Civil Aviation AOD 2008/2

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2008L04586 In force Legislative Instrument

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EXPLANATORY STATEMENT

Legislative Instrument Civil Aviation AOD 2008/2

Issued by the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government.

Civil Aviation Act 1988

Legislation

Section 34 of the Civil Aviation Act 1988 (the Act) provides that regulations may make provision for, and in relation to, the development, implementation and enforcement of drug and alcohol management plans (DAMPs) covering persons who perform, or are available to perform, safety-sensitive aviation activities (SSAAs), and for, and in relation to, drug and alcohol tests to be conducted by the Civil Aviation Safety Authority (CASA) in respect of persons who perform, or are available to perform, SSAAs. Subsection 9(1) of the Act specifies that CASA has the function of conducting safety regulation of civil air operations by means that include administering Part IV of the Act (which includes section 34).

Subsection 33(1) of the Act provides that a drug or alcohol test means:

(a) a test of a body sample of a person to determine the presence (if any), but not the level, of alcohol or a testable drug in the sample; or

(b) a test of a body sample of a person to determine the presence (if any), and the level, of alcohol or a testable drug in the sample.

Subsection 33(1) of the Act defines testable drug as a drug specified in an instrument under subsection (2). Subsection 33(2) of the Act provides that the Minister may, by legislative instrument, specify a drug for the purposes of the definition of testable drug in subsection (1).

Background

Legislative instrument Civil Aviation AOD 2008/1, registered on 23 September 2008, specified drugs for the purposes of the definition of testable drug in subsection 33(1) of the Act.

However, a typographical error in listing the drug “Δ9-tetrahydrocannabinol” resulted in the numeral “10” being appended to the name of the drug.

Although it was clear what was intended, and a court would arguably permit use of the slip rule of interpretation to apply this intent, the matter was not beyond doubt. Numerals and symbols are used in the names of certain drugs and it was open to a court to consider that “Δ9-tetrahydrocannabinol 10” was not the same substance as that intended to be prescribed as a testable drug, namely “Δ9-tetrahydrocannabinol”.

Legislative instrument Civil Aviation AOD 2008/2

The instrument, therefore, revokes legislative instrument Civil Aviation AOD 2008/1 and remakes it with the typographical error removed. No other significant change has been made to the instrument. However, the opportunity has been taken to reformat the instrument consistently with the format of other instruments relevant to CASA, and to list the testable drugs in an order for ease of reference. Those drugs with a symbol or numeral at the beginning of their name are listed first.

Details of the instrument are set out in Attachment 1.

Legislative Instruments Act 2003

Subsection 33(2) of the Act provides that the Minister may, by legislative instrument, specify a drug to be a testable drug.

Subsection 15AE(1) of the Acts Interpretation act 1901 provides that if a provision of a law requires or permits an instrument that is described as a legislative instrument to be made, then the instrument so made is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA).

Legislative instrument Civil Aviation AOD 2008/2 is, therefore, a legislative instrument, subject to tabling and disallowance in the Parliament under sections 38 and 42 of the LIA.

Consultation

Consultation under section 17 of the LIA has not been considered necessary for this instrument.

Office of Best Practice Regulation (OBPR)

A preliminary assessment of business compliance costs indicates that the instrument as such will have no cost impact on business.

Commencement and making

The instrument comes into effect on the day after it is registered.

The instrument has been made by the Minister for Infrastructure, Transport, Regional Development and Local Government.

[Legislative instrument Civil Aviation AOD 2008/2]

Attachment 1

Details of Legislative instrument Civil Aviation AOD 2008/2

1 Name of instrument

This section provides that the name of the instrument is Civil Aviation AOD 2008/2 (the testable drugs specification).

2 Commencement

This section provides that the instrument commences on the day after it is registered.

3 Revocation

This section provides that the previous instrument, Civil Aviation AOD 2008/1, is revoked.

4 Specification of testable drugs for Part IV of the Civil Aviation Act

This section contains the Minister’s specification of the drugs in Schedule 1 as testable drugs for the purposes of the definition of testable drug in subsection 33(1) of the Civil Aviation Act 1988.

Schedule 1 Testable drugs

This Schedule contains a table listing the testable drugs for section 4, as follows:

Item	Testable drug
1	Δ9-tetrahydrocannabinol
2	6-Acetyl morphine
3	Amphetamine
4	Benzoylecgonine
5	Cocaine
6	Codeine
7	Ecgonine methyl ester
8	Methylamphetamine
9	Methylenedioxyamphetamine
10	Methylenedioxymethylamphetamine
11	Morphine

Overview

The Civil Aviation AOD 2008/2 legislative instrument, issued under the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government, addresses a specific issue arising from a typographical error in the previous legislative instrument, Civil Aviation AOD 2008/1. The earlier instrument listed "Δ9-tetrahydrocannabinol" as "Δ9-tetrahydrocannabinol 10", which could have led to ambiguity in legal interpretation despite the clear intent. This new instrument revokes the earlier one and corrects the typographical error, ensuring clarity and precision in the definition of testable drugs under the Civil Aviation Act 1988. The policy objective is to ensure that the correct substances are specified for drug and alcohol testing in aviation, thereby maintaining safety standards. Subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003, this instrument comes into effect on the day after its registration. The instrument has been made by the Minister for Infrastructure, Transport, Regional Development and Local Government. No significant changes other than the correction of the error have been made, though the format has been reformatted for consistency with other Civil Aviation Safety Authority (CASA) instruments, and the list of testable drugs has been organised for ease of reference. The instrument has been issued without the need for consultation, and a preliminary assessment by the Office of Best Practice Regulation indicates no additional compliance costs for businesses.

Scope and Application

The Civil Aviation AOD 2008/2 is a legislative instrument that pertains to the Civil Aviation Act 1988, specifically addressing the specification of testable drugs for the purposes of drug and alcohol management plans (DAMPs) in civil aviation. This instrument applies to individuals and entities involved in safety-sensitive aviation activities (SSAAs) within the Commonwealth of Australia. The primary focus of the Act is to ensure the safety of air operations by implementing drug and alcohol management plans, as well as conducting drug and alcohol tests for persons involved in SSAAs. These persons are required to undergo testing by the Civil Aviation Safety Authority (CASA) to ensure compliance with safety regulations. The instrument revokes the previous specification of testable drugs, Civil Aviation AOD 2008/1, and corrects a typographical error in the listing of the drug "Δ9-tetrahydrocannabinol." The corrected instrument lists the testable drugs in an order for ease of reference and includes a preliminary assessment indicating no business compliance costs associated with the changes. The instrument comes into effect on the day after it is registered and is subject to tabling and disallowance in the Parliament under the Legislative Instruments Act 2003.

Key Provisions

Section 34 of the Civil Aviation Act 1988 allows for regulations to establish drug and alcohol management plans (DAMPs) and tests for individuals involved in safety-sensitive aviation activities. The Civil Aviation Safety Authority (CASA) is responsible for administering these provisions, including conducting drug and alcohol tests. Section 33 of the Act defines a drug or alcohol test and a testable drug, which is a drug specified by the Minister through a legislative instrument. Section 33(2) of the Act gives the Minister the authority to specify these drugs, and this authority is exercised through the legislative instrument Civil Aviation AOD 2008/2. The obligations imposed by this Act on the parties it governs include the requirement for individuals involved in safety-sensitive aviation activities to comply with drug and alcohol management plans and undergo testing as required by CASA. CASA is tasked with ensuring that these regulations are effectively implemented and enforced. This includes conducting tests for the presence of testable drugs and alcohol, as specified in the legislative instrument, and ensuring that these tests are conducted in accordance with the prescribed procedures. The Act also sets out potential consequences for non-compliance. Offences under the Act, including the failure to comply with drug and alcohol management plans or tests, can lead to both civil and criminal penalties. The specific penalties depend on the nature and severity of the offence, but can include fines and imprisonment. The exact maximum penalties are not specified in this particular legislative instrument, but they are outlined in other sections of the Civil Aviation Act 1988 and related regulations. Non-compliance with drug and alcohol management plans and tests can also result in the suspension or revocation of licenses and other authorisations necessary for performing safety-sensitive aviation activities.

Area of Law: Administrative Law
Instrument: Legislative Instrument
Concepts: Definitions & Interpretation; Regulatory Standards; Enforcement Powers

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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