Memorandum of Understanding between Victoria Police and the Chief Investigator, Transport Safety

3.1 The purpose of this MOU is to outline the respective roles and responsibilities of, and the relationship between Victoria Police and the Chief Investigator (together ‘the Parties’) in relation to:

(a) transport safety matters in Victoria as defined in the Transport Safety Act: and

(b) rail transport safety matter investigations conducted by the Chief Investigator under the provisions of the Transport Safety Investigation Act.

3.2 Specifically, this MOU sets out procedurtes and working arrangments to assist the Parties in relation to:

(a) coordination of concurrent investigations of transport safety matters by the Parties; and

(b) the sharing of information between the Parties.

3.3 As required by section 196 of the Transport Integration Act, this MOU is required to include matters, if any, required by the regulations.

3.4 Nothing within this MOU is intended to:

(a) create any binding rights, powers, duties, liabilities or obligations;

(b) waive, fetter, limit or affect the rights, powers, duties, liabilities or obligations;

(c) create any commitments between the ATSB and Victoria Police; or

(d) affect the due and proper performance of the Parties' statutory functions or their ability to comply with all applicable statutory requirements.

Transport Integration Act matters

4.1 The principal function of the Chief Investigator under the Transport Integration Act is to conduct investigations into transport safety matters and report the results of those investigations to the relevant Ministers.

4.2 The Transport Integration Act provides for the conduct of investigations into ‘public transport safety matters’ and ‘marine safety matters’.

4.3 The Chief Investigator is authorised by section 196 of the Transport Integration Act to enter into a memorandum of understanding with a person or a body with statutory functions or powers about the performance or exercise of their respective functions or powers.

4.4 As required by section 196 of the Transport Integration Act this MOU will be published in the Government Gazette and on the internet.

Transport Safety Investigation Act matters

4.5 The Chief Investigator has entered into a Collaboration Agreement with the ATSB for the purposes of the Chief Investigator conducting rail transport safety matter investigations under the Transport Safety Investigation Act (Collaboration Agreement).

4.6 The Chief Investigator and the ATSB have agreed to collaborate in respect of the activities specified in the Collaboration Agreement.

4.7 investigators employed by the Office of the Chief Investigatorhave been appointed Special Investigators and delegated powers by the Chief Commissioner to conduct investigations under the Transport Safety Investigations Act.

4.8 Reports of investigations conducted under the Transport Safety Investigation Act are published by the ATSB.

5.1 The Parties will have regard to the following principles in the application of this MOU:

(a) Victoria Police and the Chief Investigator are committed to providing a safe environment for transport and marine users in the State of Victoria.

(b) Victoria Police and the Chief Investigator each have the statutory discretion

5.2 While recognising each Party’s mandate and independent role, Victoria Police and the Chief Investigator are committed to a constructive and co-operative relationship in their common pursuit of improving transport safety, enhancing the safety of public transport and marine operations in Victoria.

5.3 Nothing in this MOU prevents either Party from making a decision to conduct an investigation or undertaking an investigation.

6.1 Victoria Police will generally recieve early notification of transport safety matters including marine related Incidents and will respond, when necessary, to all transport safety matters including marine incidents and search and rescue requests on coastal and inland waters.

6.2 Upon formal request, Victoria Police will make available all relevant marine related Incident information to the Chief Investigator.

7.1 In the event of an Incident occurring:

(a) Victoria Police and the Chief Investigator have statutory obligations to investigate incidents which are the subject of this MOU;

(b) Victoria Police will investigate Incidents with a view to meeting its coronial investigation obligations, to apply the law and where appropriate respond to complaints from interested parties and the public;

(c) the Chief Investigator may investigate Incidents either under the Transport Integration Act or the Transport Safety Investigation Act with a view to discharging the functions under the respective legislation, while noting that the decision to investigate under the Transport Safety Investigation Act rests with the ATSB; and

(d) Victoria Police and the Chief Investigator may seek expert and/or technical advice from each other as part of any investigation.

7.2 In the event of a concurrent investigation, either under the Transport Integration Act or Transport Safety Investigation Act, the Parties agree to cooperate and assist each other to the extent that is allowable by the applicable legislation. To this end, both Parties agree to:

(a) make contact to provide details of the investigators in charge at Victoria Police and the Chief Investigator;

(b) inform each other of protocols, processes, concerns or restrictions related to the site, evidence, access to information or issues related to the investigation process;

(c) coordinate, where possible, actions onsite to avoid duplication and to ensure that neither Party compromises the other Party’s investigation;

(d) discuss and negotiate the collection of physical evidence, information and material, recognising that for investigations under the Transport Safety Investigation Act the Chief Investigator may have priority access to evidential material pursuant to that Act; and

(e) seek to gather evidence from original sources in the first instance.

Transport Integration Act matters

9.1 Any request for information by the Chief Investigator or Victoria Police will be provided to each other in writing.

9.2 Subject to clause 9.3, the Chief Investigator may disclose information and results of any investigations conducted if the Chief Investigator considers that the disclosure is necessary or desirable for the purposes of public transport safety or marine safety.

9.3 If Victoria Police considers that a disclosure by the Chief Investigator of information or the results of any investigation conducted would or may have a detrimental impact or other effect on a police investigation or criminal proceeding, it may ask the Chief Investigator to not disclose that information or those results at that time. If such a request is made, the Chief Investigator agrees to consider the request to not disclose the relevant information or report. Victoria Police acknowledges that the Chief Investigator may be required to disclose information or a report by law. Victoria police will advise the Chief Investigator when such disclosure will no longer affect a police investigation or criminal proceeding.

9.4 If Victoria Police requires a report from the Chief Investigator to be included in a coronial brief, a formal request must be made to the Chief Investigator.

9.5 Victoria Police will provide the Chief Investigator with information from the commercial and recreational vessel registration database to assist with the investigation.

9.6 Victoria Police will access, use and disclose the information held in accordance with the Privacy and Data Protection Act 2014 (Vic.) and the Protective Data Security Standards.

9.7 The Chief Investigator will access, use and disclose information held in accordance with the Transport (Compliance and Miscellaneous) Act, Transport (Safety Schemes Compliance and Enforcement) Act, the Code of Conduct for Victorian Public Sector Employees 2015 (issued by the Victorian Public Sector Commissioner under section 61 of the Public Administration Act 2004) and the Protective Data Security Standards.

9.8 If the Chief Investigator requires access to Law Enforcement Data it will notify Victoria Police of its requirements and, if requested, ensure that those of its investigators and other personnel who require access to that data or information execute a confidentiality undertaking in favour of Victoria Police (in a form acceptable to Victoria Police) prior to being granted access.

Transport Safety Investigation Act matters

9.9 Where a Special Investigator requires evidential material from Victoria Police, the Special Investigator will issue a notice pursuant to section 32 of the Transport Safety Investigation Act for that material. This will ensure that the material is protected as ‘restricted information’ under Division 2 of Part 6 of the Transport Safety Investigation Act. When a request for information is not directed to Victoria Police by a section 32 notice, Victoria Police may request the issue of a notice prior to the release of the requested information.

9.10 Any information provided by Victoria Police to a Special Investigator under clause 9.9 may only be disclosed in accordance with the Transport Safety Investigation Act.

9.11 Any request for information by Victoria Police to the Chief Investigator must be provided in writing setting out the nature of the information sought.

9.12 It is understood that information obtained or generated by the Chief Investigator in an investigation under the Transport Safety Investigation Act will be ‘restricted

9.13 A request under clause 9.12 that seeks ‘restricted information’ will be actioned in accordance with the Transport Safety Investigation Act and subject to applicable ATSB policies and procedures.

9.14 It is understood that a report of an investigation under the Transport Safety Investigation Act is inadmissible in any court proceedings other than a coronial inquiry.

9.15 If Victoria Police considers that publication by the ATSB of a report of an investigation conducted under the Transport Safety Investigation Act would or may have a detrimantal impact or other affect on a police investigation or criminal proceeding , it may submit a written request to the Chief Investigator asking that the ATSB not publish the report at that time.

9.16 The Chief Investigator agrees to forward that request to the Chief Commissioner (ATSB). When a response is received from the Chief Commissioner of the ATSB the Chief Investigator will advise Victoria Police.

10.1 The Parties will formally review this MOU at regular intervals not exceeding two (2) years or as agreed between the Parties.

10.2 Authorisation for amendment of this MOU must be signed by the Chief Commissioner of Victoria Police and the Chief Investigator, or an authorised person acting on behalf of the Chief Commissioner and the Chief Investigator.

10.3 Either Party may terminate this MOU by giving seven (7) days’ notice in writing to the other Party.

Dated 18 November 2024
Signed for and on behalf of Victoria Police by MICHAEL HERMANS,
Assistant Commissioner, Transit and Public Safety Command, Victoria Police

Dated 20 November 2024
Signed by MARK SMALLWOOD, Chief Investigator, Transport Safety