Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption — CASR Part 99 DAMP requirements for CAR 30 or Part 145 organisations overseas
Purpose
The purpose of this exemption is to exempt the holder of a certificate of approval under regulation 30 of the Civil Aviation Regulations 1988 (CAR 1988) and Part 145 organisations, who are engaged in aircraft maintenance overseas, from the requirement in Part 99 of the Civil Aviation Safety Regulations 1998 (CASR 1998) to have a drug and alcohol management plan (DAMP).
It also revokes a previous instrument issued for the same reason.
Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
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), CASA may grant an exemption on its own initiative. 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) 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 11.225, 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.
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 safety-sensitive aviation activities (SSAA) and is on a generic list of organisations defined in subregulation 99.030 (2) of CASR 1998, for example, a holder of a certificate of approval under regulation 30 of CAR 1988 (a CAR 30 organisation) or the holder of an approval certificate under regulation 145.035 (a Part 145 organisation).
Subpart 99.B of CASR 1998 sets up a scheme whereby all Part 145 organisations holders and CAR 30 organisations are required to implement and maintain a DAMP. CASA, however, is aware that it is not possible within current timeframes and resources for CASA to effectively develop an international audit program simultaneously with its domestic program. Similarly, CASA considers that it is not realistically possible for many of the organisations, for whom Australian operations are only a component of their broader international operations, to make a full conversion of their existing drug and alcohol control policies to CASR Part 99 DAMP requirements within the given timeframe.
Exemption
For the reasons provided above, this instrument exempts Part 145 organisations and CAR 30 organisations from compliance with Subpart 99.B of CASR 1998, in respect of their operations conducted outside Australia The exemption does not in any way limit the application of CASR Part 99 to any relevant organisation or person within Australia.
The exemption is subject to conditions which are also set out in the instrument.
In particular, it is a condition of the exemption that a CAR 30 organisation or Part 145 organisation must notify CASA in writing of the measures it has in place to ensure that, in carrying out activities under its certificate of approval, none of the persons employed by, or working under an arrangement with, the organisation is affected by alcohol or a testable drug. Until CASA is so notified, the exemption does not take effect for the organisation.
This instrument revokes and replaces a previous exemption, CASA EX181/12, in order to correct out-of-date or misleading references. The reference to a CAR 30 CofA holder in that exemption should have been to a CAR 30 COA holder. COA is the accepted abbreviation for a certificate of approval, while CofA refers to a certificate of airworthiness. Although CofA was defined inside the instrument as meaning certificate of approval, it was considered desirable to refer to a CAR 30 organisation. In addition, Schedule 1, condition 1 referred to an organisation that was transitioning to a Part 145 organisation. The new instrument refers to a Part 145 organisation to cover new applicants for approvals under Part 145 of CASR 1998 as well as existing holders of certificates of approval under regulation 30 of CAR 1988 that were changing to Part 145 organisations.
Legislative Instruments Act
For subsection 98 (5A) of the Act, CASA may, by instrument, grant an exemption from compliance with a provision of the Regulations or Civil Aviation Orders. An instrument issued under paragraph 98 (5A) (a) of the Act is a legislative instrument if the instrument is expressed to apply to a class of persons or aircraft. The exemption applies to a class of persons, that is, CAR 30 and Part 145 organisations. The exemption is, therefore, a legislative instrument and is subject to tabling and disallowance in the Parliament under sections 38 and 42 of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA took place with a number of overseas CAR 30 organisations when the policy for granting exemptions from Part 99.B was being determined. The policy has not changed and remains as described in this statement. Revocation and replacement of CASA EX181/12 was necessary because the organisations to which it applied were not accurately described, and an abbreviation was not in accordance with aviation terminology. Apart from those matters, there had been no issues with the previous instrument. On that basis, the instrument has been replaced without further consultation. The new instrument only clarifies the intended effect of the previous instrument and makes sure that its operation is not affected by misinterpretation.
Office of Best Practice Regulation (OBPR)
The exemption is a revocation and renewal of a previous exemption for which the OBPR did not require the preparation of a Regulation Impact Statement because a preliminary assessment of business compliance costs in the context of the nature of the instrument indicated that it would have only a nil to low impact on business.
Statement of Compatibility with Human Rights
A Statement of Compatibility with Human Rights is at Attachment 1.
Making and commencement
The exemption 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 after registration. It expires at the end of 31 August 2016, as if it had been repealed by another instrument.
[Instrument number CASA EX95/13]
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption — CASR Part 99 DAMP requirements for CAR 30 or Part 145 organisations overseas
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 exempts certain maintenance organisations for whom Australian operations are only a component of their broader international operations, from full compliance with the Drug and Alcohol Management Plan requirements in Part 99 of the Civil Aviation Safety Regulations 1998.
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