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
Purpose
This legislative instrument (the Amendment) amends the legislative instrument
CASA 125/09 made for and under various provisions of Part 99 of the Civil Aviation Safety Regulations 1998 (CASR 1998), for various approvals, procedures, methods and standards required for CASA to conduct random drug and alcohol testing of people who perform, or are available to perform, safety-sensitive aviation activities (SSAA).
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, or are available to perform, SSAA, 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.
Regulations
The Civil Aviation Safety Amendment Regulations 2008 (No. 1) commenced on 23 September 2008 and amended CASR 1998 by inserting a new Part 99, Drug and alcohol management plans and testing (CASR Part 99).
The purpose of CASR Part 99 was to give effect to Part IV of the Act, by establishing a framework for the development of DAMPs, similar to those already in place in other transport sectors, and by introducing a random drug and alcohol testing regime for all persons involved in SSAA.
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.
Details of the Amendment
The Amendment replaces references in Schedules 2, 3 and 4 of the legislative instrument to the approved Cozart DDS testing device with references to the approved Alere DDS 2 testing device. The new testing device has been introduced because it is regarded as incorporating changes that make it technically superior, having an advanced user interface, requiring less operator intervention, and with an extended battery life and increased testing portability. This allows the operator to conduct testing in a wider range of locations with less environmental requirements or physical preparation by the operator. The device that was previously used will become obsolete in the near future.
There have also been changes to the procedures to facilitate the new testing device’s operating instructions, provide additional guidance to the persons conducting the test and to ensure faulty testing devices are not used.
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 original legislative instrument, consultation under section 17 of the LIA has not been considered necessary for the Amendment. In the legislative instrument, equipment approvals and testing procedures were based on existing national drug and alcohol testing protocols and procedures. It was intended to allow the supervision of persons who perform safety-sensitive aviation activities. The Amendment is only a refinement of these tests and procedures, taking into account recent developments in drug testing procedures and equipment used by other testing authorities such as State police and Government services.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
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 (RIS) 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.
Making and commencement
This instrument has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection73 (2) of the Act. The instrument commences on the day after it is registered.
[Instrument number CASA 165/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Amendment of instrument CASA 125/09 — Drug and alcohol testing by CASA under Subpart 99.C of CASR 1998
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the legislative instrument
The instrument replaces references to a drug and alcohol testing device with references to a later testing device. The new testing device has been introduced because it is regarded as technically superior to the device that was previously used.
There have also been changes to the procedures to provide additional guidance to the persons conducting the test and to ensure faulty testing devices are not used
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority