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The ATSB is reviewing scope for possible action against Transair but re-emphasises that this is unrelated to the Transair accident on 7 May 2005 when all 15 on board lost their lives.

The Deputy Prime Minister as Minister for Transport and Regional Services has today been informed that earlier advice from the ATSB suggesting that it was unable to pursue any prosecution with respect to some more serious incidents that Transair failed to report before the accident was incorrect. The ATSB has apologised to the Minister.

The ATSB wishes to highlight that it is an independent safety investigator and not a body that prepares charges after an accident. Its only charge-related role is in relation to breaches of the Transport Safety Investigation Act 2003 (TSI Act), such as through the non-reporting of incidents, and not any charges in relation to the accident itself.

Any prosecution action against Transair and its officers in relation to the fatal accident itself is a separate matter.

As stated in the ATSB's media release of 1 December 2006 and in evidence to the Senate on 15 February 2007 the ATSB uncovered that Transair failed to report 7 immediately reportable matters (IRMs) that occurred between 1 July 2003 and the accident, as well as more routine matters. They include a gear failure on departure from Bamaga, a burning smell near Inverell, and a problem with flaps leading to a flapless takeoff and flight issues from Gunnedah to Sydney. But none of these incidents was linked to the 7 May 2005 fatal accident.

Under the TSI Act such IRMs must be reported immediately by responsible persons (eg Transair) in accordance with the regulations and failure to do so has a maximum penalty of imprisonment for six months (TSI Act Section 18). The Director of Public Prosecutions (DPP) advised the ATSB that under the Crimes Act 1914 a 12-month statute of limitation applied to Section 18 and also with respect to individuals' written reports under Section 19.

However, the DPP also advised that under Section 19 of the TSI Act failure to make a written report of IRMs by a company (ie Lessbrook Pty Ltd trading as Transair) within 72 hours (which carries a maximum penalty of up to 300 penalty units or $33,000) is not time-barred.

The ATSB mistakenly drew the conclusion that all TSI Act prosecution action in relation to IRM incident reports was time barred and will now work with the DPP as a matter of priority to see if a viable prosecution case can be prepared in relation to Section 19.

Separately, the time limits for a prosecution under the TSI Act are being reviewed.

Media contact: 1800 020 616
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Last update 01 April 2011