Division 3 Investigation of marine accidents and other marine safety matters
103 Ordering of investigation
(1) The Minister may order an investigation into any of the following:
(a) a marine accident that has been reported under Division 2 or that the Minister believes may have occurred,
(b) any situation that has the potential to cause marine accidents,
(c) any alleged incompetence or misconduct of the holder of a marine safety licence,
(d) a vessel that has been provisionally detained as an unsafe vessel,
(e) any incident in connection with a port facility that has caused, or has the potential to cause, a danger to life or serious damage to property.
(2) An inquiry may be carried out and a report provided under this section whether or not:
(a) an investigation is being, or has been, conducted under the Passenger Transport Act 1990 or any other Act or law relating to the same matter, or
(b) the matter is or may be subject to any criminal or civil proceedings.
104 Principal purposes of investigation
The principal purposes of an investigation under this Division are:
(a) to determine the circumstances of or concerning the marine accident or other incident as they affect marine safety, and
(b) to make recommendations to prevent the recurrence of any similar marine accident or other incident.
105 Appointment of investigator
(1) The Minister may appoint as the investigator for the purposes of an investigation:
(a) an authorised officer, or
(b) any other person possessing qualifications or experience relevant to the investigation.
(1A) If an investigation concerns or is related to a public passenger service provided by a ferry, the Minister may appoint the Chief Investigator as the investigator or any person of a kind referred to in subsection (1).
(2) The Minister may appoint 2 or more persons as joint investigators for the purposes of an investigation.
(3) An investigator is subject to the control and direction of the Minister, except in relation to the contents of any report made by the investigator.
106 Powers of investigator
For the purpose of conducting an investigation, an investigator is an authorised officer and has all the powers and other functions of an authorised officer under this Part.
107 Conduct of investigations
(1) An investigator is to conduct the investigation in such manner as the investigator considers appropriate having regard to the principal purposes of the investigation.
(2) An investigation may extend to all relevant events and circumstances preceding the marine accident or other incident.
(3) At any time during the course of an investigation the Minister may determine that the investigation be discontinued and that a report be prepared and submitted by the investigator.
(4) For the purposes of an investigation, the investigator may rely on any evidence relating to the matter under investigation given in any criminal or civil proceedings or in any coronial or other judicial inquiry.
108 Report to Minister of investigation
(1) On the completion of the investigation, the investigator must prepare and submit a report to the Minister.
(2) The report must include:
(a) findings as to the facts of the marine accident or other incident, and where the facts cannot be established with certainty, an opinion as to the most probable facts, and
(b) in the case of a marine accident, the cause or most probable cause of the accident, and
(c) any observations and recommendations to prevent the recurrence of similar marine accidents or incidents that the investigator considers should be made.
(3) The investigator may, at any time during an investigation, prepare an interim report and submit it to the Minister.
109 Representations by persons affected by report
(1) If a report, or any part of a report, relates to a person’s affairs to a material extent, the investigator must, if it is reasonable to do so, serve that person with a copy of the report or the relevant part of that report.
(2) Any such person may, within 14 days after receiving it, make written representations relating to the report or the relevant part of the report to the investigator.
(3) The investigator is to consider any such representations.
(4) The investigator:
(a) may make further investigations and:
(i) amend the report, or
(ii) make no change to the report, and
(b) is to notify the person who made the representations of the result of the person’s representations, and
(c) is to submit a final report to the Minister (setting out the substance of the representations and the conclusions and action taken by the investigator with respect to them).
110 Suspension of marine safety licence pending investigation
(1) If an investigation has been ordered under this Division that involves any alleged incompetence or misconduct of the holder of a marine safety licence, the responsible licensing official may suspend the licence pending the investigation and determination of the matter if the responsible licensing official has reason to believe that it would be dangerous for the holder of the licence to continue the activities authorised by the licence.
(2) A suspension under this section may not exceed 14 days.
(3) The responsible licensing official may only extend the suspension beyond that period if authorised to do so by order of a Magistrate. A Magistrate may, on application by the responsible licensing official, make such an order if satisfied there is reasonable cause to do so.
111 Action by Minister following report of investigation
(1) The Minister may take any action that is available to the Minister in connection with a report submitted by an investigator.
(2) In particular, the Minister may do any of the following:
(a) take no action,
(b) take action to improve marine safety procedures,
(c) reprimand the holder of a marine safety licence for any incompetence or misconduct,
(d) suspend or cancel a marine safety licence, or impose conditions on any such licence, for any incompetence or misconduct of the holder,
(d1) disqualify a person from holding or obtaining a marine safety licence for a specified period,
(e) downgrade a marine safety licence for any incompetence or misconduct of the holder (that is, replace the licence held by the holder with a licence of a lower class),
(f) inform any other marine safety authority that has granted any similar licence to the person concerned of the report and action taken by the Minister on the report,
(g) recommend to the Director of Public Prosecutions or other law enforcement agency that criminal or other legal proceedings be taken against a person,
(h) in the case of an investigation concerning or related to a public passenger service provided by a ferry, inform RMS, Transport for NSW or the Chief Investigator of the report and the action taken by the Minister on the report.
(2A) If RMS is the responsible licensing official for a marine safety licence rather than the Minister, the Minister may require RMS to take action for the purposes of subsection (2) in connection with that licence.
(3) Before taking action (or requiring action to be taken) under this section, the Minister may conduct a further investigation of the matter or refer the matter to the same or a different investigator for further investigation and report under this Division.
(4) Any action taken under this section may extend to more than one marine safety licence held by a person.
(5) The Minister or RMS (as the case requires) must give written notice to the holder of a marine safety licence of any action taken under this section against that holder, together with a copy of the final investigation report.
112 Public release of report
(1) The investigator may, at any time during the course of an investigation, make recommendations to the Minister. The Minister may cause them to be made public if the Minister considers that it is in the interests of marine safety to do so.
(2) The Minister may publicly release a report (or parts of any report) made to the Minister by an investigator.
(3) The Minister is not to publicly release a report or any part of it if it might prejudice the rights of any person in any criminal proceedings instituted in connection with the matter.
113 Protection from liability
Civil proceedings may not be brought against the State, the Minister, an investigator or any person who has supplied any information to the Minister or to an investigator in connection with an investigation under this Division in respect of any matter contained in that information that is or is alleged to be defamatory or a breach of confidence.