Comments on the Transport Safety Investigation Bill Australia, 2002

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The Transport Safety Investigation Act is another draconian thing - of a CASA-esque kind with which we Australian pilots are all too familiar.

Just look at the offences it creates and the powers which will be given to ATSB's staff members (where you see "Executive Director", read ATSB staff member because the Executive Director can delegate his powers very widely).

Section 24 "Offence to hinder etc an Investigation" (that is, you must dob in your fellow crew member)

"Offence to hinder an Investigation" - those are fine motherhood words. But what those words mean under this Act is nothing like what they mean in ordinary English. It will be an offence under Subsection 24(1)(b)(ii), punishable by 6 months jail, to engage in conduct that will adversely affect an investigation that could be conducted at a later time into an immediately reportable matter. And what is an "immediately reportable matter"? Well, we do not know because that is to be defined later in the Regulations. Heavens above! If you are going to put a person in jail for doing something, tell him exactly what it is he must not do. How on earth can the Parliament even debate this Bill when no-one knows what it is that will earn people six months in jail? The Explanatory Memorandum says "this is because a person would reasonably be expected to know that the Executive Director is likely to investigate in such cases". Well, why not say that in the Act?

Just imagine what might happen. You go out to your private aircraft one morning and discover a flat tyre. You repair the tyre and discard the nail that caused the puncture. The flat tyre is - per Section 23(h) - a Transport Safety Matter because "the transport vehicle is involved in an occurrence that affected, or could have affected, the safety of the operation of the transport vehicle". And the Executive Director, per Subsection 23(1)(a) may investigate any Transport Safety Matter so your flat tyre is an "investigable matter". By Section 3 of the Act, "immediately reportable matter means an investigable matter that is prescribed by the regulations". At this moment we do not know what the Regulations will prescribe - but your flat tyre is an "investigable matter" so there is no reason why it should not be prescribed as an "immediately reportable matter".

I am not suggesting that a Court would be likely to impose 6 months jail for discarding the nail that caused the flat tyre. But the risk is there, however slight. What I am suggesting is that the threat of such a prosecution is a blunt weapon which is likely to be used by the Executive Director at some future time to force people to do or say what he wants them to do or say.

If jail is where you do not want to go, then just pray that the Executive Director never sends you a Draft Report. He may, under Subsection 26(1) provide one to any person he considers appropriate. But then, under Subsection 26(2), it is worth 2 years jail to make a copy of any such report. Not to make a copy with intent to do something bad with it - merely to make a copy of it. Most offices, for heavens' sake, automatically make copies of every single item of correspondence they receive.

And what about the case where you are out of the office and your secretary says "I've got a copy of a Draft Report here" and you say "fax it to me"? That makes you eligible for 2 years jail for copying the draft report, plus an unlimited sentence for conspiring to do so.

I looked in the Explanatory Memorandum to find out what evil this subsection is intended to correct - but it is not even mentioned. Nor was it mentioned in the Second Reading speech. So we are all expected to know, intuitively, what is so evil about making a copy of a Draft Report. I confess I simply do not understand what it is. In fact I think it is good "corporate governance" that a copy be made of every single item of correspondence which comes to an office.

What a perversion of our language! This Section says "Subject to section 21, the Executive Director is not subject to directions from the Minister or the Secretary in respect of the exercise of the Executive Directors powers under this Act."

But the Executive Director is appointed at will by the Secretary. He has no security of tenure. He is a perfectly normal Civil Servant. If the Minister or the Secretary do not like the way he is doing his job, he can be replaced at any moment. And that is "Independent"? Yucan Trustme!

The fact that the Executive Director is not even intended to be independent is revealed by the Explanatory Memorandum in its comments on Subsection 32(1) where it says " There is no explicit provision for either legal counsel or any other person to accompany the person attending before the Executive Director. However, as a matter of policy, the Executive Director will allow a person to be accompanied by whomsoever they wish ...". This makes it clear that the Executive Director is intended to be subject to a policy imposed on him by some means other than the Act. Independent - my foot!

This Act does not apply to private cars and boats. So why does it apply to private aircraft? The reason is simple - there are so many private car and boat owners that the political backlash would be too strong. The Minister, John Anderson, has judged that we private aircraft owners cannot kick up as much fuss as the others can.

It's perfectly clear why ATSB wants the Act to apply to private aircraft. You can't build up much of a headcount of investigators investigating accidents to QANTAS airliners. But INCIDENTS involving Private Aircraft - wow! That's where the job-creation opportunities really lie. An "incident" includes anything that might have affected the safety of flight. In other words, every flight involves an "incident". What jobs that will make!

This Bill gives ATSB powers to commit mayhem. Section 33 says "The Executive Director may enter special premises without the occupiers consent and without obtaining a warrant. The Executive Director may do so with such assistance, and by such force, as is necessary and reasonable.". Section 3 defines "special premises" to include a vehicle - not a vehicle that has been involved in an accident, any vehicle. So ATSB can bust into your vehicle even if it has not been involved in an accident. Then Section 36 gives ATSB the power to search the premises, and make photos, video recordings, sound recordings or other records of the premises. There are no limitations on what ATSB may do with such material.

Section 9 (2) says "Another object of this Act is that, during the investigation of a transport safety matter under this Act, there be co-operation between the Executive Director and any other Commonwealth agency or person having powers under another law of the Commonwealth to also investigate the matter."

I think that means that the Australian Federal Police will be able to use ATSB to do things that they - the AFP - cannot do, such as search your vehicle even though there is no evidence of wrongdoing.

Section 32 "Executive Director may require persons to attend and answer questions etc."

Section 32(1)(a) says "[the Executive Director may] require a person to attend before the Executive Director and answer questions put by any person relating to matters relevant to the investigation", and under Section 47 you cannot refuse to answer on the grounds that you may incriminate yourself.

What this means is that ATSB may invite other authorities to attend an inquisition and conduct any kind of grilling relevant to the investigation. Remember that the investigation can be for something as minor as a flat tyre. This provision would even allow ATSB to permit your employer to grill you. If the government's intention is to give extra powers to the AFP or to CASA or to employers, the legislation should explicitly say so.

Answers to questions are not admissible in any court proceedings. But they may be used in disciplinary proceedings. For example, CASA may use your answers as grounds on which to cancel your pilot license under CAR 269. So you may be required to attend before the ATSB and find that you are then interrogated by CASA. Remember that section 7(2) of the Act required ATSB to co-operate with CASA.

In any event, what colossal power this gives ATSB to coerce people. ATSB may require any person to attend anywhere at any time. There is a requirement that the time be reasonable but no requirement that the place be reasonable. If ATSB wants to coerce you, it might require your boss to attend at the other side of the country unless you do or say what ATSB wants.

Please read this even if you are a Private Pilot. Remember, private aircraft are only a Regulation away from having compulsory video cameras in the cockpit. They are in Sydney taxis already.

This Bill drives a coach and horses through the protection which should be given to these recordings. The Executive Director is a very powerful person, and his greatest power is that he can declare that an OBR is not an OBR. It's as thought the Minister for the Arts was able to declare that White is Black. Look at subsection 49(1) "(1) The Executive Director may, by published notice, declare that a recording, or a part of a recording, identified in the notice is not to be treated as an OBR on and after a date specified in the notice.". There it is! White becomes Black!

We have seen how this kind of draconian legislation works under CASA. The time to nip it in the bud is now, before it becomes law - not 10 years down the track when it begins to be misused - as it inevitably will be.

Today (August 2002) ATSB is widely regarded as a co-operative organisation and is generally respected. This Bill marks the beginning of the end of that. ATSB, equipped with all these Gestapo-style powers like CASA's, will inevitably behave like CASA.

Regrettably, Labor has decided to support this Bill so it is as good as law. Graeme Campbell, former MP for Kalgoorlie, was spot on when he said that it's easy to tell when really bad legislation comes before Parliament - it always gets bipartisan support!