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 legislative instrument CASA 125/09 made for and under various provisions of Part 99 of the Civil Aviation Safety Regulations 1998 (CASR) for various approvals, procedures, methods and standards required for CASA to conduct drug and alcohol testing of people who perform, or are available to perform, safety-sensitive aviation activities (SSAA). The Amendment gives effect to changes to CASA’s practices for collecting body samples for confirmatory drug tests under Subpart 99.C of Part 99 of CASR, Drug and alcohol management plans and testing (CASR Part 99).
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.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Regulations
The Civil Aviation Safety Amendment Regulations 2008 (No. 1) commenced on 23 September 2008 and amended CASR by inserting 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 drug and alcohol testing regime for all persons involved in SSAA by CASA.
Legislative instrument under CASR Part 99
Under certain provisions of CASR Part 99, CASA may make a legislative instrument for the purposes of conducting drug and alcohol testing. Relevantly, under regulation 99.140 of CASR, 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.
Details of the Amendment
The Amendment amends instrument CASA 125/09 in accordance with subsection 33 (3) of the Acts Interpretation Act 1901, by replacing the procedure for taking body samples for a confirmatory drug test under Subpart 99.C to reflect CASA’s use of the Alere Certus Oral Fluid Collection Device for such tests.
Legislation Act 2003 (the LA)
Subsection 8 (2) of the LA provides that if a primary law (such as CASR) gives a power to do something by legislative instrument then the thing must be done by instrument and the instrument is a legislative instrument. Regulation 99.140 of CASR Part 99 states that the taking of body samples for a drug test must be in accordance with procedures set out in a legislative instrument made by CASA for the purpose of the regulation.
In addition, paragraph 10 (1) (d) of the LA provides that an instrument is a legislative instrument if it includes a provision that amends another legislative instrument. The Amendment has the effect of amending legislative instrument CASA 125/09.
The instrument is, therefore, a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
As with the original legislative instrument, consultation under section 17 of the LA 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 SSAA. The Amendment is a refinement of these tests and procedures, taking into account the procedures associated with the use of the Alere Certus Oral Fluid Collection device.
Having regard to these circumstances, it is CASA’s view that it is not necessary or appropriate to undertake consultation under section 17 of the LA.
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 Amendment 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 RIS ORR ID: 8301A was accepted by OBPR in relation to that instrument.
Making and commencement
This instrument has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act. The instrument commences on the day after registration.
[Instrument number CASA 23/17]
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 procedures for the taking of body samples for confirmatory drug tests under Subpart 99.C of CASR 1998 to reflect the use of the Alere Certus Oral Fluid Collection Device. The new collection device has been introduced because it is regarded as technically superior to the device that was previously used.
Human rights implications
The legislative instrument potentially engages with the right to privacy and freedom from attacks on reputation, insofar as it continues a scheme for the conduct of confirmatory drug tests. The instrument provides a permitted limitation on a person’s rights to privacy and freedom from attacks on reputation because the limitation is a reasonable, necessary and proportionate measure to ensure that aviation participants comply with the scheme for drug testing that contributes to aviation safety. Further, the instrument does not disapply obligations under the Privacy Act 1988.
The legislative instrument potentially engages with the right to work and rights at work, insofar as a person may be excluded from carrying out assigned work duties in the form of safety-sensitive aviation activities (SSAA) if the person is tested and found to be adversely affected by drugs or alcohol. The instrument provides a permitted limitation on the right to work and rights at work because ensuring that persons are fit to perform SSAA is a reasonable, necessary and proportionate measure to promote the safety of aviation activities. The limitation also promotes the right of other persons to not be affected by unsafe aviation activities.
Conclusion
This legislative instrument is compatible with the listed human rights.
Civil Aviation Safety Authority