Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX66/18 — Implementation of Drug and Alcohol Management Plans (Micro-businesses) Exemption 2018
Purpose
The purpose of this instrument is to exempt certain small organisations (micro-businesses) from the Civil Aviation Safety Regulations 1998 (CASR) requirement to develop and implement a drug and alcohol management plan (a DAMP) under Subpart 99.B of CASR, provided they adopt instead a DAMP in the form of a specially prepared and simplified CASA drug and alcohol management plan, the CASA Micro-business Drug and Alcohol Management Plan (DAMP) (CASA Micro‑business DAMP). The exemption does not apply to micro-businesses that are engaged in, or that provided services to, any regular public transport operation.
Legislation
Section 98 of the Civil Aviation Act 1988 (the Act) empowers the Governor-General to make regulations for the Act and in the interests of the safety of air navigation. Relevantly, the Governor-General has made the CASR and the Civil Aviation Regulations 1988.
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 a provision of the regulations.
Under subregulation 11.160 (2) of CASR, an exemption may be granted to a person or a class of persons.
Under subregulation 11.170 (3) of CASR, in deciding whether to grant an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety.
Regulation 11.205 provides that CASA may impose conditions on an exemption if necessary in the interests of the safety of air navigation. Under regulation 11.210, it is a strict liability offence not to comply with the obligations imposed by a condition.
Regulation 11.225 of CASR requires an exemption to be published on the Internet. Under subregulation 11.230 (1), the maximum duration of an exemption is 3 years.
Subsection 98 (5D) of the Act provides that a legislative instrument made under the Act or the regulations may apply, adopt or incorporate any matter contained in any instrument or other writing as in force or existing from time to time, even if the other instrument or writing does not yet exist when the legislative instrument is made.
Subpart 99.B of CASR deals with drug and alcohol management plans. A DAMP or drug and alcohol management plan is defined in regulation 99.010 of CASR as meaning a drug and alcohol management plan that complies or purports to comply, with the requirements of regulation 99.045.
Under subregulation 99.030 (1) of CASR, a DAMP organisation must develop a DAMP if it has employees who perform applicable SSAA (SSAA employees) and is on a list of kinds of organisations defined in subregulation 99.030 (2), for example, air operator’s certificate holders, maintenance organisations, aerodrome operators, air traffic service providers.
Applicable SSAA are specified in subregulation 99.015 (2), and include activities on the “airside” of an aerodrome (i.e. the tarmac and related areas) as well as flight crew duties, maintenance, aircraft refuelling, security, baggage handling, air traffic control etc.
Under paragraph 99.045 (a) of CASR, a DAMP organisation’s DAMP must apply to all applicable SSAA employees of the organisation. Generally, DAMP organisations must assume drug and alcohol responsibility for their contractors (and sub-contractors) who are to be treated as employees for this purpose (employee is defined in regulation 99.010 to include DAMP contractors).
Under paragraph 99.045 (b) of CASR, a DAMP must include a drug and alcohol education program, a drug and alcohol testing program and a drug and alcohol response program (for example, in relation to rehabilitation).
Under regulation 99.055 of CASR, a DAMP organisation’s DAMP must include a requirement to consult a DAMP medical review officer in relation to a positive drug test. In addition, the DAMP must have a requirement to consult a DAMP medical review officer (MRO) to review medical information concerning a person’s failure to give a body sample for drug or alcohol testing because of a medical condition.
Under subregulation 99.065 (1) of CASR, a DAMP organisation’s DAMP must include a requirement that the organisation not permit an employee to perform SSAA if the employee has returned a positive result for a drug or alcohol test that has not been discounted through confirmatory testing.
Regulation 99.080 of CASR sets out requirements for implementation of a DAMP, which include SSAA employees attending the organisation’s drug and alcohol education program. Division 99.B.4 of CASR provides for review and audit of DAMPs.
Background
Because of the usually unvarying size and often remote locality of aviation-related businesses that are micro-businesses, CASA issued exemption CASA EX72/12, renewed by CASA EX167/12, renewed by CASA EX98/15, on its own initiative to relieve such organisations of the obligation to develop and implement a “full-scale” DAMP, provided they adopted a DAMP in the form of the CASA Micro-business DAMP. The CASA Micro-business DAMP retains many of the key features of a statutory DAMP but with simplifications and modifications which make implementation within a small organisation easier and more effective.
The CASA Micro-business DAMP recognises the difficulties that micro-businesses in remote localities face, for example, in devising effective drug and alcohol management training for their employees, in having to have DAMP medical review officers, in carrying out drug and alcohol testing in specified circumstances, for example on each SSAA employee when the person first joins the organisation, and in meeting the mandated relevant Australian and New Zealand Standards for testing, particularly drug testing. In these circumstances, CASA considers it appropriate to offer these businesses a simpler avenue for compliance without sacrificing safety outcomes.
Instrument CASA EX98/15 expired at the end of May 2018.
Instrument
This instrument renews the scheme in instrument CASA EX98/15.
The effect of the instrument is to exempt micro-businesses from Subpart 99.B of CASR, subject to conditions. The key conditions are that micro-business must instead adopt a DAMP in the form of the CASA Micro-business DAMP and comply with its terms.
Section 1 of the instrument sets out the name of the instrument.
Section 2 sets out the duration of the instrument by providing that it commences on 1 June 2018 and is to be repealed at the end of 31 May 2020.
Section 3 provides some definitions for the instrument. The definitions of micro-business and micro-business employee work together to define which DAMP organisations are micro-businesses to which the exemption applies.
Section 4 exempts a micro-business from compliance with each provision of Subpart 99.B of CASR subject to the conditions set out in section 5.
Section 5 sets out the conditions imposed on the exemption. The conditions include time frames, depending upon when the micro-business came into existence, for the micro-business to adopt as its DAMP a DAMP in the form of the CASA Micro-business DAMP and to give CASA a copy of the adopted DAMP and specified other information. The micro-business must comply with the terms of its DAMP and cooperate with CASA in any audit of its DAMP. The adoption of a DAMP by a micro-business must be done in writing and by its most senior executive manager.
CASA has regarded as paramount the preservation of at least an acceptable level of safety in regard to the exemption.
Documents incorporated by reference
This legislative instrument incorporates by reference the CASA Micro-business DAMP, which provides a simplified template drug and alcohol management plan that can be readily adopted by micro-businesses. In accordance with subsection 98 (5D) of the Act, the Plan is incorporated as existing from time to time. The CASA Micro-business DAMP is published by CASA on its website, and is available for download from the CASA website at https://www.casa.gov.au free of charge.
Legislation Act 2003 (the LA)
Paragraph 98 (5A) (a) of the Act provides that CASA may issue instruments in relation to matters affecting the safe navigation and operation or the maintenance of aircraft. Additionally, paragraph 98 (5AA) (a) of the Act provides that an instrument issued under paragraph 98 (5A) (a) is a legislative instrument if the instrument is expressed to apply in relation to a class of persons. As the instrument exempts micro-businesses from each provision in Subpart 99.B of CASR, the instrument is a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LA.
Consultation
Consultation on this instrument has not been undertaken in this case because of the extensive consultation which preceded the making of the original exemption whose scope this new exemption extends. No adverse feedback on the operation of the original exemption or its successors has been received by CASA.
During DAMP surveillance activities, an information roadshow in 2014 and general communication with industry, eligible organisations were encouraged to take advantage of the exemption for micro-businesses.
The instrument continues existing arrangements which alleviates the burden on aviation-related businesses by avoiding the need for them to develop and implement a “full-scale” DAMP provided they adopt a DAMP in the form of the CASA Micro-business DAMP.
This year CASA is progressing amendments to Part 99 of CASR so that this exemption will no longer be required. CASA anticipates that these changes will be made in early 2020 or beforehand.
In these circumstances, CASA is satisfied that no consultation is appropriate or reasonably practicable for this instrument for section 17 of the LA.
Office of Best Practice Regulation
A Regulation Impact Statement is not required because the exemption is covered by a standing agreement between CASA and OBPR under which a RIS is not required for exemptions (OBPR id: 14507).
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights at Attachment 1 has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. It also promotes the protection of human rights by reducing circumstances in which drug and alcohol testing is conducted.
Making and commencement
This instrument has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR.
This instrument commences on 1 June 2018 and is repealed at the end of 31 May 2020.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX66/18 — Implementation of Drug and Alcohol Management Plans (Micro-businesses) Exemption 2018
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 legislative instrument is an exemption for aviation-related micro-businesses from the requirements to have a “full-scale” drug and alcohol management plan (DAMP) under Part 99B of the Civil Aviation Safety Regulations 1998 (CASR) provided they adopt as their DAMP a DAMP based on the more flexible and simplified CASA micro-business drug and alcohol management program (CASA Micro-business DAMP). The exemption is beneficial for the micro-businesses concerned who, because of their size, resources and location, would otherwise have to fully comply with the requirements of CASR Part 99 for a “full-scale” DAMP. Among other things, adoption of the CASA Micro-business DAMP reduces the range of circumstances under Part 99 of CASR in which a person may be required to submit to a drug or alcohol test.
Human rights implications
This legislative instrument engages positively with the right to privacy by reducing the range of circumstances in which a person may be required to submit to drug or alcohol testing.
The change arguably engages positively with the right to work by reducing the circumstances in which a person may be prevented from working due to being under the influence of alcohol or drugs. The change arguably engages negatively with rights at work by potentially reducing the level of health and safety in relevant workplaces if an employer does not identify that a person is working under the influence of drugs or alcohol. The risks are mitigated by the conditions on the instrument, which are intended to ensure the appropriate management of risks associated with alcohol and other drug impacts on aviation in the circumstances in which the exemptions apply.
The engagement with the right to work and rights at work promote the general welfare of Australian society by reducing the drug and alcohol testing burden on small aviation related businesses, which are often in remote locations, thereby assisting these business to continue to provide employment. The changes are reasonable and proportionate to the risks associated with the exemptions and conditions in the instrument.
Conclusion
This legislative instrument is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. It also promotes the protection of human rights by reducing circumstances in which drug and alcohol testing is conducted.
Civil Aviation Safety Authority