Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — DAMP organisations to provide information to CASA
Purpose
The purpose of this exemption is to exempt organisations that have implemented a drug and alcohol management plan (DAMP) from the requirement to report information to CASA every 6 months.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the safety of air navigation.
Requirements for DAMP organisations to provide information
Subpart 99.B (Drug and alcohol management plans) of the Civil Aviation Safety Regulations 1998 (CASR 1998) provides for the persons required to have a DAMP, matters required to be included in a DAMP, the implementation of a DAMP, requirements associated with a DAMP and offences relating to a DAMP.
Under regulation 99.010 of CASR 1998, a DAMP organisation is defined as a person that is required to have a DAMP under subregulation 99.030 (1). Under subregulation 99.030 (1), specified organisations involved in the aviation industry, who employ or engage people who perform safety-sensitive aviation activities (SSAA), are required to have a DAMP. There are approximately 1 800 DAMP organisations and approximately 60 000 individuals employed by DAMP organisations who perform SSAA.
Also under regulation 99.010, a DAMP reporting period is defined as the period of 6 months immediately before each 1 March and 1 September.
Under subregulation 99.100 (1) of CASR 1998, a DAMP organisation that has implemented a DAMP must provide specified information to CASA in respect of each DAMP reporting period, or part of a reporting period, during which the DAMP was implemented. The specified information includes, among other things: the number of the organisation’s employees who performed an applicable SSAA at least 2 or more times in the 90 days preceding the end of the reporting period; the number of the organisation’s employees who attended a drug and alcohol education program during the period; the number and type of drug or alcohol tests undergone by SSAA employees under the DAMP during the period; and the results of the tests.
Under subregulation 99.100 (2) of CASR 1998, a DAMP organisation must provide the information in writing within 21 days after the end of the reporting period to which it relates.
Regulation 99.105 of CASR 1998 relates to DAMP record-keeping. It requires a DAMP organisation to keep records used to provide information to CASA under regulation 99.100 for 5 years from the date the information was provided to CASA, and to keep the records in a secure location. It also requires the DAMP organisation to destroy or delete the records, or the parts of the records that relate to the results of drug or alcohol testing, within 6 months after the end of the 5 year period.
Under instrument CASA EX167/12, certain micro-businesses are exempt from compliance with the provisions of Subpart 99.B, other than Division 99.B.4 (Review and audit of DAMP). CASA estimates that 1 000 DAMP organisations would be eligible to be covered by that exemption. A condition of that exemption is that the micro-business must at all times comply with the terms of the CASA micro-business DAMP, which is published or made available by CASA for micro-businesses, as amended by CASA from time to time. As at 20 February 2015, the CASA micro‑business DAMP published on CASA’s website required micro-businesses to report to CASA on their DAMP for each DAMP reporting period.
Under instrument CASA EX84/14, the collection and screening of drugs carried out outside of a capital city is exempt, to a limited extent, from compliance with requirements for oral and fluid testing and urine testing to be in accordance with their respective relevant standards. That exemption is subject to the conditions in section 7 of CASA EX84/14. Subsection 7 (6) of CASA EX84/14 requires DAMP organisations for whom a trained collector, a doctor, a nurse or a capable person collects or screens specimens to report in writing to CASA, for each DAMP reporting period, the number of occasions on which the particular person has done collection or screening, and where each occasion of collection or screening occurred. Subsection 7 (7) of CASA EX84/14 requires DAMP organisations to include that information with the information provided to CASA under regulation 99.100 of CASR 1998.
Exemptions from CASR 1998
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) of CASR 1998, 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 aviation 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 11.210, 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 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.
Instrument
CASA considers that the reporting requirements in subregulations 99.100 (1) and (2) of CASR 1998 are not necessary and their removal will have no identifiable impact on safety. Consistent with this policy, the instrument exempts DAMP organisations from compliance with those reporting requirements.
The instrument also exempts micro-businesses, that might otherwise be required to report to CASA in accordance with their DAMP, from the reporting requirements in their DAMP.
The instrument also exempts DAMP organisations, that might otherwise be required to report to CASA in accordance with the conditions in subsections 7 (6) and (7) of CASA 84/14, from the reporting requirements in those subsections.
It is a condition of the exemptions that the DAMP organisation must comply with regulation 99.105 of CASR 1998 as if it was required to comply, and had complied, with subregulations 99.100 (1) and (2). Therefore, the DAMP organisation must keep the records that would have enabled it to comply with the reporting requirements in subregulations 99.100 (1) and (2) in a secure location for 5 years from the date that the information would have been provided to CASA.
There is an additional condition imposed on the exemption from compliance with the conditions in subsections 7 (6) and (7) of CASA 84/14. DAMP organisations must keep records that would have been used to provide information to CASA under those subsections as if they were required to comply, and had complied, with those subsections, and in the same way that they keep records under regulation 99.105.
DAMP organisations are required to continue to comply with the DAMP review and audit requirements in Division 99.B.4 of CASR 1998.
Legislative Instruments Act 2003 (the LIA)
Exemptions issued under regulation 11.160 of CASR 1998 are issued under subsection 98 (5A) of the Act. Subsection 98 (5AA) of the Act states that an instrument issued under paragraph (5A) (a) is a legislative instrument if it applies to a class of persons or a class of aircraft. This exemption applies to a class of persons and so is a legislative instrument and, therefore, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.
Consultation
CASA has received substantial feedback from industry about the burdensome nature of the DAMP reporting requirements. The instrument provides relief for DAMP organisations. CASA considers that no further consultation under section 17 of the LIA is appropriate or necessary.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required because the instrument is covered by a standing agreement between CASA and OBPR under which a RIS is not required (OBPR id: 14507).
However, CASA has estimated that the annual cost for compliance by industry with the DAMP reporting requirements is $460 000, with the amount for each DAMP organisation varying depending on whether it is involved in regular public transport activities, and on whether it is a micro-business. CASA expects that exempting businesses from the DAMP reporting requirements will provide significant resource relief for both industry and CASA, without compromising safety.
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 the Director of Aviation Safety, on behalf of CASA, in accordance with subsection 73 (2) of the Act.
The instrument commences on the day of registration and expires at the end of September 2017, as if it had been repealed by another instrument.
[Instrument number CASA EX39/15]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — DAMP organisations to provide information to CASA
This 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 purpose of this legislative instrument is to exempt organisations that have implemented a drug and alcohol management plan (DAMP) from the requirement to report information to CASA every 6 months.
This legislative instrument would exempt organisations that are required to have a DAMP from compliance with the reporting requirements in subregulations 99.100 (1) and (2) of the Civil Aviation Safety Regulations 1998 and the conditions in instrument CASA EX84/14. It would also effectively exempt micro-businesses, that are already exempt from compliance with those subregulations, from any similar requirement in a DAMP that they have implemented.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
Civil Aviation Safety Authority