Explanatory Statement
Civil Aviation Safety Regulations 1998
Exemption from CASR Subpart 99.B for micro-businesses
Purpose and summary
Under Subpart 99.B of the Civil Aviation Safety Regulations 1998 (CASR 1998), organisations (DAMP organisations) with employees or contractors who perform, or are available to perform, safety sensitive aviation activities (SSAA) must develop and implement drug and alcohol management plans (DAMPs).
Instrument CASA EX167/12 exempted small DAMP organisations (known as micro‑businesses) with not more than 10 regular SSAA employees from the obligation to have a statutory DAMP, provided they formally adopted a specially prepared and simplified CASA drug and alcohol management program instead (a micro‑business DAMP). The exemption did not apply to micro-businesses that were engaged in, or that provided services to, any regular public transport (RPT) operation.
As was previously the case, the new exemption does not apply to micro-businesses that are engaged in, or that provide services to, any RPT operation.
Legislation — exemptions
Subpart 11.F of CASR 1998 deals with exemptions.
Under subregulation 11.160 (1) of CASR 1998, and for subsection 98 (5A) of the Civil Aviation Act 1988 (the Act), CASA may, by instrument, grant an exemption from a provision of the Civil Aviation Regulations 1988 (CAR 1988), CASR 1998 or a Civil Aviation Order in relation to a matter mentioned in subsection 98 (5A).
Under subregulation 11.160 (2) of CASR 1998, an exemption may be granted to a person or a class of persons.
Under regulation 11.205 of CASR 1998, 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. Under regulation 11.225, CASA must, as soon as practicable, publish on the Internet details of all exemptions under Subpart 11.F.
Under subregulation 11.230 (1), an exemption (but not an exceptional circumstances exemption for regulation 11.185 about major emergencies) may remain in force for 3 years or for a shorter period specified in the instrument.
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.
Legislation — drug and alcohol management
Under subsection 9 (1) of 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 DAMPs for people who perform applicable 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.
DAMPs
Part 99, Drug and alcohol management plans and testing (CASR Part 99) commenced on 23 September 2008. 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 who perform applicable SSAA (SSAA employees) and is on a generic list of organisations defined in subregulation 99.030 (2), for example, AOC holders, maintenance organisations, aerodrome operators, air traffic service providers etc.
Applicable SSAA are defined 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 the definitions in regulation 99.010 (1) of CASR 1998, a DAMP means a plan that complies, or purports to comply, with the requirements of regulation 99.045.
Drug and alcohol testing obligations under DAMPs
Under paragraph 99.045 (a) of CASR 1998, a DAMP organisation’s DAMP must apply to all applicable SSAA employees of the organisation (employees is defined to include people working under a contract for services).
Under paragraph 99.045 (b) of CASR 1998, 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 99.050 (b) of CASR 1998, assuming test conditions exist, drug and alcohol testing of a DAMP organisation’s applicable SSAA employees must be carried out under its DAMP if there is an accident or serious incident involving the employee while he or she is performing, or available to perform, SSAA (post-accident testing).
Similarly, under paragraph 99.050 (c) of CASR 1998, drug and alcohol testing of a DAMP organisation’s SSAA employee must be carried out under its DAMP if a DAMP supervisor has reasonable grounds to believe that an SSAA employee may be adversely affected by a testable drug or by alcohol while he or she is performing, or available to perform, SSAA (reasonable grounds testing).
Under regulation 99.055 of CASR 1998, a DAMP organisation’s DAMP must include a requirement to consult a DAMP medical review officer to determine if the positive presence and level of a testable drug, confirmed by confirmatory testing, could be the result of legitimate therapeutic treatment or some other innocuous source (a medical review). 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 (also a medical review).
Under subregulation 99.065 (1) of CASR 1998, 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.
Equally, under subregulation 99.065 (2) of CASR 1998, a DAMP organisation’s DAMP must include a requirement that the organisation not permit an employee to perform SSAA if the employee is under reasonable suspicion of drug or alcohol impairment, or has been involved in an accident or serious incident and a test has not been conducted or has not yet produced test results.
DAMP contractors
Under subregulation 99.010 (1) of CASR 1998, an employee of a DAMP organisation includes a DAMP contractor of the organisation. Under subregulation 99.010 (1), a DAMP contractor means a person, or the employee of a person, who is a contractor to the DAMP organisation, or a subcontractor (or sub-subcontractor etc.) to the contractor (or subcontractor). A DAMP contractor may itself be a DAMP organisation. Generally speaking, DAMP organisations must assume drug and alcohol responsibility for their contractors who are to be treated as employees for this purpose.
The issue for micro-businesses
Because of the usually unvarying size and often remote locality of small aviation-related businesses (known as micro-businesses), CASA issued exemption CASA EX72/12, renewed by CASA 167/12, on its own initiative to relieve such organisations of the obligation to develop and implement a full-scale statutory DAMP, provided they adopted a micro-business DAMP as referred to previously. The 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 micro-business DAMP recognised 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 pre-deployment and other drug and alcohol testing, and in meeting the mandated relevant Australian and New Zealand Standards for testing, particularly drug testing. For more effective implementation of CASR Part 99 in micro-businesses without unduly sacrificing safety outcomes, CASA considered that it was necessary to offer a simpler avenue to compliance.
The issue for CASA
The purpose of the exemptions and of the CASA micro-business DAMP is to realistically but responsibly modify the nature of the drug and alcohol management responsibilities of micro-businesses.
The Exemption
A micro-business is defined as a DAMP organisation that has not more than 10 regular SSAA employees performing, or available to perform, an applicable SSAA for the micro-business. The micro-business must not be one that is engaged in, or that provides services to, any RPT operation.
Under the renewed exemption, a micro-business continues to be exempt from each provision of Subpart 99.B of CASR 1998, except each provision in Division 99.B.4 (dealing generally with review and audit of DAMPs — these obligations and powers continue to apply as if the micro-business DAMP were a CASR Part 99 DAMP).
Legislative Instruments Act
As noted above, exemptions under subregulation 11.160 (1) of CASR 1998 are “for subsection 98 (5A)” of the Act, that is, for regulations which empower the issue of certain instruments, like exemptions, in relation to “(a) matters affecting the safe navigation and operation, or the maintenance, of aircraft”, and “(b) the airworthiness of, or design standards for, aircraft”.
The exemption is clearly one in relation to matters affecting the safe navigation and operation of aircraft. Under subsection 98 (5AA) of the Act, an exemption issued under paragraph 98 (5A) (a) for such matters is a legislative instrument if expressed to apply in relation to a class of persons, a class of aircraft or a class of aeronautical products (as distinct from a particular person, aircraft or product).
The exemption applies to a class of persons and is, therefore, a legislative instrument subject to registration, and tabling and disallowance in the Parliament, under sections 24, and 38 and 42, of the Legislative Instruments Act 2003 (the LIA).
Consultation
Consultation under section 17 of the LIA 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.
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. Common issues listed below emerged.
The CASA micro-business DAMP has not been formally adopted by many micro‑businesses because the policy is regarded as unclear and requiring further explanation.
Organisations have also expressed uncertainty as to the meaning of the terms they have agreed to. As a result, the wording of the micro-business DAMP has been clarified and moved to the actual exemption as an attachment to be more accessible.
Office of Best Practice Regulation (OBPR)
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 in Appendix 1 is 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.
Commencement
The instrument commences on the day of registration and expires at the end of May 2018, as if it had been repealed by another instrument.
Making
The exemption has been made by a delegate of CASA relying on the power of delegation under subregulation 11.260 (1) of CASR 1998.
[Instrument number CASA EX98/15]
Appendix 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Exemption from CASR Subpart 99.B for micro-businesses
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 which clarifies a previous exemption (CASA EX167/12). It is an exemption from the requirements to have a drug and alcohol management plan (DAMP) under Part 99B of CASR 1998 provided they adopt 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 somewhat more complex and onerous statutory requirements of CASR Part 99.
Human rights implications
The 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. The exemption 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