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.
Part 99.B of CASR 1998 sets up a scheme whereby all AOC holders and CAR 30 organisations are required to implement and maintain a drug and alcohol management plan (DAMP). CASA however is aware that it is not possible within current timeframes and resources for CASA to effectively develop an international audit program simultaneously with its domestic program. Similarly, CASA considers that it is not realistically possible for many of the foreign AOC and CAR 30 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 within this timeframe.
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. Under regulation 11.225, 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.
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 renews a previous instrument, CASA EX136/11, which ceases to have effect at the end of 30 November 2012.
Human Rights Compatibility
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.
Commencement and making
The instrument commences on 1 December 2012. It stops having effect at the end of 30 November 2013.
The exemption has been made by the Acting Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
[Instrument number CASA EX181/12]