Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 99 DAMP requirements for CAR 30 organisations
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), who is engaged (generally speaking) 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), provided that certain conditions are met. Certificate holders are known as CAR 30 organisations. They hold a certificate of approval from CASA to engage (as appropriate) in, for example, any stage of design, distribution or maintenance of aircraft, aircraft components or aircraft materials.
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, 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 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.
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 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.”.
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). 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 (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. Because of the nature of international passenger aviation, 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.
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 realistic to impose on CAR 30 organisations operating wholly or partly overseas, a legal obligation to develop drug and alcohol control policies for overseas application that conform precisely to CASR Part 99 DAMP requirements.
CASA has, therefore, decided to issue such CAR 30 organisations with an exemption form CASR Part 99 in relation to the development and implementation of a DAMP. (Liability to random CASA testing of Australian-based SSAA employees will remain unaffected.)
The exemptions 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 harmonizing 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 within 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 CAR 30 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.
Nothing in the exemption prevents a CAR 30 organisation, operating both in and outside Australia, (which must, therefore, have a DAMP) from applying its DAMP to its overseas operation. The way in which such organisations and others address the issue of drug and alcohol misuse by overseas personnel engaged in SSAA will obviously affect the decisions that CASA may take concerning the continuing status of the organisation as a CAR 30 organisation.
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 instrument 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 informally with a number of overseas CAR 30 organisations. Since the exemption is intended to be of beneficial effect for the organisations, no other consultation occurred.
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. The Office of Best Practice Regulation 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 it is registered and stops having effect at the end of 22 March 2010.
The exemption has been made by a delegate of CASA in accordance with regulation 11.160 of CASR 1998.
[Instrument number CASA EX16/09]
ATTACHMENT 1
Details of exemption
1 Duration
Under this section, the exemption commences on the day after it is registered and stops having effect at the end of 22 March 2010.
2 Application
Under this section, but subject to subsection (2), the exemption in section 3 applies to a person who holds a certificate of approval under regulation 30 of CAR 1988 (i.e. a CAR 30 organisation) and operates wholly or partly outside Australian territory.
However, subsection (2) provides that the exemption does not apply to the CAR 30 organisation until it has complied with the conditions mentioned in Schedule 1 (namely, notifying CASA of its drug and alcohol control plans for its relevant overseas personnel).
3 Exemption from DAMP requirements
Under this section, the CAR 30 CofA holder is exempt from compliance with Subpart 99.B of CASR 1998 to the extent of its operations outside Australian territory.
4 Conditions
Under this section, the exemption in section 3 is subject to the conditions mentioned in Schedule 1.
Schedule 1 Conditions
1Under the condition in this clause, the CAR 30 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 (other than in the circumstances mentioned in clause 2, i.e. medicinal use not having any effect on aviation safety).
A first Note explains that a CAR 30 organisation operating partly inside and partly outside Australian territory must have a DAMP for its Australian operations. As a result, it may, therefore, choose to apply its DAMP fully overseas and make no use of the exemption. Alternatively, it may comply with the exemption by including within the scope of a modified DAMP the operations that are partly outside Australian territory and notify CASA. Alternatively, it may notify CASA of different measures.
A second Note explains that “testable drugs” are those specified by the Minister in a legislative instrument under subsection 33 (2) of the Act. The legislative instrument current at the date of this exemption is Civil Aviation AOD 2008/2.
2Under this clause, the medicinal use circumstances are if a testable drug is in the form of medication taken under the direction and supervision of a medical practitioner registered to practice medicine in the place where the employee or contractor performs work for the CAR 30 CofA holder, and the medication is of a kind that does not affect the person’s performance of SSAA in a way that could affect the safety of air navigation.
A further Note indicates that in deciding whether to renew a CAR 30 certificate of approval, CASA will, under subregulation 30 (2A) of CAR 1988 (capacity to carry out activities in a satisfactory manner), take into account an organisation’s compliance with the conditions in this exemption.