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Inspector of Transport Security Bill 2006

Part 5 Gathering information

Division 1 Powers relating to information and documents

34   Simplified outline

                   The following is a simplified outline of this Division:

This Division gives the Inspector the power to request information that he or she believes is relevant to an inquiry.

Under this Division:

               (a)     a request for OBR information can be made to the Executive Director;

              (b)     a request for restricted information can be made to the Executive Director, or a government agency or person who holds the information independently of the Executive Director, such as the original source;

               (c)     a request for other information or documents that have been obtained or generated by a government agency can be made to the agency or a person who holds the information independently of the agency, such as the original source;

              (d)     a request for other information can be made to any person who holds the information.

The flow of information and documents to the Inspector is encouraged by:

               (a)     enabling government agencies and others to give information and documents to the Inspector despite any other law;

              (b)     providing that offences under the Transport Safety Investigation Act 2003 that would otherwise apply to prevent the Executive Director from giving information to the Inspector do not apply;

               (c)     providing immunities for people who give information and documents to the Inspector.

Once given to the Inspector, the circumstances in which the information and documents can be copied, recorded, used and disclosed in the context of an inquiry are limited.

In particular, disclosure is limited where that disclosure would hinder another agency’s investigations or adversely affect its operations. In that case, the information can only be disclosed with the agreement of the source.

35   Power to request information from persons generally

             (1)  This section applies in relation to information or documents:

                     (a)  that are held by a person; and

                     (b)  that the Inspector believes to be relevant to an inquiry conducted in accordance with a direction of the Minister under section 11; and

                     (c)  that are not OBR information; and

                     (d)  that are not restricted information that the person has been given access to under section 62 of the Transport Safety Investigation Act 2003 .

             (2)  This section does not apply if:

                     (a)  the person is a government agency; or

                     (b)  the person:

                              (i)  is, or has at any time been, an officer of a government agency; and

                             (ii)  obtained or generated the information or document in the course of carrying out his or her duties as an officer of the government agency.

             (3)  The Inspector may request the person to:

                     (a)  give the Inspector the information; or

                     (b)  produce to the Inspector the documents.

             (4)  The person may comply with the request despite any other law.

Note:          This section constitutes authorisation for the purposes of other laws, such as paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988 .

             (5)  The Inspector may, in the course of conducting an inquiry in accordance with a direction of the Minister under section 11, copy, make a record of, use or disclose information given or documents produced in response to a request under this section.

             (6)  A person assisting another person in the exercise of powers or performance of functions under this Act, may, for the purposes of an inquiry conducted in accordance with a direction of the Minister under section 11, copy, make a record of, use or disclose information given or documents produced in response to a request under this section.

             (7)  A person commits an offence if:

                     (a)  information is disclosed to the person; and

                     (b)  the information is disclosed in circumstances permitted under subsection (5) or (6); and

                     (c)  the information is not disclosed to the person because the person is exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act; and

                     (d)  the person does any of the following:

                              (i)  copies, or makes a record of, the information;

                             (ii)  uses the information;

                            (iii)  discloses the information to any other person or to a court, a tribunal or a coroner.

Penalty:  Imprisonment for 2 years.

             (8)  Subsection (7) does not apply to any conduct that is necessary for the purpose of assisting with an inquiry conducted in accordance with a direction of the Minister under section 11.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (8): see subsection 13.3(3) of the Criminal Code .

36   Power to request information from government agencies

             (1)  This section applies in relation to information or documents:

                     (a)  that are held by a government agency; and

                     (b)  that the Inspector believes to be relevant to an inquiry conducted in accordance with a direction of the Minister under section 11; and

                     (c)  that are not OBR information; and

                     (d)  that are not restricted information that the government agency has been given access to under section 62 of the Transport Safety Investigation Act 2003 .

             (2)  The Inspector may request the government agency to:

                     (a)  give the Inspector the information; or

                     (b)  produce to the Inspector the documents.

             (3)  The government agency may comply with the request despite any other law.

Note:          This section constitutes authorisation for the purposes of other laws, such as paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 .

             (4)  The Inspector may, in the course of conducting an inquiry in accordance with a direction of the Minister under section 11, copy, make a record of, use or disclose information given or documents produced by the government agency.

             (5)  A person assisting another person in the exercise of powers or performance of functions under this Act (an assistant ), may, for the purposes of an inquiry conducted in accordance with a direction of the Minister under section 11, copy, make a record of, use or disclose information given or documents produced by the government agency.

             (6)  Neither the Inspector nor an assistant may, in the course of the inquiry, disclose information given or documents produced by the government agency, without the prior agreement of the government agency, if, in the Inspector’s opinion, the disclosure may:

                     (a)  compromise an investigation that is being conducted by the government agency; or

                     (b)  have a substantial adverse effect on the proper and efficient conduct of the operations of the government agency.

             (7)  A person commits an offence if:

                     (a)  information is disclosed to the person; and

                     (b)  the information is disclosed in circumstances permitted under subsections (4) and (6), or subsections (5) and (6); and

                     (c)  the information is not disclosed to the person because the person is exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act; and

                     (d)  the person does any of the following:

                              (i)  copies, or makes a record of, the information;

                             (ii)  uses the information;

                            (iii)  discloses the information to any other person or to a court, a tribunal or a coroner.

Penalty:  Imprisonment for 2 years.

             (8)  Subsection (7) does not apply to any conduct that is necessary for the purpose of assisting with an inquiry conducted in accordance with a direction of the Minister under section 11.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (8): see subsection 13.3(3) of the Criminal Code .

37   Requesting OBR information and restricted information from the Executive Director

             (1)  If the Inspector believes that the Executive Director has OBR information or restricted information that is relevant to an inquiry conducted in accordance with a direction of the Minister under section 11, the Inspector may request the Executive Director to disclose the information to the Inspector.

             (2)  The Executive Director may comply with the request, if the Executive Director believes that any adverse effect that the disclosure may have on current or future investigations under the Transport Safety Investigation Act 2003 is outweighed by the public interest served by disclosing the information to the Inspector.

Application of section 53 of the Transport Safety Investigation Act 2003

             (3)  Subsections 53(1) and (2) of the Transport Safety Investigation Act 2003 do not apply to:

                     (a)  anything done by the Executive Director under subsection (2) of this section; or

                     (b)  anything done by another person for the purpose of assisting the Executive Director in the exercise of his or her power under subsection (2) of this section.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (3): see subsection 13.3(3) of the Criminal Code .

Application of section 60 of the Transport Safety Investigation Act 2003

             (4)  Subsections 60(1) and (2) of the Transport Safety Investigation Act 2003 do not apply to:

                     (a)  anything done by the Executive Director under subsection (2) of this section; or

                     (b)  anything done by another person for the purpose of assisting the Executive Director in the exercise of his or her power under subsection (2) of this section.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (4): see subsection 13.3(3) of the Criminal Code .

Application of other laws to disclosure by Executive Director under subsection 37(2)

             (5)  The Executive Director may exercise his or her power under subsection (2) despite any other law.

Note:          This subsection constitutes authorisation for the purposes of other laws, such as paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 .

             (6)  The Inspector, or a person assisting the Inspector in the exercise of powers or the performance of functions under this Act (an assistant ), may, for the purposes of an inquiry conducted in accordance with a direction of the Minister under section 11:

                     (a)  copy, make a record of or use OBR information; and

                     (b)  copy, make a record of or use restricted information given to the Inspector by the Executive Director; and

                     (c)  subject to subsection (7), disclose OBR information, and restricted information given to the Inspector by the Executive Director.

             (7)  Neither the Inspector nor an assistant may, for the purposes of an inquiry conducted in accordance with a direction of the Minister under section 11, disclose OBR information, or restricted information given to the Inspector by the Executive Director, without the prior agreement of the Executive Director, if, after consultation with the Executive Director, the Executive Director is of the opinion that the disclosure may:

                     (a)  compromise an investigation that is being conducted by the Executive Director; or

                     (b)  have a substantial adverse effect on the proper and efficient conduct of the operations of the Executive Director.

             (8)  A person commits an offence if:

                     (a)  restricted information that was given to the Inspector by the Executive Director is disclosed to the person; and

                     (b)  the information is disclosed in circumstances permitted under paragraph (6)(c); and

                     (c)  the information is not disclosed to the person because the person is exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act; and

                     (d)  the person does any of the following:

                              (i)  copies, or makes a record of, the information;

                             (ii)  uses the information;

                            (iii)  discloses the information to any other person or to a court, a tribunal or a coroner.

Penalty:  Imprisonment for 2 years.

             (9)  Subsection (8) does not apply to any conduct that is necessary for the purpose of assisting with an inquiry conducted in accordance with a direction of the Minister under section 11.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (9): see subsection 13.3(3) of the Criminal Code .

38   Protection from liability

                   If:

                     (a)  the Inspector, or a person assisting another person in the exercise of powers or performance of functions under this Act (an assistant ), requests a person to give the Inspector or the assistant information or produce to the Inspector or the assistant a document under this Division and the person does so in the honest and reasonable belief that the request is permitted under this Division; or

                     (b)  the Inspector or an assistant requests a government agency to give the Inspector or the assistant information or produce to the Inspector or the assistant a document under this Division, and a person does so on behalf of the agency in the honest and reasonable belief that the request is permitted under this Division;

the person is not liable:

                     (c)  to any proceedings for contravening any other law because of that conduct; or

                     (d)  to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct; or

                     (e)  to disciplinary action, or to a disciplinary sanction, of any kind because of that conduct.



 

Division 2 Search powers

39   Simplified outline

                   The following is a simplified outline of this Division:

This Division sets out the powers of the Inspector to enter and search premises and board and search transport vehicles.

This can only be done with the consent of the controller of the premises or vehicle.

The Inspector may also exercise his or her powers under Division 1 to ask questions while conducting the search.

40   Identity cards

             (1)  The Inspector must ensure that an identity card is issued to every person who can exercise:

                     (a)  powers under this Division to enter premises or to board a transport vehicle; or

                     (b)  powers under this Division that are exercisable after entering premises or boarding a transport vehicle under this Division.

Note:          Powers mentioned in subsection (1) are exercised either by the Inspector or by a delegate of the Inspector (see section 82 for the power to delegate).

Form of identity card

             (2)  The identity card must:

                     (a)  be in the form prescribed by the regulations; and

                     (b)  contain a recent photograph of the person.

Offence

             (3)  A person commits an offence if:

                     (a)  the person has been issued with an identity card for the purposes of this section; and

                     (b)  the person ceases to be a person who can exercise powers mentioned in subsection (1); and

                     (c)  the person does not return the identity card to the Inspector within 7 days of ceasing to be such a person.

Penalty:  5 penalty units.

             (4)  An offence under subsection (3) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

Defence: card lost or destroyed

             (5)  Subsection (3) does not apply if the identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code .

Identity card must be carried

             (6)  A person to whom an identity card is issued under this section must carry it at all times when exercising powers mentioned in subsection (1).

41   Obligations before entering premises or boarding transport vehicle

             (1)  Before entering premises or boarding a transport vehicle under this Division, a person must take reasonable steps to:

                     (a)  identify himself or herself to the controller of the premises or transport vehicle; and

                     (b)  notify the controller of the purpose of the entry; and

                     (c)  produce his or her identity card for inspection by the controller.

             (2)  A person is not entitled to exercise any powers under this Division in relation to premises or a transport vehicle if the person fails to comply with the requirement under subsection (1).

42   Security regulated offshore facilities—occupational health and safety requirements

                   In exercising a power under this Division within the boundaries of a security regulated offshore facility, a person must take account of occupational health and safety requirements under the laws of the Commonwealth, or of a State or Territory applying at the facility.

43   Power to enter any premises with consent

             (1)  The Inspector may enter any premises for the purpose of exercising a power set out in section 45 in any area, other than a private living area within a security regulated offshore facility, if the controller of the premises consents to the entry for the purpose of exercising the power.

             (2)  The Inspector may enter a security regulated offshore facility for the purpose of exercising a power set out in section 45 in a private living area of the facility if both:

                     (a)  the offshore facility operator for the facility; and

                     (b)  any person or persons who occupy the private living area;

consent to the entry for the purposes of exercising the power.

             (3)  The Inspector may only exercise the power in that area if the Inspector is accompanied by the offshore facility operator for the facility or a person nominated by the offshore facility operator.

             (4)  Before obtaining consent from a person under this section, the Inspector must inform the person that he or she may refuse consent, or withdraw consent at any time. The Inspector must leave the premises or the area if the consent is withdrawn.

             (5)  A consent of a person is not effective for the purposes of this section unless the consent is voluntary.

             (6)  A person mentioned in subsection (1) or (2) does not commit an offence if the person refuses to allow the Inspector to enter, or remain on, the premises.

44   Power to board any transport vehicle with consent

             (1)  The Inspector may board a transport vehicle for the purpose of exercising a power set out in section 46 in any area, other than a private living area within a security regulated ship, if the controller of the vehicle consents to the boarding of the transport vehicle for the purpose of exercising the power.

             (2)  The Inspector may board a security regulated ship for the purpose of exercising a power set out in section 46 in a private living area of the ship if both:

                     (a)  the master; and

                     (b)  any person or persons who occupy the private living area;

consent to the entry for the purpose of exercising the power.

             (3)  The Inspector may only exercise the power in that area if the Inspector is accompanied by the master of the ship or a person nominated by the master.

             (4)  Before obtaining consent from a person under this section, the Inspector must inform the person that he or she may refuse consent, or withdraw consent at any time. The Inspector must leave the transport vehicle or the area if the controller asks the Inspector to do so.

             (5)  A consent of a person is not effective for the purposes of this section unless the consent is voluntary.

             (6)  A person mentioned in subsection (1) or (2) does not commit an offence if the person refuses to allow the Inspector to board, or remain in or on, the transport vehicle or the area.

45   Powers that may be exercised in relation to premises

                   The powers that the Inspector may exercise in relation to premises under section 43 are as follows:

                     (a)  to search the premises and any thing (including a transport vehicle) on the premises;

                     (b)  to inspect, examine or take measurements of any thing on the premises (including any transport vehicle found on the premises);

                     (c)  to take photographs, make video or audio recordings or make sketches of the premises or any thing on the premises;

                     (d)  to inspect any book, record or document on the premises;

                     (e)  to take extracts from, or make copies of, any such book, record or document;

                      (f)  to observe operating procedures for the premises or for equipment on the premises;

                     (g)  to discuss those operating procedures with the controller or any other person on the premises;

                     (h)  to take onto the premises such equipment and materials as the Inspector requires for the purposes of exercising powers in relation to the premises;

                      (i)  to operate equipment on the premises for the purposes of gaining access to a document or record.

46   Powers that may be exercised in relation to a transport vehicle

                   The powers that the Inspector may exercise in relation to a transport vehicle under section 44 are as follows:

                     (a)  to search the transport vehicle and any thing in or on the transport vehicle;

                     (b)  to inspect, examine or take measurements of any thing in or on the transport vehicle;

                     (c)  to take photographs, make video or audio recordings or make sketches of the transport vehicle or any thing in or on the transport vehicle;

                     (d)  to inspect any book, record or document in or on the transport vehicle;

                     (e)  to take extracts from, or make copies of, any such book, record or document;

                      (f)  to observe operating procedures for the transport vehicle or for equipment in or on the vehicle;

                     (g)  to discuss those operating procedures with the controller or any other person in or on the transport vehicle;

                     (h)  to take to, and into, the transport vehicle such equipment and materials as the Inspector requires for the purpose of exercising powers in relation to the transport vehicle;

                      (i)  to operate equipment in or on the transport vehicle for the purposes of gaining access to a document or record.

47   Compensation for damage to electronic equipment

             (1)  This section applies if:

                     (a)  as a result of equipment being operated as mentioned in section 45 or 46:

                              (i)  damage is caused to the equipment; or

                             (ii)  the data recorded on the equipment is damaged; or

                            (iii)  programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

                     (b)  the damage or corruption occurs because:

                              (i)  insufficient care was exercised in selecting the person who was to operate the equipment; or

                             (ii)  insufficient care was exercised by the person operating the equipment.

             (2)  The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

             (3)  However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.

             (4)  In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

             (5)  Compensation is payable out of money appropriated by the Parliament.

             (6)  For the purposes of subsection (1):

damage , in relation to data, includes damage by erasure of data or addition of other data.



 

Division 3 Where information or documents are volunteered

48   Protection from liability

                   If:

                     (a)  a person voluntarily gives information or produces a document to a person exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act; and

                     (b)  the person does so in the honest and reasonable belief that the information or document is relevant to an inquiry conducted by the Inspector in accordance with a direction of the Minister under section 11; and

                     (c)  the person does not commit an offence under the Transport Safety Investigation Act 2003 in doing so; and

                     (d)  the person does not commit an offence under Part IIIB of the Civil Aviation Act 1988 in doing so;

the person is not liable:

                     (e)  to any proceedings for contravening any other law because of that conduct; or

                      (f)  to civil proceedings for loss, damage or injury of any kind suffered by another person because of that conduct; or

                     (g)  to disciplinary action, or to a disciplinary sanction, of any kind because of that conduct.



 

Division 4 Information generated in the course of conducting an inquiry

49   Copying, making a record of, using or disclosing information generated in the course of an inquiry

             (1)  The Inspector or a person assisting the Inspector in the exercise of powers or the performance of functions under this Act (an assistant ), may, for the purposes of an inquiry conducted in accordance with a direction of the Minister under section 11, copy, make a record of, use or disclose information generated by the Inspector or the assistant in the course of exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act.

             (2)  A person commits an offence if:

                     (a)  information is disclosed to the person; and

                     (b)  the information is disclosed in circumstances permitted under subsection (1); and

                     (c)  the information is not disclosed to the person because the person is exercising powers or performing functions under this Act, or assisting another person in the exercise of powers or performance of functions under this Act; and

                     (d)  the person does any of the following:

                              (i)  copies, or makes a record of, the information;

                             (ii)  uses the information;

                            (iii)  discloses the information to any other person or to a court, a tribunal or a coroner.

Penalty:  Imprisonment for 2 years.

             (3)  Subsection (2) does not apply to any conduct that is necessary for the purpose of assisting with an inquiry conducted in accordance with a direction of the Minister under section 11.

Note:          A defendant bears an evidential burden in relation to a matter in subsection (3): see subsection 13.3(3) of the Criminal Code .