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 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).
CASA is introducing new units for confirmatory alcohol testing (Drager Alcotest 9510 units). The Amendment approves those units for confirmatory alcohol tests, sets out the procedure to be followed when using the units and sets out how the units must be stored, tested, maintained and operated. The procedures for operating breathalysers used for initial alcohol testing are also amended.
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.
Section 98 of the Act empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the Civil Aviation Safety Regulations 1998 (CASR).
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.
The Civil Aviation Safety Amendment Regulations 2008 (No. 1) commenced on 23 September 2008 and amended CASR by inserting Part 99, Drug and alcohol management plans and testing (CASR Part 99).
The purpose of CASR Part 99 is to give effect to Part IV of the Act, by establishing a framework for the development of DAMPs (Subpart 99.B), 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 (Subpart 99.C).
Under subsection 33 (3) of the Acts Interpretation Act 1901 (AIA), where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), 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.
Legislative instrument under CASR Part 99
Under the provisions of Subpart 99.C of CASR Part 99, CASA may make a legislative instrument for the purposes of conducting drug and alcohol testing.
Relevant to this instrument:
(1) under regulation 99.130 of CASR, CASA may approve breathalysers for use in alcohol testing; and
(2) under regulation 99.245, CASA may set out the procedures that an approved tester must follow when taking body samples for alcohol testing; and
(3) under subregulation 99.250 (3), CASA may set out how the units must be stored, tested, maintained and operated.
Details of the Amendment
For subsection 33 (3) of the AIA, the Amendment approves Drager Alcotest 9510 units for confirmatory alcohol testing; replaces the procedure for taking body samples for a confirmatory alcohol test to reflect the use of the Drager Alcotest 9510 unit for such testing; applies the existing requirements for storing, testing, maintaining and operating breathalysers to the Drager Alcotest 9510 unit; and omits from the procedures for operating a breathalyser approved for use in an initial alcohol test the requirement that the device is configured so that data is downloaded every 6 months at the time of recalibration .
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. Under regulations 99.130, 99.245 and 99.250 of CASR Part 99, CASA may provide for matters under those provisions by legislative instrument.
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 for 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 Drager Alcotest 9510 unit.
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. The instrument is compatible with the relevant human rights.
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 CASR Part 99) and RIS ORR ID: 8301A was accepted by OBPR in relation to that instrument.
Making and commencement
This instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
The instrument commences on the day after registration and is repealed by operation of section 48A of the LA.
[Instrument number CASA 90/17]
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
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: approves the Drager Alcotest 9510 unit to conduct confirmatory alcohol tests under Subpart 99.C of the Civil Aviation Safety Regulations 1998; replaces procedures for the taking of body samples for confirmatory alcohol tests that reflect the use of that unit; and applies existing requirements for how breath testing devices must be stored, tested, maintained and operated to the Drager Alcotest 9510 unit. The new 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 alcohol 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 alcohol 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 a safety-sensitive aviation activity (SSAA) if the person is tested and found to be adversely affected by 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