Transport Legislation (Safety Investigations) Act 2006

i Transport Legislation (Safety Investigations) Act 2006 Act No. 10/2006 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. New definitions 2 4. Insertion of new Part V 2 PART V—CHIEF INVESTIGATOR, TRANSPORT AND MARINE SAFETY INVESTIGATIONS 2 Division 1—Preliminary Matters 2 82. Object 2 82A. What is a public transport safety matter? 3 82B. What is a marine safety matter? 4 82C. Application of definitions to this Part 5 Division 2—Appointment, Functions and General Powers 5 83. Chief Investigator 5 83A. Principal function 6 83B. Other functions 6 83C. Chief Investigator to act independently 7 83D. General powers 7 83E. Appointment and terms of office 7 83F. When the Chief Investigator ceases to hold office 8 83G. Suspension and removal from office for misconduct etc. 9 83H. Acting Chief Investigator 11 83I. Staff 11 83J. Delegation 12 83K. Protection of Chief Investigator from liability 12 83L. Validity of acts and decisions 13 Division 3—Investigations 13 84. Specific investigation powers—public transport safety matters 13 84A. Specific investigation powers—marine safety matters 16 84B. Identity cards 16 -- 1 of 26 -- Section Page ii Division 4—Reports and Miscellaneous Matters 17 85. Reports to be given promptly to the Minister 17 85A. Consultation before report finalised 17 85B. Minister may direct that investigation be conducted 18 85C. Limitations on disclosure etc. of information obtained under this Part 18 85D. Release of information in the interests of transport safety 20 85E. Chief Investigator may authorise non-staff members to have access to information 20 85F. Confidential reporting of safety information by transport workers 21 85G. Memorandum of understanding 22 85H. Chief Investigator may ask Commonwealth official to investigate accident or incident 22 5. Minor amendment to the Marine Act 1988 23 ═══════════════ ENDNOTES 24 -- 2 of 26 -- 1 Transport Legislation (Safety Investigations) Act 2006 † [Assented to 4 April 2006] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Transport Act 1983 to provide for the independent investigation of matters relating to public transport and marine safety. Victoria No. 10 of 2006 -- 3 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 2 2. Commencement (1) This Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 January 2007, it comes into operation on that day. 3. New definitions In section 2(1) of the Transport Act 1983 insert the following definitions— ' "Chief Investigator" means the Chief Investigator, Transport and Marine Safety Investigations under this Act (see Part V); "Director of Marine Safety" means the Director of Marine Safety referred to in section 63 of the Marine Act 1988; "marine safety matter" has the meaning set out in section 82B; "public transport safety matter" has the meaning set out in section 82A;'. 4. Insertion of new Part V After Part IV of the Transport Act 1983 insert— 'PART V—CHIEF INVESTIGATOR, TRANSPORT AND MARINE SAFETY INVESTIGATIONS Division 1—Preliminary Matters 82. Object The object of this Part is to improve public transport and marine safety by providing for the independent investigation of public transport safety matters and marine safety matters. s. 2 See: Act No. 9921. Reprint No. 10 as at 1 July 2004 and amending Act Nos 54/2002, 69/2003, 94/2003, 101/2003, 108/2004, 110/2004, 19/2005, 25/2005 and 45/2005. LawToday: www.dms. dpc.vic. gov.au -- 4 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 3 82A. What is a public transport safety matter? A public transport safety matter is— (a) an incident involving rolling stock, rail infrastructure, a bus or any infrastructure used in bus operations that resulted in, or that had the potential to result in, the death of, or injury to, any person, or in damage to any property or equipment, and includes, for example— (i) any derailment of any rolling stock; (ii) any collision involving any bus or rolling stock; (iii) any incident resulting from the construction, maintenance or operation of a railway or from the operation of a bus; (iv) any failure of any part of rail infrastructure or any rolling stock or any part of any rolling stock; (v) any failure of any bus or part of a bus or of any equipment on a bus or of anything used in bus operations; (vi) any failure or breach of any practice or procedure involving rolling stock or a bus; (vii) any fire, explosion or other similar occurrence involving rolling stock or a bus; (viii) any incident in which there is evidence of systematic safety deficiencies; s. 4 -- 5 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 4 (b) any other incident or any state of affairs involving, or in relation to, rolling stock, rail infrastructure, buses or any infrastructure used in bus operations that is specified by the regulations for the purposes of this section. 82B. What is a marine safety matter? A marine safety matter is— (a) an incident involving a vessel that resulted in, or that had the potential to result in, the death of, or injury to, any person, or in damage to, or the loss of, the vessel or any other vessel, or to any other property or equipment, and includes, for example— (i) any accident involving a vessel; (ii) any incident involving a vessel in which there is evidence of systematic safety deficiencies; (b) the occurrence of any event that provides reasonable grounds for the belief— (i) that any pilot, pilot exempt master, harbour master, pilotage services provider or person holding a certificate of competency or service under the Marine Act 1988 has acted incompetently in the course of his or her duties or in breach of that Act or the regulations made under that Act; or (ii) that the holder of any harbour master licence has breached the conditions of that licence; or s. 4 -- 6 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 5 (iii) that any pilot, pilot exempt master or pilotage services provider, who is registered under the Marine Act 1988 to act as a pilot, pilot exempt master or pilotage services provider (as the case requires), has breached the conditions of that registration; (c) any other incident or any state of affairs involving, or in relation to, a vessel that is specified by the regulations for the purposes of this section. 82C. Application of definitions to this Part (1) In this Part, the expressions "railway", "rail infrastructure", "rail safety work" and "rolling stock" have the same meanings as in section 3 of the Rail Safety Act 2006. (2) In this Part, the expressions "harbour master", "master", "owner", "pilot", "pilotage services provider", "pilot exempt master" and "vessel" have the same meanings as in section 3(1) of the Marine Act 1988. Division 2—Appointment, Functions and General Powers 83. Chief Investigator There is to be a Chief Investigator, Transport and Marine Safety Investigations for the purposes of this Act and the Marine Act 1988. s. 4 -- 7 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 6 83A. Principal function (1) The principal function of the Chief Investigator is to investigate public transport safety matters and marine safety matters, and to report the results of any investigations conducted by him or her to the Minister. (2) In investigating an incident, the Chief Investigator is to primarily focus on— (a) determining what factors caused the incident, rather than to apportion blame for the incident; and (b) identifying issues that may require review, monitoring or further consideration. 83B. Other functions The Chief Investigator also has the following functions— (a) to liaise with international, Commonwealth and State bodies and agencies that have similar functions to those of the Chief Investigator; (b) to administer any safety reporting system that is set up under section 85F; (c) to improve the quality and professionalism of his or her investigations by educating those who are involved in the operation or use of public transport or vessels; (d) to do anything else specified by the regulations. s. 4 -- 8 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 7 83C. Chief Investigator to act independently Subject to section 85B, the Chief Investigator is not subject to the direction or control of the Minister in performing or exercising his or her functions or powers. Note: Section 85B authorises the Minister to direct the Chief Investigator to investigate a public transport safety or marine safety matter. 83D. General powers (1) The Chief Investigator may investigate any public transport safety matter or marine safety matter that occurs in Victoria. (2) The Chief Investigator may do all things that are necessary or convenient to enable him or her to carry out his or her functions. (3) Without limiting sub-section (2), the Chief Investigator may— (a) acquire, hold or dispose of real or personal property; (b) engage consultants, contractors or agents. 83E. Appointment and terms of office (1) The Chief Investigator is to be appointed by the Governor in Council, and may be appointed for a period of up to 5 years. (2) The Governor in Council may only appoint a person to be the Chief Investigator if, in the opinion of the Governor in Council, the person has at least 2 of the following attributes— (a) experience in accident investigations, in particular public transport and marine accidents; (b) appropriate tertiary qualifications; s. 4 -- 9 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 8 (c) experience in the management of public transport or marine safety systems for a period of at least 10 years; (d) experience in the marine, road or rail transport (freight and passenger) sectors; (e) senior level experience in the transport or legal sector. (3) A person appointed as the Chief Investigator is to hold office on the terms and conditions (including remuneration and allowances) set out in the instrument by which he or she was appointed. (4) A person who holds, or who has held, the office of Chief Investigator may be re- appointed to that office. (5) A person who is the Chief Investigator is not, in respect of his or her office as the Chief Investigator, subject to the Public Administration Act 2004. 83F. When the Chief Investigator ceases to hold office (1) A person ceases to be the Chief Investigator— (a) at the expiry of his or her term of office; or (b) if he or she resigns in accordance with sub-section (2); or (c) if he or she ceases to hold office under section 83G; or (d) if he or she becomes an insolvent under administration within the meaning of the Corporations Act; or s. 4 -- 10 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 9 (e) if he or she is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or (f) if he or she nominates for election as a member of the Parliament of any jurisdiction. (2) The Chief Investigator may resign by writing signed by him or her and delivered to the Minister. 83G. Suspension and removal from office for misconduct etc. (1) The Governor in Council may suspend a person from office as the Chief Investigator on the recommendation of the Minister. (2) The Minister may make such a recommendation if he or she is of the opinion that the person— (a) is incapable (because of disability or otherwise) of performing his or her functions as the Chief Investigator; or (b) has refused or neglected to perform those functions; or (c) has engaged in misconduct; or (d) is otherwise unfit to continue to be the Chief Investigator. (3) Before making such a recommendation in relation to a person, the Minister must— (a) give the person written notice that the Minister is considering making such a recommendation, together with details of the reasons why the recommendation is being considered; and s. 4 -- 11 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 10 (b) consider any submissions made to him or her by, or on behalf of, the person in response to the notice. (4) If the Governor in Council suspends a person as the Chief Investigator, the Minister must, on or before the 3rd sitting day of each House of Parliament after that suspension, ensure that a statement of the grounds for the making of the recommendation that the person be suspended is laid before the House. (5) A person ceases to hold office as the Chief Investigator if each House of Parliament declares by resolution, passed within 7 sitting days of the House after the laying before it of the statement, that he or she should cease to hold office. (6) The suspension of a person as the Chief Investigator ceases— (a) if a resolution that he or she should cease to hold office is defeated before either House of Parliament; or (b) if such a resolution is not passed by each House of Parliament within 7 sitting days of the House after the laying before it of the statement. (7) If a person is suspended from office under this section, he or she remains entitled to his or her remuneration and allowances as the Chief Investigator during the period of suspension. s. 4 -- 12 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 11 83H. Acting Chief Investigator (1) The Governor in Council may appoint a person to act as the Chief Investigator if— (a) the office of the Chief Investigator becomes vacant; or (b) the person holding that office becomes unable to carry out the duties of office; or (c) the person holding that office is suspended from that office under section 83G. (2) The Governor in Council may only appoint a person to act as the Chief Investigator if the person is eligible under section 83E(2) to be appointed as the Chief Investigator. (3) A person who is appointed to act as the Chief Investigator must carry out all of the functions of the Chief Investigator. (4) In appointing a person to act as the Chief Investigator, the Governor in Council must set out in the document appointing the person the conditions that are to apply to the person in respect of the appointment. 83I. Staff Any officers or employees that are necessary to enable the Chief Investigator to carry out his or her functions may be employed under the Public Administration Act 2004. s. 4 -- 13 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 12 83J. Delegation (1) The Chief Investigator may, in writing, delegate any of his or her powers or functions under this or any other Act (other than this power of delegation) to any member of his or her staff, or to any consultant, contractor or agent engaged by him or her. (2) If authorised in writing to do so by the Chief Investigator, a delegate may sub-delegate to another person any power or function delegated to the delegate by the Chief Investigator. 83K. Protection of Chief Investigator from liability (1) The Chief Investigator is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the performance of a function under or in connection with this Part; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under or in connection with this Part. (2) Any liability resulting from an act or omission that would, but for sub-section (1), attach to the Chief Investigator because of that act or omission attaches instead to the Crown. s. 4 -- 14 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 13 83L. Validity of acts and decisions An act or decision of the Chief Investigator is not invalid only because— (a) of a defect or irregularity in, or in connection with, his or her appointment; or (b) in the case of a person acting as the Chief Investigator, that the occasion for so acting or deciding had not arisen, or had ceased. Division 3—Investigations 84. Specific investigation powers—public transport safety matters For the purposes of this Part, Subdivisions 1, 3, 4, 5, 6, 7 and 8 of Division 4B of Part VII apply— (a) as if a reference in those provisions— (i) to a transport safety officer was a reference to the Chief Investigator; and (ii) to railway premises included a reference— (A) to any place where an incident involving a bus occurred and where the bus, or anything that is, or that is possibly, relevant to an investigation into the incident, is still present; and (B) to any premises used by a person to conduct bus operations or other related activities; and s. 4 -- 15 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 14 (iii) to rail operations included a reference to bus operations; and (iv) to a railway accident included a reference to an accident involving a bus; and (v) to rail infrastructure included a reference to any infrastructure used in relation to a bus operation; and (vi) to rolling stock included a reference to buses; and (vii) to compliance and investigative purposes was a reference to the purpose of carrying out an investigation into a public transport safety matter; and (viii) to "this Division" was a reference to this Part; and (b) as if section 228ZB(1)(f) were omitted; and (c) as if in section 228ZC— (i) there were substituted for sub- sections (1)(a) and (1)(b) the following— "for the purpose of carrying out an investigation into a public transport safety matter"; and (ii) in sub-section (2) the words "or the Safety Director specifies" were omitted; and s. 4 -- 16 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 15 (d) as if in section 228ZG— (i) a reference to evidence of the commission of an offence against a relevant transport safety law was a reference to a thing or things of significance to an investigation into a public transport safety matter; and (ii) there were substituted for sub- section (3)(a) the following paragraph— "(a) a brief description of the investigation in respect of which the warrant is issued; and"; and (e) as if in section 228ZH(b), the words "or its use in the commission of an offence against a relevant transport safety law" were omitted; and (f) as if in section 228ZL(2)(b) there were substituted for all words after "for the purpose of" the words "an investigation into a public transport safety matter"; and (g) as if section 228ZV(2)(a) were omitted; and (h) as if for section 228ZW(2) there were substituted the following sub-section— "(2) The Magistrates' Court may order such an extension if it is satisfied that retention of the thing is still necessary for the purposes of the investigation into a public transport safety matter in respect of which the thing was seized."; and s. 4 -- 17 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 16 (i) as if in section 228ZZA(1)(c) there were substituted for all words after "is relevant to" the words "an investigation into a public transport safety matter"; and (j) as if section 228ZZB(2)(a) were omitted. 84A. Specific investigation powers—marine safety matters (1) The Chief Investigator may exercise any of the powers conferred on an inspector by Division 3 of Part 8 of the Marine Act 1988 for the purpose of carrying out an investigation into a marine safety matter. (2) For the purposes of this Part, sections 83A and 83C of the Marine Act 1988 apply to the carrying out of an investigation into a marine safety matter by the Chief Investigator. (3) For the purposes of this section, Division 3 of Part 8 of the Marine Act 1988 applies as if a reference in that Division— (a) to an inspector was a reference to the Chief Investigator; and (b) to an investigation under section 82D was a reference to an investigation into a marine safety matter. 84B. Identity cards (1) If the Chief Investigator delegates any power conferred on him or her by section 84 or 84A to another person, he or she must give the person an identity card that contains a photograph of the person and that identifies the person by name as a person authorised to exercise the power by the Chief Investigator. s. 4 -- 18 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 17 (2) If a person to whom an identity card has been issued ceases to be authorised to exercise any power referred to in the identity card, the person must return the identity card to the Chief Investigator as soon as is practicable after that cessation. Penalty: 1 penalty unit. Division 4—Reports and Miscellaneous Matters 85. Reports to be given promptly to the Minister The Chief Investigator must, as soon as is practicable after completing an investigation into a public transport safety matter or a marine safety matter, give the Minister a report of the investigation. 85A. Consultation before report finalised However, before reporting the results of an investigation to the Minister, the Chief Investigator must consult with— (a) the Director of Public Transport (in relation to an investigation into a public transport safety matter); and (b) the Director of Marine Safety (in relation to an investigation into a marine safety matter); and (c) the Safety Director; and (d) the Secretary; and (e) any person or body who has assisted the Chief Investigator with the investigation; and (f) any person or body to whom the report may be relevant. s. 4 -- 19 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 18 85B. Minister may direct that investigation be conducted (1) The Minister may direct the Chief Investigator to investigate a public transport safety matter or a marine safety matter. (2) A direction takes effect on it being published in the Government Gazette. (3) The Minister must also ensure that a copy of a direction is laid before each House of Parliament on or before the 3rd sitting day of the House after the direction is published in the Government Gazette. (4) The Chief Investigator must comply with a direction made under this section. 85C. Limitations on disclosure etc. of information obtained under this Part (1) A person must not disclose any information obtained while carrying out a function under this Part, or obtained under section 85E. Penalty: 60 penalty units. (2) However, the person may disclose such information if— (a) the disclosure is made in the performance of a duty under, or in connection with, this Part; or (b) the person has the consent of the person who originally supplied the information; or (c) subject to sub-section (3), the disclosure is made in legal proceedings at the direction of a court; or (d) the information is in the public domain at the time it is disclosed. s. 4 -- 20 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 19 (3) A court may only direct a person to disclose the information if— (a) the disclosure is required for the purposes of a criminal proceeding for an offence against this Act; or (b) the disclosure is to be made in civil proceedings and the following 2 conditions are met— (i) the Chief Investigator has issued a certificate in relation to the information stating that the disclosure of the information is not likely to interfere with any investigation; and (ii) the court is satisfied that any adverse domestic and international impact that the disclosure of the information might have on any current or future investigations is outweighed by the public interest in the administration of justice. (4) In directing a person to disclose information, the court may also direct that the information, or any information obtained from the information, must not— (a) be published, or be communicated to any person; or (b) be published, or be communicated, except in a manner, and to a person, specified by the court. (5) Any information disclosed by a person in contravention of this section is not admissible in any civil or criminal proceedings (other than proceedings against the person under this section). s. 4 -- 21 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 20 (6) Sub-section (2) is not intended to interfere with any rights another person may have with regard to the disclosure of the information. (7) A reference in this section to a court is to be read as including a reference to a tribunal and to a person exercising judicial authority. 85D. Release of information in the interests of transport safety (1) The Chief Investigator may disclose information acquired by him or her in carrying out his or her functions under this or any other Act to any person if the Chief Investigator considers that the disclosure is necessary or desirable for the purposes of transport safety. (2) However, the Chief Investigator may only disclose information that is, or that contains, personal information in the circumstances allowed by the regulations. (3) In this section, "personal information" has the same meaning as in section 3 of the Information Privacy Act 2000. 85E. Chief Investigator may authorise non-staff members to have access to information The Chief Investigator may authorise a person who is not a member of his or her staff to have access to information acquired by the Chief Investigator in carrying out his or her functions under this or any other Act if the Chief Investigator considers that it is necessary or desirable to do so. Note: A person authorised to have access to information under this section is subject to the confidentiality requirements of section 85C. s. 4 -- 22 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 21 85F. Confidential reporting of safety information by transport workers (1) In this section a "transport worker" is a person who, as an employee, as a contractor or as a volunteer— (a) carries out work for— (i) a person who operates a road transport passenger service (as defined by section 3(1) of the Public Transport Competition Act 1995); or (ii) a person who manages any rail infrastructure or who provides, or operates, any rolling stock; or (iii) a person who undertakes rail safety work; or (b) is involved with the operation of vessels. (2) The Chief Investigator may establish a system for the voluntary reporting by transport workers of public transport safety matters and marine safety matters. (3) The Chief Investigator must not disclose to any other person, or to any court, tribunal or person acting judicially, any information that may identify a transport worker who provides information under the voluntary reporting system unless— (a) the worker consents to the disclosure; or (b) the Chief Investigator or the court, tribunal or person is of the opinion that it is necessary in the public interest that the information be disclosed. s. 4 -- 23 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 22 85G. Memorandum of understanding (1) The Chief Investigator may enter into a memorandum of understanding with the Safety Director, or any other person or body with statutory functions or powers, about the performance or exercise of their respective functions or powers. (2) A memorandum of understanding— (a) must include the matters, if any, required by the regulations; and (b) may include any other matters that the parties to the memorandum consider appropriate. (3) The Chief Investigator must ensure that a copy of any memorandum of understanding that he or she enters into under this section is published— (a) in the Government Gazette; and (b) on the internet. 85H. Chief Investigator may ask Commonwealth official to investigate accident or incident The Chief Investigator may ask the Executive Director of Transport Safety Investigations appointed under section 12 of the Transport Safety Investigations Act 2003 of the Commonwealth to investigate any accident or incident that has occurred in Victoria that is a public transport safety matter or a marine safety matter.'. s. 4 -- 24 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 23 5. Minor amendment to the Marine Act 1988 In section 83(1)(c) of the Marine Act 1988 omit "in relation to a matter referred to in section 82(2)". ═══════════════ s. 5 -- 25 of 26 -- Act No. 10/2006 Transport Legislation (Safety Investigations) Act 2006 24 ENDNOTES † Minister's second reading speech— Legislative Assembly: 6 October 2005 Legislative Council: 28 March 2006 The long title for the Bill for this Act was "to amend the Transport Act 1983 to provide for the independent investigation of matters relating to public transport and marine safety matters and for other purposes." Endnotes -- 26 of 26 --