Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 99 DAMP requirements for CAR 30 or Part 145 organisations overseas
Purpose
The purpose of this exemption is to exempt the holder of a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 (CAR 1988) and Part 145 organisations, who are engaged in aircraft maintenance overseas, from the requirement in Part 99 of the Civil Aviation Safety Regulations 1998 (CASR 1998) to have a drug and alcohol management plan (DAMP).
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 safety-sensitive aviation activities (SSAA) and is on a generic list of organisations defined in subregulation 99.030 (2) of CASR 1998, for example, a holder of a certificate of approval under regulation 30 of CAR 1988.
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.
Provisions for extra-territorial application of CASR Part 99
Under paragraph 7 (b) of the Civil Aviation Act 1988 (the Act) dealing with its extra‑territorial application, the Act extends to matters relating to Australian aircraft operating outside Australian territory. Under sections 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.
Regulation 2C of 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.
Subregulation 3 (2) of CAR 1988 provides that “[e]xcept where otherwise prescribed, the provisions of these regulations shall apply to and in relation to Australian aircraft engaged in air navigation outside Australian territory”.
Part 99 of CASR 1998 (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 Australian aircraft engaged in air navigation outside Australian territory” — but “[e]xcept where otherwise prescribed”. In the context of CAR 30 organisations engaged outside Australian territory in the maintenance of Australian aircraft, there are no countervailing prescriptions.
Reasons for extra-territorial application of CASR Part 99
The Act extends to matters relating to Australian aircraft operating outside Australian territory within the meaning of paragraph 7 (b) of the Act. This portends to a broad extra-territorial reach consistent with the objective expressed in section 3A of the Act where the “particular emphasis” is on “preventing aviation accidents and incidents”.
The prevention of accidents to Australian aircraft anywhere is the central objective of DAMPs and SSAA testing.
For all in-bound Australian registered aircraft in Australian airspace, a significant 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 (b) 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. Even paragraph 3 (1) (a) of CAR 1988, limiting the application of CAR 1988 to (among other matters) “international air navigation within Australian territory” does not limit the extra-territorial scope of the regulations. Regulations for DAMPs and SSAA testing outside Australia would in large measure be prima facie “in relation to” international air navigation “within Australian territory” for returning aircraft because of the nature of international passenger aviation.
Exemption
The exemption does not in any way limit the application of CASR Part 99 to any relevant organisation or person within Australia.
The exemption is subject to conditions which are also set out in the instrument.
In particular, it is a condition of the exemption that the CAR 30 or Part 145 organisation must notify CASA in writing of the measures it has in place to ensure that, in carrying out activities under its certificate of approval, none of the persons employed by, or working under an arrangement with, it is affected by alcohol or a testable drug. Until CASA is so notified, the exemption does not take effect for the organisation.
Legislative Instruments Act
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 and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instrument Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA has occurred informally with a number of overseas CAR 30 organisations. This instrument is a consequential amendment to a previous instrument, CASA EX36/11, to include Part 145 organisations following the commencement of CASR Part 145.
Human Rights Compatibility Statement
This legislative instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.
Office of Best Practice Regulation (OBPR)
The exemption is a renewal of 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.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX136/11]