Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX29/24 — Dangerous Goods (2-yearly Training Requirement) Instrument 2024
Purpose
The purpose of CASA EX29/24 — Dangerous Goods (2-yearly Training Requirement) Instrument 2024 (the instrument) is to allow persons to use the 24-month period adopted by the International Civil Aviation Organization (ICAO) and the International Air Transport Association (IATA) for determining when employees have to undertake recurrent training in the safe transport of dangerous goods by air, and the period for which such training remains current (the period of currency) when undertaken by an employee.
The instrument contains conditions in the interest of the safety of air navigation.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and the safety of air navigation. Section 23 of the Act defines dangerous goods as explosive substances, and things which:
by reason of their nature are liable to endanger the safety of an aircraft or persons on board an aircraft; or
the regulations declare to be dangerous goods.
Section 23B of the Act states, in subsection (1), that the regulations may require persons handling, or involved in handling, cargo in the course of the cargo being carried or consigned for carriage on an aircraft to undertake specified training relating to dangerous goods.
The instrument deals with the provision of training in accordance with Subpart 92.C of the Civil Aviation Safety Regulations 1998 (CASR). Reference in this statement to a regulation, subregulation or paragraph that begins with the prefix 92. is a reference to the provision in Part 92 that begins with that prefix.
Subpart 92.C contains training provisions for the employees of a person engaged in the carriage, or consignment for carriage, of dangerous goods, being one of the following:
(a) an Australian aircraft operator;
(b) a ground handling agent;
(c) a freight forwarder;
(d) a screening authority;
(e) a shipper of dangerous goods.
Regulation 92.095 applies to Australian aircraft operators in relation to their group A, B, C, D or E employees in Australia, and Group C or D employees outside Australia, except in relation to an employee engaged only in operations referred to in paragraphs 92.095(1)(a) to (e).
Group A, B, C, D and E employees are separately defined in subregulation 92.085(1).
Subregulation 92.095(2) requires an Australian aircraft operator to ensure that each employee to whom the regulation applies undertakes training in accordance with regulation 92.110 before first undertaking the relevant duties and every 2 years while continuing to have those duties.
Regulation 92.100 applies to Australian ground handling agents in relation to their group A, B, C or E employees.
Subregulation 92.100(1) requires an Australian ground handling agent to ensure that each employee to whom the regulation applies undertakes training in accordance with regulation 92.110 before first undertaking the relevant duties and every 2 years while continuing to have those duties. Subregulation 92.100(2) provides that an offence against subregulation (1) is an offence of strict liability.
Regulation 92.105 applies to Australian freight forwarders in relation to their group A, B or E employees.
Subregulation 92.105(1) requires an Australian freight forwarder to ensure that each employee to whom the regulation applies undertakes training in accordance with regulation 92.110 before first undertaking the relevant duties and every 2 years while continuing to have those duties. Subregulation 92.105(2) provides that an offence against subregulation (1) is an offence of strict liability.
Regulation 92.110 sets out the requirements for the training of groups of employees to whom regulation 92.095, 92.100 or 92.105 applies, being a training course that meets the requirements of regulation 92.135 and is approved by the Civil Aviation Safety Authority (CASA) as appropriate for that group of employees.
Regulation 92.115 applies to employees in Australia of a screening authority, if the employee’s duties include handling, or supervising anyone who handles, checked baggage or carry-on baggage.
Subregulation 92.115(2) requires a screening authority to ensure that each employee to whom the regulation applies undertakes training in accordance with subregulation (4) before first undertaking the relevant duties and every 2 years while continuing to have those duties. Subregulation (4) requires the training course to be appropriate for such employees and to meet the requirements of regulation 92.135.
Regulation 92.120 applies to Group F employees of a person who ships dangerous goods (a shipper of dangerous goods), except a person who consigns dangerous goods within Australian territory for his or her own private non-commercial purposes.
Under subregulation 92.120(1), a shipper of dangerous goods must ensure that their Group F employees undertake training in accordance with subregulation (4) before first undertaking the relevant duties and every 2 years while continuing to have those duties. Subregulation 92.120(3) provides that an offence against subregulation (1) is an offence of strict liability. Under subregulation (4), the employees must undertake a training course approved by CASA as appropriate and that meets the requirements of regulation 92.135.
Subpart 11.F of CASR provides for the granting of exemptions from particular provisions of the regulations. Subregulation 11.160(1) of CASR provides that, for subsection 98(5A) of the Act, CASA may grant an exemption from compliance with a provision of the regulations in relation to a matter mentioned in that subsection. Under subregulation 11.160(2), an exemption may be granted to a person or to a class of persons.
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 of CASR, failure to comply with a condition of an exemption is a strict liability offence.
Under regulation 11.225 of CASR, an exemption must be published on the internet. Under subregulation 11.230(1), the maximum duration of an exemption is 3 years.
Under paragraph 11.245(1)(a) of CASR, CASA may, by instrument, issue a direction about any matter affecting the safe navigation and operation of aircraft. Subregulation 11.245(2) provides that CASA may issue such a direction if CASA is satisfied that it is necessary to do so in the interests of the safety of air navigation, if the direction is not inconsistent with the Act, and for the purposes of CASA’s functions. Under paragraph 11.250(a), such a direction ceases to be in force on the day specified in the direction.
Background
The term every 2 years, as used in subregulations 92.095(2), 92.100(1) and 92.105(1) of Subpart 92.C to set the period of currency for training in the safe transport of dangerous goods by air, has an extended meaning given by regulation 92.090. Under that regulation if an employee completes a training course within 3 months before the second anniversary of the day on which the employee last completed a similar training course, the employee is taken to have completed the later training course on that second anniversary.
ICAO now uses a 24-month period with the period of currency of the previous training course taken to expire at the end of the month in which the training was received (see Part 1;4.3, of the Technical Instructions (TI), as defined in regulation 92.010). That period of currency has now been adopted in the IATA Dangerous Goods Regulations (IATA DGR). Section 1.5.1.3 of the IATA DGR aligns with the ICAO provision.
In relation to the references to the IATA DGR, that document is used by industry as a common document for the transport of dangerous goods by air. Note 2 under the regulation 92.010 definition of the term Technical Instructions accepts the use of the IATA DGR as an alternate means of compliance with the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air. This instrument has been issued to allow the use of the 24-month period recognised by ICAO and IATA in order to ensure conformity within the different sets of rules and avoid confusion.
CASA anticipates that Part 92 will be amended in the latter half of 2026 to, among other things, align with ICAO/IATA arrangements the extension of the date by which a course of recurrent training in the handling of dangerous goods must be undertaken. Once those amendments are made, this instrument will no longer be needed.
Overview of instrument
The instrument provides exemptions from specified provisions of Part 92 of CASR to allow specified bodies involved in the handling of dangerous goods to use the 24-month period as adopted by ICAO and IATA to determine when their employees have to undertake recurrent training in the carriage and consignment for carriage of dangerous goods, and the period of currency of their training. The instrument also includes a related direction regarding the reporting of the related training to CASA, on request.
Documents incorporated by reference
The instrument does not incorporate any documents by reference. Note 1 after subsection 5(2) refers to ICAO TI and the IATA DGR but only to provide background for the making of the instrument.
Content of instrument
Section 1 of the instrument states the name of the instrument.
Section 2 specifies the duration of the instrument. It commences on the day after it is registered and is repealed at the end of 31 May 2027.
Section 3 of the instrument contains definitions of terms used in the instrument. Three of those definitions, Australian freight forwarder, Australian ground handling agent and screening authority are new definitions required to clarify the application of the exemption. The term screening authority has been given the meaning it has in regulation 1.03 of the Aviation Transport Security Regulations 2005 because the definition it has in subregulation 92.085(1) (that it has the same meaning as in the Air Navigation Act 1920) has no effect, as screening authority is no longer defined in that Act. CASA anticipates that this issue will be remedied when Part 92 of CASR is next amended.
Section 4 exempts the classes of persons to whom the exemption applies from specified provisions of CASR. Those provisions set out for each class of person the requirement to undertake training under regulation 92.135 every 2 years, as opposed to the requirement under the ICAO/IATA provisions to undertake training every 24 months (recurrent training).
Subsection 4(1) exempts an Australian aircraft operator from compliance with paragraph 92.095(2)(b) of CASR.
Subsection 4(2) exempts an Australian ground handling agent from compliance with paragraph 92.100(1)(b) of CASR.
Subsection 4(3) exempts an Australian freight forwarder from compliance with paragraph 92.105(1)(b) of CASR.
Subsection 4(4) exempts a screening authority from compliance with paragraph 92.115(2)(b) of CASR.
Subsection 4(5) exempts a shipper of dangerous goods from compliance with paragraph 92.120(1)(b) of CASR.
Subsection 4(6) states that an exemption mentioned in section 4 is subject to the conditions in section 5.
Section 5 of the instrument sets out the conditions to be complied with by any person who is subject to an exemption under section 4.
Subsection 5(1) states that, subject to subsection (2), the exempted person must ensure that an employee undertakes their recurrent training within the period commencing at the end of the month in which they last undertook their training, whether initial or recurrent, and ending after 24 months (the extended validity period).
Subsection 5(2) states that if an employee undertakes a course of recurrent training within the final 3 months of the extended validity period (the final quarter), then the subsequent extended validity period does not commence until 24 months after the end of the previous extended validity period (rather than 24 months after the end of the month in which they undertook the training).
Note 1 after subsection 5(2) advises that subsections 6(1), (2) and (3) give effect to ICAO provision Part 1; 4.3 in the TI and section 1.5.1.3 of the IATA DGR.
Note 2 after subsection 5(2) sets out examples of how subsections 5(1) and (2) apply in different circumstances.
Subsection 6(1) sets out a direction under regulation 11.245 of CASR to the effect that an exempted person who chooses to make use of the extended validity period must provide CASA with written details of the training given to their employees, on request by a CASA officer. Subsection 6(2) states that the direction ceases to be in force at the end of 31 May 2027.
Legislation Act 2003 (the LA)
Subsection 98(5AA) of the Act states that an instrument issued under paragraph 98(5A)(a) is a legislative instrument if it applies to a class of persons or a class of aircraft.
The exemptions in the instrument apply to classes of persons. Therefore, the instrument is a legislative instrument. As a legislative instrument, it is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Sunsetting
Part 4 of Chapter 3 of the LA (the sunsetting provisions) does not apply to the instrument because the instrument relates to aviation safety and is made under CASR (item 15 of the table in section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015).
However, this instrument will be repealed at the end of 31 May 2027, which will occur before the sunsetting provisions would have repealed the instrument if they had applied. Any renewal of the instrument will be subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA. Therefore, the exemption from sunsetting does not affect parliamentary oversight of this instrument.
Consultation
The inconsistent periods of duration allowed for recurrent dangerous goods training undertaken under ICAO and IATA rules as opposed to regulation 92.090 have caused disconnect and confusion within the dangerous goods training industry resulting in additional costs with no safety benefit.
CASA previously consulted with industry within Policy Proposal PP 1902OS on proposed changes to Part 92 of CASR, including changes to align with ICAO/IATA arrangements the extension of the date by which a course of recurrent training must be undertaken. As an interim solution, pending preparation of those amendments, an instrument permitting such an extension would be beneficial to industry from a financial perspective and for managing training expiry dates.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Sector risk, economic and cost impact
Subsection 9A(1) of the Act states that, in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. Subsection 9A(3) of the Act states that, subject to subsection (1), in developing and promulgating aviation safety standards under paragraph 9(1)(c), CASA must:
(a) consider the economic and cost impact on individuals, businesses and the community of the standards; and
(b) take into account the differing risks associated with different industry sectors.
The cost impact of a standard refers to the direct cost (in the sense of price or expense) which a standard would cause individuals, businesses and the community to incur. The economic impact of a standard refers to the impact a standard would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly. The economic impact of a standard could also include the general financial impact of that standard on different industry sectors.
The instrument makes minor or machinery changes to an existing instrument and there will be no change to the economic or cost impact on individuals, businesses or the community.
The economic and cost impact of the instrument has been determined by:
(a) the identification of individuals and businesses affected by the instrument; and
(b) consideration of how the requirements to be imposed on individuals and businesses under the instrument will be different compared to existing requirements; and
(c) a valuation of the impact, in terms of direct costs on individuals and businesses affected by the instrument to comply with the different requirements. This valuation is consistent with the principles of best practice regulation of the Australian Government; and
(d) a valuation of the impact the different requirements would have on the production, distribution and use of wealth across the economy, at the level of the individual, relevant businesses in the aviation sector, and the community more broadly; and
(e) consideration of community impacts, beyond those direct impacts on individuals and businesses affected by the instrument, that are relevant if the instrument were to result in flow-on effects to other aviation businesses, or local non-aviation businesses that experience a change in their activity due to the instrument.
The requirements of the instrument apply to Australian aircraft operators, Australian freight forwarders, Australian ground handling agents and screening authorities. The instrument will still require these businesses to provide recurrent training to their employees but will give them the benefit of an extension of time to provide the training.
CASA has assessed that the economic and cost impact of the instrument is not significant as these businesses must still provide recurrent training. The Office of Impact Analysis (OIA) has also made the assessment that the impact of the instrument is minor and that an Impact Analysis (IA) is not required. As there is no significant economic or cost impact on individuals or businesses, there will be no community impacts.
Impact on categories of operations
The instrument is likely to have a beneficial effect on those operators, freight forwarders, ground handling agents and screening authorities that are involved in the consignment and carriage of dangerous goods by air and must provide recurrent training to specified groups of their employees because it recognises an extended period of currency for such training, consistent with ICAO standards.
Impact on regional and remote communities
The instrument will not have any different impact on regional and remote communities compared to other kinds of communities.
Office of Impact Analysis
An IA is not required in this case, as the exemption is covered by a standing agreement between CASA and OIA under which an IA is not required for exemptions (OIA id: 14507).
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 day after it is registered and is repealed at the end of 31 May 2027.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX29/24 — Dangerous Goods (2-yearly Training Requirement) Instrument 2024
The 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 legislative instrument allows persons to use the 24-month period adopted by the International Civil Aviation Organization and the International Air Transport Association for determining when employees have to undertake recurrent training in the carriage and consignment for carriage of dangerous goods, and the period for which such training remains current when undertaken by the employee.
The exemption is issued subject to conditions. The conditions are imposed by the Civil Aviation Safety Authority (CASA) in the interest of the safety of air navigation.
Human rights implications
The legislative instrument engages the right to protection against arbitrary and unlawful interferences with privacy (Article 17 of the International Covenant on Civil and Political Rights (the ICCPR)).
The right to protection against arbitrary and unlawful interference with privacy, contained in Article 17 of the ICCPR, provides that no-one shall be subjected to arbitrary or unlawful interference with their privacy.
The right to privacy is engaged by section 6 of the instrument, which is a direction to the effect that if an exempted person chooses to make use of the extended validity period of an employee’s previous training, the exempted person must, if directed to do so by a CASA officer, provide details in writing of the training given to the person’s employees, including the dates of commencement and completion. The protections provided by the Privacy Act 1988 continue to apply to personal information collected by CASA.
The requirements of section 6 are necessary in order to ensure proper administration and enforcement of Australia’s aviation safety system. Any potential limitation on the right to privacy is necessary, reasonable and proportionate in promoting the objective of improving aviation safety.
In addition, subregulation 92.145(3) states that “A person or organisation to whom or to which this regulation applies must: (a) keep a copy of any certificate issued to an employee on the completion of a course of training required by this Part; and (b) give a copy of any such certificate to CASA if CASA so requests.”. It is arguable that authority in Part 92 already exists to justify the keeping of records and their provision to CASA.
Apart from the impact on the right to privacy, the exemption in the instrument is beneficial in purpose and content and does not adversely affect the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The legislative instrument is compatible with human rights. To the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate in order to ensure the safety of aviation operations and to promote the integrity of the aviation safety system.
Civil Aviation Safety Authority