Regulation and investigation
Transport Safety Victoria (TSV) is Victoria’s independent risk-focussed regulator striving for excellence in transport safety regulation. It is an independent risk-based statutory office committed to safe bus and maritime transport for the benefit of all Victorians.
TSV's Regulatory Approach Policy sets out our approach in enforcing transport safety legislation.
An effective regulatory approach ensures TSV realises its strategic mandate, consistent with the vision for the whole transport system under the Transport Integration Act 2010 (Vic). A clear and consistent regulatory approach is also a key to good governance as a regulator.
This policy should be understood in the co-regulatory context under which transport safety regulation operates. Co-regulation places a shared responsibility for safety on all relevant stakeholders, including a primary responsibility on duty-holders (all parties who have obligations under TSV’s legislative framework) to demonstrate how they ensure safety through risk management.
Content of regulatory approach
Regulators consistently exercise discretion, from setting strategic visions, regulatory scope, work prioritisation and resource allocation (‘what to work on’), to regulatory strategies (‘how to work on it’) and enforcement discretion (‘when and what tools to use at what time’).
TSV’s regulatory approach guides this discretion by setting out:
- outcomes TSV seeks in transport safety regulation
- principles which TSV binds itself to when striving for these outcomes
- strategies for achieving these outcomes
- factors to take into account, including under regulatory strategies
- processes, policies and procedures to ensure this policy is effectively implemented.
This can be summarised as 'how' and 'why' TSV exercises its regulatory discretion.
Regulatory principles and strategies, plus determining factors, have supporting policies, procedures and processes applied to them to produce regulatory outcomes.
As Victoria’s safety regulator, TSV is driven by the public interest in safe transport. TSV provides independent assurance that duty-holders are meeting their legislative obligations, helping to maintain public confidence in the transport system.
To do this, TSV aims to maximise the following outcomes:
- duty-holders understand their legislative obligations
- duty-holders voluntarily comply with such obligations consistently
- positive safety culture among all participants; including continuous improvements in safety management, best-practice safety standards, and capacity-building for risk management across industry.
These outcomes address legislative compliance, but extend broadly to achieve safety outcomes. This is consistent with the objects and principles of transport safety legislation as well as the policy framework under the Transport Integration Act.
To achieve these outcomes, TSV is bound by the following principles:
1. Independent/ impartial
TSV must be, and be seen to be, independent and impartial. This includes acting without bias or favour from all political and/or industry influence and actively managing risks of regulatory capture. Independence from the Department of Transport and Ministers is established through the statutory office of the Director, Transport Safety
TSV strives to choose ‘what to work on’ and ‘how to work on it’ on the basis of risk, taking a systemic risk and safety science perspective
In line with principle 2, the impact of TSV’s regulation should be commensurate to the risks and the potential benefit to safety
4. Fair, reasonable and consistent
TSV should act in a reasonable, fair and consistent manner at all times. This includes being consistent and predictable in comparable cases, but also treating each case on its merits in light of the circumstances and due process
5. Accountable and transparent
TSV should be accountable and transparent to its stakeholders. This includes publishing information on TSV’s role and core activities and that our decision-making is documented and open to internal, administrative and judicial review.
These principles are consistent with the principles set out in transport safety legislation.
There may be tensions between the principles, for example between proportionality in the individual case and optimising compliance impact across industry. In each case, TSV aims to optimise compliance with the totality of the principles in light of desired regulatory outcomes.
As Victoria’s safety regulator, TSV is driven by the public interest in safe transport. TSV provides independent assurance that duty holders are meeting their legislative obligations, helping to maintain public confidence in the transport system.
To do this, TSV aims to maximise the following outcomes:
- Duty holders understand their legislative obligations
- Duty holders voluntarily comply with such obligations consistently
- Positive safety culture among all participants, including continuous improvements in safety management, best practice safety standards and capacity building for risk management across industry.
These outcomes address legislative compliance, but extend broadly to achieve safety outcomes.
This is consistent with the objects and principles of transport safety legislation as well as the policy framework under the Transport Integration Act.
To most effectively achieve regulatory outcomes, TSV employs the following strategies to guide choice of regulatory tools and styles.
Choice of regulatory tool
TSV’s takes a graduated and integrated approach to choosing the appropriate regulatory tool from compliance to enforcement:
This means TSV generally provides information/ guidance/ education in the first instance and uses the least interventionist tool to achieve the desired regulatory outcome. This minimises regulatory burden while maximising public value for regulatory resources.
Providing information and assisting with compliance is also useful if enforcement tools are not available (e.g. in regulating recreational boating operations).
However, a graduated approach does not mean that regulatory tools must be used sequentially, nor that TSV will hesitate with enforcement when safety requires. In each case, TSV considers the full range of options available and take a balanced approach, choosing the most appropriate tool (or mix of tools) to achieve the desired outcome considering the factors listed below.
The pyramid is made up of four levels, listed below starting with the widest level.
- Information / guidance / education
- Prohibition / improvement / infringement notices / undertakings / directions / imposition of conditions / restrictions
- Prosecution / disciplinary inquiries
- Revocation / suspension of ‘permissioning’
Read more about our regulatory tools.
Choice of regulatory style
Aligned with the graduated approach, TSV is a responsive regulator that not only chooses the appropriate tool, but also adopts the complementary regulatory style in the circumstances.
TSV therefore moves along the following spectrum within the co-regulatory context and considers various factors.
Tendency towards the lower end of the enforcement pyramid. Provides cooperation and assistance to industry in terms of information/guidance/education/persuasion through:
- running seminars/workshops
- publishing guidance material
- public education campaigns
- requesting further information
- regulatory conversations with duty-holders
Tendency towards the middle of the enforcement pyramid. Conducts monitoring/compliance activities such as:
- informal conversations
- requests for information
- audits and reports to duty-holder on findings
Tendency towards the top end of the enforcement pyramid. Exercises enforcement powers by:
- issuing notices
- accepting undertakings
- changing permissioning structures
- suspending or revoking permissioning
Factors for consideration
In addition to the transport integration act’s policy framework, TSV takes into account the following when choosing a regulatory tool/style and exercising its regulatory discretion more generally:
1. Public interest
In safe bus, maritime and rail transport for all Victorians, including to contribute to public confidence through independent assurance.
2. Immediate nature of breach
The nature and circumstances of the breach, including associated safety risks (e.g. whether there is an immediate risk, whether there are systemic risk concerns), potential/ actual detriment etc.
3. Broader impact of breach
The broader repercussions of breach- including the effect on other duty-holders or the public if it is not adequately addressed
4. Impact of proposed TSV action
Which regulatory tool/ style is most likely to remedy the harm, maximise future compliance and that is proportionate to the risk. This requires the most effective point of intervention to achieve behavioural change (taking into account duty-holder motivations), broader educative/ deterrent effect etc. This also includes whether the action is fair, reasonable and consistent
5. Circumstances of duty-holder
- willingness to comply (rather than blatant disregard or deliberate obstruction)
- capacity to comply (in terms of both staff and systems e.g. understanding/ sophistication of risk management systems, safety maturity/ culture)
- past history of breaches and likelihood of repeat breaches
- previous and current response to breach and interactions with TSV
- other mitigating or aggravating circumstances.
Generally, the higher the willingness and capacity to comply, the less likely that TSV will use ‘harder’ enforcement tools.
6. TSV’s current risk areas
Whether the breach falls within TSV’s identified regulatory focus.
There are potential tensions between these factors, for example the level of risk (which may be high), and the behaviour of the duty-holder (which may have been exemplary before the breach). In each case, TSV exercises its discretion to best accommodate most of the factors but guided by safety as the overriding concern.
Processes, policies, procedures
TSV is committed to ensuring that its business processes are aligned with and support the approach in this policy. Such processes include ensuring appropriate:
- supervision systems relating to transport safety officers/ marine inspectors or surveyors
- probity requirements e.g. having a robust system of policies and procedures, documentation of decision-making, review and approval processes
- risk analysis/ planning e.g. receipt and publication of safety data, safety trend analysis and research by safety science and human factors experts, risk-based planning of audit/ inspection programs
- training, learning and development e.g. regular training for transport safety officers/ marine inspectors or surveyors
- broader governance requirements e.g. to conduct a cost-benefit analysis for certain regulatory decisions, compliance with Transport Integration Act framework
- communication/ consultation processes e.g. safety alerts to industry, regular newsletters and safety meetings with operators
- relationships with other relevant regulators e.g. through MOUs, referral protocols, regular information-sharing sessions, informal networking sessions etc.
Download the policy in PDF or Word format:
When first published, this policy referenced TSV's role in Victorian rail safety – now regulated by the Office of the National Rail Safety Regulator (ONRSR).