EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 371
Issued by the Authority of the Minister for Transport and Regional Services
Air Navigation Act 1920
Air Navigation (Confidential Reporting) Regulations 2006
Subsection 26(1) of the Air Navigation Act 1920 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, for the purpose of carrying out and giving effect to the Convention on International Civil Aviation concluded at Chicago on 7 December 1944 (Chicago Convention), as amended by the protocols referred to in subsection 3A(2) of the Act, and any Annex to the Chicago Convention relating to international standards and recommended practices (being an Annex adopted in accordance with the Chicago Convention).
Paragraph 8.2 of Annex 13 to the Chicago Convention contains a recommendation for contracting States to establish a voluntary incident reporting system to facilitate the collection of information that may not be captured by a mandatory incident reporting system. Paragraph 8.3 states that a voluntary incident reporting system shall be non-punitive and afford protection to the sources of information.
The Regulations establish a confidential reporting scheme for the Australian aviation industry in accordance with the recommendation in paragraph 8.2 of Annex 13. The scheme, known as REPCON (Report Confidentially), allows persons who observe or become aware of safety concerns to report such concerns confidentially. The Executive Director of Transport Safety Investigation, a statutory office established under subsection 77(1) of the Public Service Act 1999, and referred to in the Transport Safety Investigation Act 2003 (TSI Act), is the prescribed person to reports are made. The Executive Director of Transport Safety Investigation is responsible for administering the TSI Act and is the Executive Director of the Australian Transport Safety Bureau (ATSB).
Information from the reports is used to identify unsafe procedures, practices or conditions in order to prevent or reduce the likelihood and severity of future aviation accidents and incidents. While adhering to the confidentiality requirements discussed below, the Regulations allow the Executive Director to achieve this objective through issuing information briefs and alert bulletins. Information from a brief or an alert can be used by the industry to change operational practices or by the Civil Aviation Safety Authority (CASA) to make changes in the regulatory system or introduce additional education campaigns or surveillance.
The Regulations require confidentiality for the reporter and for a person referred to in a report. Confidentiality for the reporter is an integral element of the scheme necessary to encourage industry participation without fear of reprisal. Confidentiality for any person referred to in a report guarantees that the scheme is directed towards providing information to the industry to address a safety issue rather than prosecuting individuals. In general, the Executive Director is only able to release personal information about a reporter, or a person referred to in a report, for the purposes of aviation safety after obtaining the person’s consent.
Concerns involving a serious and imminent threat to a person’s health or life, or about a serious crime, are not be reported under the REPCON scheme. Such concerns should be reported directly to the responsible body (e.g. the Police). The scheme’s restrictive confidentiality requirements, covering both the reporter and any person referred to in the report, would make it inappropriate for the Executive Director to have in his or her possession personal information that cannot be released but which could prevent an imminent death or serious injury or resolve a serious crime.
The Regulations prevent REPCON reports, constituting a Reportable Safety Concern, from being admitted as evidence in a court or tribunal or relied upon for making an administrative decision or taking disciplinary action against a person. The objective of this measure is to ensure that the scheme is non-punitive, in accordance with paragraph 8.3 of Annex 13 to the Chicago Convention.
The Executive Director of Transport Safety Investigation currently administers a similar confidential reporting scheme for the Australian maritime industry under the Navigation (Confidential Marine Reporting Scheme) Regulations 2004.
The Department of Transport and Regional Services consulted extensively on the Regulations. Consultation included seeking written submissions on drafts of the Regulations and telephone and face to face discussions to resolve concerns. The content of the Regulations constitutes a version broadly accepted by the airlines, aviation unions, industry associations, concerned individuals and CASA.
Details of the Regulations are attached.
The Regulations commenced on 29 January 2007.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Attachment
Details of the Air Navigation (Confidential Reporting) Regulations 2006
Part 1 Preliminary
Regulation 1 Name of Regulations
This regulation provides that the Regulations are the Air Navigation (Confidential Reporting) Regulations 2006.
Regulation 2 Commencement
This regulation provides that the Regulations commence on 29 January 2007.
Regulation 3 Definitions
Subregulation 3(1) provides definitions of various terms used in the Regulations.
Subregulation 3(2) ensures that information obtained or generated in the course of verifying or clarifying the initial report is dealt with in the same way as the initial report. The confidentiality requirements in the Regulations are also applied to information obtained for the purpose of verifying and clarifying the initial report, ensuring the scheme is not compromised through an unsanctioned disclosure of a person’s identity.
Regulation 4 Application of these Regulations
This regulation provides that the Regulations apply to both ‘Australian aircraft’ and aircraft (other than ‘Australian aircraft’) engaged in ‘Australian international carriage’ when such aircraft are within or outside Australian territory. The regulation gives the Regulations extra-territorial application in accordance with the authorisation in section 27 of the Air Navigation Act 1920 (the Act). The Regulations apply extra-territorially to non-Australian aircraft engaged in ‘Australian international carriage’ because such aircraft fly into and out of Australia. Safety concerns affecting these aircraft can have an impact on aviation safety within Australia.
Section 3 of the Act defines ‘Australian aircraft’ by reference to the definition of the same term in the Civil Aviation Act 1988 (CA Act), which in turn refers to:
(a) aircraft registered in Australia; and
(b) aircraft in Australian territory, other than foreign registered aircraft and State aircraft.
‘Australian international carriage’ is defined by subsection 27(2) of the Act, in part, to mean the carriage of passengers or freight, or both passengers and freight, whether within or outside Australian territory, by an aircraft that:
(a) is operated by an airline that is designated, nominated, or otherwise similarly authorised by Australia under a bilateral arrangement to engage in such carriage;
(b) is operated by an airline incorporated in Australia; or
(c) is operated by an airline having its principal place of business in Australia.
Part 2 The REPCON Scheme
Regulation 5 Establishment and Purposes of Scheme
This regulation establishes REPCON, a scheme for the confidential reporting of reportable aviation safety concerns. The scheme is administered by the Executive Director of Transport Safety Investigation whose office is established under subsection 77(1) of the Public Service Act 1999 and referred to in the Transport Safety Investigation Act 2003 (TSI Act). The Executive Director of Transport Safety Investigation is also designated the Executive Director of the Australian Transport Safety Bureau (ATSB). Regulation 22 allows the Executive Director to delegate powers, functions and duties associated with the administration of the scheme. REPCON is managed by persons, who are ATSB staff members, and who are delegated the relevant powers, functions and duties.
Subregulation 5(3) outlines the primary purpose of the scheme. The primary purpose is to provide a scheme for the confidential reporting of aviation safety concerns and to use the reports made under the scheme to identify unsafe procedures, practices or conditions in order to prevent or lessen the likelihood of aviation accidents.
Subregulation 5(4) provides a secondary purpose for the scheme, which recognises that some reports about aviation safety concerns may have implications for aviation security and that such issues should be brought to the attention of the appropriate organisations. These may be issues related to the combination of measures and human and material resources intended to safeguard against acts of unlawful interference. However, it is not intended that REPCON should be a confidential reporting scheme directed towards aviation security matters. Subregulation 5(4) acknowledges that security issues may occasionally be an unintended by-product of reports about safety concerns.
Regulation 6 Powers and functions of Executive Director
This regulation provides an overview of the powers and functions of the Executive Director as the administrator of REPCON. The detail of these powers and functions is contained in the other regulations.
Part 3 Reporting
Regulation 7 What may be reported?
This regulation provides a list of matters that constitute reportable safety concerns under REPCON. Examples in paragraphs 7(1)(a), (b) and (c) are given for guidance, such as a circumstance involving the insufficient qualifications or experience of employees of an aircraft operator, airport operator or air traffic control service provider. The examples, however, do not limit the actual safety concerns that can be reported. Provided the concern relates to a matter that ‘endangers, or could endanger, the safety of air navigation’, it is reportable (see paragraph 7(1)(d)).
Some matters are excluded from the list of reportable safety concerns. For example, paragraph 7(2)(a) excludes reports of ‘matters showing a serious and imminent threat to a person’s health or life’. Such reports, as the words suggest, are of an urgent and grave nature where there is unlikely to be an opportunity to conduct a full inquiry before some sort of action is taken to lessen or prevent the serious and imminent threat to a person’s health or life. The Executive Director is not in the best position to act on such a report. The Executive Director, for example, should not be required by the scheme to accept a report of a pilot preparing to fly an aircraft while heavily intoxicated. If REPCON were to permit acceptance of such reports, and subject them to confidentiality requirements with respect to personal information contained in them, the Executive Director would be in an untenable position. In the example, the Executive Director would not be able to pass on details about the pilot to prevent a flight that could result in a serious accident.
If the Executive Director does receive reports of matters showing a serious and imminent threat to a person’s health or life, he or she normally asks the reporter to report the matter to a more appropriate authority (e.g. CASA or the Police). However, if it seems unlikely that the reporter will pass on the information themselves, the Executive Director is not prevented from releasing the information to lessen or prevent a serious and imminent threat to a person’s health or life. Reports of this nature are not subject to confidentiality requirements in regulation 14.
Other matters excluded by subregulation 7(2) are acts of unlawful interference (terrorist activities defined in subregulation 19(2)), industrial relations issues, and serious criminal offences, which are not considered to be within the scope of the REPCON scheme.
Regulation 8 How are reports to be made?
This regulation sets out the procedure for a person wishing to make a report under REPCON. The report needs to be made to the Executive Director in a form and manner that is approved by the Executive Director. With the commencement of the Regulations on 29 January 2007, an approved reporting form was made available on the ATSB’s website at http://www.atsb.gov.au
Subregulation 8(2) lists the information to be included in a report. It is mandatory for the reporter to provide his or her name, the preferred means by which they wish to be contacted and a description of the matter comprising the reportable safety concern.
Regulation 9 Can a report be made orally?
It is envisaged that a person may make an oral report, such as making a report over the telephone. However, in accordance with the regulation 9 the Executive Director must reduce an oral report to writing. As paragraph 10(1)(c) requires the Executive Director to have a reasonable belief that the report is true before accepting it, he or she, as part of the process of being satisfied of this, needs to seek to confirm that the written record of the oral report is accurate.
Part 4 Assessment and acceptance of reports
Regulation 10 Processing of reports
This regulation prescribes the conditions that must be met for a report to be accepted under REPCON. It also details the way in which a report is to be dealt with that is not accepted under REPCON.
Subregulation 10(1) requires the Executive Director to accept a report if the following conditions are met:
(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.
Paragraph 10(1)(a) is necessary to ensure that REPCON does not impede the effectiveness of other reporting schemes in the aviation industry. For example, a person who has an obligation to make a report of a safety matter under subsections 18(1) or 19(1) of the TSI Act should not be able to use the REPCON scheme to subvert their obligations under the TSI Act. It is unlikely that the Executive Director will accept a report of a matter by someone who had an obligation to report it under the TSI Act. The purpose of the scheme, established under the TSI Act, would be defeated if the person was allowed to report the matter under the REPCON scheme.
Other examples of the REPCON scheme potentially not being the most suitable avenue for a person to make a report could include a situation where a person does not require the confidentiality of REPCON, or where the person is working for an air operator that has an appropriate reporting scheme to deal with the issue. However, if the person desired the confidentiality and independence of REPCON, or the Executive Director believed that the reporter would not report the matter elsewhere, then the Executive Director is likely to consider the REPCON scheme as the most suitable avenue for the person to make the report. In the case where the Executive Director did not accept the report, the Executive Director is able to forward information from the report to a more suitable recipient, provided it is done in accordance with regulation 14, which contains the schemes confidentiality requirements. Paragraph 10(2)(a) confirms the Executive Director’s ability to do this. As a matter of practice, the Executive Director consults the reporter about the action he or she intends to take with an unaccepted report.
Paragraphs 10(1)(b) and 10(1)(c) require the Executive Director to reasonably believe that the report constitutes a reportable safety concern and is true before accepting it. In practice, when the Executive Director receives a report, he or she makes an assessment about whether what has been reported constitutes a reportable safety concern under regulation 7. The Executive Director then seeks to verify the information contained in the report. This may involve contacting the reporter and other involved parties to discuss its contents. It is important to note that the Executive Director must take into account the need to protect personal information in accordance with regulation 14 while seeking to verify the report.
It is unlikely that the Executive Director will be able to accept an anonymous report because of the difficulties associated with assessing its reliability.
As paragraph 10(3)(b) requires the eventual destruction of an unaccepted report, paragraph 10(2)(a) requires the Executive Director to consider whether any information should first of all be disclosed. However, as the note under subregulation 10(2) acknowledges, the Executive Director has to follow the requirements for disclosure of information contained in regulations 13, 14, 15 and 18, which include confidentiality requirements.
Subregulation 10(3), in effect, places a requirement on the Executive Director to ensure that he or she does not retain an unaccepted report. The Executive Director has the option to return parts of the report to the person who provided those parts or destroy those parts that are not returned. The Executive Director is required to dispose of unaccepted reports as a measure to ensure the confidentiality of the scheme is maintained. However, the obligation on the Executive Director to dispose of an unaccepted report is subject to regulation 12, which specifies that if the Executive Director reasonably believes that the making of the report constituted an offence against section 137.1 of the Criminal Code Act 1995 (the Criminal Code) because the reporter knowingly provided a false or misleading report, the unaccepted report should be retained. The objective of this measure in relation to regulation 12 is discussed further below.
Regulation 11 Dealing with reports that have been accepted
This regulation requires the Executive Director to determine what information, contained in a report, accepted under subregulation 10(1), is to be included in databases maintained for the purposes of REPCON. To the extent practicable, the Executive Director must ensure that personal information about a reporter, or any person referred to in the report, is only kept on any database for as long as it is necessary to keep in contact with the reporter or a person or organisation referred to in the report. This measure is included to maintain the confidential nature of the scheme.
Subregulation 11(4) places an obligation on the Executive Director to ensure that after information from a report is entered onto the database, the report itself is either destroyed or its parts are returned to the person who provided them. Similar to subregulation 10(3), subregulation 11(4) seeks to ensure that information identifying the reporter, or another person, is not kept on record longer than necessary. The intent of this is to preserve the confidential nature of the scheme. However, before the Executive Director destroys or returns any part of a report, he or she must consider what needs to happen with information in the report, in accordance with the steps outlined in subregulation 11(1). Under paragraph 11(1)(b), information may be disclosed as an information brief or alert bulletin to the industry so that safety issues may be addressed. However, as the note under subregulation 11(1) acknowledges, the requirements with respect to confidentiality in regulations 13, 14, 15 and 18 need to be followed with any disclosure of information contemplated by paragraph 11(1)(b).
Similar to subregulation 10(3), the obligation on the Executive Director to dispose of the written records of a report under subregulation 11(4) is subject to regulation 12, if the Executive Director reasonably believes that the making of the report constituted an offence against section 137.1 of the Criminal Code because the reporter knowingly provided a false or misleading report.
Regulation 12 Reports the making of which may have constituted an offence
This regulation requires the Executive Director to retain a report, where he or she reasonably believes the making of the report constitutes an offence against section 137.1 of the Criminal Code, for up to two years after the date that the report was made or as long as required if a prosecution is commenced in that time-frame. Section 137.1 of the Criminal Code makes it an offence for a person to knowingly supply false or misleading information to the Commonwealth. It is important for the REPCON scheme to be able to rely on section 137.1 to deter people from making vexatious reports. Regulation 12 seeks to ensure that evidential material necessary for proving the offence is not prematurely destroyed.
Part 5 Disclosure and use of reports and information in reports
Regulation 13 Disclosing information in accordance with Annex 13
This regulation allows the Executive Director to disclose information, contained in a report, in a manner consistent with the standards and recommended practices of Annex 13 to the Convention on International Civil Aviation (Chicago Convention). Annex 13 provides the standards and recommended practices for the contracting States to the Chicago Convention on aircraft accident and incident investigation. Paragraph 8.4 of Annex 13 recommends that a State should establish a database to facilitate the effective analysis of information obtained from its incident reporting system. Paragraph 8.7 of Annex 13 recommends that ‘safety matters considered to be of interest to other States’ should be forwarded to other States ‘as soon as possible’. Paragraph 8.9 of Annex 13 recommends ‘the free exchange of information on actual and potential safety deficiencies’.
However, subregulation 13(2) means that any exchange of information in accordance with Annex 13 must adhere to the confidentiality requirements in regulation 14.
Regulation 14 Other disclosure of information in reports
Subregulation 14(1) allows the Executive Director to disclose information from a REPCON report but only if personal information has been removed from the information to be disclosed. This includes personal information about the reporter and anyone named in the report. Confidentiality for the reporter is an integral element of the scheme necessary to encourage industry participation without fear of reprisal. Confidentiality for any person referred to in a report guarantees that the scheme is directed towards providing information to the industry to address a safety issue rather than prosecuting individuals. The requirements in regulation 14 apply to all reports. The limited, but necessary exceptions to the requirement to keep personal information confidential are addressed by subregulations 14(2), 14(3) and 14(4).
Subregulation 14(2) allows personal information to be disclosed if two conditions, together, are met. The disclosure of personal information must be for a purpose of the scheme, described in either subregulation 5(3) or 5(4), for example, facilitating safety action. The consent of the person about whom the personal information relates must also be obtained. Without that consent, the personal information cannot be disclosed under subregulation 14(2).
Subregulation 14(3) contains three limited exceptions to the requirement not to disclose personal information. Paragraph 14(3)(a) allows disclosure for an investigation where a person has knowingly supplied false and misleading information. It is important for the viability of the REPCON scheme that it does not become an avenue for vexatious reporting. Subregulation 14(3) ensures this outcome can be achieved by facilitating the use of section 137.1 of the Criminal Code as a deterrent.
Paragraph 14(3)(b) allows disclosure when a report is about an act of unlawful interference (as defined and addressed in regulation 18 – these are serious acts of terrorism). Paragraph 14(3)(c) allows disclosure where 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. Neither of the matters for which paragraphs 14(3)(b) and (c) provide exceptions to the confidentiality requirement can be reported under REPCON; subregulation 7(2) specifically excludes them from the possible safety concerns that may be reported – they are not REPCON reports. Reports of this kind are of an extremely urgent nature where a person or many persons’ health or lives are in danger. The scheme could not be justified if it allowed such reports and applied its confidentiality regime to it. Further explanation on the rationale for this measure can be found under the explanation of regulation 7.
Subregulation 14(4) allows disclosure of personal information from a report that wasn’t accepted 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 two years. The information can be disclosed for the investigation of the possible offence. Reports of serious crimes cannot be reported under REPCON; subregulation 7(2) specifically excludes them from the possible safety concerns that may be reported – they are not REPCON reports. The purpose of the scheme is to facilitate safety awareness and safety action through the dissemination of safety information that de-identifies the reporter and any person named in a report. Accepting and protecting reports about serious crimes does not fit within this objective.
Although the Executive Director may disclose personal information in the limited circumstances described in subregulations 14(3) and 14(4), the Regulations do not mandate that the Executive Director must make the disclosure. He or she is necessarily concerned to protect the scheme when making any decision, being aware that maintaining the industry’s trust in the scheme is vital to ensuring that the industry continues to use it.
The requirements described above, for the protection of personal information, have been made more stringent than those provided in Information Privacy Principle 11, under the Privacy Act 1988, on the grounds that the privacy protections need to be tailored to suit the scheme. The fundamental tenet of the scheme is its confidentiality.
Regulation 15 Opportunity to comment on reports in certain circumstances
This regulation stipulates that if the Executive Director proposes to forward a report to CASA then, if practicable, he or she, while complying with the confidentiality requirements regarding personal information, must provide a person or organisation named in the report with a copy of the report. The person or organisation is given 5 working days to comment on the report and the Executive Director is required to take those comments into account. This regulation is intended to provide an assurance to the parties who may be affected by CASA’s assessment of the safety concern, noting that the version CASA receives is de-identified. Person’s who may be affected are advised of the Executive Director’s proposed decision to refer information derived from a report to CASA.
Paragraph 15(1)(b) exempts the Executive Director from complying with the regulation if complying would compromise the REPCON scheme. For example, it may be impossible to provide information from a report to a person or organisation named in the report without identifying an individual. In such cases, complying with regulation 15 may compromise the REPCON scheme and would be a breach of regulation 14 if information was passed on that revealed the identity of an individual. Paragraph 15(1)(b) ensures that the requirement to consult with the parties concerned does not apply in such circumstances, preserving the confidentiality of the scheme.
Regulation 16 Report not to be ground for disciplinary action etc
Subregulation 16(1) prevents information from a report about a Reportable Safety Concern being used by a person as the basis for taking disciplinary action against an employee of the person. Subregulation 16(2) also prevents information from a report about a Reportable Safety Concern being used as the basis for making a decision of an administrative character against someone.
The types of protections contained in regulation 16 serve as a means of seeking to ensure that REPCON is ‘non-punitive’ in accordance with paragraph 8.3 of Annex 13 to the Chicago Convention.
Regulation 17 Reports not to be admissible in evidence
Regulation 17 prevents reports about a Reportable Safety Concern from being admissible in evidence in a court or tribunal. The rationale for this provision is similar to the rationale for regulation 16. Information from reports about Reportable Safety Concerns is intended to be used for the purpose of addressing safety issues and not as a source of evidence of an allegation in court or tribunal proceedings. If information from reports about Reportable Safety Concerns is inappropriately used as evidence in a court or tribunal, a negative impact on the scheme may result because there is likely to be declining support for the scheme in the aviation community. Parties involved in court or tribunal proceedings need to gather their own evidence separately from the REPCON scheme.
The types of protections contained in regulation 17 serve as a means of seeking to ensure that REPCON is ‘non-punitive’ in accordance with paragraph 8.3 of Annex 13 to the Chicago Convention.
However, regulation 17 contains two exceptions. Subregulation 17(2) provides an exemption for proceedings in relation to whether the making of a report constituted an offence against section 137.1 of the Criminal Code. This is to ensure that, if necessary, court proceedings can be carried out to prosecute a person for intentionally providing false or misleading information and thereby deter vexatious reporters from abusing the scheme.
The other exception is provided for in subregulations 17(3) and (4). Evidence as to the contents of a report about a Reportable Safety Concern can be admitted in an appeal against an administrative decision or disciplinary action. This exception is provided for, should a person seek to appeal against an administrative decision or disciplinary action in which information from a report about a Reportable Safety Concern was misused. Additionally, in accordance with subregulation 17(3), for the evidence to be admitted in an appeal against an administrative decision or disciplinary action, the Executive Director must issue a certificate stating that there is not likely to be a negative effect on REPCON or that any negative impact is outweighed by the public interest.
Significantly, it is unlikely that administrative or disciplinary action could be taken against an individual on the basis of a report about a Reportable Safety Concern in the first place. The strong confidentiality requirements in regulation 14 mean that it is difficult to target any individual on the basis of any de-identified information released.
Part 6 Reports covering acts of unlawful interference
Regulation 18 Reports relating to acts of unlawful interference
This regulation provides a procedure for dealing with a report of an act, or threat, of unlawful interference as defined in International Civil Aviation Organization (ICAO) Document 9713 International Civil Aviation Vocabulary. Unlawful interferences are excluded from the matters that may be reported to the Executive Director by subregulation 7(2). However, if the Executive Director does receive a report of an act of unlawful interference, and it was not accepted, the Executive Director is required to inform the Office of Transport Security Operations Centre in the Department of Transport and Regional Services and may send the report or information from the report, if sought by the Office. This ensures that serious security threats, which are outside the scope of REPCON, can be dealt with by the appropriate authority.
Regulation 19 Authorisation of disclosures of personal information for this Part
Regulation 21 provides the necessary authorisations with respect to personal information to accompany Part 6 of the Regulations.
Part 7 Miscellaneous
Regulation 20 Delegation by Executive Director
This regulation empowers the Executive Director to delegate any power, function or duty of the Executive Director under REPCON (other than the power of delegation) to a person engaged to perform duties in the Department. A delegate must comply with any directions of the Executive Director.