Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — DAMP requirements for maintenance organisations outside Australian territory
Purpose
The purpose of the instrument is to allow DAMP organisations carrying out maintenance on aircraft or aeronautical products outside Australian territory to be exempt (subject to conditions) from the obligation to have a drug and alcohol management plan (DAMP) in relation to the maintenance carried out outside Australia by the organisation.
- The instrument would “replace” CASA EX95/13, with some changes to clarify the policy intention.
Legislative background
Part IV of the Civil Aviation Act 1988 (the Act) deals with drug and alcohol management plans and testing. Division 1 of Part IV defines safety-sensitive aviation activities to mean activities that impact directly or indirectly on the safety of civil air operations in Australian territory or the operation of Australian aircraft outside Australian territory.
- Australian aircraft means aircraft registered in Australia or aircraft in Australian territory other than foreign registered aircraft and state aircraft, see section 3 of the Act.
Division 2 of Part IV of the Act sets out regulation-making powers in relation to drug and alcohol management plans and testing.
Subsection 34 (1) of the Act provides that the regulations may make provision for and in relation to the development, implementation and enforcement of drug and alcohol management plans covering persons who perform, or are available to perform, safety‑sensitive aviation activities.
Subsection 34 (3) provides that regulations may not be made for the purposes of section 34 unless the performance of the safety-sensitive aviation activities concerned could be adversely affected by the use of alcohol or a testable drug by persons who perform the activities.
Section 35 of the Act provides the kinds of things that may be covered by regulations made under subsection 34 (1) of the Act. These include the persons required to develop a drug and alcohol management plan, the persons covered by the plans and the content of such plans including requirements for drug and alcohol tests, drug and alcohol management, treatment, counselling and rehabilitation.
Part 99 — Civil Aviation Safety Regulations 1998
Part 99 of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides for the development, implementation and enforcement of DAMPs covering persons who perform, or are available to perform, applicable SSAA, see paragraph 99.005 (1) (a).
- Applicable SSAA is defined in subregulation 99.010 (1) to mean a safety-sensitive aviation activity to which Part 99 of CASR 1998 applies under regulation 99.015.
- Regulation 99.015 sets out the applicable SSAAs for Part 99 and includes:
− maintenance of aircraft, aeronautical products, aviation radionavigation products and aviation telecommunications products, see paragraph 99.015 (2) (c); and
− the certification of maintenance of a kind mentioned in paragraph 99.015 (1) (c), see paragraph 99.015 (2) (d); and
− issuing a certificate of release to service for an aircraft or aeronautical product in relation to maintenance carried out on the aircraft or aeronautical product, see paragraph 99.015 (2) (da).
Under subregulation 99.030 (1) of CASR 1998, an organisation must develop a DAMP if the organisation is listed in subregulation 99.030 (2) and has an employee or contractor who performs, or is available to perform, an SSAA. This is a strict liability criminal offence provision with a penalty of 50 penalty units.
Paragraphs 99.030 (2) (i) and (j) list the holder of a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 (CAR 1988) and a Part 145 organisation as organisations that must develop a DAMP.
Subregulation 99.035 (1) provides that a person who is required to develop a DAMP must implement the DAMP by giving effect to regulation 99.080 and making the DAMP available to the person’s SSAA employees as required by Subpart 99.B.
Regulation 99.040 sets out the requirements for a DAMP organisation making its DAMP available to SSAA employees.
Exemptions
Under subregulation 11.160 (1) of CASR 1998, CASA may grant an exemption from compliance with a provision of CASR 1998. Under subregulation 11.160 (3), CASA may grant an exemption on its own initiative. 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) of CASR 1998, CASA may impose conditions on an exemption if this is necessary in the interests of the safety of air navigation. It is an offence of strict liability to breach a condition of an exemption, see regulation 11.210.
Under regulation 11.225, an exemption must be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years after the instrument commences.
Description of instrument
Section 1 of the instrument would provide that the instrument commences on 1 September 2016 and is repealed at the end of 31 August 2019.
Section 2 of the instrument would provide that the instrument applies to a DAMP organisation that is the holder of a certificate of approval or is a Part 145 organisation, and the organisation performs an applicable SSAA or employs or engages a person to perform an applicable SSAA in relation to Australian aircraft outside Australian territory. The instrument would only apply if the DAMP organisation has not developed a DAMP that covers the performance of the applicable SSAA outside Australian territory. In this way, the instrument gives the DAMP organisation the choice of covering the performance of the SSAA outside Australian territory or relying on the exemption.
Section 3 of the instrument would exempt the DAMP organisation from compliance with regulations 99.030, 99.035 and 99.040 in relation to the performance of the applicable SSAA outside Australian territory.
Section 4 would impose conditions on the exemption. The conditions require the DAMP organisation to put in place measures to ensure that a person performing the applicable SSAA is not affected by alcohol or drugs and to notify CASA of these measures.
Legislative instrument
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of persons, that is, CAR 30 and Part 145 organisations. The exemption is, therefore, a legislative instrument.
Consultation
Consultation in accordance with section 17 of the Legislation Act 2003 took place with a number of overseas CAR 30 organisations when the policy for granting exemptions from Part 99.B was first being determined. There have been no known safety issues resulting from the implementation of previous such exemptions. The exemption relieves DAMP organisations from the difficulties of implementing a Part 99 DAMP outside of Australia, while still having measures in place to ensure persons performing SSAA for their organisation are not affected by drugs or alcohol. As the instrument is a “renewal” of previous such exemptions, no further consultation has been undertaken. CASA proposes to amend Part 99 of CASR to remove the need for such exemptions.
Office of Best Practice Regulation (the OBPR)
The instrument “renews” a previous exemption for which the OBPR did not require the preparation of a Regulation Impact Statement because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicated that it would have only a nil to low impact on business.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption has been made by a delegate of CASA relying on the power of delegation under regulation 11.260 of CASR 1998.
The instrument commences on 1 September 2016 and is repealed at the end of 31 August 2019.
[Instrument number CASA EX132/16]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — DAMP requirements for maintenance organisations outside
Australian territory
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 legislative instrument would allow DAMP organisations carrying out maintenance on aircraft or aeronautical products outside Australian territory to be exempt (subject to conditions) from the obligation to have a DAMP in relation to the maintenance carried out outside Australia by the organisation.
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