Section 26 of the Transport Safety Investigation Act 2003 (TSI Act) imposes a maximum penalty of two years imprisonment for a person who discloses the contents of a draft report to any other person or to a court. The maximum penalty for unauthorised copying of the whole or any part of a draft report is $3,600.
The reason for the penalties for unauthorised copying and disclosure of a draft report is that it may contain information that is subject to change as a result of internal and external review and consideration of further evidence. In its draft form, copying or disclosing the report may unjustly affect businesses and reputations. This in turn could potentially impede and discourage the crucial free-flow of safety information to the ATSB.
Section 26(4) of the TSI Act provides that the penalties do not apply where copying or disclosure is necessary for the purpose of preparing a submission to the ATSB on a draft report, or for taking steps to remedy safety deficiencies that are identified in the draft report. A person who receives a copy of the draft report may wish to copy it and disclose it to technical experts and legal representatives for input into their submission to the ATSB. Anyone who receives a copy of the draft report for the purpose of providing such assistance is subject to the confidentiality requirements of the TSI Act.
Referral to the AFP
Where a draft report has been disclosed in breach of s.26(2) of the TSI Act (for example in a leak to the media), the disclosure will be assessed to determine the appropriate action to be taken. The apparent breach of s.26(2) will likely be referred to the Australian Federal Police (AFP) for investigation. The AFP may then provide a brief of evidence to the Commonwealth Director of Public Prosecutions (CDPP) to consider prosecution of the alleged offence.
The ATSB’s policy is that an unauthorised disclosure of a draft report will be referred to the AFP for investigation where it is clear that:
- The disclosure was not made for the purposes of subsection 26(4) of the TSI Act; and
- The person who made the unauthorised disclosure was aware of the confidentiality requirements of s.26 or should have in the circumstances been aware of those requirements, and there is evidence that the person making the disclosure:
(a) deliberately decided to make the disclosure notwithstanding the confidentiality requirements of s.26; or
(b) was reckless in making the unauthorised disclosure; and
- The disclosure would be likely to lead to the information being taken out of context or misused and, as a result, prejudicing that particular investigation or future investigations, or unnecessarily and unjustly tarnishing reputations; and
- An investigation by the AFP, with potential prosecution by the CDPP, is thought necessary to deter breaches of s.26(2) in that or any other investigation.