Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — DAMP organisations to provide information to CASA
Purpose
The purpose of this exemption is to exempt an organisation that has implemented a drug and alcohol management plan (DAMP) from the requirement to report information to CASA every 6 months, subject to the organisation keeping records of the information that would otherwise be required to be provided to CASA. The instrument continues existing arrangements that expire on 30 September 2017 (instrument CASA EX39/15).
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Requirements for DAMP organisations to provide information
Subpart 99.B (Drug and alcohol management plans) of the Civil Aviation Safety Regulations 1998 (CASR) provides for the persons required to have a DAMP, matters required to be included in a DAMP, the implementation of a DAMP, requirements associated with a DAMP and offences relating to a DAMP.
Under regulation 99.010 of CASR, a DAMP organisation is defined as a person that is required to have a DAMP under subregulation 99.030 (1). Under subregulation 99.030 (1), specified organisations involved in the aviation industry, who employ or engage people who perform safety-sensitive aviation activities (SSAA), are required to have a DAMP.
Also under regulation 99.010, a DAMP reporting period is defined as the period of 6 months immediately before each 1 March and 1 September.
Under subregulation 99.100 (1) of CASR, a DAMP organisation that has implemented a DAMP must provide specified information to CASA in respect of each DAMP reporting period, or part of a reporting period, during which the DAMP was implemented. The specified information includes, among other things: the number of the organisation’s employees who performed an applicable SSAA at least 2 or more times in the 90 days preceding the end of the reporting period; the number of the organisation’s employees who attended a drug and alcohol education program during the period; the number and type of drug or alcohol tests undergone by SSAA employees under the DAMP during the period; and the results of the tests.
Under subregulation 99.100 (2) of CASR, a DAMP organisation must provide the information in writing within 21 days after the end of the reporting period to which it relates.
Regulation 99.105 of CASR relates to the keeping of records provided to CASA under regulation 99.100. It requires a DAMP organisation to keep records used to provide information to CASA under regulation 99.100 for 5 years from the date the information was provided to CASA, and to keep the records in a secure location. It also requires the DAMP organisation to destroy or delete the records, or the parts of the records that relate to the results of drug or alcohol testing, within 6 months after the end of the 5 year period.
Under subregulation 11.160 (1) of CASR, CASA may grant an exemption from compliance with a provision of CASR. Under subregulation 11.160 (3) of CASR, CASA may grant an exemption of its own initiative. Under subregulation 11.175 (4), in deciding whether to renew an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Under subregulation 11.205 (1) of CASR, 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, an exemption must be published on the Internet. Under subregulation 11.230 (1), an exemption ceases on the day specified within it (but no longer than 3 years after its commencement), or if no day is specified, 3 years after commencement.
Instrument
There are approximately 1 800 DAMP organisations and approximately 60 000 individuals employed by DAMP organisations who perform SSAA.
In instrument CASA EX39/15 CASA granted a general exemption to DAMP organisations that implement a DAMP from the reporting requirements in subregulations 99.100 (1) and (2) of CASR. CASA continues to consider that the reporting requirements in those subregulations are not necessary and their removal will have no identifiable impact on safety. Consistent with this policy, the instrument exempts DAMP organisations from compliance with those reporting requirements.
The instrument does not explicitly exempt micro-businesses that might otherwise be required to report to CASA in accordance with their DAMP from the reporting requirements in their DAMP. Such businesses are DAMP organisations that implement a DAMP and are therefore covered by the exemption in the instrument. In addition, micro-business DAMP organisations are exempt from the requirement to report to CASA, subject to a condition to keep records that reflect the conditions of the present instrument (instrument CASA EX98/15).
It is a condition of the exemption that the DAMP organisation create records of the information mentioned in subregulation 99.100 (1) of CASR. The instrument imposes a record keeping requirement similar to that required for information required to be provided to CASA under regulation 99.105.
Using the “DAMP reporting period” term defined in regulation 99.010, the DAMP organisation must keep the records in a secure location for 5 years from the end of the DAMP reporting period during which a record was created.
The DAMP organisation must also comply with the record destruction requirement in subregulation 99.105 (3) as if the record was provided to CASA on the last day of the DAMP reporting period in which the record was created.
For example, a record created on 1 January 2018 would be created in the “DAMP reporting period” ending on 1 March 2018. The DAMP organisation would be required to keep the record in a secure location for 5 years from the end of the reporting period, being a period ending on 28 February 2023. The DAMP organisation would then have to comply with subregulation 99.105 (3) in relation to the record, and that compliance is required within a period of 6 months from the end of the 5 year period, being 31 August 2023.
The instrument incorporates by reference the information mentioned in subregulation 99.100 (1) of CASR. In accordance with section 10 of the Acts Interpretation Act 1901 and section 13 of the Legislation Act 2003, a reference to CASR is a reference to CASR as in force from time to time. CASR is the enabling legislation for the instrument and a legislative instrument registered on the Federal Register of Legislation.
Legislation Act 2003 (the LA)
Exemptions issued under regulation 11.160 of CASR are issued under subsection 98 (5A) of the Act. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons and so is a legislative instrument subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Prior to the making of instrument CASA EX39/15 CASA received substantial feedback from industry about the burdensome nature of the DAMP reporting requirements. The instrument extends the relief for DAMP organisations against these reporting requirements. In these circumstances CASA considers that no further consultation under section 17 of the LA is appropriate or necessary.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
CASA has previously estimated that the annual cost for compliance by industry with the DAMP reporting requirements is $460 000, with the amount for each DAMP organisation varying depending on whether it is involved in regular public transport activities, and on whether it is a micro-business. CASA does not expect that there will have been any significant change to that level of saving since the estimate was made.
CASA understands that exempting businesses from the DAMP reporting requirements continues to provide significant resource relief for both industry and CASA, without compromising safety.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The 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 1 October 2017 and is repealed at the end of 30 September 2020.
[Instrument number CASA EX143/17]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — DAMP organisations to provide information to CASA
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 exempt organisations that have implemented a drug and alcohol management plan (DAMP) from the requirement to report information to CASA every 6 months.
This legislative instrument would exempt organisations that are required to have a DAMP from compliance with the reporting requirements in subregulations 99.100 (1) and (2) of the Civil Aviation Safety Regulations 1998, subject to the organisation keeping records of the information that would otherwise be required to be provided to CASA.
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