Regulatory tools

Information, guidance, education

Information, guidance and education promote voluntary compliance among duty-holders.

This approach is most often used when:

• Regulatory obligations are new or have changed significantly and there is little or no awareness of these new obligations across the sector
• The main objective is to increase voluntarily compliance or the capacity to comply and continuously improve
• There is an identifiable breach but it is non-safety critical and / or the circumstances surrounding it are minor
• There is an emerging or known safety issue that is not well understood by duty-holders.

In general, an information/guidance approach will be more appropriate:

• The lower the risk to safety arising from the breach
• The lower the broader impact of the breach and
• The higher the willingness/capacity of the duty-holder to comply.

Notices

Infringement notice

A transport safety infringement notice may be issued when we have reason to believe that a person has committed an offence against a transport safety or infrastructure law (other than a safety work infringement).

Transport safety infringements are prescribed in the Transport (Safety Schemes Compliance and Enforcement) Infringements Regulations 2014 (Vic).

Infringement notices are used to address lower level offences in lieu of prosecution and may be appropriate where:

• The breach of the law is relatively minor or technical in nature (but relying solely on information / guidance / education is insufficient)
• The nature of the breach (for example, in terms of the gravity, potential/actual harm caused) can be immediately assessed, and is 'low' enough that this form of immediate but relatively minor intervention is warranted (bearing in mind the relevant penalty units involved)
• The broader impacts of the breach are such that the public interest is served by taking some level of intervention on the issue (for example, in terms of awareness raising for the sector, deterrence effect)
• A penalty will provide sufficient deterrent against repeat breaches.

Improvement notice

We may issue an improvement notice to deal with a current or likely breach of the:

• Bus Safety Act 2009 (Vic)
• Marine Safety Act 2010 (Vic)
• Other transport safety or infringement laws and associated regulations

or to address operations or services that threaten bus or maritime safety.

An improvement notice will require the recipient to take a specified action, before a specified date. Failure to comply with a notice is an offence.

Prohibition notice

A prohibition notice prohibits a person from carrying out an activity where there is evidence of an immediate risk to safety. This notice has effect until we serve a certificate confirming there is no longer an immediate risk to safety.

Embargos, directions, detention

Applies to maritime safety only.

Embargo notices

If a police officer has reason to believe that a recreational or hire and drive vessel has been involved in committing a relevant offence, they can:

• Issue an embargo notice for up to 48 hours prohibiting any person from operating the vessel
• Prohibit the master from operating the vessel for up to 24 hours or require the master to move the vessel to the nearest landing place

Directions

Maritime Safety Victoria and Victoria Police also have a general power to direct that a vessel:

• Must not be operated on State waters
• May only be operated on State waters on specified conditions for a specified period.

Detention of unsafe vessels

Additionally, if it appears a vessel is unsafe, we may order the vessel to be provisionally detained and then investigate and report on the condition of the vessel and its equipment. On receipt of the report we may:

• Order the release of the vessel if found that the vessel is safe or
• Order the vessel to be finally detained either absolutely or until conditions necessary to ensure the vessel's safety if it is found that the vessel is still unsafe.

Generally, it may be appropriate to use directions and notices of this nature when:

• The immediate safety circumstances of the alleged offending are serious enough (based on available evidence in terms of the gravity of risks, potential/actual harm) that the direction or notice is necessary to protect public interest in marine safety
• The proposed direction or notice is the measure most likely to effectively address the immediate risk to safety, is proportionate to the level of dangerous operation or other offence, or is likely to increase the chance of future compliance
• The relevant circumstances of the duty-holder (for example in terms of their motivation / capacity / history) are serious enough to warrant the direction or notice.

Enforceable voluntary undertakings

Applies to bus safety only.

This is a voluntary written undertaking that may be provided by a bus operator in relation to a breach of bus safety legislation.

If we consider that the operator has breached an undertaking it may be enforced in the Magistrate's Court.

Disciplinary inquiries

We may hold an inquiry to determine whether or not there are sufficient grounds to take further disciplinary action. Inquiries are generally appropriate where:

• There is a serious emerging safety issue or risk
• There is an alleged serious breach of a transport safety law
• There has been a serious incident or accident
• The broader impact of the matter is such that the public interest is served by conducting our own inquiry
• An inquiry is the tool most likely to effectively address the matter as there is insufficient evidence to warrant enforcement action
• The matter falls within our identified areas of safety focus at that time.

If an inquiry is held, the person who is the subject of the inquiry will be afforded natural justice.

Generally, the safety issue should be more serious than one which can be appropriately addressed through a general compliance investigation or inspection (for example, where it is necessary to temporarily suspend a permission).

We also have the power to investigate transport safety matters, which can include breaches of transport safety laws for the purposes of further action including prosecution or disciplinary action.

Suspension of permissions

Suspension or cancellation of a permission is one of the strongest enforcement measures available.

It will only be used as a last resort where:

• The public interest in protecting transport safety requires the complete cessation of the permitted activity
• The permission holder has seriously breached relevant transport safety law. The factors to be taken into account in determining this include:
  • The gravity of the risk to safety the breach(es) produced, and in particular the potential or actual serious injury or fatality caused
  • The broader repercussions of the breach on other duty-holders or the public if not adequately addressed
  • The level of motivation / capacity to comply, history of breach
  • Whether the breach is isolated or reflects more systematic safety deficiencies
  • Any aggravating circumstances, for example an attempt to conceal the act / omission

• No other regulatory tool could be used to effectively address the breach(es) or risk to safety, that is, whether safety can still be ensured if other tools are used
• The potential impact of the suspension/ cancellation is proportionate to the risk created
• The proposed level of intervention is fair and reasonable in the circumstances.

Prosecution

In general, prosecution is only considered where the gravity of the breach means that prosecution is appropriate and proportionate.

Ultimately, the decision to prosecute is a serious matter, balancing the public safety interests served by taking the action, against the time and resources involved, the likelihood of success and the impact on the duty-holder.