Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018
Purpose
The purpose of the CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018 (the legislative instrument) is to grant 2 new types of exemption under Division 11.F.1 of the Civil Aviation Safety Regulations 1998 (CASR). Each exemption exempts a DAMP organisation, as defined in regulation 99.010 of CASR and in stated circumstances, from compliance with regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR, to the extent that these provisions require the organisation to implement a drug and alcohol management plan (DAMP) in relation to a safety-sensitive aviation activity (SSAA) employee’s performance of, or availability to perform, an applicable SSAA for the organisation.
CASA intends that the policy underpinning the exemptions will be incorporated into a Manual of Standards, to be issued for Part 99 of CASR.
Legislation
Section 98 of the Civil Aviation Act 1988 (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 CASR.
Key terms, used in the instrument, are defined in subregulation 99.010 (1) of CASR as follows:
- The term DAMP or drug and alcohol management plan is defined to mean a drug and alcohol management plan that complies, or purports to comply, with the requirements of regulation 99.045 of CASR.
- The term DAMP organisation is defined to mean a person that is required to have a DAMP under subregulation 99.030 (1) of CASR.
- The term SSAA employee is defined, in relation to a DAMP organisation, to mean an employee of the DAMP organisation who performs, or is available to perform, an applicable SSAA.
- The term employee, in relation to a DAMP organisation, is defined to include a DAMP contractor of the DAMP organisation. The term DAMP contractor is also defined.
- The term applicable SSAA is defined to mean a safety-sensitive aviation activity to which Part 99 of CASR applies under regulation 99.015 of CASR.
Under subregulation 99.035 (1) of CASR, a person who is required to develop a DAMP must implement a DAMP by:
(a) giving effect to regulation 99.080 of CASR; and
(b) making the DAMP available to the person’s SSAA employees, as required by Subpart 99.B of CASR.
Regulation 99.040 of CASR deals with the requirement for a DAMP organisation to make its DAMP available to its SSAA employees.
Paragraph 99.045 (d) of CASR states that a DAMP organisation’s DAMP must be implemented as required by regulation 99.080 of CASR.
Regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR are referred to in the instrument as the exempted provisions.
Regulation 99.080 of CASR states how a DAMP organisation is to implement its DAMP.
Division 11.F.1 of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160 (1) of CASR provides that, for subsection 98 (5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations in relation to a matter mentioned in that subsection.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons, and may specify the class by reference to membership of a specified body or any other characteristic. Under subregulation 11.160 (3) of CASR, an exemption may be granted by CASA on its own initiative.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 of CASR provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210 of CASR, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1) of CASR, the maximum duration of an exemption is 3 years.
Instrument CASA EX66/18 provides exemptions from the Part 99 scheme to specific small businesses, defined in the instrument as “micro-businesses”. Such businesses are exempt from many of the DAMP requirements in Part 99 if they adopt a simplified DAMP in the form approved by CASA from time to time.
Paragraph 14 (1) (a) of the Legislation Act 2003 (the LA) provides that a legislative instrument may apply, adopt or incorporate any matter contained in a disallowable instrument, as in force at a particular time or as in force from time to time.
Subsection 98 (5D) of the Act provides that, despite section 14 of the LA, a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Instrument
Section 1 gives the instrument its name.
Section 2 provides that the instrument commences on the day after registration and is repealed at the end of 30 June 2020.
Section 3 contains key definitions of terms used in the instrument. Several of these definitions direct the reader to definitions of the same terms contained in subregulation 99.010 (1) of CASR.
Exemption 1
Section 4 of the instrument applies if:
(a) there is a contract between a DAMP organisation or a micro-business DAMP organisation (the first organisation) and another DAMP organisation (the second organisation) in relation to the performance of an applicable SSAA for the second organisation; and
(b) a SSAA employee of the first organisation performs, or is available to perform, the applicable SSAA for the second organisation; and
(c) the second organisation is satisfied on reasonable grounds that the first organisation is implementing the first organisation’s DAMP, or its micro‑business DAMP, in relation to the employee.
For paragraph (c), the implementation must be in accordance with the requirements of CASR. The obligation in paragraph (c) is ongoing in nature, insofar as the second organisation cannot rely on the exemption at a particular point in time in relation to an employee unless it is satisfied at that point in time that the first organisation’s DAMP is being implemented in relation to the SSAA employee. However, the condition does not require the second organisation to check for implementation of the first organisation’s DAMP each time the employee performs or is available to perform an applicable SSAA. If it is reasonable to do so, a check that the first organisation’s DAMP has been implemented at a point in time may enable the second organisation to have reasonable grounds to be satisfied that implementation will continue for a period of time.
If section 4 applies, the second organisation is exempted from compliance with the exempted provisions to the extent that the compliance requires implementation of the organisation’s DAMP in relation to the employee’s performance, or availability to perform, the applicable SSAA.
The exemption is subject to conditions for the second organisation to keep, and eventually destroy, records evidencing the satisfaction. This condition reflects similar obligations of DAMP organisations under Part 99 of CASR.
The exemption is also subject to a condition that ensures that the second organisation implements its DAMP, in relation to a SSAA employee from the first organisation, with respect to the matters mentioned in subregulation 99.065 (2) of CASR. That subregulation requires that a DAMP include requirements relating to the exclusion of SSAA employees from applicable SSAA if the employee is suspected of being under the influence of prescribed drugs or alcohol, or if the employee is involved in an accident or serious incident. The instrument also requires the second organisation to notify the first organisation of any such implementation of the second organisation’s DAMP in relation to the SSAA employee.
The policy intent of this exemption is to relieve a DAMP organisation, in stated circumstances, from the administrative and cost burden of implementing its DAMP in relation to a SSAA employee (as broadly defined in subregulation 99.010 (1) of CASR) where another DAMP has been implemented by another DAMP organisation in relation to the employee.
An example of where the exemption will be relevant is where a Part 145 approved maintenance organisation (AMO, the first organisation), which will be a DAMP organisation, is contracted by a commercial aircraft operator (the second organisation), which will also be a DAMP organisation, for the performance of maintenance on the second organisation’s aircraft. Employees of the first organisation will be DAMP contractors under Part 99 of CASR in relation to the second organisation. The exemption will permit the second organisation to not implement its DAMP in relation to employees of the first organisation, as long as the second organisation is satisfied on reasonable grounds that the first organisation is implementing its DAMP in relation to the employees (and if other requirements of the instrument are met).
Exemption 2
Section 5 of the instrument applies if:
(a) there is a contract between an emergency services organisation and a DAMP organisation in relation to the performance of an applicable SSAA for the DAMP organisation; and
(b) the emergency services organisation is a non-DAMP organisation; and
(c) an employee of the emergency services organisation performs, or is available to perform, the applicable SSAA for the DAMP organisation in response to an emergency; and
(d) it is not reasonably practicable for the DAMP organisation to implement its DAMP in relation to the employee’s performance of, or availability to perform, the applicable SSAA in response to the emergency.
The DAMP organisation is exempted from compliance with the exempted provisions to the extent that the compliance requires implementation of the organisation’s DAMP in relation to the employee’s performance of, or availability to perform, the applicable SSAA in response to the emergency.
The exemption in section 5 is subject to the following conditions:
(a) the DAMP organisation must give the employee a drug and alcohol risk mitigation notice not more than 24 hours before the employee performs, or
is available to perform, the applicable SSAA for the DAMP organisation in response to the emergency;
(b) the DAMP organisation must make a contemporaneous record of the following information:
(i) the name and address of the employee to whom the notice is given;
(ii) the date and time the employee is given the notice;
(iii) details of the emergency in relation to which the notice is given;
(c) if the DAMP organisation has reasonable grounds to believe the employee is adversely affected by a drug or alcohol while performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation must not allow the employee to perform, or be available to perform, the SSAA in response to the emergency whilst the reasonable grounds continue to exist;
(d) if an accident or serious incident happens, involving the employee, while the employee is performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation must not allow the employee to perform, or be available to perform, the SSAA in response to the emergency during the period of 32 hours after the time the accident or incident happened.
The term drug and alcohol risk mitigation notice is defined in subsection 5 (4) of the instrument.
The policy intent of this exemption is to exempt a DAMP organisation from its obligation to implement its DAMP in relation to a SSAA employee where it is not reasonably practicable for the organisation to implement its DAMP in relation to the employee’s performance of, or availability to perform, an applicable SSAA in response to an emergency.
An example of where the exemption will be relevant is where a commercial aircraft operator (a DAMP organisation) with expertise in bush firefighting support activities is contracted by an emergency services organisation such as a State or Territory police force. The DAMP organisation may carry suitably trained police officers for purposes such as winching and obstacle clearance, which activities are SSAA. The police officers, by virtue of the contract, will be DAMP contractors of the DAMP organisation. The exemption will permit the performance of the SSAA by the police officers, without implementation of the DAMP organisation’s DAMP in relation to the police officers, if it is not practicable to do so before performance of the SSAA.
In granting the exemptions under the instrument, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety.
Documents incorporated by reference
For section 14 of the LA, the instrument incorporates, by reference, CASA EX66/18 — Implementation of Drug and Alcohol Management Plans (Micro-businesses) Exemption 2018 (the micro-business exemption), as in force from time to time. For subsection 98 (5D) of the Act, the instrument incorporates, by reference, any instrument that has the effect of remaking the micro-business exemption, as the remade instrument is in force from time to time.
The micro-business exemption is a disallowable instrument that exempts specified small businesses from many of the DAMP-related requirements in Part 99 of CASR, subject to the business, among other things, adopting and implementing a simpler DAMP-like scheme that is consistent with a model scheme specified by CASA. The micro-business exemption is readily and freely available on the Federal Register of Legislation.
Legislation Act 2003
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation, or the maintenance, of aircraft. Paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply in relation to a class of persons.
This instrument exempts a DAMP organisation (a class of persons) from compliance with the exempted provisions in the specified circumstances. The instrument is, therefore, a legislative instrument and subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
The instrument operates for the benefit of DAMP organisations in stated circumstances.
Consultation under section 17 of the LA took place as part of the post-implementation review of Part 99 of CASR. The consultation identified the burdensome and impracticable nature of the requirements for a DAMP organisation to implement its DAMP to contracted SSAA employees in the particular circumstances covered by exemption 1 mentioned above. In response, CASA proposed a number of alternatives to implementing a DAMP in these circumstances and informally presented these alternatives to a cross-section of aviation industry representatives, and received a favourable response.
Similarly, CASA has been provided with feedback by stakeholders on the difficulties for a DAMP organisation to implement its DAMP in an emergency situation; these stakeholders are seeking an alternative to implementing a DAMP in this situation.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this instance, as the exemptions are covered by a standing agreement between CASA and OBPR, under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. It also promotes the protection of human rights by reducing circumstances in which drug and alcohol testing is conducted.
Making and commencement
The 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 and is repealed at the end of 31 July 2020.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018
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 purpose of this legislative instrument is to grant 2 new exemptions under Division 11.F.1 of the Civil Aviation Safety Regulations 1998 (CASR).
Subpart 99.B of CASR requires a DAMP organisation to develop a drug and alcohol management plan (DAMP), and to implement its DAMP in relation to the employees (the SSAA employees) of the organisation who perform, or are available to perform, specified safety-sensitive aviation activities (the applicable SSAAs).
The exemptions in the legislative instrument exempt a DAMP organisation, in stated circumstances, from compliance with regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR, to the extent that this relates to the implementation of its DAMP in relation to a SSAA employee’s performance of, or availability to perform, an applicable SSAA for the organisation.
The first circumstance is where an employee of a DAMP organisation contracts another organisation, which implements a DAMP or DAMP-like scheme, for the provision of personnel. In this circumstance, the instrument will permit the first organisation to rely on the implementation of the DAMP or DAMP-like scheme of the second organisation, so that there is no duplication.
The second circumstance is where it is impracticable to implement a DAMP for a person in relation to the response to an emergency situation, for example a bushfire emergency.
Among other things, the operation of the exemptions reduces the range of circumstances under Part 99 of CASR in which a person may be required to submit to a drug or alcohol test.
Human rights implications
This legislative instrument engages positively with the right to privacy by reducing the range of circumstances in which a person may be required to submit to drug and alcohol testing.
This legislative instrument engages with the right to work and rights at work by reducing the range of circumstances in which a person may be required to submit to drug and alcohol testing. The change arguably engages positively with the right to work by reducing the circumstances in which a person may be prevented from working due to being under the influence of alcohol or drugs. The change arguably engages negatively with rights at work by potentially reducing the level of health and safety in relevant workplaces if an employer does not identify that a person is working under the influence of drugs or alcohol. The risks are mitigated by the conditions on the instrument, which are intended to ensure appropriate management of the risks associated with alcohol and other drug impacts on aviation in the circumstances in which the exemptions apply.
The engagement with the right to work and rights at work promote the general welfare of Australian society by reducing the drug and alcohol testing burden in emergency situations. The changes are reasonable and proportionate to the risks associated with the exemptions and conditions in the instrument.
Conclusion
This legislative instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. It also promotes the protection of human rights by reducing circumstances in which drug and alcohol testing is conducted.
Civil Aviation Safety Authority