Memorandum of Understanding between
Director, Transport Safety and Victoria
Police
Dated: 19 June 2014
This Memorandum of Understanding is made between the following parties:

Director, Transport Safety on behalf of Transport Safety Victoria, a statutory office
established under section 171 of the Transport Integration Act 2010 (Vic), of Level 15, 121
Exhibition St, Melbourne, Victoria, 3000 (Safety Director), and

Victoria Police, of 637 Flinders Street, Docklands 3008.
1
Introduction
1.1
Interpretation
In this Memorandum of Understanding, unless expressly stated otherwise:
CLEDS Act means the Commissioner for Law Enforcement Data Security Act
2005 (Vic).
Health Information has the same meaning given to that term in the Health
Records Act 2001 (Vic).
Law Enforcement Data has the same meaning given to that term in the CLEDS
Act.
Marine Enforcement Policy means the Marine Enforcement Policy that the
Safety Director must develop, maintain and review in accordance with Part 8.3 of
the Marine Safety Act.
Marine Incident has the same meaning as in section 3 of the Marine Safety Act.
Marine Safety Act means the Marine Safety Act 2010 (Vic).
Marine Safety Services means the transport safety regulation and investigation
services undertaken by Victoria Police on behalf of the Safety Director, as detailed
in clause 3 to the Outcomes Statement.
MOU means this memorandum of understanding.
MSS means the ‘Marine Safety System’, which is the database that records
information including marine incident data and recreational boating compliance
audit results, which is owned by the Safety Director.
Outcomes Statement means the Outcomes Statement between the Parties
signed on or about the date of this MOU.
Parties means TSV or Victoria Police (as applicable).
Personal Information has the meaning given to that term in the Information
Privacy Act 2000 (Vic).
Privacy Legislation means laws in respect of privacy and the protection of
personal and health information including, without limitation, the Information
Privacy Act 2000 (Vic), the Health Records Act 2001 (Vic) and the Privacy Act
1988 (Cth).
Relationship Manager means the person appointed pursuant to clause 3.2 to
represent each Party.
Relevant Marine Safety Law has the same meaning as in section 3 of the Marine
Safety Act.
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Safety Director means the Director, Transport Safety, a statutory office
established under section 171 of the Transport Integration Act 2010 (Vic), together
with his delegates and the staff members of TSV authorised to act on his behalf
(as the context requires).
TCMA means the Transport (Miscellaneous and Compliance) Act 1983 (Vic).
Transport Integration Act means the Transport Integration Act 2010 (Vic).
TSO means a transport safety officer appointed under section 228T of the TCMA.
TSV means Transport Safety Victoria.
1.2
1.3
1.4
Purpose
(a)
This MOU sets out arrangements to promote effective communication, cooperation and co-ordination between the Safety Director and Victoria
Police.
(b)
This MOU documents the working relationship between the Parties for the
purpose of recording an understanding of their common statutory powers
and functions under Relevant Marine Safety Law.
(c)
Specifically, this MOU sets out procedures and working arrangements to
assist the Parties in relation to:
(i)
the sharing of information and technology between the Parties;
(ii)
the protection of data collected and/or exchanged between the
Parties in accordance with the requirements under the Privacy
Legislation and the CLEDS Act;
(iii)
the coordination of concurrent enforcement activities under Relevant
Marine Safety Law;
(iv)
investigations and prosecutions relating to alleged breaches of
Relevant Marine Safety Law;
(v)
the exercise of powers and the performance of functions of the
Parties under Relevant Marine Safety Law; and
(vi)
communicating any legislative changes that may impact on the
working relationship between the Parties.
Principles
(a)
The Safety Director and Victoria Police each have separate and
independent mandates and roles.
(b)
While recognising each Party’s mandate and independent role, the Parties
are committed to a constructive and co-operative relationship in the
common pursuit of enhancing marine safety in the State of Victoria.
(c)
The Parties to the MOU share a common vision, values and understanding
of the scope of their individual obligations under this MOU.
Commencement
This MOU shall take effect on and from the date on which the last Party signs this
MOU.
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1.5
No legally binding effect
(a)
This MOU records the level of understanding between the Parties and is a
record of their intentions in respect of the issues described in this MOU as
at the date of this MOU.
(b)
This MOU is not intended to create legally binding obligations or liabilities
on either Party.
(c)
Nothing in this MOU should be construed as preventing or inhibiting the
Parties from acting in the proper performance of their statutory or other
public functions.
2
Roles and responsibilities
2.1
Role of the Safety Director and TSV
2.2
(a)
TSV is Victoria’s integrated safety regulator for bus, maritime and rail
transport. This regulatory function is exercised through the establishment of
the independent statutory office of the Safety Director under section 171 of
the Transport Integration Act. TSV exists to support the Safety Director to
achieve his or her statutory object and functions.
(b)
The Safety Director’s statutory object is to independently seek the highest
transport safety standards that are reasonably practicable and consistent
with the transport system’s vision and objectives under the Transport
Integration Act.
(c)
The Safety Director, assisted by TSV, is responsible for administering a
broad range of transport safety legislation, including the Relevant Marine
Safety Law which covers a broad range of marine safety functions.
Role of Victoria Police – Water Police Squad
The Water Police Squad provides specialist support for the State of Victoria
through the role of coordinating all marine search and rescue incidents, law
enforcement of the marine environment, overarching responsibility for port security
operations and marine counter terrorist capabilities.
3
Communication and training
3.1
Cooperation
(a)
3.2
The Parties agree that effective liaison and cooperation between the
Parties will support continued improvement in the level of marine safety in
Victoria.
Relationship Managers
(a)
Each Party agrees to nominate a Relationship Manager, who will serve as
the key point of contact for any issues arising under this MOU.
(b)
The Relationship Managers for the Parties are set out in Schedule 1 to this
MOU and may be altered by either Party by notice in writing from time to
time.
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3.3
Consultation
(a)
The Parties agree to arrange working group meetings, as required, to
discuss and consult on matters including but not limited to:
(i)
high level strategic matters of mutual benefit to both organisations;
(ii)
policy and legislative initiatives and issues;
(iii)
public education and awareness programs;
(iv)
law enforcement and compliance issues;
(v)
research and related joint interest matters; and
(vi)
(b)
3.4
3.5
cooperation between the Parties in accordance with terms of this
MOU.
The Safety Director may invite a representative of Victoria Police to
participate in TSV sponsored committees related to maritime safety when a
need arises.
Education and training
(a)
TSV agrees to provide education and training to Victoria Police in relation
to Relevant Marine Safety Law, including on procedures to support
enforcement activities in respect of commercial trading vessels, and for the
TSV-owned MSS database, data collection and other TSV systems.
(b)
Victoria Police agrees to provide training to officers, including TSOs and
other authorised officers, appointed pursuant to Relevant Marine Safety
Law and/or the TCMA, in enforcement activities including but not limited to
issuing of marine infringement notices.
(c)
TSV agrees to provide Victoria Police with advice on technical marine
matters to Victoria Police as mutually agreed.
Announcements or releases
The Parties agree not to make any public announcements or press releases
relating to this MOU without first consulting with, and obtaining consent from, the
other Party. The Parties must reasonably consult and agree on the form and
content of any such announcements or releases prior to the announcement or
release.
4
Investigation activities
4.1
Notification of marine incidents
(a)
If the Safety Director becomes aware of any marine incident involving a
fatality or serious injury in circumstances that make it unlikely that Victoria
Police would be aware of the occurrence of that incident, the Safety
Director will use best endeavours to notify Victoria Police of the occurrence
of that incident at the earliest opportunity.
(b)
Victoria Police will use best endeavours to ensure that the Water Police
Squad and all other Victoria Police members who become aware of any
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marine incident involving a fatality or serious injury, or other categories of
incidents as might be agreed between the Parties from time to time, will
notify the Safety Director of the occurrence of that incident at the earliest
opportunity.
(c)
If either Party:
(i)
wishes to be notified of any additional incidents on a regular basis; or
(ii)
requires additional information about a particular incident;
they will make a request in writing to the other Party’s nominated
Relationship Manager, who will use best endeavours to accommodate the
request.
4.2
Investigations
(a)
The Safety Director will investigate marine incidents and alleged breaches
of a Relevant Marine Safety Law to fulfil relevant statutory functions under
Relevant Marine Safety Law and the Transport Integration Act.
(b)
The Safety Director may appoint one or more TSOs to investigate marine
incidents. Where appointed, the TSO(s) will act as the Safety Director’s
point of contact during an investigation.
(c)
Victoria Police will investigate marine 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.
(d)
If the Parties both decide to investigate the same marine incident, the
Parties will:
(e)
4.3
(i)
co-operate and assist each other to the extent that is permitted by
law and to the extent that such co-operation will not prejudice any
investigation;
(ii)
work together to prevent any unnecessary duplication of effort in the
conduct of each investigation; and
(iii)
if required, seek expert and or technical advice from each other, as
part of any investigation.
After receiving a request from Victoria Police for advice, the Safety Director
will, subject to availability of the resources at the Safety Director’s disposal,
use best endeavours to provide the requested assistance to Victoria Police
in the investigation of a marine incident.
Prosecutions
The Parties agree that prosecutions should be carried out in a spirit of cooperation
between the Parties for offences under Relevant Marine Safety Law.
4.4
Marine Enforcement Policy
(a)
The Parties acknowledge the Safety Director’s obligations under Part 8.3 of
the Marine Safety Act to:
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(b)
(i)
develop, maintain and review a Marine Enforcement Policy, the aim
of which is to support and promote maintaining compliance and
enforcement of Relevant Marine Safety Law in a consistent, cost
effective and efficient manner;
(ii)
consult with Victoria Police in the initial development and ongoing
review of the Marine Enforcement Policy; and
(iii)
co-ordinate and support the implementation of the Marine
Enforcement Policy by Victoria Police in any manner the Safety
Director determines to be appropriate.
In order to achieve the aim of the Marine Enforcement Policy, Victoria
Police:
(i)
agrees to participate in consultation processes led by the Safety
Director in respect of the initial development and ongoing review of
the Marine Enforcement Policy; and
(ii)
acknowledge that they must have regard to the Marine Enforcement
Policy when performing duties and exercising functions under the
Relevant Marine Safety Law and the TCMA;
5
Privacy, confidentiality and law enforcement data security
5.1
Privacy
(a)
5.2
The Parties acknowledge that they:
(i)
will be bound by the Privacy Legislation with respect to any act done
or practice engaged in by them under or in connection with this MOU;
(ii)
will co-operate with any reasonable request of the other Party relating
to the protection of Personal Information, or Health Information or the
investigation of a complaint about the handling of Personal
Information or Health Information; and
(iii)
will co-operate to ensure they do not cause any other Party to breach
any privacy obligations that Party has at law.
Confidentiality & Law Enforcement Data Security
(a)
A party who has received information under this MOU must not use it
except for the purpose, principles and objectives outlined in this MOU.
(b)
Subject to clause 5.2(c), if a Party wishes to use or disclose information
provided pursuant to this MOU for any other purpose, that Party must seek
prior written consent of the Party who supplied the information. Such
consent may be given or withheld in the supplying party’s absolute
discretion.
(c)
Nothing in this MOU prevents either party from disclosing information:
(i)
if required to do so by law, including in response to a request made
under the Freedom of Information Act 1982 (Vic); or
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(ii)
5.3
if required to do so in connection with legal proceedings relating to
this MOU.
(d)
A Party who has received information under this MOU must, on the request
of the other Party, immediately deliver to that Party all documents or other
materials containing or referring to that information which are in its
possession, power or control or in the possession, power or control of
persons who have received information from it under clause 5.2(b).
(e)
The Safety Director acknowledges that any information provided by Victoria
Police is Law Enforcement Data and is therefore subject to the applicable
security handling requirements of the standards issued under the CLEDS
Act.
(f)
The Safety Director will receive, store, transmit (if applicable) and dispose
of Law Enforcement Data using appropriate means that ensures against
unauthorised access.
(g)
This clause 5.2 will survive termination (for whatever reason) of this MOU.
The meaning of ‘appropriate means’
The Parties agree that for the purposes of clause 5.2(e) above, appropriate
means include the development of and adherence to an appropriate data security
policy by the Safety Director.
5.4
Use of information and Law Enforcement Data
(a)
Victoria Police acknowledges that TSV may use Law Enforcement Data
and other information for the following purposes without breaching this
clause 5:
(i)
aggregate reporting of marine safety statistics;
(ii)
provision of de-identified Marine Incident information for the purpose
of possible parliamentary questions and ministerial briefings;
(iii)
reporting on high profile Marine Incidents to the Minister;
(iv)
development of regulatory action plans;
(v)
analysis of trends to inform education and compliance campaign
targeting;
(vi)
disclosure as required by law.
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6
Information exchange
6.1
Legislative authority
6.2
(a)
Under section 177 of the Transport Integration Act the Safety Director may
disclose information to a third party, if the Safety Director thinks the
disclosure is necessary for the safe operation of bus, marine or rail
transport.
(b)
Under section 270 of the Marine Safety Act, the Chief Commissioner of
Police may disclose to the Safety Director information concerning any
reportable incident (as that term is defined in the Marine Safety Act)
involving a vessel on State waters.
(c)
For the avoidance of doubt, nothing in this MOU entitles or requires a
person to disclose information that is the subject of legal professional
privilege or affects the law or practice relating to legal professional
privilege.
Information and data exchange
(a)
(b)
(c)
(d)
Law Enforcement Data is provided by Victoria Police to the Safety Director
by the following means:
(i)
direct entry of marine incident reports (MIR) into the MSS;
(ii)
meetings and liaisons with TSV staff to discuss issues relating to
Relevant Marine Safety Law; and
(iii)
the provision of statistical reports regarding Marine Safety Services
(as defined in the Outcomes Statement).
Victoria Police agrees to provide the Safety Director with information and/or
Law Enforcement Data in relation to enforcement activities undertaken by
the Water Police Squad in accordance with Relevant Marine Safety Law,
including but not limited to:
(i)
vessels audited;
(ii)
non compliances identified;
(iii)
infringements issued; and
(iv)
data collected in relation to marine incidents and marine accidents.
The Parties acknowledge that the general evidentiary provisions in the
Relevant Marine Safety Law allow for the Safety Director to provide a
certificate in the prescribed form certifying certain matters and agree to the
following:
(i)
Victoria Police will make a request in writing to the Safety Director
for the certification; and
(ii)
the Safety Director will use best endeavours to respond in a timely
manner and within the timeframe required by Victoria Police.
TSV agrees to use reasonable endeavours to:
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(i)
provide Victoria Police with activity reports derived from MSS
incident data on a regular basis; and
(ii)
respond to ad hoc requests for analysis of MSS data and provide
reports to Victoria Police in a timely manner.
7
Intellectual property
7.1
General
(a)
(b)
Permission to use intellectual property
(i)
In some circumstances, in the course of performing its obligations
under this MOU, a Party may need to use intellectual property
belonging to the other Party (“Owner”).
(ii)
The Party intending to use the Owner’s intellectual property must
first obtain the Owner’s written consent.
Non-exclusive licence
The Party using the Owner’s intellectual property (“Licensee”)
acknowledges that the rights granted to it in clause 7.1 of this MOU are
non-exclusive and that the Owner may use or permit any other person to
use any of its intellectual property at any time.
(c)
Sub-licensing
A Party permitted to use intellectual property under this clause Error!
Reference source not found. may not sub-license any of its rights in
respect of the intellectual property to any person.
(d)
Permitted use
Where a Party uses the Owner’s intellectual property, it must comply with
all reasonable directions, instructions and specifications given by the
Owner from time to time regarding the representation of the intellectual
property and the manner of its use. The Party permitted to use the
intellectual property must not cause or permit decompilation or reverse
assembly or engineering of all or any portion of the intellectual property.
7.2
Marine Safety System
(a)
(b)
The Safety Director’s ownership of intellectual property in data
(i)
The Safety Director has complete ownership of the data entered
into the MSS, including data entered by Victoria Police on behalf of
the Safety Director.
(ii)
Victoria Police’s access to and use of the data in the MSS is
governed by the terms of this MOU, specifically clause 6, and is
limited by the legislative provisions in the Relevant Marine Safety
Law that relate to information disclosure.
Licence to use intellectual property in the MSS
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(i) The Safety Director warrants that owns the MSS and the intellectual
property contained therein for all activities associated with this
MOU.
(ii) Where Victoria Police uses the MSS and/or the data therein, it must
comply with all reasonable directions, instructions and
specifications given by the Safety Director from time to time
regarding the representation of the MSS and/or the data contained
therein and the manner of its use.
(c)
Members of Victoria Police and the employees of its agents/contractors are
granted access to the MSS and related records for the purposes of
performing the services under, or otherwise complying with any
requirement of, this MOU.
(d)
Victoria Police and its nominated officers will comply with any applicable
TSV policies, requirements and protocols while accessing the MSS.
8
Review, variation and termination
8.1
Review
8.2
8.3
(a)
The Parties will formally review this MOU twelve (12) months after the date
of execution and subsequent to that, at regular intervals not exceeding
three (3) years or as agreed between the Parties.
(b)
Either Party may reasonably request a review of this MOU at any time.
Variation
(a)
Either Party may reasonably request the other party to agree to a variation
of this MOU. Where the other Party agrees, both Parties will sign an
amending MOU.
(b)
The date of effect of the variation will be the date on which the amending
MOU is executed or such other date as may be nominated by the Parties.
Termination
(a)
This MOU will remain in force unless terminated by the Parties pursuant to
this clause 8.3.
(b)
Either Party may terminate this MOU by giving 30 days written notice to the
other Party. Termination will take effect from the date specified in the
notice.
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11
9
Dispute resolution
9.1
Dispute resolution process
If there is a dispute between the Parties arising out of or in connection with this
MOU, the Parties agree as follows:
10
(a)
to follow any procedure that may be set out in any protocol held by a Party
to resolve the dispute; or
(b)
if there is no process contained in any protocol to resolve a particular
dispute, the Parties agree to:
(i)
use their best endeavours and act in good faith to resolve the dispute;
and
(ii)
if the Parties cannot resolve the dispute within seven (7) days of the
commencement of negotiations under clause 9.1(b)(i) above, to refer
the matter to the nominated Relationship Managers who are
appointed in Schedule 1 to this MOU for resolution.
General
In this MOU, unless expressed to the contrary:
(a)
words importing:
(i)
the singular include the plural and vice versa; and
(ii)
any gender includes the other gender;
(b)
if a word or phrase is defined cognate words and phrases have
corresponding definitions;
(c)
a reference to:
(i)
a person includes a firm, unincorporated association, corporation and
a government or statutory body or authority;
(ii)
a person includes its legal personal representatives, successors and
assigns;
(iii)
a statute, ordinance, code or other law includes regulations and other
statutory instruments under it and consolidations, amendments, reenactments or replacements of any of them;
(iv)
a right includes a benefit, remedy, discretion, authority or power;
(v)
an obligation includes a warranty or representation and a reference to
a failure to observe or perform an obligation includes a breach of
warranty or representation; and
(vi)
a reference to a clause is a reference to a clause of this MOU.
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Execution
SIGNED by the DIRECTOR,
TRANSPORT SAFETY
for and on behalf of the CROWN IN
RIGHT OF THE STATE OF VICTORIA
in the presence of:
)
)
)
)
)
Witness (Signature)
Director, Transport Safety (Signature)
Witness (Print name)
Director, Transport Safety (Print Name)
Date: __________________________
Signed by Chris O’Neill, Assistant
Commissioner, Transit and Public
Sector Command for and on behalf of
Victoria Police in the presence of:
)
)
)
)
)
Witness (Signature)
(Signature)
Chris O’Neill
Witness (Print name)
Date: __________________________
Memorandum of Understanding – TSV and Victoria Police
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Schedule 1: Relationship Managers
Name
Relationship Manager
Address
Telephone
Fax
Email
Safety Director
Peter Corcoran, Director, Maritime Safety
Level 15, 121 Exhibition Street, Melbourne VIC
(03) 9655 9780
(03) 9655 6611
[email protected]
Name
Relationship Manager
Squad
Address
Telephone
Fax
Email
Victoria Police
Senior Sergeant Steve Towers – Officer in Charge Water Police
100 Nelson Place, Williamstown VIC 3016
0437 123 205
(03) 9399 9252
[email protected]
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