(Delivered in Parliament on 6 August 2018)
This Bill tasks the Transport Safety Investigation Bureau (TSIB) with the mission of investigating incidents relating to aviation, marine, rail and public transport with a view to enhancing transport safety and preventing accidents or the recurrence of accidents. This mission will improve public safety and should be supported.
Nevertheless, I have two queries on the enhanced TSIB and how it will operate.
TSIB investigations and other investigations / proceedings
My first query relates to how TSIB investigations will proceed if there are other agencies or bodies investigating the same incident.
According to Clause 9 of the Bill, the TSIB’s role is to independently investigate transport occurrences, identify factors that have contributed to the occurrence and report publicly on those investigations. As I understand it, TSIB’s primary concern is safety and recommendations to improve safety. To this end, Clause 9(3) makes it clear that assigning blame and liability is not the function of TSIB. However, the same clause rightly recognises that blame or liability may be inferred from its report.
How will TSIB’s work relate to the work by other investigative agencies? Let us take a scenario of two marine vessels colliding within Singapore port limits, resulting in deaths. A Coroner’s inquiry or other Inquiry will usually be conducted, which means the police will likely commence investigations. Under this Bill, the TSIB will also be activated to conduct its own investigations into what caused the accident. Will the TSIB and police share their findings with each other, or will they work independently? Is there a possibility of conflicting findings being reached by TSIB and other agencies e.g. TSIB may find that there was a mechanical problem with one of the vessels, while the police may find that the crew was reckless. Further, according to Clause 21 of the Bill, the TSIB report will be admissible before a Coroner’s Inquiry. Does this mean that the Coroner will wait for the TSIB to finalise its report, before the Coroner reaches his verdict on the likely cause of death?
Independence of TSIB and its challenges
My second point concerns how the TSIB will preserve its independence.
According to Clauses 8 and 11 of the Bill, the TSIB is to be headed by a Director who will be a public officer. As for the investigators, Clause 23 provides that where an investigation is needed, the Director will appoint either TSIB staff members or consultants as investigators.
Investigating transport occurrences are major investigations with grave implications. For instance, a finding of the factors that contributed to deaths or injuries may encourage law suits from victims and lead to reputational and economic damage to big players in the transport industry. Such findings thus carry high stakes.
To illustrate, we can recall the tragic crash 20 years ago of Silkair flight MI 185 over Palembang. In that incident, there was controversy around whether the crash had been caused by deliberate pilot action, or by mechanical or other causes. A law suit was brought in Singapore by the families of six victims who refused to reach settlements with Silkair. The court had to consider two conflicting findings from the transportation investigation agencies – the Indonesian National Safety Transportation Committee, and the US National Transportation Safety Board. The Indonesian agency concluded that the cause of the crash was unascertainable, while the US NTSB found that the crash was likely caused by intentional pilot action. Eventually, the court found that the cause was unascertainable and the families lost their cases. However, if the US NTSB finding had been accepted, Silkair would not have been covered by the applicable Warsaw Conventions to limit its payout to each victim to USD75,000 each.
I understand that under this Bill, a TSIB report would be inadmissible in such a court proceeding. However, the Silkair incident illustrates that the enormous pressure that may confront the TSIB Director and investigation team when probing such high stakes incidents. It seems to me that if we want TSIB to succeed as a credible agency, TSIB must be absolutely fearless in its investigations and not be seen to cower to transport regulators or big business.
To this end, I have 2 concerns:
First, how senior in the public service will the Director of TSIB be, to have the independence and clout needed?
Secondly, Clause 19 provides that the Director may provide a draft report to any person he considers appropriate, to allow the person to make submissions to the Director about the draft report. This is potentially worrying. In the normal course of events, the TSIB would have interviewed the relevant parties in the incident before coming to conclusions in any draft report. By allowing parties to make representations about the draft report, could this be a window for parties to lobby the TSIB to change its findings? I would ask Minister to clarify the purpose of allowing a party to make representations at this late stage.
I have stated my general support for the TSIB’s proposed expanded role and work. However, I have raised several queries and concerns for the Ministry’s response.
I certainly hope the enhanced TSIB will grow into an agency with a solid reputation for independent investigations that will enhance transport safety.