Air Navigation (Confidential Reporting) Regulations 2006 (Cth)

Air Navigation (Confidential Reporting) Regulations 2006¹

Select Legislative Instrument 2006 No. 371

I, PHILIP MICHAEL JEFFERY, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Air Navigation Act 1920.

Dated 13 December 2006

P. M. JEFFERY

Governor‑General

By His Excellency’s Command

MARK VAILE

Minister for Transport and Regional Services

Contents

Part 1Preliminary

1Name of Regulations                                            4

2Commencement                                                 4

3Definitions                                                        4

4Application of these Regulations                              5

Part 2The REPCON Scheme

5Establishment and purposes of scheme                      6

6Powers and functions of Executive Director                 6

Part 3Reporting

7What may be reported?                                         8

8How are reports to be made?                                  9

9Can a report be made orally?                                  9

Part 4Assessment and acceptance of reports

10Processing of reports                                          10

11Dealing with reports that have been accepted             10

12Reports the making of which may have constituted an offence       11

Part 5Disclosure and use of reports and information in reports

13Disclosing information in accordance with Annex 13      13

14Disclosure of personal information in reports               13

15Opportunity to comment on reports in certain circumstances 14

16Report not to be ground for disciplinary action etc        15

17Reports not to be admissible in evidence                   15

Part 6Reports covering acts of unlawful interference

18Reports relating to acts of unlawful interference           17

19Authorisation of disclosures of personal information for this Part      18

Part 7Miscellaneous

20Delegation by Executive Director                            19

Part 1                      Preliminary

1. Name of Regulations

These Regulations are the Air Navigation (Confidential Reporting) Regulations 2006.

1. Commencement

These Regulations commence on 29 January 2007.

1. Definitions

(1)In these Regulations:

Act means the Air Navigation Act 1920.

act of unlawful interference has the meaning given by regulation 18.

Annex 13 means Annex 13, Aircraft Accident and Incident Investigation, to the Chicago Convention, as in effect on 23 November 2006.

CASA means the Civil Aviation Safety Authority established by the Civil Aviation Act 1988.

Civil Aviation Orders has the meaning given by subsection 3 (1) of the Civil Aviation Act 1988.

Executive Director means the person for the time being holding, occupying or performing the duties of the position of Executive Director of Transport Safety Investigation referred to in section 12 of the Transport Safety Investigation Act 2003.

personal information has the same meaning as in the Privacy Act 1988.

Note   Section 6 of the Privacy Act 1988 defines personal information as information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

REPCON means the scheme established under subregulation 5 (1) for confidential reporting of reportable safety concerns.

reportable safety concern has the meaning given by regulation 7.

reporter, in relation to a report made or purportedly made under REPCON, means the person who made the report.

RSC report means a report in which a reportable safety concern is described.

(2)For the purposes of these Regulations, any information obtained or generated by the Executive Director in the course of clarifying and verifying information in a report is part of the report.

1. Application of these Regulations

These Regulations apply to, and in relation to, the following aircraft while the aircraft are within or outside Australian Territory:

(a)Australian aircraft;

(b)aircraft (other than Australian aircraft) engaged in Australian international carriage within the meaning of section 27 of the Act.

Part 2                      The REPCON Scheme

1. Establishment and purposes of scheme

(1)There is established a scheme (REPCON) for the confidential reporting of reportable safety concerns.

(2)The scheme is to be administered by the Executive Director.

(3)The primary purpose of the scheme is to enable the Executive Director:

(a)to provide a confidential reporting scheme for reportable safety concerns; and

(b)to use the reports made under the scheme to identify unsafe procedures, practices or conditions; and

(c)to provide information to the aviation industry about an identified unsafe procedure, practice or condition to facilitate safety awareness and safety action and improvements by other persons and organisations.

(4)The secondary purpose of the scheme is to enable the Executive Director to provide information, arising from reports, about an aviation security concern to an appropriate person or organisation to facilitate security awareness.

1. Powers and functions of Executive Director

Without limiting the powers and functions of the Executive Director as administrator of REPCON, the Executive Director has the following powers and functions:

(a)to accept and process reports;

(b)to forward, return or destroy reports;

(c)to review information contained in reports;

(d)to establish and maintain databases for storing information contained in reports;

(e)to disclose information contained in reports in accordance with these Regulations and the international standards and recommended practices in Annex 13;

(f)to issue information briefs or alert bulletins that the Executive Director considers are necessary or desirable in the interests of aviation safety;

(g)to publish details of reviews made under paragraph (c);

(h)to liaise with any group or committee established to assess the effectiveness of REPCON.

Note   Parts 5 and 6 affect the powers and functions of the Executive Director relating to information contained in reports.

Part 3                      Reporting

1. What may be reported?

(1)Each of the following concerns (reportable safety concern) in relation to the safety of air navigation concerning an aircraft to which these Regulations apply may be reported under REPCON:

(a)an incident or circumstance that affects the safety of air navigation;

(b)a procedure, practice or condition that a reasonable person would consider endangers, or, if not corrected, would endanger, the safety of air navigation, for example:

(i)poor training, behaviour or attitude displayed by an aircraft operator, airport operator or air traffic control service provider; or

(ii)insufficient qualifications or experience of employees of the aircraft operator, airport operator or air traffic control service provider; or

(iii)scheduling or rostering that contributes to the fatigue of employees of the aircraft operator, airport operator or air traffic control service provider; or

(iv)an aircraft operator, airport operator or air traffic control service provider bypassing safety procedures because of operational or commercial pressures; or

(v)inadequate airport facilities for safe operations; or

(vi)unsafe passenger, baggage or cargo management; or

(vii)inadequate traffic or weather information;

(c)non‑compliance with the Civil Aviation Act 1988, the Civil Aviation Orders, the Civil Aviation Regulations 1988 or the Civil Aviation Safety Regulations 1998, for example, failure to comply with:

(i)airworthiness standards or aircraft maintenance requirements under those instruments; or

(ii)air traffic control clearances or air traffic control instructions; or

(iii)rules of the air for prevention of collision;

(d)any other matter that endangers, or could endanger, the safety of air navigation.

(2)The following are not reportable safety concerns:

(a)matters showing a serious and imminent threat to a person’s health or life;

(b)acts of unlawful interference;

(c)industrial relations issues;

(d)conduct that may constitute an offence against the law of the Commonwealth, a State or a Territory and that is punishable by a maximum penalty of life or more than 2 years imprisonment.

1. How are reports to be made?

(1)A report must be made to the Executive Director in a form and manner approved by the Executive Director.

(2)The report must include the following information:

(a)the reporter’s name;

(b)the preferred means by which the Executive Director may contact the reporter (mailing or e‑mail address, telephone or fax number);

(c)a description of the matter that comprises the reportable safety concern.

Note   A copy of the approved form is available from the website of the Australian Transport Safety Bureau at (

1. Can a report be made orally?

A report that is not made in writing must be reduced to writing by the Executive Director.

Example

A report made over the phone to the Executive Director must be reduced to writing by the Executive Director.

Part 4                      Assessment and acceptance of reports

1. Processing of reports

(1)The Executive Director must accept a report if:

(a)he or she is satisfied that REPCON is the most suitable avenue for making the report; and

(b)he or she reasonably believes that the matter described in the report is a reportable safety concern; and

(c)he or she reasonably believes the report to be true.

(2)If the Executive Director decides not to accept a report, the Executive Director must:

(a)determine whether to disclose any information from the report and act accordingly; and

(b)deal with the report in accordance with subregulation (3) as soon as practicable.

Note   Regulations 13, 14, 15 and 18 affect the powers and functions of the Executive Director relating to disclosure of information contained in reports.

(3)For paragraph (2) (b) and subject to regulation 12, the Executive Director must:

(a)return to the reporter, or destroy, the part of the report supplied by the reporter; and

(b)if any part of the report was supplied by a person other than the reporter — return to that other person, or destroy, that part of the report.

1. Dealing with reports that have been accepted

(1)If the Executive Director accepts a report, the Executive Director must:

(a)determine what information in the report is to be included in databases maintained for the purposes of REPCON and include that information in those databases; and

(b)determine whether to disclose any information from the report and act accordingly; and

(c)deal with the report in accordance with subregulation (4) as soon as practicable.

Note   Regulations 13, 14, 15 and 18 affect the powers and functions of the Executive Director relating to disclosure of information contained in reports.

(2)The Executive Director may include personal information in a database maintained by REPCON only if:

(a)it is impracticable to remove the information from the report; or

(b)the Executive Director considers that it is necessary to keep in contact with the reporter or a person or organisation referred to in the report, and the information is reasonably necessary for that purpose.

(3)If personal information is included in a database for the purpose mentioned in paragraph (2) (b), and the Executive Director is satisfied that it is no longer necessary or desirable to keep the information for that purpose, the Executive Director must permanently remove the information from the database.

(4)For paragraph (1) (c) and subject to regulation 12, the Executive Director must:

(a)return to the reporter, or destroy, the part of the report supplied by the reporter; and

(b)if any part of the report was supplied by a person other than the reporter — return to that other person, or destroy, that part of the report.

1. Reports the making of which may have constituted an offence

(1)If the Executive Director reasonably believes that the making of a report constituted an offence against section 137.1 of the Criminal Code, the Executive Director must not:

(a)destroy the report; or

(b)return the report, or any part of the report, to the reporter; or

(c)return any part of the report supplied by a person other than the reporter to the other person;

until 2 years (the relevant period) has elapsed from the date when the report was made.

(2)If a prosecution for an offence against section 137.1 of the Criminal Code is commenced within the relevant period, the Executive Director 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 it is no longer required for that purpose.

Note Under section 137.1 of the Criminal Code, it is an offence for a person to knowingly supply false or misleading information to a Commonwealth officer.

Part 5                      Disclosure and use of reports and information in reports

1. Disclosing information in accordance with Annex 13

(1)The Executive Director must have regard to the international standards and recommended practices in Annex 13 in deciding whether to disclose information contained in a report.

(2)However, the Executive Director may disclose personal information in a report only in accordance with regulation 14.

1. Disclosure of personal information in reports

(1)Subject to subregulations (2), (3) and (4), the Executive Director may disclose information from a report only if the Executive Director has removed all personal information from the information to be disclosed.

(2)If the Executive Director proposes to disclose information from the report, and it is not possible to remove from the information all personal information about a reporter or a person referred to in the report without defeating the purpose for which the Executive Director proposes to disclose the information, the Executive Director may disclose the information only if:

(a)the Executive Director considers it necessary or desirable to do so for any purpose specified in subregulation 5 (3) or (4); and

(b)the Executive Director has first obtained the consent of the person to whom the personal information relates.

(3)Nothing in subregulation (1) or (2) prevents the Executive Director from disclosing personal information:

(a)for the purpose of investigating a possible offence against section 137.1 of the Criminal Code; or

(b)in accordance with Part 6; or

(c)if the Executive Director believes on reasonable grounds that disclosure is necessary to lessen or prevent a serious and imminent threat to a person’s health or life.

Note   The matters addressed by paragraphs (3) (b) and (c) are excluded from being reportable safety concerns by subregulation 7 (2).

(4)If the Executive Director does not accept a report because it relates to conduct that may constitute a possible offence against a law of the Commonwealth, a State or a Territory punishable by a maximum penalty of imprisonment for life or more than 2 years, nothing in subregulation (1) or (2) prevents the Executive Director from disclosing personal information for the purpose of investigating the possible offence.

Note   The conduct in subregulation (4) is excluded from being a reportable safety concern by subregulation 7 (2).

1. Opportunity to comment on reports in certain circumstances

(1)Subregulation (2) has effect if:

(a)the Executive Director proposes to send information from a report to CASA; and

(b)complying with the subregulation is not likely to damage REPCON’s reputation for keeping personal information confidential and, consequently, reduce reporting under REPCON; and

(c)it is practicable to comply with that subregulation.

(2)Before sending the information from the report to CASA, the Executive Director must provide any person or organisation named in the report with a version of the report, and must allow the person or organisation 5 working days to comment on the report’s contents.

(3)To avoid doubt, in providing any person or organisation named in the report with a version of the report, the Executive Director must comply with regulation 14.

(4)For subregulation (2), a working day means a day that is not a Saturday, Sunday or public holiday in the place where the person lives, or the organisation is located.

(5)The Executive Director must take into account any comments made by the person or organisation when deciding whether to send information from the report to CASA.

1. Report not to be ground for disciplinary action etc

(1)A person is not entitled to take disciplinary action against an employee of the person using information derived from an RSC report.

(2)A person is not entitled to make a decision of an administrative character under an Act, or an instrument made under an Act, against a person using information derived from an RSC report.

(3)To avoid doubt, this regulation does not prevent the use of information derived from a source that is not an RSC report.

1. Reports not to be admissible in evidence

(1)An RSC report, or evidence as to the contents of an RSC report, is not admissible in evidence in a court or tribunal.

(2)Subregulation (1) does not apply in proceedings in relation to whether the making of a report constituted an offence against section 137.1 of the Criminal Code.

(3)Also, subregulation (1) does not apply if the Executive Director issues a certificate to the effect that:

(a)the use of a specified RSC report, or evidence as to its contents, in specified proceedings is not likely to reduce reporting under REPCON; or

(b)any reduction in reporting under REPCON that the use of a specified RSC report, or evidence as to its contents, in specified proceedings might cause is outweighed by the public interest in the use of the report, or evidence as to its contents, in specified proceedings.

(4)The Executive Director may issue a certificate mentioned in subregulation (3) in relation to an RSC report, or evidence as to its contents, only for proceedings involving an appeal against:

(a)a decision of an administrative character made under an Act, using information derived from the report; or

(b)a decision of an administrative character made under an instrument made under an Act, using information derived from the report; or

(c)a disciplinary action taken using information derived from the report.

Part 6                      Reports covering acts of unlawful interference

1. Reports relating to acts of unlawful interference

(1)If a report relates to an act of unlawful interference, the Executive Director:

(a)must inform the Office of Transport Security Operations Centre in the Department of the report; and

(b)may, if that Office so requests, send the report, or information from the report, to that Office.

(2)Each of the following acts, being acts done to jeopardise the safety of civil aviation or air transport, is an act of unlawful interference:

(a)unlawful seizure of an aircraft that is in the air or on the ground;

(b)hostage‑taking on board an aircraft or at an airport;

(c)forcible intrusion on board an aircraft, at an airport or on the premises of an aeronautical facility;

(d)introduction on board an aircraft or at an airport of a weapon or hazardous device or material intended for criminal purposes;

(e)communication of false information for the purposes of jeopardising the safety of an aircraft in flight or on the ground, of passengers, crew, ground personnel or the general public, at an airport or on the premises of a civil aviation facility.

(3)Also, an attempt at an act mentioned in paragraph (2) (a), (b), (c), (d) or (e), or a threat to carry out one of those acts, is an act of unlawful interference.

Note 1   The definition is based on that in ICAO Document 9713, ‘International Civil Aviation Vocabulary’.

Note 2   An act of unlawful interference is not a reportable safety concern — see paragraph 7 (2) (b).

1. Authorisation of disclosures of personal information for this Part

For the purpose of enabling the Executive Director to act under paragraph 18 (1) (a) or (b) in relation to a report describing an act of unlawful interference, the Executive Director is authorised to disclose personal information contained in the report to the Office of Transport Security Operations Centre in the Department.

Part 7                      Miscellaneous

1. Delegation by Executive Director

(1)The Executive Director may, in writing, delegate a power (except this power of delegation), function or duty of the Executive Director under these Regulations to a person engaged to perform duties in the Department (whether as an APS employee, SES employee or under any other arrangement).

(2)In exercising powers, functions and duties under a delegation, the delegate must comply with any directions of the Executive Director.

Note

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See