Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — extension of time for drug and alcohol education program
Purpose
The purpose of this exemption is to provide Jetstar Airways Pty Limited (Jetstar) with an extension of time, until 30 April 2010, within which to implement the requirement in Part 99 of the Civil Aviation Safety Regulations 1998 (CASR 1998) for delivery of a prescribed type of drug and alcohol education program to its employees, numbered among the 21 000-plus Qantas Group of Companies employees who perform, or are available to perform, safety-sensitive aviation activities (SSAA) or are relevant supervisors.
CASR Part 99 commenced on 23 September 2008. The obligation on Jetstar, as part of the Qantas Group of Companies, to deliver the drug and alcohol education program required its completion by the end of 22 March 2009. This was insufficient time given the number of employees involved. Jetstar, as a member of the Qantas Group of Companies, also has its own on-going drug and alcohol education program which will have been completed for all employees by not later than 9 April 2009. The original application for exemption, received from Qantas Airways Limited, was intended by Qantas to be an application on behalf of all of the companies in the Qantas Group of Companies. However, unless CASA issues an instrument of its own volition, an application for an instrument must be made by the person who seeks it or someone authorised by them. This had been misunderstood, and the current instrument rectifies that.
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 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.
Under paragraph 99.045 (b) (i) of CASR 1998, a DAMP must include a drug and alcohol education program.
Under the definitions in subregulation 99.010 (1) of CASR 1998, a drug and alcohol education program means a program that includes delivery of specific requirements for SSAA employees and DAMP supervisors. Thus, for SSAA employees, a DAMP must include components for awareness of the organisation’s drug and alcohol policy, drug and alcohol testing in the workplace, support and assistance services for people who engage in problematic use of drugs and alcohol, and information about the potential risks to aviation safety from problematic use of drugs and alcohol. For DAMP supervisors, a DAMP must include education and training to manage people who engage in problematic use of drugs or alcohol.
Under paragraph 99.045 (d) of CASR 1998, a DAMP must be implemented as required by regulation 99.080.
Under subregulation 99.080 (1) of CASR 1998, for paragraph 99.045 (d), the DAMP organisation, in implementing its DAMP, must ensure that the organisation’s SSAA employees and DAMP supervisors attend the organisation’s drug and alcohol
education program within certain time frames.
Thus, a person who begins work for the organisation after the CASR Part 99 commencement date (23 September 2008) must complete the education program before commencing duties as a SSAA employee or a DAMP supervisor.
Persons already working for the organisation as SSAA employees or DAMP supervisors on or before the commencement date must complete the education program within 6 months of the commencement date, i.e. before the end of 22 March 2009.
Qantas Group request for exemption
Jetstar is a DAMP organisation under regulation 99.030 of CASR 1998 and is subject to the provisions set out above. The Qantas Group, including Jetstar, has approximately 21 000 SSAA employees, and has been managing and implementing its own drug and alcohol education program for its SSAA employees and DAMP supervisors.
Writing to CASA on 5 November 2008, the Qantas Group indicated that it was not reasonably practicable to complete a CASR Part 99-compliant drug and alcohol education program for all of its relevant employees before 23 March 2008. The Qantas Group requested, in effect, an extension of time to do so until 30 April 2010. The extension of time would take effect by means of an exemption from the requirement to complete delivery of the prescribed education program by the end of 22 March 2009.
Meanwhile, it would complete delivery of its own drug and alcohol education program ensuring that SSAA employees and DAMP supervisors going through the Qantas Group program were informed by training or correspondence of the differences between the Qantas Group program and the CASR Part 99 program, and of the obligations and liabilities under CASR Part 99.
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.
Need for additional exemptions
At the time of the request to CASA, it was not understood that the application for exemption was intended to be in respect of each of the Qantas Group of Companies, comprised of Qantas Airways Limited, Jetstar Airways Pty Limited, Eastern Australia Airlines Pty Limited, Sunstate Airlines (Qld) Pty Ltd and Express Freighters Australia Pty Ltd. Thus, on 13 March 2009, an exemption, similar in terms to that for Jetstar but confined in its application to Qantas Airways Limited, came into effect. The current exemption is, therefore, 1 of 4 additional exemptions designed to ensure that each of the relevant companies in the Qantas Group is exempted as originally intended. No new or different safety considerations arise from the issue of the additional exemptions which CASA is satisfied will not jeopardise safety.
Details of CAR exemption instrument
The details of the exemption issued to Jetstar are set out in Attachment 1. The exemption is subject to conditions which are also set out in the instrument.
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 not been undertaken other than with the Qantas Group who requested the exemption.
Office of Best Practice Regulation (OBPR)
The exemption is of beneficial effect to Jetstar by relieving it of time-constraint obligations which it would be difficult to meet. 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 and making
The instrument commences on the day of registration and ceases to have effect at the end of 30 April 2010.
The exemption has been made by the Director of Aviation Safety, on behalf of CASA, in accordance with regulation 11.160 of CASR 1998.
[Instrument number CASA EX33/09]
ATTACHMENT 1
Details of exemption
1 Duration
Under this section, the exemption commences on the day of registration, and stops having effect at the end of 30 April 2010.
2 Application
Under this section, the instrument applies only to Jetstar.
3 Exemption
Under this section, Jetstar is exempt from compliance with subparagraph 99.080 (1) (a) (ii) of CASR 1998. A Note emphasises that Jetstar must implement subparagraph 99.080 (1) (a) (i) of CASR 1998 in accordance with its terms, i.e. the prescribed education program under CASR Subpart 99.B must be delivered to new SSAA employees and DAMP supervisors before they commence duties as SSAA employees or DAMP supervisors.
4 Conditions
Under this section, the exemption is subject to the conditions mentioned in Schedule 1.
Schedule 1 Conditions
1Under clause 1 of the Schedule, by not later than the end of 9 April 2009, Jetstar must deliver its drug and alcohol education program (the Jetstar DAE program) to each SSAA employee and each DAMP supervisor who commenced working for Jetstar on or before 23 September 2008 and has not received the Jetstar DAE program.
2Under clause 2, by not later than the end of 9 April 2009, Jetstar must ensure that each SSAA employee and each DAMP supervisor mentioned in clause 3 receives personal training or correspondence that identifies the differences between the Jetstar DAE program and the requirements of Part 99 of CASR 1998, and explains the obligations and liabilities arising from CASR Part 99.
3For clause 2, the following are the relevant SSAA employees and DAMP supervisors:
(a) each person covered by clause 1; and
(b) each SSAA employee and each DAMP supervisor who commenced working for Jetstar on or before the commencement date for Part 99 of CASR 1998 who has received the Jetstar DAE program.
4Under clause 4, by not later than the end of 30 April 2010, Jetstar must ensure that each SSAA employee and each DAMP supervisor attends a drug and alcohol education program that conforms to the requirements of CASR Subpart 99.B.
5Under clause 5, Jetstar DAE program is defined to mean that part of the Qantas Group of Companies drug and alcohol education program, as in operation on 5 November 2008, that applies to Jetstar SSAA employees and DAMP supervisors, including:
(a) the matters described in the 5 November 2008 letter, submission and 15 attachments from the Qantas Group of Companies Chief Risk Officer to the CASA Deputy Chief Executive, Strategy and Support; and
(b) changes to the program submitted in writing to the CASA Principal Medical Officer after the commencement of this instrument.