EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 120
Issued by the authority of the Minister for Infrastructure, Transport, Regional Development and Local Government
Civil Aviation Act 1988
Civil Aviation Safety Amendment Regulations 2010 (No. 1)
Part IV 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), and the conduct of drug and alcohol testing of persons who perform, or are available to perform, safety-sensitive aviation activities. Subsection 98(1) of the Act further 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 to which the Parliament has power to make laws.
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.
These Regulations make minor and machinery changes to Subparts 99.F and 99.G of Part 99 of the Civil Aviation Safety Regulations 1998 (CASRs) relating to DAMPs and testing.
The first amendment corrects an administrative oversight. Under regulation 99.400 of the CASRs, CASA may request a DAMP organisation or a foreign operator, in writing, to provide certain information concerning employees who have tested positive to a drug or alcohol test. The original intent of the regulatory initiative leading to the making of Civil Aviation Safety Amendment Regulations 2008 (No. 1) was to require the requested information to be provided to CASA. However, as a result of an oversight, the current regulations do not contain that requirement. This oversight is corrected in these Regulations. Failure to provide the requested information will be an offence of strict liability. In order to ensure consistency within Subpart F of Part 99, a contravention of subregulation 99.405(2) will similarly be identified as an offence of strict liability.
The second amendment provides CASA with a general power to vary, suspend or cancel a civil aviation authorisation of a DAMP organisation, DAMP contractor or foreign operator if that party contravenes a requirement in Subpart 99.B or 99.F of the CASRs. Currently, the power under CASR Part 99 for CASA to vary, suspend or cancel a person’s civil aviation authorisation exists only in respect of contraventions of requirements that may be committed by individuals. There is no corresponding power for CASA to vary, suspend or cancel the civil aviation authorisation of a DAMP organisation, DAMP contractor or foreign operator for contraventions that these organisations might commit under CASR Part 99, specifically Subparts 99.B and 99.F. New subregulation 99.415(3) addresses this inconsistency and extends CASA’s administrative powers under Part 99 to all organisations that hold civil aviation authorisations, for contraventions of the requirements of Subparts B and F of CASR Part 99. A further new subregulation 99.415(4) requires CASA, before making a decision, to give a person a notice setting out the reasons why CASA is considering to vary, suspend or cancel their authorisation, and provide the person with an opportunity to show cause why CASA should not make the decision.
A consultation draft of these Regulations was distributed to members of the joint CASA/industry Standards Consultative Committee (SCC) for consideration. No critical feedback was received in relation to the proposal.
The Office of Best Practice Regulation (OBPR) has assessed these Regulations as not requiring a Regulation Impact Statement, or Business Cost Calculator assessment.
Further details of the Regulations are set out in Attachment A.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
ATTACHMENT A
Civil Aviation Safety Amendment Regulations 2010 (No. 1)
Details of the Regulations
Regulation 1–Name of Regulations
Regulation 1 provides that the title of the Regulations be the Civil Aviation Safety Amendment Regulations 2010 (No. 1).
Regulation 2–Commencement
Regulation 2 provides that the Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments (FRLI).
Regulation 3–Amendment of Civil Aviation Safety Regulations 1998
Regulation 3 provides that Schedule 1 amends the Civil Aviation Safety Regulations 1998.
Schedule 1 Amendment of Civil Aviation Safety Regulations 1998 commencing on the day after registration
Item 1–After subregulation 99.400(2)
Item 1 would insert new subregulation 99.400(2A) to require an organisation with A Drug and Alcohol Management Plan (DAMP) organisation to provide CASA with information requested under subregulation 99.400(2).
Item 2–After subregulation 99.400(4)
Item 2 would insert new subregulation 99.400(5) requires a foreign operator to provide CASA with information requested under subregulation 99.400(4).
Item 2 would also create a new subregulation 99.400(6) which would make an offence against subregulation 99.400(2A) or (5) an offence of strict liability.
Item 3–Subregulation 99.405(2), at the foot
Item 3 would insert a penalty of 50 penalty points for an offence against subregulation 99.405(2).
Item 4–After subregulation 99.405(3)
Item 4 would insert a new subregulation 99.405(4) to make an offence against subregulation 99.405(2) an offence of strict liability.
Item 5–After subregulation 99.415(2)
Item 5 provides CASA with the power, in new subregulation 99.415(3), to suspend, vary or cancel a person’s civil aviation authorisation, in the interests of aviation safety, if that person contravenes a requirement in Subpart 99.B or 99.F of the CASRs.
Before making a decision to vary, suspend or cancel a person’s civil aviation authorisation, CASA is required under new subregulation 99.415(4) to give a person a notice setting out the reasons why CASA is considering to vary, suspend or cancel their authorisation, as well as provide the person an opportunity to show cause why CASA should not make the decision. This would provide procedural fairness and be consistent with other regulatory provisions that include a “show cause” process before CASA takes action to vary, suspend or cancel a civil aviation authorisation.
Currently the power under CASR Part 99 for CASA to vary, suspend or cancel a person’s civil aviation authorisation exists only in respect of contraventions of requirements that may be committed by individuals. There is no corresponding power for CASA to vary, suspend or cancel the civil aviation authorisation of a DAMP organisation, DAMP contractor or foreign operator for contraventions that these organisations might commit under CASR Part 99, specifically Subparts B and F. The proposed subregulation 99.415(3) would address the current inconsistency and would extend CASA’s administrative powers to all organisations that hold civil aviation authorisations, for contraventions of the requirements of Subparts B and F. A further proposed subregulation 99.415(40 would require CASA, before making a decision, to give a person a notice setting out the reasons why CASA is considering to vary, suspend or cancel their authorisation, and provide the person with an opportunity to show cause why CASA should not make the decision.