Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Inspector of Transport Security Bill 2006

Part 8 OBR information, CVR information, and restricted information given to the Inspector by the Executive Director

   

72   Simplified outline

                   This is a simplified outline of this Part:

Part 6 of the Transport Safety Investigation Act 2003 provides for the protection of OBR information and restricted information.

Part IIIB of the Civil Aviation Act 1988 provides for the protection of CVR information.

This Part ensures that the Inspector can, for the purposes of this Act, copy, make a record of, use and disclose that information, despite the provisions of those Acts or any other law.

It remains an offence under section 53 of the Transport Safety Investigation Act 2003 to copy or disclose OBR information except in circumstances in which a defence is available under that Act or this Act.

It remains an offence under section 32AP of the Civil Aviation Act 1988 to copy or disclose CVR information except in circumstances in which a defence is available under that Act or this Act.

There is no offence under the Transport Safety Investigation Act 2003 dealing with the copying, recording, use or disclosure by the Inspector of restricted information given to the Inspector by the Executive Director under subsection 37(2) of this Act. This Part includes an offence to protect the confidentiality of that information.

73   Application of other laws to copying, recording, use and disclosure of OBR information

             (1)  Subsections 53(1) and (2) of the Transport Safety Investigation Act 2003 do not apply to the copying or disclosure of OBR information, if that conduct is permitted, either expressly or by implication, under this Act.

Note 1:       Section 53 of the Transport Safety Investigation Act 2003 creates offences relating to the copying and disclosure of OBR information.

Note 2:       A defendant bears an evidential burden in relation to a matter in subsection (1): see subsection 13.3(3) of the Criminal Code .

             (2)  Section 55 of the Transport Safety Investigation Act 2003 does not apply to criminal proceedings for an offence against this Act.

Note:          Section 55 of the Transport Safety Investigation Act 2003 deals with the admissibility of OBR information in criminal proceedings.

74   Application of other laws to copying, recording, use and disclosure of CVR information

             (1)  Subsections 32AP(1) and (2) of the Civil Aviation Act 1988 do not apply to the copying or disclosure of CVR information, if that conduct is permitted, either expressly or by implication, under this Act.

Note 1:       Section 32AP of the Civil Aviation Act 1988 creates offences relating to the copying and disclosure of CVR information.

Note 2:       A defendant bears an evidential burden in relation to a matter in subsection (1): see subsection 13.3(3) of the Criminal Code .

             (2)  Section 32AR of the Civil Aviation Act 1988 does not apply to criminal proceedings for an offence against this Act.

Note:          Section 32AR of the Civil Aviation Act 1988 deals with the admissibility of CVR information in criminal proceedings.

75   Application of other laws to copying, recording, use and disclosure of restricted information given to the Inspector by the Executive Director

             (1)  Subsections 60(1), (2) and (3) of the Transport Safety Investigation Act 2003 do not apply to making a record of or disclosing restricted information given to the Inspector by the Executive Director, if that conduct is permitted, either expressly or by implication, under this Act.

Note 1:       Section 60 of the Transport Safety Investigation Act 2003 creates offences relating to the making of a record of, or the disclosure of, restricted information by a person who is a staff member for the purposes of that Act, or who has received restricted information under section 62 of that Act.

Note 2:       A defendant bears an evidential burden in relation to a matter in subsection (1): see subsection 13.3(3) of the Criminal Code .

             (2)  A person commits an offence if:

                     (a)  the person:

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

                             (ii)  uses information; or

                            (iii)  discloses information; and

                     (b)  the information is restricted information given to the Inspector by the Executive Director under subsection 37(2); and

                     (c)  the person has obtained the information in the course of exercising a power or performing a function under this Act, or assisting another person in the exercise of powers or performance of functions under this Act.

Penalty:  Imprisonment for 2 years.

             (3)  Subsection (2) does not apply if:

                     (a)  the information is copied, recorded, used or disclosed in circumstances in which that conduct is permitted, either expressly or by implication, under this Act; or

                     (b)  the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against this Act; or

                     (c)  the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) that relates to this Act; or

                     (d)  the information is copied, recorded, used or disclosed for the purposes of proceedings for an offence against section 149.1 of the Criminal Code (obstruction of Commonwealth public officials) that relates to this Act; or

                     (e)  the information is disclosed to a court in a civil proceeding or to a coronial inquiry in relation to which:

                              (i)  the Minister issues a certificate under subsection (4); and

                             (ii)  the court or coroner makes an order under subsection (6); or

                      (f)  the information is disclosed to a court in a criminal proceeding in relation to which:

                              (i)  the Minister issues a certificate under subsection (5); and

                             (ii)  the court makes an order under subsection (6).

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

             (4)  The Minister may issue a certificate in relation to the disclosure of restricted information given to the Inspector by the Executive Director under subsection 37(2), stating that the disclosure of the information in a civil proceeding or a coronial inquiry is not likely to interfere with an inquiry conducted in accordance with a direction of the Minister under section 11 or with an investigation under the Transport Safety Investigation Act 2003 .

             (5)  The Minister may issue a certificate in relation to the disclosure of restricted information given to the Inspector by the Executive Director under subsection 37(2), stating that the disclosure of the information in a criminal proceeding is not likely to interfere with an inquiry conducted in accordance with a direction of the Minister under section 11, or with an investigation under the Transport Safety Investigation Act 2003 , if:

                     (a)  the criminal proceeding is in relation to an alleged offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years; and

                     (b)  the disclosure of the information is necessary to establish a chain of dealing with evidence.

             (6)  If the court or coroner is satisfied that any adverse impact that the disclosure of the information might have on any current or future inquiry under this Act is outweighed by the public interest in the administration of justice, the court or coroner may order such disclosure.

             (7)  The court or coroner may direct that the restricted information, or any information obtained from the restricted information, must not:

                     (a)  be published or communicated to any person; or

                     (b)  be published or communicated except in such manner, and to such person, as the court or coroner specifies.

             (8)  If a person is prohibited by this section from disclosing restricted information, then:

                     (a)  the person cannot be required by a court or coroner to disclose the information; and

                     (b)  any information disclosed by the person in contravention of this section is not admissible in any proceedings (other than proceedings against the person under this section).

76   Immunity where copying, recording, using or disclosing OBR information, CVR information, or restricted information given by the Executive Director, permitted under this Act

             (1)  This section applies where:

                     (a)  a person copies, makes a record of, uses or discloses OBR information, CVR information, or restricted information given to the Inspector by the Executive Director, in circumstances in which the person is permitted to do so either expressly or by implication under this Act; or

                     (b)  a person copies, makes a record of, uses or discloses OBR information, CVR information, or restricted information given to the Inspector by the Executive Director, in circumstances in which the person honestly and reasonably believes he or she is permitted to do so, either expressly or by implication under this Act.

             (2)  The person may copy, make a record of, use or disclose the information, 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 .

             (3)  The person is not liable:

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

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

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

77   Disclosing OBR information, CVR information, and restricted information given by the Executive Director, where serious offence imminent

             (1)  The Inspector may apply to an eligible Judge or nominated AAT member for an order under subsection (7) allowing the Inspector to disclose OBR information, CVR information, or restricted information given to the Inspector by the Executive Director, to another government agency, if the Inspector suspects on reasonable grounds that:

                     (a)  the commission of an offence is imminent; and

                     (b)  the offence is an offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years; and

                     (c)  the information may be relevant to the prevention of the offence.

             (2)  The application may be made in writing or, if the Inspector thinks it is necessary because of urgent circumstances, by telephone.

             (3)  The application must be accompanied by:

                     (a)  a statement by the Inspector, or a delegate of the Inspector, of his or her grounds for suspecting that an offence of the kind mentioned in paragraph (1)(b) is imminent; and

                     (b)  a statement by the Inspector, or a delegate of the Inspector, explaining why the information may be relevant to the prevention of the offence; and

                     (c)  a statement by the Executive Director, or a delegate of the Executive Director, that, in his or her opinion, the 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 agency or court; and

                     (d)  the proposed terms of the order.

             (4)  If the application is made in writing, the accompanying statements and the proposed terms of the order must be in writing.

             (5)  If the application is made by telephone:

                     (a)  the accompanying statements may be given by telephone, provided the person making the statement gives the Judge or AAT member to whom the statement is made, on the next day after the statement is made that is not a Saturday, Sunday or public holiday in the place where it is made, an affidavit containing:

                              (i)  a copy of the statement made to the Judge or AAT member by telephone; and

                             (ii)  a statement that the copy is a true record of the statement made to the Judge or AAT member by telephone; and

                     (b)  the proposed terms of the order must be communicated to the Judge or AAT member by telephone; and

                     (c)  the Inspector must inform the Judge or AAT member to whom the application is made of the urgent circumstances on the basis of which the Inspector believes a telephone application is necessary.

             (6)  An eligible Judge or nominated AAT member may order that OBR information, CVR information, or restricted information given to the Inspector by the Executive Director, be disclosed to a government agency if:

                     (a)  the Judge or AAT member is satisfied that:

                              (i)  an offence of the kind mentioned in paragraph (1)(b) is imminent; and

                             (ii)  the information may be relevant to the prevention of the offence; and

                     (b)  having regard to the following matters, it is appropriate to make the order:

                              (i)  the extent to which the privacy of any person may be affected by the disclosure;

                             (ii)  the seriousness of the offence;

                            (iii)  the likelihood that the disclosure of the information would assist the agency in the prevention of the offence;

                            (iv)  the likelihood that the offence would be prevented without the disclosure of the information to the agency;

                             (v)  the effect that the disclosure may have on current or future investigations under the Transport Safety Investigation Act 2003 .

             (7)  The order may include conditions or restrictions on the disclosure of the information.

             (8)  If the application for the order was made by telephone, the Judge or AAT member must, as soon as practicable after making the order:

                     (a)  inform the Inspector or, if the application was made by a delegate of the Inspector, the delegate, of:

                              (i)  the terms of the order; and

                             (ii)  the day on which it was made; and

                            (iii)  the time at which it was made; and

                     (b)  give the order to the Inspector or delegate.

             (9)  The government agency to which information is disclosed on the order of the Judge or AAT member must not copy, make a record of, use or disclose the information for any purpose that is not related to the prevention of an offence against a law of the Commonwealth, or of a State or Territory, punishable by a maximum penalty of imprisonment for more than 2 years.

           (10)  The Judge or AAT member may copy, make a record of, use or disclose any information given to the Judge or AAT member under this section for the purposes of exercising the powers under this section.

           (11)  A person assisting the Judge or AAT member in the exercise of powers under this section may copy, make a record of, use or disclose information given to that person in the course of providing that assistance, but only for the purpose of providing that assistance.

78   Eligible Judge

             (1)  In this Act:

eligible Judge means a Judge in relation to whom a consent under subsection (2) and a declaration under subsection (3) are in force.

Judge means a person who is a Judge of a court created by the Parliament.

             (2)  A Judge may, by writing, consent to be nominated by the Attorney-General under subsection (3).

             (3)  The Attorney-General may, by writing, declare Judges in relation to whom consents are in force under subsection (2) to be eligible Judges for the purposes of this Act.

             (4)  An eligible Judge has, in relation to the performance or exercise of a function or power conferred on an eligible Judge by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.

             (5)  Any function or power conferred on an eligible Judge under this Act is so conferred only in a personal capacity and not as a court or a member of a court.

79   Nominated AAT member

             (1)  The Attorney-General may, by writing, nominate a person who holds one of the following appointments to the Administrative Appeals Tribunal to make orders under subsection 77(7):

                     (a)  President;

                     (b)  Deputy President;

                     (c)  senior member.

             (2)  Despite subsection (1), the Attorney-General must not nominate a person who holds an appointment as a senior member unless the person:

                     (a)  is enrolled as a legal practitioner of the High Court, of another federal court or of the Supreme Court of a State or of the Northern Territory or the Australian Capital Territory; and

                     (b)  has been so enrolled for not less than 5 years.

             (3)  A nomination ceases to have effect if:

                     (a)  the nominated AAT member ceases to hold an appointment of a kind set out in subsection (1); or

                     (b)  the Attorney-General, by writing, withdraws the nomination.

             (4)  A nominated AAT member has, in relation to the performance or exercise of a function or power conferred on a nominated AAT member by this Act, the same protection and immunity as a Justice of the High Court has in relation to proceedings in the High Court.