information if: (a) it is not possible to remove the personal information from the information to be disclosed without defeating the purpose for which the ATSB proposes to disclose the information; and (b) the ATSB believes it necessary or desirable to disclose the information for a purpose mentioned in paragraph 8 (1) (b) or (c) or subsection 8 (2); and (c) before disclosing the information, the ATSB obtains the consent of the person to whom the personal information relates. (3) The ATSB may disclose restricted information that contains personal information if: (a) the ATSB reasonably believes the disclosure is necessary for the purpose of reporting, investigating or prosecuting a possible offence against section 137.1 of the Criminal Code (False or misleading information); or (b) the ATSB reasonably believes that disclosure is necessary to reduce or prevent a serious and imminent threat to transport safety or a person’s life or health; or (c) the disclosure is in accordance with Part 6; or (d) the ATSB reasonably believes the disclosure is necessary for the purpose of reporting, investigating or prosecuting criminal conduct not mentioned in Part 6. (4) Without limiting this section, the ATSB may disclose information under this section to a court.

17 Named person or organisation to comment on report

(1) This section applies if the ATSB proposes, in the interests of transport safety, to give information from a report to a transport safety authority or an emergency services organisation. (2) Before giving the information to the transport safety authority or an emergency services organisation, the ATSB must: (a) give a copy of the report that satisfies the requirements of section 16 to any person or organisation mentioned in the report; and (b) invite the person or organisation to comment on the report within 5 business days after receiving the report.

Note: business day is defined in the Acts Interpretation Act 1901.

(3) However, the ATSB is not required to give a copy of the report to a person or organisation if the ATSB reasonably believes that: (a) giving a copy of the report to the person or organisation is likely to: (i) reduce reporting under the REPCON scheme; or (ii) reduce the ability of the ATSB to achieve a purpose of the REPCON scheme; or (b) it is not practicable to comply with subsection (2).

Note: Example for paragraph (b)

Note: Waiting 5 business days for a response from the person or organisation would mean an urgent safety issue, or an emergency, could not be addressed.

(4) The ATSB must take into account any comments made by the person or organisation when deciding whether to give information from a report to a transport safety authority or an emergency services organisation.

Division 5.2—Restrictions on use and disclosure of information

18 Disciplinary action and making administrative decisions

(1) A person must not use information in a report to: (a) take disciplinary action against an employee of the person; or (b) make an administrative decision under an Act, or an instrument made under an Act, against a person.

Note: For rules about the use of information for these purposes—see section 19.

(2) Subsection (1) does not prevent disciplinary action being taken, or an administrative decision being made, against a person if the information on which the action or decision is based is obtained from a source other than a report.

19 Information not admissible in evidence

(1) A report, and evidence about the contents of a report, are not admissible in evidence in a court. (2) However subsection (1) does not apply in proceedings in relation to whether a person committed an offence under section 137.1 of the Criminal Code (False or misleading information) in making the report. (3) Subsection (1) does not prevent information obtained from a source other than a report from being admissible in evidence in a court. (4) If, despite subsection 18 (1), a person uses information in a report to: (a) take disciplinary action against an employee of the person; or (b) make an administrative decision under an Act, or an instrument made under an Act, against a person; the report, or evidence about the contents of the report, may be used, as evidence of the misuse of the information, in any appeal against the taking of the disciplinary action or the making of the administrative decision. (5) Subsection (4) applies only if the ATSB issues a certificate stating that: (a) the use of a report, or evidence about the contents of the report, in specified proceedings is not likely to reduce reporting under the REPCON scheme; or (b) any reduction in reporting under the REPCON scheme that might occur because of the use of a report, or evidence about the contents of the report, in specified proceedings is outweighed by the public interest in the use of the report, or evidence about the contents of the report, in those proceedings.

20 Use to be for same purpose as for disclosure

A person, body or agency to whom restricted information that contains personal information is disclosed in accordance with this regulation must not use or disclose that information for a purpose other than the purpose for which the information was disclosed to the person, body or agency.

Part 6—Information relating to criminal conduct

21 Information relating to terrorism or unlawful interference with aviation

Disclosure to Department (1) If the ATSB receives information under the REPCON scheme that the ATSB reasonably believes relates to: (a) an act of unlawful interference with aviation that is an offence under the Aviation Transport Security Act 2004; or (b) a terrorist act involving or relating to transport, or a transport vehicle, to which the REPCON scheme applies; the ATSB must tell the Department that the ATSB has received the information.

Note: This information is not a reportable safety concern but may be incidentally mentioned in a report made under Part 3.

(2) If the Department requests that the information be given to the Department, the ATSB may comply with the request. (3) The ATSB may disclose restricted information that contains personal information to the Department if necessary to comply with this section. Disclosure for purpose of reporting, investigating or prosecuting (4) The ATSB may disclose restricted information that contains personal information if the ATSB reasonably believes that the disclosure is necessary for the purpose of reporting, investigating or prosecuting an offence: (a) mentioned in paragraph (1) (a); or (b) involving an act mentioned in paragraph (1) (b). (5) Without limiting subsection (4), the ATSB may disclose information under subsection (4) to a court.

Part 7—Miscellaneous

22 Delegation of powers of ATSB

(1) The ATSB may, in writing, delegate a power of the ATSB under this regulation (other than this power of delegation) to the following: (a) the Chief Commissioner; (b) a staff member who has duties relating to the administration of the REPCON scheme. (2) In exercising powers under a delegation, the delegate must comply with any directions of the ATSB.

Division 5.1

Use and disclosure by ATSB

Part 1—Preliminary

1 Name of regulation

This regulation is the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

4 Transitional

5 Definitions

In this regulation:

Act means the Transport Safety Investigation Act 2003.

criminal conduct: see subsection 10 (3).

emergency services organisation includes the following:

(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service for dispatching a force or service mentioned in paragraph (a), (b) or (c).

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Note: The States and Territories (other than South Australia) are each expected to enact laws that:

(a) apply the Rail Safety National Law to the State or Territory; or
(b) substantially correspond to the Rail Safety National Law.

REPCON scheme means the scheme established under section 7.

report means a report made under Part 3.

reportable safety concern: see subsection 10 (2).

terrorist act has the meaning given by section 100.1 of the Criminal Code.

transport safety authority means any of the following:

(a) the Civil Aviation Safety Authority established by the Civil Aviation Act 1988;
(b) the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990;
(c) the Office of the National Rail Safety Regulator, established by the Rail Safety National Law;
(d) an authority of a State or Territory, or any other body, that has functions relating to transport safety.

unlawful interference with aviation has the meaning given by section 10 of the Aviation Transport Security Act 2004.

Note: Several other words and expressions used in this regulation have the meaning given by subsection 3 (1) of the Act. For example:

 ATSB
 Chief Commissioner
 restricted information
 staff member
 transport safety
 transport vehicle.

6 Information taken to be part of report

Part 2—REPCON Scheme

7 Establishment and application of scheme

large RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

medium RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

micro RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

very small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

8 Purposes of scheme

Note: Although the REPCON scheme is not established for the purpose of reporting security concerns, those concerns might be mentioned in reports made under the scheme.

9 Functions of ATSB

Note: For rules relating to the disclosure of information contained in reports—see Parts 5 and 6.

Part 3—Reporting

10 What may be reported

Note 1: If an issue mentioned in paragraph (a) or (c) is mentioned in a report, personal information about the person making the report may be disclosed—see subsection 16 (3) and Part 6.

Note 2: If a matter must be reported by a person under another law, such as under Division 1 of Part 3 of the Act, reporting the matter under the REPCON scheme will not relieve the person of the obligation to report the matter under the other law.

11 How report must be made

(1) The person making the report should give the report to the ATSB in writing.

Note: A report may be given in the form available on the ATSB’s website at www.atsb.gov.au.

(2) However, if a report is initially made to the ATSB in a non‑written form (such as by telephone), the ATSB must reproduce the report in writing.

12 Information to be included in report

Part 4—Accepting and dealing with reports

13 Accepting report

14 Dealing with report

Note 1: For rules relating to disclosure of information contained in reports—see Parts 5 and 6.

Note 2: For reports that may include false or misleading information—see section 15.

15 Dealing with report containing false or misleading information

Part 5—Use and disclosure of information

Division 5.1—Use and disclosure by ATSB

16 Disclosure of restricted information by ATSB

Note: For rules about non‑staff members accessing restricted information—see section 62 of the Act.

17 Named person or organisation to comment on report

Note: business day is defined in the Acts Interpretation Act 1901.

Note: Example for paragraph (b)

Note: Waiting 5 business days for a response from the person or organisation would mean an urgent safety issue, or an emergency, could not be addressed.

Division 5.2—Restrictions on use and disclosure of information

18 Disciplinary action and making administrative decisions

Note: For rules about the use of information for these purposes—see section 19.

19 Information not admissible in evidence

20 Use to be for same purpose as for disclosure

Part 6—Information relating to criminal conduct

21 Information relating to terrorism or unlawful interference with aviation

Note: This information is not a reportable safety concern but may be incidentally mentioned in a report made under Part 3.

Part 7—Miscellaneous

22 Delegation of powers of ATSB

Disclosure of restricted information by ATSB

16 Disclosure of restricted information by ATSB

Note: For rules about non‑staff members accessing restricted information—see section 62 of the Act.

Named person or organisation to comment on report

17 Named person or organisation to comment on report

Note: business day is defined in the Acts Interpretation Act 1901.

Note: Example for paragraph (b)

Note: Waiting 5 business days for a response from the person or organisation would mean an urgent safety issue, or an emergency, could not be addressed.

Division 5.2

Restrictions on use and disclosure of information

Part 1—Preliminary

1 Name of regulation

This regulation is the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

4 Transitional

5 Definitions

In this regulation:

Act means the Transport Safety Investigation Act 2003.

criminal conduct: see subsection 10 (3).

emergency services organisation includes the following:

(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service for dispatching a force or service mentioned in paragraph (a), (b) or (c).

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Note: The States and Territories (other than South Australia) are each expected to enact laws that:

(a) apply the Rail Safety National Law to the State or Territory; or
(b) substantially correspond to the Rail Safety National Law.

REPCON scheme means the scheme established under section 7.

report means a report made under Part 3.

reportable safety concern: see subsection 10 (2).

terrorist act has the meaning given by section 100.1 of the Criminal Code.

transport safety authority means any of the following:

(a) the Civil Aviation Safety Authority established by the Civil Aviation Act 1988;
(b) the Australian Maritime Safety Authority established by the Australian Maritime Safety Authority Act 1990;
(c) the Office of the National Rail Safety Regulator, established by the Rail Safety National Law;
(d) an authority of a State or Territory, or any other body, that has functions relating to transport safety.

unlawful interference with aviation has the meaning given by section 10 of the Aviation Transport Security Act 2004.

Note: Several other words and expressions used in this regulation have the meaning given by subsection 3 (1) of the Act. For example:

 ATSB
 Chief Commissioner
 restricted information
 staff member
 transport safety
 transport vehicle.

6 Information taken to be part of report

Part 2—REPCON Scheme

7 Establishment and application of scheme

large RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

medium RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

micro RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

very small RPA has the same meaning as in the Civil Aviation Safety Regulations 1998.

8 Purposes of scheme

Note: Although the REPCON scheme is not established for the purpose of reporting security concerns, those concerns might be mentioned in reports made under the scheme.

9 Functions of ATSB

Note: For rules relating to the disclosure of information contained in reports—see Parts 5 and 6.

Part 3—Reporting

10 What may be reported

Note 1: If an issue mentioned in paragraph (a) or (c) is mentioned in a report, personal information about the person making the report may be disclosed—see subsection 16 (3) and Part 6.

Note 2: If a matter must be reported by a person under another law, such as under Division 1 of Part 3 of the Act, reporting the matter under the REPCON scheme will not relieve the person of the obligation to report the matter under the other law.

11 How report must be made

(1) The person making the report should give the report to the ATSB in writing.

Note: A report may be given in the form available on the ATSB’s website at www.atsb.gov.au.

(2) However, if a report is initially made to the ATSB in a non‑written form (such as by telephone), the ATSB must reproduce the report in writing.

12 Information to be included in report

Part 4—Accepting and dealing with reports

13 Accepting report

14 Dealing with report

Note 1: For rules relating to disclosure of information contained in reports—see Parts 5 and 6.

Note 2: For reports that may include false or misleading information—see section 15.

15 Dealing with report containing false or misleading information

Part 5—Use and disclosure of information

Division 5.1—Use and disclosure by ATSB

16 Disclosure of restricted information by ATSB

Note: For rules about non‑staff members accessing restricted information—see section 62 of the Act.

17 Named person or organisation to comment on report

Note: business day is defined in the Acts Interpretation Act 1901.

Note: Example for paragraph (b)

Note: Waiting 5 business days for a response from the person or organisation would mean an urgent safety issue, or an emergency, could not be addressed.

Division 5.2—Restrictions on use and disclosure of information

18 Disciplinary action and making administrative decisions

Note: For rules about the use of information for these purposes—see section 19.

19 Information not admissible in evidence

20 Use to be for same purpose as for disclosure

Part 6—Information relating to criminal conduct

21 Information relating to terrorism or unlawful interference with aviation

Note: This information is not a reportable safety concern but may be incidentally mentioned in a report made under Part 3.

Part 7—Miscellaneous

22 Delegation of powers of ATSB

Disciplinary action and making administrative decisions

18 Disciplinary action and making administrative decisions

Note: For rules about the use of information for these purposes—see section 19.

Information not admissible in evidence

19 Information not admissible in evidence

Use to be for same purpose as for disclosure

20 Use to be for same purpose as for disclosure

Part 6

Information relating to criminal conduct

Part 6—Information relating to criminal conduct

Information relating to terrorism or unlawful interference with aviation

21 Information relating to terrorism or unlawful interference with aviation

Note: This information is not a reportable safety concern but may be incidentally mentioned in a report made under Part 3.

Part 7

Miscellaneous

Part 7—Miscellaneous

Delegation of powers of ATSB

22 Delegation of powers of ATSB

Source text: opening excerpt

Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.

Part 1 Preliminary

Part 1—Preliminary

1 Name of regulation

This regulation is the Transport Safety Investigation (Voluntary and Confidential Reporting Scheme) Regulation 2012.

4 Transitional

5 Definitions

In this regulation:

Act means the Transport Safety Investigation Act 2003.

criminal conduct: see subsection 10 (3).

emergency services organisation includes the following:

(a) a police force or service;
(b) a fire service;
(c) an ambulance service;
(d) a service for dispatching a force or service mentioned in paragraph (a), (b) or (c).

personal information has the meaning given by subsection 6 (1) of the Privacy Act 1988.

Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 of South Australia.

Note: The States and Territories (other than South Australia) are each expected to enact laws that:

(a) apply the Rail Safety National Law to the State or Territory; or
(b) substantially correspond to the Rail Safety National Law.

REPCON scheme means the scheme established under section 7.

report means a report made under Part 3.

reportable safety concern: see subsection 10 (2).

terrorist act has the meaning given by section 100.1 of the Criminal Code.

For organisations, employers and ATSB staff, compliance requires operational procedures aligned to the regulation’s procedural, recordkeeping and disclosure tests. Below are concrete compliance steps drawn directly from the regulation.

For reporters and frontline staff

Use the suggested report form and provide required fields. Reports should be in writing or reproduced in writing by the ATSB (s 11). Include the reporter’s name, a description of the reportable safety concern and at least one contact detail (postal, email, telephone or fax) as required by s 12. Do not use REPCON for matters showing a serious and imminent threat to safety or life; use emergency channels and mandatory reporting mechanisms instead (s 10(2)(a), Note 2).
Avoid knowingly false statements. The regulation contemplates criminal liability under s 137.1 of the Criminal Code for false or misleading reports (s 15). Organisations should educate staff about the scheme’s purpose and the criminal exposure for dishonest reporting.

For ATSB administration

Apply the three‑part acceptance test and document the decision. The ATSB must accept a report where the REPCON scheme is the most appropriate avenue, the matter is a reportable safety concern and the report is reasonably believed to be true (s 13). Record factual findings supporting each limb to withstand external review.
Database inclusion and restricted information handling. Decide what information to include in the REPCON database and document the basis (s 14(1)(a)). When restricted information contains personal information, include it only if its removal would defeat the purpose or it is necessary for contact (s 14(2)). Implement scheduled reviews to remove restricted personal information when no longer necessary (s 14(3)).
Retention policy for suspected false or misleading reports. If the ATSB reasonably believes a report is false or misleading, it must retain the report for at least two years and cannot return or destroy it (s 15(1)). If prosecution commences, retain parts needed for that prosecution for the required period (s 15(2)). Ensure secure storage and chain of custody protocols for records that could be subject to legal process.
Consent and necessity thresholds for disclosure. Before disclosing restricted information that contains personal information, obtain consent if removal is impossible and disclosure is necessary for a purpose in s 8(1)(b)-(c) or s 8(2) (s 16(2)). Otherwise, rely on the limited exceptions in s 16(3) when justifying disclosure without consent (e.g., prosecuting false reporting, preventing serious imminent threats, cooperating with Part 6 disclosures, or investigating other criminal conduct).
Named person procedural obligations. Where the ATSB proposes to give information from a report to a transport safety authority or emergency services organisation, it must give a copy of the report to any person or organisation mentioned and invite comment within five business days, unless the ATSB reasonably believes doing so would reduce reporting or is impracticable (s 17). Build procedures to assess the "reasonably believes" threshold and document reasons for bypassing the 5 business day step.
Notify Department for terrorism/unlawful interference. Implement a protocol to notify the Department promptly where the ATSB reasonably believes a report mentions unlawful interference with aviation or a terrorist act (s 21(1)). Prepare secure processes for sharing restricted personal information with the Department if necessary to comply (s 21(3)).

For employers and transport safety authorities receiving information

Do not use REPCON reports to take disciplinary or administrative action. Section 18(1) prohibits use of information in a report to take disciplinary action against an employee or to make administrative decisions under an Act or instrument. If disciplinary action is contemplated, develop independent investigative sources separate from REPCON-derived information (s 18(2)).
Observe purpose limitation on disclosed information. Where you receive restricted information that contains personal information, do not use or disclose it for a purpose other than the one for which it was disclosed (s 20). Document the original disclosure purpose and have audit trails constraining downstream use.
Manage evidentiary expectations. Understand that reports and evidence about their contents are generally inadmissible (s 19(1)), but can be used in specific exceptions such as prosecutions for false reporting (s 19(2)) and appeals alleging misuse (s 19(4)). When seeking to rely on REPCON material, consult ATSB about certificates under s 19(5).

Recordkeeping, training and systems

Implement secure information management and delete protocols. The regulation requires removal of restricted personal information when it is no longer necessary for contact or when the purpose for inclusion ceases (s 14(3)). Design data retention schedules, secure storage, and deletion workflows to comply.
Train staff on scope and exclusions. Provide training for employees on what can be reported through REPCON, the prohibition on reporting serious and imminent threats through the scheme (s 10(2)(a)), and the need for separate mandatory reporting obligations under other laws (s 10 Note 2).
Establish governance for certificates and disclosures. The ATSB has the power to issue certificates under s 19(5) that allow otherwise excluded evidentiary uses. Develop governance and legal assessment checklists to evaluate when to request or issue such certificates, focusing on public interest and reporting impact considerations that the ATSB must weigh.
Legal liaison for criminal pathways. Develop relationships and protocols with prosecutors and the Department to handle disclosures under ss 16 and 21. Ensure legal review prior to disclosures where criminal proceedings or national security issues are implicated.

In summary, compliance requires an operational emphasis on accurate recordkeeping, careful application of the acceptance and disclosure tests, robust data security and deletion processes, and clear internal separation between REPCON-derived information and evidence used for discipline or administrative decisions. Documentation of decisions and statutory thresholds is essential to withstand scrutiny and to preserve the regulatory purpose of encouraging voluntary reporting while protecting safety and allowing lawful disclosures in exceptional circumstances.