EXPLANATORY STATEMENT
Select Legislative Instrument 2008 No. 275
Issued by the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government.
Civil Aviation Act 1988
Civil Aviation Safety Amendment Regulations 2008 (No. 3)
Subsection 98 (1) of the Civil Aviation Act 1988 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, 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. That subsection also provides that the Governor-General may make regulations in relation to the safety of air navigation, being regulations with respect to any other matters with respect to which the Parliament has power to make laws.
Part IV of the Act provides that regulations may make provision for and in relation to the development, implementation and enforcement of drug and alcohol management plans, and drug and alcohol tests, covering persons who perform, or are available to perform, safety-sensitive aviation activities.
Paragraph 9(1) (da) of the Act provides that the Civil Aviation Safety Authority (CASA) has the regulatory function of administering Part IV of the Act. Subsection 9(1) of the Act also specifies, in part, that CASA has the function of conducting the safety regulation of civil air operations in Australian territory by means that include developing and promulgating appropriate, clear and concise aviation safety standards and issuing certificates, licences, registrations and permits.
The Civil Aviation Regulations 1988 (the CARs) and the Civil Aviation Orders (the CAOs) detail requirements in support of the Act and promote the safety of air navigation. Since 1998 matters covered by the CARs and CAOs are progressively being consolidated in the Civil Aviation Safety Regulations 1998 (the CASRs).
The CASRs were amended on 23 September 2008 to insert a new Part 99 entitled Drug and alcohol management plans and testing. Those amendments established a framework for the development of drug and alcohol management plans for the aviation sector, similar to those already in place in other transport sectors, and introduced a random drug and alcohol testing regime for all persons involved in safety-sensitive aviation activities.
The Civil Aviation Safety Amendment Regulations 2008 (No. 3) (the Regulations) amend CASR Part 99 setting out a list of 11 testable drugs and the permitted levels of each. The Regulations also correct two minor reference errors.
Background on and details of the Regulations are set out in the Attachment.
Extensive consultation under section 17 of the Legislative Instruments Act 2003 (LIA) was undertaken before the Civil Aviation Safety Amendment Regulations 2008 (No. 1) were made. Since the Regulations are merely legal corrections which do not alter the intended meaning or effect of CASR Part 99, no consultation was considered necessary before making the Regulations.
A Regulatory Impact Statement (RIS) was required for the Civil Aviation Safety Amendment Regulations 2008 (No. 1) and, accordingly, CASA prepared RIS ORR ID: 8301. However, on this occasion, as the Regulations correct drafting errors only, the Office of Best Practice Regulation (OBPR) assessed under OBPR ID: 9959 that a RIS was not required.
The Regulations commenced on the day after they were registered on the Federal Register of Legislative Instruments.
The Act specifies no conditions that needed to be satisfied before the power to make the proposed Regulations was exercised.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.
ATTACHMENT
Amendments to CASR Part 99
Background
Section 33 of the Act defines a positive test result in relation to a drug or alcohol test. If a permitted level for alcohol or that drug is “specified in the regulations”, then a finding that the permitted level has been exceeded constitutes a positive test result. Thus, if the permitted level for a testable drug is to be specified, it must be “specified in the regulations”.
However, in defining permitted level in subregulation 99.010 (1) of Part 99, paragraph (a) of the definition provided that the relevant “concentration” of a testable drug is that “specified in a legislative instrument made by CASA”.
There were legal arguments to support the proposition that the prescription of a permitted level by means of a legislative instrument would be a valid prescription. However, the matter was not beyond doubt.
The amendments address these issues by amending the definition of permitted level to ensure that the wording used in the definition is consistent with the wording used in the definition of positive test result in the Act (i.e. use the word “level” rather than “concentration”) and specifies the permitted levels for testable drugs directly in Part 99 rather than in a legislative instrument made by CASA.
The list of 11 testable drugs is taken from legislative instrument AOD 2008/2 made under subsection 33 (2) of the Act which empowers the Minister to specify a testable drug.
The prescribed concentrations for each testable drug is taken from Australian Standard AS 4760, Procedures for specimen collection and the detection and quantitation of drugs in oral fluid, mentioned in the definition of relevant Standard in subregulation 99.010 (1) of Part 99.
Other amendments correct two typographical errors in Part 99 which resulted in mis-citations of two relevant provisions of the Act. Under subsection 36 (2) of the Act, the regulations may provide that a person or body is authorised to take body samples if the person has been accredited by a specified person or body, or has been approved by CASA. Under subsection 36 (3) of the Act, the regulations may provide that a person or body is authorised to conduct drug or alcohol tests if the person or body has been accredited by a specified person or body, or has been approved by CASA.
Subregulation 99.450 in Part 99 authorises persons approved by CASA to take body samples and conduct drug and alcohol tests on them. Subregulations 99.450 (2) and (3) wrongly mentioned subsection 36 (2) of the Act as the head of power for conducting drug and alcohol tests, rather than subsection 36 (3)
Although it is clear what was intended and, arguably, a court would recognise the mistake as an obvious typographical error in order to apply this intent, the matter is not beyond doubt. The Regulations, therefore, correct these two mis-citations.
Civil Aviation Safety Amendment Regulations 2008 (No. 3)
DETAILS OF THE REGULATIONS
Regulation 1 – Name of Regulations
Regulation 1 names the amending regulations as the Civil Aviation Safety Amendment Regulations 2008 (No. 3).
Regulation 2 – Commencement
Regulation 2 provides that the Regulations commence on the day after they are registered (on the Federal Register of Legislative Instruments).
Regulation 3 – Amendment of Civil Aviation Safety Regulations 1998
Regulation 3 provides that Schedule 1 amends the Civil Aviation Safety Regulations 1998.
Schedule 1 Amendments of Civil Aviation Safety Regulations 1998 (regulation 3)
Item 1 – Regulation 99.010 (1), definition of permitted level
Item 1 inserts a new definition of permitted level for a testable drug. The new definition provides that, for a testable drug, permitted level means a level of the drug specified in new subregulation (2A). The new definition also goes on to provide that, for alcohol, permitted level means a level of alcohol of less than 0.02 grams of alcohol in 210 litres of breath. This term permitted level is defined because it is only test results that show the presence of alcohol or a testable drug above the permitted level that will lead to a positive test result.
Item 2 – New subregulation 99.010 (2A)
Item 2 inserts a new subregulation 99.010 (2A) for the purposes of the definition of permitted level. New subregulation 99.010 (2A) provides that, for paragraph (a) of the definition of permitted level, the permitted level for each testable drug is specified in the following table:
| Testable Drug | Concentration- ng/mL |
1 | Δ9-tetrahydrocannabinol | 10 |
2 | 6-Acetyl morphine | 10 |
3 | Amphetamine | 25 |
4 | Benzoylecgonine | 25 |
5 | Cocaine | 25 |
6 | Codeine | 25 |
7 | Ecgonine methyl ester | 25 |
8 | Methylamphetamine | 25 |
9 | Methylenedioxyamphetamine | 25 |
10 | Methylenedioxymethylamphetamine | 25 |
11 | Morphine | 25 |
This provision has the effect of specifying the testable drugs for Part 99, and specifying their permitted levels.
Item 3
Item 3 omits from subregulations 99.450 (2) and (3) of Part 99 reference to “subsection 36 (2)” of the Act, and inserts in each case reference to “subsection 36 (3)”. This corrects 2 mis-citations of the relevant provision of the Act in regulation 99.450 of Part 99 which provides for the authorisation of persons to take body samples and conduct alcohol tests, and initial and confirmatory drug tests.