Explanatory Statement
Civil Aviation Safety Regulations 1998
CASA EX81/20 — Implementation of Drug and Alcohol Management Plans (Micro-businesses and DAMP Organisations) Exemption 2020
Purpose
The purpose of CASA EX81/20 — Implementation of Drug and Alcohol Management Plans (Micro-businesses and DAMP Organisations) Exemption 2020 (the instrument) is:
- to renew the exemption in instrument CASA EX66/18 — Implementation of Drug and Alcohol Management Plans (Micro-businesses) Exemption 2018 (CASA EX66/18), which exempts 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)
- to repeal CASA EX05/18 — Implementation of Drug and Alcohol Management Plans Exemption 2018 (CASA EX05/18) and renew the exemptions in that instrument, being 2 types of exemptions under Division 11.F.1 of CASR, which exempt a DAMP organisation, as defined in regulation 99.010 of CASR and in stated circumstances, from compliance with regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR, to the extent that these provisions require the organisation to implement a DAMP in relation to a safety-sensitive aviation activity (SSAA) employee’s performance of, or availability to perform, an applicable SSAA for the organisation.
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 CASR.
Key terms, used in the instrument, are defined in subregulation 99.010 (1) of CASR as follows:
- applicable SSAA is defined to mean a SSAA to which Part 99 of CASR applies under regulation 99.015 of CASR. 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.
- employee, in relation to a DAMP organisation, is defined to include a DAMP contractor of the DAMP organisation. The term DAMP contractor is also defined.
- DAMP or drug and alcohol management plan is defined to mean a drug and alcohol management plan that complies, or purports to comply, with the requirements of regulation 99.045 of CASR.
- DAMP organisation is defined to mean a person that is required to have a DAMP under subregulation 99.030 (1) of CASR.
- SSAA employee is defined, in relation to a DAMP organisation, to mean an employee of the DAMP organisation who performs, or is available to perform, an applicable SSAA.
Under subregulation 99.030 (1) of CASR, a DAMP organisation must develop a DAMP if it has 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.
Under subregulation 99.035 (1) of CASR, a person who is required to develop a DAMP must implement a DAMP by:
(a) giving effect to regulation 99.080 of CASR; and
(b) making the DAMP available to the person’s SSAA employees, as required by Subpart 99.B of CASR.
Regulation 99.040 of CASR deals with the requirement for a DAMP organisation to make its DAMP available to its SSAA employees.
Regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR are referred to in the instrument as the exempted provisions.
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 paragraph 99.045 (d) of CASR, a DAMP organisation’s DAMP must be implemented as required by regulation 99.080 and set out details of those requirements.
Under regulation 99.055 of CASR, a DAMP organisation’s DAMP must include a requirement to consult a DAMP medical review officer (MRO) in relation to a positive drug test. In addition, the DAMP must have a requirement to consult a DAMP 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.
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, the Civil Aviation Safety Authority (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, and may specify the class by reference to membership of a specified body or any other characteristic.
Under subregulation 11.175 (4) of CASR, in deciding whether to reissue an exemption, CASA must regard as paramount the preservation of at least an acceptable level of aviation safety. CASA has regard to the same test when deciding whether to grant an exemption on its own initiative.
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.
Background
CASA EX66/18
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, renewed by CASA EX66/18, 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 MROs, 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.
CASA EX66/18 expires at the end of 31 May 2020.
CASA EX05/18
CASA issued exemption CASA EX05/18 to relieve a DAMP organisation, in stated circumstances, from the administrative and cost burden of implementing its DAMP in relation to a SSAA employee (as broadly defined in subregulation 99.010 (1) of CASR) where another DAMP has been implemented by another DAMP organisation in relation to the employee.
CASA EX05/18 refers to the exemptions in CASA EX66/18. It does not expire until the end of July 2020, but as it is related to CASA EX66/18, CASA has decided in the interests of clarity to reissue CASA EX66/18 and CASA EX05/18 as one instrument.
Content of instrument
This instrument renews the scheme in instruments CASA EX66/18 and in CASA EX05/18.
The effect of the instrument is to continue 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 2020 and is to be repealed at the end of 31 May 2023.
Section 3 repeals instrument number CASA EX05/18.
Section 4 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 in section 5 applies.
Section 5 exempts a micro-business from compliance with each provision of Subpart 99.B of CASR subject to the conditions set out in section 6.
Section 6 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.
Section 7 is a transitional provision to the effect that micro-businesses that have already adopted the CASA Micro-business DAMP under CASA EX66/18 are not required to adopt the CASA Micro-business DAMP under subsection 6 (1).
Section 8 of the instrument applies if:
(a) there is a contract between a DAMP organisation or a micro-business DAMP organisation (the first organisation) and another DAMP organisation (the second organisation) in relation to the performance of an applicable SSAA for the second organisation; and
(b) a SSAA employee of the first organisation performs, or is available to perform, the applicable SSAA for the second organisation; and
(c) the second organisation is satisfied on reasonable grounds that the first organisation is implementing the first organisation’s DAMP, or its micro‑business DAMP, in relation to the employee.
For paragraph (c), the implementation must be in accordance with the requirements of CASR. The obligation in paragraph (c) is ongoing in nature, insofar as the second organisation cannot rely on the exemption at a particular point in time in relation to an employee unless it is satisfied at that point in time that the first organisation’s DAMP is being implemented in relation to the SSAA employee. However, the condition does not require the second organisation to check for implementation of the first organisation’s DAMP each time the employee performs, or is available to perform, an applicable SSAA. If it is reasonable to do so, a check that the first organisation’s DAMP has been implemented at a point in time may enable the second organisation to have reasonable grounds to be satisfied that implementation will continue for a period of time.
If section 8 applies, the second organisation is exempted from compliance with the exempted provisions to the extent that the compliance requires implementation of the organisation’s DAMP in relation to the employee’s performance, or availability to perform, the applicable SSAA.
The exemption is subject to conditions for the second organisation to keep, and eventually destroy, records evidencing the satisfaction. This condition reflects similar obligations of DAMP organisations under Part 99 of CASR.
The exemption is also subject to a condition that ensures that the second organisation implements its DAMP, in relation to a SSAA employee from the first organisation, with respect to the matters mentioned in subregulation 99.065 (2) of CASR. That subregulation requires that a DAMP include requirements relating to the exclusion of SSAA employees from applicable SSAA if the employee is suspected of being under the influence of prescribed drugs or alcohol, or if the employee is involved in an accident or serious incident. The instrument also requires the second organisation to notify the first organisation of any such implementation of the second organisation’s DAMP in relation to the SSAA employee.
The policy intent of this exemption is to relieve a DAMP organisation, in stated circumstances, from the administrative and cost burden of implementing its DAMP in relation to a SSAA employee (as broadly defined in subregulation 99.010 (1) of CASR) where another DAMP has been implemented by another DAMP organisation in relation to the employee.
An example of where the exemption will be relevant is where a Part 145 approved maintenance organisation (AMO, the first organisation), which will be a DAMP organisation, is contracted by a commercial aircraft operator (the second organisation), which will also be a DAMP organisation, for the performance of maintenance on the second organisation’s aircraft. Employees of the first organisation will be DAMP contractors under Part 99 of CASR in relation to the second organisation. The exemption will permit the second organisation to not implement its DAMP in relation to employees of the first organisation, as long as the second organisation is satisfied on reasonable grounds that the first organisation is implementing its DAMP in relation to the employees (and if other requirements of the instrument are met).
Section 9 of the instrument applies if:
(a) there is a contract between an emergency services organisation and a DAMP organisation in relation to the performance of an applicable SSAA for the DAMP organisation; and
(b) the emergency services organisation is a non-DAMP organisation; and
(c) an employee of the emergency services organisation performs, or is available to perform, the applicable SSAA for the DAMP organisation in response to an emergency; and
(d) it is not reasonably practicable for the DAMP organisation to implement its DAMP in relation to the employee’s performance of, or availability to perform, the applicable SSAA in response to the emergency.
The DAMP organisation is exempted from compliance with the exempted provisions to the extent that the compliance requires implementation of the organisation’s DAMP in relation to the employee’s performance of, or availability to perform, the applicable SSAA in response to the emergency.
The exemption in section 9 is subject to the following conditions:
(a) the DAMP organisation must give the employee a drug and alcohol risk mitigation notice not more than 24 hours before the employee performs, or is available to perform, the applicable SSAA for the DAMP organisation in response to the emergency;
(b) the DAMP organisation must make a contemporaneous record of the following information:
(i) the name and address of the employee to whom the notice is given;
(ii) the date and time the employee is given the notice;
(iii) details of the emergency in relation to which the notice is given;
(c) if the DAMP organisation has reasonable grounds to believe the employee is adversely affected by a drug or alcohol while performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation must not allow the employee to perform, or be available to perform, the SSAA in response to the emergency whilst the reasonable grounds continue to exist;
(d) if an accident or serious incident happens, involving the employee, while the employee is performing, or available to perform, the applicable SSAA in response to the emergency, the DAMP organisation must not allow the employee to perform, or be available to perform, the SSAA in response to the emergency during the period of 32 hours after the time the accident or incident happened.
The term drug and alcohol risk mitigation notice is defined in subsection 9 (4) of the instrument.
The policy intent of this exemption is to exempt a DAMP organisation from its obligation to implement its DAMP in relation to a SSAA employee where it is not reasonably practicable for the organisation to implement its DAMP in relation to the employee’s performance of, or availability to perform, an applicable SSAA in response to an emergency.
An example of where the exemption will be relevant is where a commercial aircraft operator (a DAMP organisation) with expertise in bush firefighting support activities is contracted by an emergency services organisation such as a State or Territory police force. The DAMP organisation may carry suitably trained police officers for purposes such as winching and obstacle clearance, which activities are SSAA. The police officers, by virtue of the contract, will be DAMP contractors of the DAMP organisation. The exemption will permit the performance of the SSAA by the police officers, without implementation of the DAMP organisation’s DAMP in relation to the police officers, if it is not practicable to do so before performance of the SSAA.
In renewing the exemptions under the instrument, CASA has regarded as paramount the preservation of at least an acceptable level of aviation safety.
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 10 (1) (d) of the LA provides that an instrument will be a legislative instrument if it includes a provision that amends or repeals another legislative instrument. This instrument repeals instrument CASA EX05/18 that was registered as a legislative instrument and is, therefore, also a legislative instrument.
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, and DAMP organisations from compliance with the exempted provisions in the specified circumstances, the instrument is a legislative instrument.
Therefore, the instrument 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.
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 March 2022.
In these circumstances, CASA is satisfied that no further consultation is appropriate or reasonably practicable for the instrument for section 17 of the LA.
Office of Best Practice Regulation (OBPR)
A Regulation Impact Statement (RIS) is not required in this instance, as the exemptions are 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 does not engage any of the applicable rights or freedoms, and is compatible with human rights, as it does not raise any human rights issues.
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 1 June 2020 and is repealed at the end of 31 May 2023.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
CASA EX81/20 — Implementation of Drug and Alcohol Management Plans (Micro‑businesses and DAMP Organisations) Exemption 2020
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 grants an exemption for aviation-related micro-businesses from the requirements to have a “full-scale” drug and alcohol management plan (DAMP) under Subpart 99.B 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 Subpart 99.B of CASR 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.
The legislative instrument also renews 2 exemptions under Division 11.F.1 of CASR. Subpart 99.B of CASR requires a DAMP organisation to implement its DAMP in relation to the safety-sensitive aviation activity (SSAA) employees of the organisation who perform, or are available to perform, specified SSAAs. These 2 exemptions in the legislative instrument exempt a DAMP organisation, in stated circumstances, from compliance with regulations 99.035 and 99.040, and paragraph 99.045 (d), of CASR, to the extent that this relates to the implementation of its DAMP in relation to a SSAA employee’s performance of, or availability to perform, an applicable SSAA for the organisation.
The first circumstance is where an employee of a DAMP organisation contracts another organisation, which implements a DAMP or DAMP-like scheme, for the provision of personnel. In this circumstance, the instrument will permit the first organisation to rely on the implementation of the DAMP or DAMP-like scheme of the second organisation, so that there is no duplication.
The second circumstance is where it is impracticable to implement a DAMP for a person in relation to the response to an emergency situation, for example, a bushfire emergency.
Among other things, the operation of the exemptions 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