Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 99 training requirements for drug testing
Purpose
This instrument exempts certain persons who conduct drug tests under drug and alcohol management plans (DAMPs) from having to meet a particular training requirement of the Standard for drug testing.
Legislation for exemption from CASR 1998
Under subregulation 11.160 (1) of the Civil Aviation Safety Regulations 1998 (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.
Other 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 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.
Drug and alcohol regulations
The Civil Aviation Safety Amendment Regulations 2008 (No. 1) commenced on 23 September 2008 and amended CASR 1998 by inserting a new Part 99, Drug and alcohol management plans and testing (CASR Part 99).
The purpose of the amendment regulations 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 a random drug and alcohol testing regime for all persons involved in SSAA.
CASR Part 99
Under the definitions in subregulation 99.010 (1) of CASR 1998, a DAMP means a drug and alcohol management plan that complies, or purports to comply, with the requirements of regulation 99.045.
Under subparagraph 99.045 (b) (ii), a DAMP must include a drug and alcohol testing program that, among other things, meets the requirements specified in regulation 99.050.
Under subparagraph 99.050 (1) (a) (ii), oral fluid testing must be in accordance with the Standard mentioned in paragraph (c) of the definition of relevant Standard, namely, AS 4760, Procedures for specimen collection and the detection and quantitation of drugs in oral fluid.
Under subparagraph 99.050 (1) (a) (iii), urine testing must be in accordance with the Standard mentioned in paragraph (d) of the definition of relevant Standard, namely, AS/NZS 4308, Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine.
Training requirements under the Standards
Clause 1.3.13 of AS 4760 for oral fluids testing, defines a collector as a person who has successfully completed a course of instruction in compliance with the Standard for specimen collection, storage, handling and despatch, and received a statement of attainment in accordance with the Australian Quality Training Framework (AQTF).
Clause 3.1 of AS 4760 provides that on-site testing for oral fluids shall be performed by a technician from an accredited collecting agency. Clause 1.3.38 of AS 4760 requires that a technician must have successfully completed a course of instruction in compliance with the Standard for on-site testing, and received a statement of attainment in accordance with the AQTF.
Clause 1.3.24 of AS 4308 for urine testing defines on-site screening as a screening test carried out at the point of collection. Clause 1.3.32 defines a screening test as a method used to exclude the presence of a drug or class of drugs and to identify whether specimen integrity has been compromised. Collection for this purpose is done by a collector. Clause 1.3.14 defines a collector as a person who has successfully completed a course of instruction for specimen collection and on-site screening (if applicable), handling, storage and despatch of specimens and who has received a statement of attainment in accordance with the AQTF.
DAMP organisations in remote and regional Australia
There are many DAMP organisations located in remote and regional Australia which must, under the terms of their DAMP, conduct drug testing in accordance with the relevant Standard using technicians and collectors as defined above in terms of having successfully completed a course of instruction.
However, in remote and regional Australia, and elsewhere, such persons are not available. In the short to medium term, they are not likely to be available unless small DAMP organisations go to the large expense of sending appropriate persons for training in initial drug testing in one of the major Australian cities where training courses may periodically be run.
CASA considers it is not realistic to expect that the testers in DAMP organisations in remote and regional Australia will have completed such training. CASA has, therefore, issued a general exemption from this specific training requirement. The exemption is, however, tightly circumscribed by conditions designed, as far as practicable, to require alternative and equivalent tester training and, thereby, protect the integrity of DAMP organisations’ drug testing.
Exemption and conditions
The exemption from the prescribed training applies only for the conduct of oral fluid testing or urine testing done under an organisation’s DAMP by a defined registered medical practitioner (doctor) or a defined State or Territory registered or enrolled nurse (nurse) who has some current professional responsibility in relation to the collection, storage, handling and despatch of biological specimens.
If such a doctor or nurse is not available because of the remoteness of the location of the DAMP organisation at which testing is conducted, the testing may be done by another person (a capable person) who has been trained by a doctor or nurse, or by another person who has completed some formal training in the collection, storage, handling and despatch of biological specimens. A Note explains that formal training acceptable to CASA includes training given by a university, an institute of technology, a technical and further education college or a similar State or Territory institution as part of an accredited training course.
A capable person may not test unless he or she has first affirmed in writing to CASA that he or she has been trained, giving details of the identity and qualifications of the trainer and a description of the training given.
The precaution that a capable person may do the testing but only if a doctor or nurse is not reasonably available to do the testing because of the remoteness of the location of the DAMP organisation at which the testing is done is further supported by a requirement that testing by a capable person must be reported to CASA for each DAMP reporting period. The report must include an explanation of why the place of testing was considered remote, and the steps taken to obtain the services of a doctor or nurse. Reporting periods end immediately before 1 March and 1 September each year.
DAMP testing will be subject to periodic CASA audit to confirm its reliability and the competence of DAMP testers. The exemption applies only to DAMP testers under Subpart 99.B of CASR 1998. It does not apply to approved testers in CASA’s random drug testing program under Subpart 99.C of CASR 1998.
Details of the exemption are set out in Attachment 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 of this kind 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.
Consultation
Consultation under section 17 of the LIA has been undertaken with the Australian Aerial Agriculture Association (AAAA) and a number of larger airlines.
Office of Best Practice Regulation
The exemption is beneficial in effect by relieving of an obligation. 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 and making
The instrument commences on the day of registration and stops having effect at the end of 22 March 2010. This is, in effect, a 1 year trial of the arrangements provided for in the exemption, which will be reviewed for its effectiveness and other implications towards the end of that period.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 84A (2) of the Act.
[Instrument number CASA EX27/09]
ATTACHMENT 1
Details of exemption
1 Commencement
Under this section, the instrument is expressed to commence on the day of registration and stops having effect at the end of 22 September 2010.
2 Definitions
This section defines certain terms as follows:
capable person means a person who, before conducting oral fluid testing or urine testing for drugs:
(a) affirms in writing to CASA that he or she:
(i) has completed a course of training in oral fluid testing or urine testing; and
(ii) has demonstrable competency in such testing; and
(b) includes in the affirmation:
(i) the name and address of the trainer and a description of how that person is a trainer; and
(ii) a description of the course of training given by the trainer.
course of training means training by a trainer who is:
(a) a doctor or a nurse; or
(b) another person who has successfully completed formal training, acceptable to CASA, in the collection, storage, handling and despatch of biological specimens.
A Note explains that formal training acceptable to CASA includes training given by a university, an institute of technology, a technical and further education college or a similar State or Territory institution as part of an accredited training course.
doctor means a registered medical practitioner whose medical duties include the collection, storage, handling and despatch of biological specimens.
nurse means a State or Territory registered or enrolled nurse whose nursing duties include the collection, storage, handling and despatch of biological specimens in 1 of the following:
(a) a hospital;
(b) a general practice;
(c) a pathology practice.
on-site means the place at which an oral fluid or urine specimen is collected.
standard means the relevant Standard mentioned in:
(a) paragraph (c) of the definition of relevant Standard in subregulation 99.010 (1) of CASR 1998 (the oral fluid Standard); and
(b) paragraph (d) of the definition of relevant Standard in subregulation 99.010 (1) of CASR 1998 (the urine Standard).
testing means 1 or more of the following:
(a) on-site testing to exclude the presence of drugs;
(b) on-site collection, storage, handling and despatch of oral fluid or urine for drug testing by an approved laboratory.
trainer has the meaning given in the definition of course of training.
3 Application to a DAMP organisation’s DAMP
Under this section, the instrument applies to drug testing under the drug and alcohol management plan (DAMP) of a DAMP organisation.
A Note explains that a DAMP organisation is one to which regulation 99.030 of CASR 1998 applies.
4 Exemption — oral fluid or urine specimen testing for drugs
Under this section, the organisation’s DAMP is exempt from compliance with subparagraphs 99.050 (1) (a) (ii) and (iii) of CASR 1998 to the extent mentioned in section 5.
5 Extent of exemption
Under this section, the exemption in section 4 extends only to the requirements specified in a standard that a person who does an initial drug test on an oral fluid or urine specimen must have successfully completed a course of instruction in compliance with the relevant Standard for specimen collection, on-site screening, on-site testing, storage, handling and despatch, and received a statement of attainment in accordance with the Australian Quality Training Framework.
6 Conditions on exemption
(1)Oral fluid testing or urine testing may only be done by 1 of the following:
(a) a doctor;
(b) a nurse;
(c) subject to subsection (2), a capable person.
(2)A capable person may do testing only if a doctor or nurse is not reasonably available to do testing because of the remoteness of the location of the DAMP organisation at which testing is done.
(3)The DAMP organisation for whom a capable person does testing must report the following in writing to CASA for each DAMP reporting period:
(a) the number of occasions on which he or she has done testing in the capacity of a capable person;
(b) where each occasion of testing occurred and why the location was considered remote;
(c) for each occasion — what steps were taken beforehand to find a doctor or nurse to do the testing.
(4)The report mentioned in subsection (3) must be included with the information provided to CASA by the DAMP organisation under regulation 99.100 of CASR 1998.