CASA 165/13 - Amendment of instrument CASA 125/09 — Drug and alcohol testing by CASA under Subpart 99.C of CASR 1998

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Legislation au F2013L01616 Not in force Legislative Instrument

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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

Overview

The Civil Aviation Safety Regulations 1998 (CASR 1998) were enacted to provide a framework for the safety regulation of civil air operations in Australia, including the establishment of drug and alcohol management plans and testing for individuals involved in safety-sensitive aviation activities. The Civil Aviation Safety Amendment Regulations 2008 (No. 1) introduced Part 99, which specifically addresses drug and alcohol management and testing. This framework was designed to align with drug and alcohol management protocols already in place in other transport sectors and to enhance safety within the aviation industry by implementing a random drug and alcohol testing regime. The Civil Aviation Safety Amendment Regulations 2013 (No. 125) further refine these regulations by updating the approved drug testing devices and associated procedures to reflect advancements in technology and testing protocols, ensuring continued compliance and safety in aviation operations. These amendments were made under the authority of the Civil Aviation Act 1988 and the Legislative Instruments Act 2003, with the objective of maintaining the highest safety standards in the aviation sector.

Scope and Application

The Civil Aviation Safety Regulations 1998 Amendment, CASA 125/09, applies specifically to individuals involved in safety-sensitive aviation activities (SSAA) within the Commonwealth of Australia. This encompasses a range of roles including pilots, air traffic controllers, and other aviation personnel whose roles critically impact flight safety. The amendment updates the legislative instrument to align with advancements in drug and alcohol testing technology by replacing references to the previously approved Cozart DDS testing device with the Alere DDS 2 device. This change reflects the new device's enhanced features such as an advanced user interface, reduced operator intervention, extended battery life, and increased portability, facilitating broader and more flexible testing environments. Additionally, the amendment refines testing procedures to incorporate the new device's operating instructions and additional guidance to ensure effective and accurate testing, as well as to prevent the use of faulty devices. The amendment is made under the Civil Aviation Act 1988 and is subject to the legislative instruments provisions of the Legislative Instruments Act 2003. The Civil Aviation Safety Authority (CASA) has determined that no consultation is necessary for this amendment, given its technical nature and the basis on existing national protocols. Furthermore, a Statement of Compatibility with Human Rights confirms that the amendment does not engage any rights or freedoms under the international human rights instruments recognised by Australia.

Key Provisions

The Civil Aviation Safety Regulations 1998 Amendment (CASA 125/09) focuses on updating the protocols and equipment used for drug and alcohol testing in civil aviation safety. The main operative sections (9, 34, and 98) of the Civil Aviation Act 1988 empower the Civil Aviation Safety Authority (CASA) to regulate drug and alcohol testing for individuals involved in safety-sensitive aviation activities (SSAA). The amendment introduces new testing equipment and modifies procedures to align with advancements in technology and best practices, ensuring that the testing process remains effective and reliable. This includes the replacement of the Cozart DDS testing device with the Alere DDS 2, which is considered more advanced due to its enhanced user interface, reduced operator intervention, extended battery life, and increased portability. The obligations and requirements imposed by the Act on the parties or entities it governs include the approval of specific testing devices and adherence to the procedures outlined in the legislative instruments made by CASA. Under regulation 99.130, CASA has the authority to approve breathalysers and drug testing devices for use in initial drug testing. Approved testers are mandated to follow detailed procedures for taking and preparing body samples for drug and alcohol testing, as set out in the legislative instruments. These procedures are designed to ensure the integrity and reliability of the testing process. Furthermore, under regulations 99.140 and 99.245, approved testers must adhere to specific protocols for taking body samples, while subregulations 99.145(2) and 99.250(3) require that testing devices are stored, tested, maintained, and operated in accordance with CASA's guidelines. The amendment also addresses potential breaches and the associated penalties. While the specific offences, penalties, or civil/criminal consequences for non-compliance are not detailed in the provided text, it is clear that failure to adhere to the approved testing devices and procedures could result in significant regulatory repercussions. Non-compliance could potentially lead to disciplinary actions against individuals or entities involved in the testing process, impacting their ability to perform safety-sensitive aviation activities. Given the critical nature of safety in aviation, adherence to these regulations is paramount to ensuring the safety and reliability of civil air operations. In summary, the amendment to CASA 125/09 is a necessary evolution in the regulatory framework for drug and alcohol testing in civil aviation. By introducing advanced testing equipment and refining procedures, CASA aims to maintain high standards of safety and compliance within the aviation sector. The obligations placed on approved testers and the potential consequences of non-compliance underscore the importance of adhering to these regulations to ensure the highest standards of safety in aviation operations.

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