Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 99 DAMP requirements for foreign aircraft AOC holders
Purpose
The purpose of this exemption is to exempt foreign aircraft AOC holders engaged in international air navigation in Australia, but not engaged in domestic air navigation in Australia, from the requirement in Part 99 of the Civil Aviation Safety Regulations 1998 (CASR 1998) to have a drug and alcohol management plan (DAMP), provided that certain conditions are met.
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 safety-sensitive aviation activities (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.
The Civil Aviation Safety Amendment Regulations 2008 (No. 1) commenced on 23 September 2008. It 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 frame work for the development of DAMPs similar to those already in place in other transport sectors, and by introducing random drug and alcohol testing by CASA for all persons involved in SSAA.
DAMPs
Under subregulation 99.030 (1) of CASR 1998, an organisation must develop a DAMP if the organisation is a DAMP organisation. A DAMP organisation is one that has employees or contractors who perform SSAA and is on a generic list of organisations defined in subregulation 99.030 (2) of CASR 1998, for example, AOC holders.
Under the definitions in subregulation 99.010 (1) of CASR 1998, a DAMP means a plan that complies, or purports to comply, with the requirements of regulation 99.045 of CASR 1998.
Foreign aircraft AOCs
Under section 7 of the Act (extra-territorial application of the Act), and sections 27 and 27AE of the Act (AOCs), CASA may issue a foreign aircraft AOC authorising the operations of a foreign registered aircraft on flights that are not regulated domestic flights. These AOCs include all of those issued to foreign registered aircraft. (As part of the ANZA mutual recognition agreements, aircraft registered in New Zealand are not foreign registered aircraft and would not be issued with an Australian AOC.) Therefore, the holder of a foreign aircraft AOC is an AOC holder for subregulation 99.030 (1) of CASR 1998, and subject to the requirements in CASR Part 99 to implement a DAMP.
Testing SSAA personnel
The regulations also establish a regime for random drug and alcohol tests to be conducted by, or on behalf of, CASA. This regime will potentially affect up to 120 000 personnel in Australia who undertake SSAA, from relevant employees to contractors and whether or not they are employed by a domestic AOC holder or a foreign aircraft AOC holder.
Provisions for extra-territorial application of CASR Part 99
Under paragraph 7 (a) of the Act dealing with its extra-territorial application, the Act extends to “matters relating to foreign registered aircraft flying into or out of Australian territory or operating in Australian territory”. “Foreign registered aircraft” are, generally, aircraft registered in a foreign country.
Under subsections 34 (1) and (2) of the Act “[t]he regulations may make provision for and in relation to…” DAMPs and SSAA testing. This regulation-making power is broad and has no express territorial limitation imposed upon it.
The expression “in relation to” or “relating to” in legislation is generally taken to have a broad import, meaning the condition of one thing being in relationship to another thing. In the first instance, the expression connotes a condition that requires little more than that a relationship, whether direct or indirect, exists between the two.
The expression is, therefore, often the preferred device used in legislative drafting, and recognised by the courts, to denote the broadest relationship, direct or indirect, between one subject matter and another within a legislative context that does not intend to establish exceptional or extraordinary relationships.
In other words, “in relation to” or “relating to” denotes and establishes the broadest relationship, direct or indirect, between subjects consistent with the aims and objects of the legislation itself.
Regulation 2C of the Civil Aviation Regulations 1988 (CAR 1988) provides that CASR 1998 is to be read with, and as if it formed part of, CAR 1988. However, in the event of any inconsistency between the 2 sets of regulations, CASR 1998 must prevail.
Paragraph 3 (1) (a) of CAR 1988, provides that “subject to these Regulations, these Regulations apply to and in relation to international air navigation within Australian territory”.
Subregulation 3 (2) of CAR 1988 provides that “except where otherwise prescribed, the provisions of these Regulations shall apply to and in relation to Australian aircraft engaged in air navigation outside Australian territory”.
CASR Part 99 contains no provisions, express or implied, from which it might reasonably be concluded that the Part was not to be read as one with CAR 1988.
Being read as one with CAR 1988, CASR Part 99 applies “to and in relation to international air navigation within Australian territory” — but “subject to these Regulations”. Confinement of the application of CASR Part 99 to international air navigation “within Australian territory” only, is, therefore, subject to the other regulations.
Reasons for extra-territorial application of CASR Part 99
The Act extends to “matters relating to” foreign registered aircraft flying into or out of Australian territory within the meaning of paragraph 7 (a). This portends to a broad extra-territorial reach consistent with the objective expressed in section 3A where the “particular emphasis” is on “preventing aviation accidents and incidents”.
The prevention of accidents to Australian aircraft anywhere, and to the foreign registered aircraft when flying inside Australia is the central objective of DAMPs and SSAA testing.
For all in-bound Australian and foreign registered aircraft in Australian airspace, a large measure of their safety will have been determined by the nature, quality and extent of SSAA conducted outside Australia.
CASR Part 99 expressly applies to AOC holders for foreign registered aircraft flying into and out of Australia.
Subregulation 99.015 (3) of CASR 1998 expressly states that CASR Part 99 applies outside Australian certified and registered aerodromes for certain SSAA.
CASA Part 99 is not limited in its extra-territoriality consequent on paragraph 7 (a) of the Act, by its head of power in section 34 of the Act.
By virtue of subregulation 3 (2) of CAR 1988, CASA Part 99 applies to, and in relation to, Australian aircraft engaged in international air navigation outside Australian territory.
The terms of CASR 1998 and its rationale take it beyond the reach of any possible domestic limitation expressed in paragraph 3 (a) of CAR 1988. In any event, that limitation is more notional than real because it provides that the Regulations apply to “and in relation to” international air navigation within Australian territory”. Because of the nature of international passenger aviation, regulations for DAMPs and SSAA testing outside Australia is, prima facie, “in relation to international air navigation within Australian territory”.
Exemption
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under regulation 11.160, CASA may grant an exemption of its own initiative. Under subregulation 11.170 (3), in deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. Under subregulation 11.205 (1), CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. Under regulation 11.210, it is an offence to fail to comply with a condition of an exemption.
Under regulation 11.225 of CASR 1998, an exemption must be published on the World Wide Web. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 2 years after its commencement), or if no day is specified, 2 years after commencement.
Requirement for exemption
CASR Part 99 effectively comes into operation with the implementation of DAMPs and preliminary testing. This is due 6 months after the commencement of the regulations (i.e. on and from 23 March 2009).
CASA considers that it is not realistically possible for many of the foreign AOC holders, for whom Australian international operations are only a component of their broader international operations, to make a full conversion of their existing drug and alcohol control policies to CASR Part 99 DAMP requirements.
CASA has, therefore, decided to issue holders of foreign aircraft AOCs with an exemption form CASR Part 99 in relation to the development and implementation of a DAMP. (Liability to random CASA testing of SSAA employees will remain unaffected.)
The exemption will be in force for 12 months during which time CASA will continue discussions with ICAO, the relevant AOC holders and the New Zealand CAA with a view to harmonising international DAMP and SSAA testing policies in a way that enhances the overall safety of international air navigation within Australian territory and elsewhere.
In deciding whether to grant an exemption, CASA must regard as paramount the preservation of an acceptable level of safety. CASA is satisfied that, in all the circumstances, an acceptable level of safety is preserved through imposition of the conditions mentioned in the instrument.
The exemption does not in any way limit the application of CASR Part 99 to any relevant organisation or person based in Australia.
Details of exemption and conditions imposed
The details of the exemption are set out in Attachment 1. The exemption is subject to conditions which are also set out in the instrument.
In particular, it is a condition of use of the exemption that the organisation must prevent an employee who has refused a drug or alcohol test, or tested positive, from performing, or being available to perform, an applicable SSAA.
This condition is created by imposing on the organisation a requirement to observe the spirit and intent of regulations 99.065 and 99.070 of CASR 1998 by preventing at-risk employees from performing SSAA until appropriate clearances are obtained. Relevant organisations must act as if they were bound by the requirements of the provisions in relation to this prevention role, although exempt from the requirement to have a DAMP to this effect.
Legislative Instruments Act
Under subparagraph 6 (d) (i) of the Legislative Instruments Act 2003 (the LIA), an instrument is a legislative instrument for section 5 of the LIA if it is declared to be a disallowable instrument under legislation in force before the commencement of the LIA. Regulation 11.215 of CASR 1998 declares an exemption to be a disallowable instrument. The exemption is, therefore, a legislative instrument and it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
Consultation under section 17 of the LIA has occurred with the Board of Airline Representatives of Australia, representing those who wish to take advantage of the exemption. The exemption is also a remake of CASA EX08/09 which stops having effect at the end of 22 March 2010.
Office of Best Practice Regulation (OBPR)
The exemption would be of beneficial effect to those who voluntarily wish to adopt it and comply with its conditions. OBPR does not require preparation of a Regulation Impact Statement in this case because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicates that it will have only a nil to low impact on business.
Commencement
The instrument commences on 23 March 2010 and stops having effect at the end of 22 March 2011.
The exemption has been made by the Director Aviation Safety, on behalf of CASA, in accordance with regulation 11.160 of CASR 1998.
[Instrument number CASA EX12/10]
ATTACHMENT 1
Details of exemption
1 Duration
Under this section, the exemption commences on 23 March 2010 and stops having effect at the end of 22 March 2011.
2 Application to organisations
This section provides that sections 3 and 4 and Schedule 1 apply to the holder of a foreign aircraft AOC (the organisation) who is engaged in international air navigation and not engaged in domestic air navigation in Australia. However, under subsection 2 (2), the exemption does not apply to the organisation until it has complied with condition 1 in Schedule 1 – notifying CASA of the organisational contact for liaison purposes.
3 Exemption from DAMP requirements
This section exempts relevant organisations from compliance with Subpart 99.B of CASR 1998 and, thereby, relieves them of the obligation to have a DAMP.
4 Conditions
This section imposes conditions on the exemption, as mentioned in Schedule 1.
5 and 6 Application to donors
These sections make a consequential amendment. They provide, in effect, that an employee of an exempted organisation is exempt from compliance with subregulation 99.325 (1) of CASR 1998 concerning production of DAMP‑related personal ID if, immediately or within 1 hour of being asked for identification, he or she produces the official photographic identification issued by the organisation. This adjustment is necessary because the relevant organisations will, in law, be DAMP organisations, but exempt from the requirement to have a DAMP and their employees may not have DAMP-related IDs. However, it will still be necessary for their employees to have an appropriate and usable official ID.
Schedule 1 Conditions for use of the exemption
1 Under clause 1, each relevant organisation wishing to take advantage of the exemption must notify CASA in writing of the name, title and contact details, including emergency contact details, of a senior person in the organisation (the contact) with whom CASA may liaise in relation to a donor. The exemption does not begin to apply for an organisation until this important condition has been complied with (see subsection 2 (2), as mentioned above).
2 Under clause 2, if an organisation’s employee is unable to produce to an approved tester a prescribed photographic identification, the organisation must provide CASA with the employee’s name, date of birth, address both inside and outside Australia, where applicable, and telephone number both inside and outside Australia.
3 Under clause 3, the organisation must, as far as practicable, comply with the spirit and intent of the requirements in regulation 99.065 of CASR 1998 by preventing an employee from performing, or being available to perform, an applicable SSAA in any circumstance mentioned in those regulations.
This is an important condition in the interests of safety. The relevant triggering circumstances are (in summary form): (a) if the exempted DAMP organisation is aware that a positive result for an initial drug test has been recorded for the employee; or (b) if the organisation is aware that a positive result for an initial alcohol test has been recorded for the employee; or (c) and (d) if the organisation’s medical adviser or a CASA medical review officer has not determined that positive results could be as a result of legitimate therapeutic treatment or some other innocuous source; or (e) if the organisation is aware that a SSAA employee refused to take the test or interfered with the integrity of the test.
Also, the organisation must prevent an employee from performing, or being available to perform, an applicable SSAA if the organisation suspects the employee’s faculties may be impaired due to the person being under the influence of a testable drug or of alcohol, or if an accident or serious incident has occurred involving the employee while he or she is performing, or available to perform, an applicable SSAA and, for the period that suitable test conditions exist for conducting drug or alcohol tests on the employee, a test has not been conducted, or if tests have been conducted under suitable test conditions, the organisation has not been notified of the test results.
4 If an organisation prevents an employee from performing, or being available to perform, an applicable SSAA, the organisation must ensure that the employee does not perform, and is not available to perform, SSAA for the organisation inside Australian territory until the circumstances mentioned in regulation 99.070 of CASR 1998 have occurred, and the person is approved by a CASA medical review officer to perform the SSAA.
The circumstances that must occur are (in summary form) that: (a) the employee has undergone a comprehensive assessment for drug or alcohol use; and (b) if that assessment so recommended, the employee has begun a drug or alcohol intervention program; and (c) the employee is considered fit to resume performing, or being available to perform, an applicable SSAA by the organisation’s medical adviser and the employee’s treating clinician, if any; and (d) for drugs, at the time the employee was considered fit under paragraph (c), the employee receives a confirmatory drug test, and records a result that was not positive and that the organisation’s medical adviser is satisfied indicates the absence of testable drug use. (In addition, the person must be approved for return to SSAA by a CASA medical review officer.)
5 If an organisation prevents an employee from performing, or being available to perform, an applicable SSAA, but before the employee is approved by a CASA medical review officer to perform an SSAA for the organisation, the employee ceases to be a regular SSAA employee of the organisation (cessation), the organisation must notify CASA, as soon as practicable after the cessation, of the employee’s: (a) name, and ARN if applicable; and (b) address inside and outside Australia, as applicable; and (c) date of cessation; and (d) current or proposed employment, if known.