Explanatory Statement
Civil Aviation Safety Regulations 1998
Amendment of instrument CASA 125/09 — Drug and alcohol testing by CASA under Subpart 99.C of CASR 1998
Legislation
Under subsection 9 (1) of the Civil Aviation Act 1988 (the Act), CASA has the function of conducting the safety regulation of civil air operations by means that include administering Part IV of the Act.
Part IV of the Act includes section 34. Under section 34, regulations may make provision for drug and alcohol management plans (DAMPs) for people who perform safety-sensitive aviation activities, and for CASA to conduct drug and alcohol testing of such people.
Subsection 98 (1) of the Act additionally provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Legislative instrument under CASR Part 99
Under certain provisions of CASR Part 99, CASA may make a legislative instrument for the purposes of conducting random drug and alcohol testing.
Thus, under regulation 99.130 of CASR 1998, for drug and alcohol testing under Subpart 99.C, CASA may, by legislative instrument, approve breathalysers for use in alcohol testing, and drug testing devices for use in initial drug testing.
Under regulation 99.140 of CASR 1998, an approved tester must take and prepare a body sample for drug testing in accordance with the procedures set out in a
legislative instrument made by CASA for the purposes of the regulation.
Under subregulation 99.145 (2) of CASR 1998, an approved tester must ensure that the approved drug testing device is stored, tested, maintained and operated in accordance with the legislative instrument made by CASA for the purposes of the subregulation.
Under regulation 99.150 of CASR 1998, CASA must, by legislative instrument, specify a method for determining sample identifiers that are to be allocated to body samples that approved testers take under Subpart 99.C and send for confirmatory drug tests.
Under regulation 99.245 of CASR 1998, an approved tester must take body samples for alcohol testing in accordance with the procedures set out in a legislative
instrument made by CASA for the purposes of the regulation.
Under subregulation 99.250 (3) of CASR 1998, an approved tester must ensure that the breathalyser is stored, tested, maintained and operated in accordance with a
legislative instrument made for the purposes of the subregulation.
Under paragraph 99.445 (3) (b) of CASR 1998, CASA may approve a person to conduct confirmatory drug tests for the purposes of Part IV of the Act if the National
Association of Testing Authorities accredits the person to AS 4760, Procedures for specimen collection and the detection and quantitation of drugs in oral fluid, or to
another Standard that is declared by CASA in a legislative instrument made for the purposes of the paragraph.
Background
CASA has issued a legislative instrument, CASA 125/09, for the purposes of the provisions mentioned above to enable drug and alcohol testing to be carried out. The legislative instrument provided for initial drug testing to be conducted using the approved Cozart DDS testing device. CASA decided (instrument CASA 263/09) to refine the initial drug test procedures by introducing a 2-step initial drug testing process comprising 2 screening tests. These are Step 1 using the DrugWipe 5+ approved testing device, and Step 2 using the approved Cozart DDS testing device. Approved testing device DrugWipe 5+ is no longer being manufactured and has been replaced with an upgraded model DrugWipe 5S. The instrument is amended by substituting DrugWipe 5S for the DrugWipe 5+, wherever occurring.
Legislative Instruments Act 2003 (the LIA)
The various provisions of CASR Part 99 mentioned above, under which the Amendment was made expressly, indicate that the matters are to be provided for by legislative instrument.
Subsection 15AE (1) of the Acts Interpretation act 1901 provides that if a provision of a law requires or permits an instrument that is described as a legislative instrument to be made, then the instrument so made is a legislative instrument for the purposes of the LIA.
The instrument is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
As with the legislative instrument itself, consultation under section 17 of the LIA has not been considered necessary for the Amendment. The Amendment is of a minor or machinery nature and does not substantially alter existing arrangements.
Office of Best Practice Regulation (OBPR)
A preliminary assessment of business compliance costs indicates that the legislative instrument, as such, will have no cost impact on business. A Regulatory Impact Statement was required for the Civil Aviation Safety Amendment Regulations 2008 (No. 1) (the initial making of Part 99 of CASR 1998) and, accordingly, CASA prepared RIS ORR ID: 8301A at that time which was accepted by OBPR.
Human Rights Compatibility
This instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
Commencement and making
The instrument commences on the day after it is registered. It has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA 151/12]