Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Subpart 99.B 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 framework 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.
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 (1) (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 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.
Requirement for exemption
CASR Part 99 effectively came into operation with the implementation of DAMPs and preliminary testing.
At that time, CASA considered that it was 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, therefore, decided to issue holders of foreign aircraft AOCs with an exemption from CASR Part 99 in relation to the development and implementation of a DAMP. (Liability to random CASA testing of SSAA employees remained unaffected.)
This exemption (CASA EX37/11) was to be in force for 2 years during which time CASA would 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 would enhance the overall safety of international air navigation within Australian territory and elsewhere.
In deciding whether to grant an exemption, CASA had regarded as paramount the preservation of an acceptable level of safety. CASA was satisfied that, in all the circumstances, an acceptable level of safety was preserved through imposition of the conditions mentioned in the instrument.
The exemption did not in any way limit the application of CASR Part 99 to any relevant organisation or person based in Australia.
(The exemption also exempted relevant SSAA employees from certain requirements concerning DAMP-related photographic identity, on condition that employer-issued identity was available on demand.)
Revised exemption
While retaining the same expiry date (22 March 2013) to allow for continuing review at that time, CASA has now revoked CASA EX37/11 and remade it in revised form (CASA EX146/12) in order to tighten its requirements and avoid uncertainty by providing definitions of specific terms.
In particular, the revised instrument imposes new conditions on foreign AOC holders to ensure that (although not having a DAMP) they comply with the spirit and intent of subregulation 99.050 (2) of CASR 1998 which is to prevent an untested (and therefore uncleared) SSAA employee from performing SSAA following an accident, a serious incident, an occurrence of reasonable suspicion of improper drug or alcohol use, or a return to work following an earlier positive result from drug or alcohol testing.
These new conditions complement the existing conditions that the organisation must prevent an SSAA employee who has refused a drug or alcohol test, or tested positive, from performing, or being available to perform, an applicable SSAA. The existing condition imposed on the organisation a requirement to observe the spirit and intent of regulation 99.065 of CASR 1998 by preventing at-risk employees who have previously returned positive drug or alcohol results 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.
Details of the exemption are set out in Appendix 1.
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.
Statement of Compatibility with Human Rights
The following Statement is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The instrument exempts foreign aircraft AOC holders engaged in international air navigation in Australia, but not engaged in domestic air navigation in Australia, from the requirement in CASR Part 99 to have a DAMP, provided that certain conditions are met. These conditions require compliance with the spirit and intent of the provisions in Subpart 99.B of CASR 1998 which make a person’s return to SSAA following an accident, a serious incident, a reasonable suspicion of improper drug or alcohol use, or a previous positive finding of improper drug or alcohol use, conditional on assessment and testing to ensure safety clearance.
The exemption is beneficial for the foreign aircraft AOC holders (for whom Australian international operations are only a component of their broader international operations) because they are able to maintain their own internal drug and alcohol controls without the additional need for a specifically Australian DAMP.
Since its effects are limited to these beneficial consequences, the 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. The instrument does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
Consultation
When CASA made the previous exemption, CASA EX37/11, it consulted under section 17 of the LIA with the Board of Airline Representatives of Australia, representing those who wished to take advantage of the exemption. That exemption was also a remake of CASA EX12/10 which stopped having effect at the end of 22 March 2011. CASA has not specifically consulted on the revised exemption both because of this background, but more particularly because the exemption is merely a revision of the superseded exemptions, more closely aligning their requirements with aspects of Subpart 99.B but without imposing DAMP requirements.
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 the day after registration, and stops having effect at the end of 22 March 2013.
The exemption has been made by the Director Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX146/12]
Appendix 1
Exemption of foreign aircraft AOC holders from DAMP requirements
1 Duration
Under this section, the revised instrument commences on the day after registration and stops having effect at the end of 22 March 2013 (the same date as the revoked predecessor).
2 Revocation
Under this section, the predecessor instrument, CASA EX37/11, is revoked.
3 Application to organisations
(1)Under this subsection, the relevant parts of the revised instrument apply to the holder of a foreign aircraft AOC (the organisation) who is engaged in international air navigation, and who is not engaged in domestic air navigation in Australia.
(2)However, under this subsection, the exemption does not apply to the organisation until it has complied with clause 1 in Schedule 1 (notifying CASA of the contact and thereby signalling that the organisation intends to take the benefit of the exemption).
4 Exemption from DAMP requirements
Under this section, the organisation is exempt from compliance with Subpart 99.B of CASR 1998.
5 Conditions
Under this section, the exemption in section 4 is subject to the conditions mentioned in Schedule 1.
6 Application to body sample donors
Under this section, section 7 of the revised instrument (concerning photographic identification) applies to an organisation employee who is performing, or available to perform, an applicable SSAA, and who is asked by CASA for a body sample under Subpart 99.C of CASR 1998.
7 Exemption from DAMP identity requirements
Under this section, the employee is exempt from compliance with subregulation 99.325 (1) of CASR 1998 if he or she produces the photographic identification issued by the organisation either immediately, or within 1 hour of being asked.
Schedule 1 Conditions
Schedule 1 contains the conditions with which an organisation must comply if it is to have the benefit of the exemption.
1 Under this clause, the organisation 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. A Note explains that donor is defined in subregulation 99.010 (1) of CASR 1998.
2 Under this clause, if an organisation employee is:
(a) performing, or available to perform, an applicable SSAA for an organisation; and
(b) unable to produce to an approved tester photographic identification of the kind mentioned in:
(i) subregulation 99.125 (3) of CASR 1998; or
(ii) section 6 of this instrument;
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 This new condition provides that, despite not having a DAMP, the organisation must, as far as practicable, comply with the spirit and intent (a defined term) of the requirements in paragraphs 99.050 (2) (b), (c) and (d) of CASR 1998 by conducting drug or alcohol tests, or drug and alcohol tests (as the case requires), on any SSAA employee who falls within the circumstances mentioned in any of those paragraphs.
A new Note explains that paragraph 99.050 (2) (c) of CASR 1998 refers to an accident or serious incident involving a SSAA employee while in that role; paragraph 99.050 (2) (c) refers to a SSAA employee being reasonably suspected by a supervisor of being adversely affected by testable drugs or alcohol; paragraph 99.050 (2) (d) refers to a SSAA employee returning to that role having been excluded because of positive drug or alcohol results.
4 This condition provides that, despite not having a DAMP, 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 (who has previously returned a positive test result) from performing, or being available to perform, an applicable SSAA in any circumstance mentioned in that regulation, including where the circumstances arise from clause 3 above or Subpart 99.C of CASR 1998 (random testing).
5 This revised condition provides that if, because of clause 4 above, 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 each applicable circumstance mentioned in subregulation 99.070 (2) of CASR 1998 has occurred (in effect, drug and alcohol assessment and clearance).
The organisation must inform CASA, in writing, of the following:
(i) for an employee who, under clause 3, had a positive result for a drug test, or an alcohol test, or both a drug test and an alcohol test — the action taken by the organisation with respect to the employee following the test;
(ii) for an employee who, under Subpart 99.C of CASR 1998 (random testing) had a positive result for a confirmatory drug test, or for a confirmatory alcohol test, or for both such tests — the action taken by the organisation with respect to the employee following the test;
(iii) for an employee who, under clause 3, refused to take the test or interfered with the test — the action taken by the organisation with respect to the employee following the refusal or interference;
(iv) for an employee who, with respect to a test under Subpart 99.C of CASR 1998, refused to take the test or interfered with the test — the action taken by the organisation with respect to the employee following the refusal or interference.
In addition, for an employee mentioned in subparagraph (ii) or (iv) — the employee must be approved by a CASA medical review officer to perform, or be available to perform, the applicable SSAA.
6 This condition provides that if, because of clause 4, an organisation prevents an employee from performing, or being available to perform, an applicable SSAA, but before completion of all applicable requirements under clause 5, 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.
A Note explains that it is open to CASA to withdraw from such an employee, or not grant to such an employee, a civil aviation authorisation for use in Australia until CASA is satisfied that the employee is considered fit to perform, or be available to perform, an applicable SSAA.
7 This new clause provides definitions of certain terms as follows:
comply with the spirit and intent of a provision means that the organisation:
(a) complies with the provision in a substantial way and as if bound by the essential requirements of the provision; and
(b) as a result of paragraph (a) — produces ultimate outcomes that are essentially the same as the ultimate outcomes that would be produced by another organisation that was:
(i) in the same circumstances as the first organisation; and
(ii) strictly bound by the provision.
place means the place where the circumstances mentioned in paragraphs 99.050 (2) (b), (c) and (d) of CASR 1998 occurred (that is the accident, the serious incident, the occurrence of reasonable suspicion of improper drug or alcohol use, or the return to work following earlier positive result from drug or alcohol testing).
Standard, for a commercial device used in a test, means the minimum requirements to be met for the device to be considered by the Standards body to be reliable and effective for its purpose.
Standards body means the organisation officially recognised for setting Standards in a place.
test, for a testable drug or alcohol, means a test:
(a) using a commercial device that complies with the Standard for such devices in the place; or
(b) by a medical practitioner registered to practice medicine in the place.