Commonwealth Numbered Regulations - Explanatory Statements

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CIVIL AVIATION SAFETY AMENDMENT REGULATIONS 2008 (NO. 1) (SLI NO 192 OF 2008)

EXPLANATORY STATEMENT

Select Legislative Instrument 2008 No. 192

Civil Aviation Safety Amendment Regulations 2008 (No. 1)

Civil Aviation Amendment Regulations 2008 (No. 1)

Civil Aviation Act 1988

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

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 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.

In March 2004 the Australian Transport Safety Bureau (ATSB) released a report of its investigation into a fatal accident that occurred at Hamilton Island in September 2002. The ATSB recommended that CASA and the then Department of Transport and Regional Services (DOTARS) should jointly investigate the safety benefits of drug and alcohol testing plans for safety sensitive personnel in the Australian aviation industry.

This work was subsequently undertaken by CASA and DOTARS and, following extensive research and consultation with industry, their report was released in May 2006. This report concluded that a drug and alcohol testing program would foster a safer workplace for civil aviation workers and that the public would benefit broadly from a safer aviation sector. The report recommended that drug and alcohol testing plans be introduced for safety-sensitive personnel in the Australian aviation industry. It was in consequence of the Government’s consideration of this report that Part IV was inserted in the Act.

The Civil Aviation Safety Amendment Regulations 2008 (No. 1) (Regulations) amend the Civil Aviation Safety Regulations 1998 (CASRs) by inserting a new Part 99 entitled Drug and alcohol management plans and testing.

The purpose of the Regulations is to give effect to Part IV of the Act, by establishing a framework for the development of drug and alcohol management plans, similar to those already in place in other transport sectors, and by introducing a random drug and alcohol testing regime for all persons involved in SSAAs. The Regulations are directed at maintaining Australia’s reputation as a world leader in aviation safety, by ensuring that those participating in SSAAs have the physical and mental capability to perform their jobs in a safe, secure and effective manner. The Regulations will achieve this by:

·                      enhancing industry awareness of the consequences of impairment in the workplace resulting from the use of alcohol or other drugs;

·                      providing a deterrent against the use of alcohol and other drugs while persons are performing or available to perform SSAAs;

·                      ensuring that identified organisations develop their own DAMPs focussed on early detection and management of issues that may arise from the use of alcohol and other drugs;

·                      providing guidance on the development of DAMPs;

·                      auditing DAMPs and their implementation; and

·                      providing for enforcement action against those who return a positive alcohol or drug test result in contravention of the civil aviation legislative requirements.

There are two components to the Regulations. The first component provides for the development, implementation and enforcement of DAMPs covering persons who perform, or are available to perform, SSAAs.

The second component establishes a regime for random drug and alcohol tests to be conducted by or on behalf of CASA.

It is estimated that the testing regime will affect approximately 120,000 personnel undertaking SSAAs. The range of SSAAs covered includes flight crew activities, cabin crew activities, flight instructor activities, aircraft dispatcher and load controller activities, activities involving aircraft maintenance and repair, aviation security activities including activities involving screening, air traffic controller activities, baggage handler activities, ground refuelling activities, and other activities carried out by persons with airside access.

It is anticipated that, as part of the testing program, both CASA and the aviation sector will undertake activities in relation to drug and alcohol awareness and education. CASA will provide comprehensive and ongoing education materials to the industry on alcohol and drug issues in aviation, particularly pertaining to safety. Furthermore, random testing by CASA will be conducted as a regulatory component of a broader initiative designed to include not only DAMP employees, but individuals within the aviation community that are either self-employed or undertaking a relevant activity as a private individual. It is hoped that the information that is gathered will assist to better understand the significance of drug and alcohol use in the aviation environment. This will ensure greater awareness of the serious risk posed by possible impairment caused by alcohol or drug use in that environment.

Consultation under section 17 of the Legislative Instruments Act 2003 (LIA) has been undertaken. As a prelude to the normal Standard Consultative Committee (SCC) process and not as a part of the SCC reporting lines, a discussion group of Government and aviation industry participants (including representatives from airports, airlines, charter operators, flying training organisations and Airservices Australia) was established to discuss issues around drug and alcohol testing in the aviation industry. The group met on three occasions and briefed the SCC on their discussions.

A project team of Government and Industry participants was established with direct linkages to the SCC. Group members included subject matter experts who were broadly representative of those who would be affected by project outcomes. The project team met in May and June 2007, and January, March and May 2008. The group considered implementation issues relevant to the regime, acceptable means of compliance and preparation of the Notice of Proposed Rule Making. The Notice of Proposed Rule Making sat in the public domain for approximately four weeks and responses have been considered.

Consultation has also included the consideration of public submissions.

Although there were a number of issues raised throughout the extensive two-year consultation process, there was widespread support for the proposed aviation industry Alcohol and Other Drugs Program. The primary issues and observations from both an organisational and an employee representative level were as follows:

(a) Airline pilot representative groups felt that the drug and alcohol rules should not necessarily apply to them as there are no recorded RPT accidents attributed to alcohol or other drug use.

 

However, there is evidence to indicate that alcohol and drug use in the aviation industry is likely to reflect behaviours and patterns of alcohol and drug use in other industries and in the general population. CASA’s program aims to mitigate the risks related to the use of alcohol and other drug use and the performance any activities that may affect aviation safety. The actions that are required under the Regulations are of a proactive nature rather than reactionary to an accident or serious incident. Airline pilots constitute a significant group of safety sensitive aviation personnel.

 

(b) Industry representatives expressed concerned that smaller and remote organisations are currently not resourced to develop, implement and enforce an organisational DAMP.

 

The Regulations set out minimum requirements of a DAMP organisation and recognise varying internal organisational complexities and capacity. In addition, CASA is developing a series of tools to assist not only small operators but the sector as a whole in the development and implementation of their DAMPs. Included in the industry education and awareness campaign will be a national series of awareness workshops in metropolitan, regional and rural Australian. A series of skills development workshops will be made available to the sector and identify industry champions. CASA acknowledges that one of the challenges in implementing such an ambitious program is access to associated services in areas with smaller populations. CASA has allowed for this through the utilisation of multidisciplinary teams and the provision of information and training in rural and regional communities.

 

(c) Some employee representatives were concerned that some DAMP organisations may not pay due diligence to probity and privacy issues and the use of individual test results.

Such concern did not extend to the random testing regime being proposed by CASA. What was, at the time, the Information Law Branch of the Attorney General’s Department (now a branch within the Department of Prime Minister and Cabinet) confirmed that the proposed regulations satisfy relevant privacy-related requirements.  The Regulations stipulate that DAMP organisations’ records pertaining to tests and test results must be kept in a secure location and that, after a period of 5 years, all records must be destroyed or deleted. DAMP organisations are also subject to existing privacy legislation. To ensure effective oversight, CASA may audit any aspect of the development, implementation and enforcement of a DAMP, including record keeping and privacy issues.

 

(d) Many industry participants raised concern that a BAC of 0.02% was too low

The level of breath alcohol concentration (BAC) of less than 0.02% or below has been adopted in line with standard levels across the professional transport industry and those adopted for other safety sensitive activities. The utilisation of 0.02% BAC as opposed to 0.00% BAC makes provision for innocuous levels of alcohol associated with, for example, cough syrup or from other inadvertent biological production as found in ketosis.

 

(e) Private pilot groups were concerned that drug and alcohol testing would prevent them from holding social events at or near the airfields.

 

With the introduction of any new regulation or safety policy there may be consequential need for one or more demographic groups to evaluate and change past culture and behaviours when performing SSAAs.

(f) There was very strong support for the role of independent Medical Review Officers in the drug and alcohol testing process.

The Regulations include a requirement for the involvement of an Medical Review Officer (MRO) in the interpretation and determination of drug test results.  In addition, the MRO will play a consultative role in determining what (if any) intervention program the individual should participate in, and in assessing an individual’s fitness to resume performing SSAAs. These roles are mirrored in both the CASA regime and the DAMP requirements.  In recognition of the training gap that currently exists in Australia for this role, CASA is progressing arrangements through the American College of Occupational and Environmental Medicine for the delivery of an equivalent MRO training course in Australia.  Efforts are also ongoing to commence similar training relevant to the Australian setting, in discussion with the Australasian Faculty of Occupational and Environmental Medicine, and the Chapter of Addiction Medicine.

(g) The proposed regulations for Drug and Alcohol Management Plans do not offer a concrete framework for when objective testing is to occur - ie post accident, serious incident and reasonable suspicion.

CASA is developing Guidance Material and training to offer a framework to the extent possible for when a drug or alcohol test should be conducted and what suitable test conditions should be adhered to.

For post accident or serious incident testing, the Regulations set time limits within which testing should occur. In remote areas it may not be practicable to arrange for testing within those time frames and testing would not be required in those instances. For reasonable cause testing, the Regulations require that key personnel in DAMP organisations are trained in forming an opinion as to whether a person may be adversely affected by a testable drug or under the influence of alcohol. CASA is also providing detailed guidance on these issues and developing training materials for use by DAMP organisations on these matters.

 

(h) A few industry representatives were concerned that post accident testing would not be feasible in remote areas.

 

The Regulations recognise that, in some post accident situations, testing that meets the definition of suitable test conditions may not be achievable in all circumstances. It is not an expectation that conducting post accident alcohol and/or drug testing would take precedence over the provision of appropriate medical treatment or the health of any individual. The Regulations do not exclude an opportunity for organisations to collaborate and combine resources, particularly in remote locations or at sites removed from their normal operations.

 

It is appropriate to note that the Regulations create a number of offences of strict liability. In each case, the offence has been carefully drafted so that it goes to conduct of direct relevance to the safety of civil aviation operations.

Clearly, the performance of SSAAs while adversely affected by a testable drug or alcohol has an extremely high potential to endanger civil aviation operations and human life. Similarly, continuing to perform SSAAs after a positive initial test result and before the result of a confirmatory test is known involves a high potential safety risk. And, given the minimal intrusiveness of breath or oral fluid testing, a refusal or non-medically caused failure to provide a body sample for testing should be viewed as carrying a very high risk that individual is, or suspects that they are, adversely affected and should not be conducting SSAAs. Each of these is considered to be an offence that should attract a significant maximum penalty.

In addition to these and other offences that may be committed by individual SSAA personnel, the Regulations also create various offences to which employer organisations may be liable and which may also attract a significant maximum penalty. This is considered to be appropriate given the important role that aviation employers should play, through development and implementation of their DAMPs, in directly ensuring that their SSAA employees are not adversely affected by drug or other alcohol use.

The level of maximum penalty for each offence has been carefully set. For example, an individual’s failure to produce identification when required by an approved tester appropriately carries a significantly lesser maximum penalty than performing SSAA duty while under the influence of drugs or alcohol.

And the categorisation of offences as being of strict liability is considered to be appropriate given that the circumstances that constitute such offences are readily able to be understood and avoided. In all cases, advice has been sought from the Attorney-General’s Department to ensure that the formulation of, and penalty for, each offence is consistent with the Commonwealth’s criminal law policy and practice.

The Regulations also contain a variety of safeguards for those persons subjected to drug and alcohol testing - for example, by providing for a right to have a second oral fluid sample (Sample B) independently tested and allowing that result to prevail over that returned for the oral fluid sample tested on CASA’s behalf (Sample A), in relation to protecting individual privacy, and by providing specific defences in relation to some offences.

The Civil Aviation Amendment Regulations 2008 (No. 1) amend the Civil Aviation Regulations 1988 (CARs) by making amendments that are consequential to the making of Part 99 of the Civil Aviation Safety Regulations 1998.

Because Part 99 of the CASRs provides a specific and different regime for the variation, suspension or cancellation of a civil aviation authorisation of a person who has breached Part 99, the CARs have been amended so that:

·         the otherwise applicable variation, suspension or cancellation provisions of the CARs do not apply in such a case; and

·         a decision by CASA under Part 99 to vary, suspend or cancel a civil aviation authorisation is reviewable by the Administrative Appeals Tribunal.

 

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

Subsection 6(a) of the LIA provides that an instrument described as a regulation by the enabling legislation is a legislative instrument. The Regulations are therefore a legislative instrument for the purposes of the LIA.

 

 


 

REGULATORY IMPACT STATEMENT

The Office of Best Practice Regulation (OBPR) assessed that the amendment to the Civil Aviation Safety Regulations 1998 has a direct affect on business and that a Regulatory Impact Statement (RIS) was required. Accordingly, CASA has prepared RIS ORR ID: 8301 which accompanies this Explanatory Statement. The OBPR has advised that the RIS satisfies the Australian Government RIS requirements and that the analysis in the RIS is adequate and commensurate with the impacts.

Details of the amendment to the Civil Aviation Safety Regulations 1998 are set out in Attachment A.

Details of the amendment to the Civil Aviation Regulations 1988 are set out in Attachment B.

The amendments commenced on the day after the Civil Aviation Safety Amendment Regulations 2008 (No. 1) were registered in the Federal Register of Legislative Instruments.


 

ATTACHMENT A

Civil Aviation Safety Amendment Regulations 2008 (No. 1)

DETAILS OF THE REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 names the amending regulations as the Civil Aviation Safety Amendment Regulations 2008 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on the day after they are registered (in 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 - Paragraph 13.345(3)(b)

Item 1 makes a minor technical amendment to existing paragraph 13.345(3)(b) of the CASRs to more correctly identify an Aviation Reference Number.

 

Item 2 - Part 99

Item 2 inserts new Part 99, entitled Drug and alcohol management plans and testing, into the CASRs after Part 92.

New regulation 99.005 - Purposes of Part

This regulation provides that the purpose of new Part 99 is to provide for:

(a)    the development, implementation and enforcement of DAMPs covering persons who perform, or are available to perform, an applicable SSAA;

(b)    drug or alcohol tests for persons who perform, or are available to perform, an applicable SSAA; and

(c)    offences relating to such matters.

Subsequent regulations provide that DAMPs are to be developed and implemented by specified persons or entities who have “employees” engaged in specified SSAAs and that, in addition to drug and alcohol testing conducted under those DAMPs, such employees may be required to submit to random CASA testing for drug and alcohol use (which, it is intended, will be conducted on its behalf by an expert contractor or an approved laboratory subcontracted by that contractor). Those subsequent regulations also create a number of offences related to failure to develop and implement a DAMP, or in respect of drug testing under a DAMP or by CASA.

 

Subpart 99.A General

New regulation 99.010 - Definitions for Part 99

Subregulation 99.010(1) defines a number of terms used in new Part 99:

·                      “accident”. The significance of this definition is that the Regulations require that SSAA duty be ceased and drug and alcohol testing be undertaken of persons performing or available to perform SSAAs where an occurrence arising out of that performance or availability results in death, serious harm or serious damage.

·                      “aerodrome testing area”. The area identifiable from this definition is significant in identifying the SSAAs to which Part 99 applies - see new regulation 99.015.

·                      “airport security guard”. This term is defined because the performance of functions as an airport security guard constitutes an SSAA - see new regulation 99.015.

·                      “allocated number”. Each person approved to undertake CASA testing is to be allocated an identification number - see new subregulation 99.445(5).

·                      “applicable SSAA”. This means a safety-sensitive aviation activity to which this Part applies under new regulation 99.015.

·                      “appropriately qualified alcohol and other drug professional”. This term is defined because such persons may carry out comprehensive assessments of the alcohol and drug use of persons who return positive results for alcohol or drug tests.

·                      “approved breathalyser”. This term is defined because CASA’s testing of breath samples must only be conducted using a breathalyser approved by CASA under new paragraph 99.130(a).

·                      “approved drug testing device”. This term is defined because CASA testing of oral fluid samples for testable drugs must only be conducted using a device approved by CASA under new paragraph 99.130(b).

·                      “approved laboratory”. This term is defined because confirmatory CASA testing of oral fluid samples for testable drugs following a positive result for an initial CASA drug test must only be conducted by a laboratory approved by CASA under new subregulations 99.445(3) and 99.450(3).

·                      “approved person”. This term is defined because the results of a confirmatory test conducted by an approved laboratory are required by new subregulation 99.210(2) to be signed by the person authorised under the approved laboratory’s accreditation by the National Association of Testing Authorities.

·                      “approved tester”. Only an approved tester is authorised under Part 99 to take body samples for CASA drug or alcohol tests and to conduct alcohol tests (both initial and confirmatory) or initial drug tests on such body samples.

·                      “ASIC”. An ASIC issued under the Aviation Transport Security Regulations 2005 is one of the forms of identification that an approved tester can request for the purposes of identifying an SSAA employee who is to be subject to a random CASA drug or alcohol test.

·                      “CASA medical review officer”. The Regulations confer on medical review officers a number of functions relating to the assessment of positive drug test results and fitness to resume SSAA duty following a period in which an SSAA employee has been required to cease SSAA duty because of drug or alcohol related issues. The Regulations distinguish between “CASA medical review officers” who are appointed by CASA primarily in relation to CASA drug and alcohol testing, and “DAMP medical review officers” who are engaged by DAMP organisations for the drug and alcohol management of their SSAA employees, and allocate different functions to each. The qualifying criteria for a “CASA medical review officer” are set at a higher level than those for a DAMP medical review officer.

·                      “commencement date”. The date on which the Regulations commence determines the time by which existing organisations that are required to have a DAMP must prepare and implement their DAMP - see new paragraph 99.035(2)(a).

·                      “comprehensive assessment”. A comprehensive assessment of an SSAA employee’s drug or alcohol use is required before an SSAA employee who has returned a confirmed positive drug or alcohol test result, refused to provide a body sample for drug or alcohol testing or interfered with the integrity of a body sample is able to resume or commence performing or being available to perform SSAAs.

·                      “confirmatory alcohol test”. This is a second test conducted, on an additional breath sample, to detect the presence and level of alcohol when a positive initial alcohol test result has been returned.

·                      “confirmatory drug test”. This is a second test conducted, on the original or an additional oral fluid sample, to detect the presence and level of a testable drug when a positive initial drug test result has been returned.

·                      “DAMP” or “drug and alcohol management plan”. This means a drug and alcohol management plan that complies, or purports to comply, with the requirements of new regulation 99.045 and is required to be developed and implemented by a DAMP organisation.

·                      “DAMP contact officer”. This is the person required to be appointed by a DAMP organisation to liaise with CASA in relation to the organisation’s responsibilities under Part 99.

·                      “DAMP contractor”. This term is defined because a DAMP organisation’s DAMP is required to cover not only its own employees but also employees of its contractors or their subcontractors who engage in SSAAs under contract.

·                      “DAMP medical review officer”. The Regulations require that a DAMP organisation consult and seek advice from a DAMP medical review officer in relation to the drug and alcohol management of their SSAA employees.

·                      “DAMP organisation”. These are the persons or entities who are required to have a DAMP by new regulation 99.030.

·                      “DAMP reporting period”. This definition specifies the periods in respect of which a DAMP organisation, under new regulation 99.100, must report to CASA on a six monthly basis in relation to the implementation and operation of its DAMP.

·                      “DAMP subcontractor”. This term is defined because employees of a subcontractor to a contractor of a DAMP organisation must be covered by the organisation’s DAMP to the extent that they perform SSAAs under contract for the organisation.

·                      “DAMP supervisor”. A DAMP supervisor is a person within a DAMP organisation who has been trained to form an opinion as to whether a person may be adversely affected by a testable drug or under the influence of alcohol. Where a DAMP supervisor forms such an opinion about an SSAA employee, the Regulations specify that the person must cease, and what must be done before they resume, SSAA duty.

·                      “donor”. This is the person who is asked to give, or gives, a body sample to an approved tester for CASA drug or alcohol testing.

·                      “drug and alcohol education program”. This term is defined because a DAMP must include, as one of its components, a drug and alcohol education program that the DAMP organisation makes available and delivers to its SSAA employees - see new paragraph 99.045(b).

·                      “drug or alcohol intervention program”. This term is defined because a DAMP must include, as one of its components, a drug and alcohol response program (see paragraph 99.045(b)) which, in turn, must include a requirement that a DAMP organisation will allow an employee time to attend a drug or alcohol intervention program where they have been required to cease SSAA duty as a result of a positive drug or alcohol test result before they are able to be returned to SSAA duty (see new regulation 99.075).

·                      “employee”. This term defines the persons who, when performing or available to perform SSAAs for another, will be SSAA employees and, as a result, required to be covered by a relevant DAMP organisation’s DAMP or liable to CASA drug and alcohol testing. The reference in this definition to a “DAMP Contractor” means that the definition extends to subcontractors to a DAMP contractor because of the earlier definition of that term.

·                      “foreign operator”. This term is defined because, where CASA testing of an SSAA employee of a foreign operator (which is not required to have a DAMP) results in a positive test result, CASA is authorised by new regulation 99.400 to convey that information to the foreign operator and to require the operator to provide certain information to it.

·                      “initial alcohol test”. This is the first test conducted on a breath sample to determine the presence of alcohol in it.

·                      “initial drug test”. This is the first test conducted on an oral fluid sample to determine the presence of a testable drug in it.

·                      “nominated drug or alcohol intervention program”. This is the particular intervention program that a CASA medical review officer or a DAMP medical review officer (as appropriate) considers suitable for a person with an identified drug or alcohol use program. Participation in such a program is a pre-condition to resuming SSAAs in certain circumstances.

·                      “passenger”. This term is defined because new paragraph 99.015(2)(a) excludes passenger activity from the definition of SSAA, and new subregulation 99.115(2) provides that a passenger cannot be subjected to random CASA drug or alcohol testing.

·                      “passport”. This term is defined because a passport (issued by any country) is one of the forms of identification that an approved tester can request for the purposes of identifying an SSAA employee who is to be subject to a random CASA drug or alcohol test.

·                      “permitted level”. This term 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.

·                      “positive result”. This term defines test results for interim and confirmatory drug and alcohol tests by reference to the provisions of section 33 of the Act.

·                      “regular SSAA employee”. This term is defined in order to identify those employees who are expected to be deployed to SSAA duty who must be subjected to pre-deployment drug and alcohol testing. Where an employee is reasonably likely to be directed to undertake SSAA duty less than twice in each 90 day period, such testing is not required.

·                      “relevant Standard”. This term is defined because drug and alcohol testing under a DAMP organisation’s DAMP must be conducted either using devices that meet or in accordance with relevant standards that are specified in this definition - see new subregulation 99.050(1).

·                      “sample identifier”. This term is defined because, when an oral fluid sample is to be sent to an approved laboratory for confirmatory drug testing, it is to be identified by an identifier other than the donor’s name. New regulation 99.150 provides for CASA to make a legislative instrument setting out a method for determining sample identifiers.

·                      “screening officer”. This term is defined because performing duty as a screening officer within the meaning of the Aviation Transport Security Act 2004 is defined in new paragraph 99.015(2)(f) to be an SSAA.

·                      “serious incident”. The significance of this definition is that the Regulations require that SSAA duty be ceased and drug and alcohol testing be undertaken of persons performing or available to perform SSAAs where an occurrence arising out of that performance or availability results in a danger of death, serious harm or serious damage.

·                      “SSAA” is defined to mean a safety-sensitive aviation activity. Such activities are specified in new subregulation 99.015(2).

·                      “SSAA employee”. This term is defined because it is these persons who must be covered by a DAMP organisations’ DAMP.

·                      “substantial compliance”. This definition refers to the meaning given in new subregulation 99.020(2), which is discussed below.

·                      “suitable test conditions”. This definition refers to the meaning given in new subregulation 99.010(3), which is discussed below.

New subregulation 99.010(2) explains the meaning to be attributed to the terms “AS”, “AS/NZS” and “NMI R” which are used in the Regulations in identifying standards or other instruments that are referred to in the regulations. The effect of this new subregulation is that the Regulations refer to such standards as they are in force or exist from time to time. Section 98(3A) of the Act specifically authorises the making of regulations that apply, adopt or incorporate any matter contained in a written instrument or other document as in force at a particular time or from time to time.

New subregulation 99.010(3) provides a detailed definition of “suitable test conditions”. This term is defined because the Regulations require drug and alcohol testing of SSAA employees when an accident or serious incident arises out of their performance or availability to perform SSAAs and conditions exist which make it practicable and relevant to conduct such testing.

New regulation 99.015 - SSAAs to which this Part applies

This regulation prescribes which activities are “safety-sensitive aviation activities” or SSAAs for the purposes of Part 99. All activities that occur within an aerodrome testing area (other than as a passenger) are SSAAs. Other specified activities are SSAAs even where they occur outside an aerodrome testing area. It is these activities to which a DAMP organisation’s DAMP must be directed, and it is persons performing or available to perform such activities that are subject to random CASA drug and alcohol testing.

New regulation 99.020 - Substantial compliance with requirements of Part required

The purpose of this regulation is to ensure that, where there is substantial compliance with relevant requirements of Part 99 (or instruments made under, or standards referred to in, Part 99), a test result cannot be challenged in subsequent action taken in reliance on it notwithstanding that there may not have been full compliance with every requirement of the Part (or instrument or standard). New subregulation 99.020(2) provides that substantial compliance shall be taken to exist where there is no reasonable doubt as to the accuracy of the test result even though such a requirement may not have been met.

 

Subpart 99.B Drug and alcohol management plans

Division 99.B.1 Purposes of Subpart

New regulation 99.025 - Purposes of Subpart

This regulation states the purposes of Subpart 99.B, which are to specify the persons who must have a DAMP, the required content and implementation of a DAMP and associated requirements, and DAMP-related offences.

 

Division 99.B.2 Persons required to have DAMP

New regulation 99.030 - Who must develop and maintain a DAMP

This regulation prescribes those persons who, under Part 99, must develop a DAMP. The categories of persons listed are those whose employees, contractors and subcontractors are considered to have the closest connection with aviation safety and whose drug or alcohol use could most jeopardise that safety. The regulation makes it an offence of strict liability not to develop, develop within the required period or maintain a DAMP.

New regulation 99.035 - DAMP must be implemented

This regulation specifies how a DAMP is to be implemented and the time within which it must be implemented. A 6 month transition period (from the commencement of Part 99) is provided for existing DAMP organisations to implement their DAMP. Organisations that become DAMP organisations within that transition period must implement their DAMP by the end of 6 months after the commencement of the Regulations. And thereafter DAMP organisations must implement their DAMP immediately upon becoming a DAMP organisation.

New regulation 99.040 - DAMP must be made available to SSAA employees

This regulation makes it an offence of strict liability for a DAMP organisation to fail to make its DAMP available to a new SSAA employee before they perform or become available to perform an SSAA or to an existing employee by the end of the day on which they next perform or are available to perform an SSAA after the DAMP organisation implements its DAMP.

 

Division 99.B.3 Content and implementation of DAMP

Subdivision 99.B.3.1 Content of DAMP

New regulation 99.045 - Content of DAMP

This regulation specifies the required content of a DAMP. In summary, a DAMP must apply to all SSAA employees of the organisation, state the categories of those employees, identify the organisation’s DAMP contact officer(s) and DAMP supervisor(s) and include and provide details of a drug and alcohol education program, a drug and alcohol testing program and a drug and alcohol response program. Succeeding regulations specify the requirements that must be met by each of these programs.

 

Subdivision 99.B.3.2 Drug and alcohol testing program

New regulation 99.050 - Requirements for drug and alcohol testing

This regulation specifies the standards by reference to which drug and alcohol testing must be conducted under a DAMP, and the circumstances in which testing must be conducted. In summary, testing must be conducted using devices or methods that meet specified standards and is required prior to initial deployment as a regular SSAA employee, after an accident or serious incident involving an employee’s performance or availability to perform SSAA, if a DAMP supervisor suspects an SSAA employee may be adversely influenced by a testable drug or under the influence of alcohol, or before an employee returns to SSAA duty after being required to cease SSAA duty under the Regulations.

The regulation also provides that a positive result for a confirmatory drug test conducted under a DAMP is taken not to be a positive result where a DAMP medical review officer has determined that the positive result could be due to legitimate therapeutic treatment or some other innocuous source. In this event, the affected SSAA employee does not need to comply with all the otherwise applicable pre-conditions for resuming SSAA duty.

New regulation 99.055 - Requirements relating to DAMP medical review officer

This regulation specifies the circumstances in which, and the purposes for which, a DAMP organisation must consult a DAMP medical review officer. These are: after a positive confirmatory drug test result under a DAMP to ascertain whether there is some legitimate reason for that result; if a person fails to give a body sample because of a medical condition; and to determine if an employee is fit to return to SSAA duty after being required to cease SSAA duty under the Regulations.

New regulation 99.060 - Requirements relating to use of testing devices

This regulation, in order to optimise the value of test results, requires that devices used for drug and alcohol testing under a DAMP must be used in a manner not inconsistent with the manufacturer’s instructions.

 

Subdivision 99.B.3.3 Drug and alcohol response program

New regulation 99.065 - Requirements relating to SSAA employees ceasing SSAAs

This regulation sets out the circumstances in which a DAMP organisation must require its SSAA employees to cease SSAA duties. In summary, these are:

·                      if an initial drug test has returned a positive result and a negative confirmatory result has not yet been recorded;

·                      if an initial alcohol test has returned a positive result and a negative confirmatory result has not yet been recorded;

·                      if a confirmatory drug or alcohol test result is positive and a CASA medical review officer or a DAMP medical review officer (as appropriate) has not determined that the positive result could be due to legitimate therapeutic treatment or some other innocuous source;

·                      if the employee has refused to take a drug or alcohol test or has interfered with the integrity of such a test;

·                      if a DAMP supervisor suspects the employee may be impaired by the influence of a testable drug or alcohol;

·                      after an accident or serious incident involving the employee, for as long as suitable test conditions exist or, if a test has been conducted, before the results are notified.

New regulation 99.070 - Requirements relating to returning to SSAAs

This regulation provides that, where an SSAA employee has been required to cease SSAA duty because of a positive test result or because they have refused to take or have interfered with the integrity of a test, they cannot return to SSAA duty until:

·                      they have undergone a comprehensive assessment of their drug and alcohol use;

·                      if that assessment recommends they commence a drug or alcohol intervention program, they have begun participating in such a program;

·                      they are considered to be fit to resume SSAAs by the DAMP medical review officer who was consulted after the confirmatory result and their treating clinician (if any); and

·                      if they were required to cease SSAAs because of a positive drug test result, they have returned a satisfactory negative result for a drug test at the time they are considered fit to resume SSAAs.

Of course, whether an employee is to be returned to SSAA duty is a matter for decision between the SSAA employee and the DAMP organisation.

New regulation 99.075 - Requirements relating to intervention programs

This regulation provides that, where a DAMP organisation intends to redeploy an SSAA employee to SSAA duty after they have been required to cease that duty under the Regulations, the organisation must allow the employee time to attend a drug and alcohol intervention program advised by a DAMP medical review officer. Again, whether an employee is to be returned to SSAA duty is a matter for decision between the SSAA employee and the DAMP organisation.

 

Subdivision 99.B.3.4 Implementing a DAMP

New regulation 99.080 - Implementing a DAMP

This regulation requires that a DAMP organisation implements its DAMP by ensuring that:

·                      each SSAA employee and DAMP supervisor attends the organisations drug and alcohol education program initially and on a follow-up basis;

·                      each SSAA employee is informed that they must not undertake SSAA duty while they are adversely affected by a testable drug or alcohol;

·                      each SSAA employee is subject to drug and alcohol testing under the DAMP;

·                      SSAA employees are encouraged to disclose if they have consumed alcohol or taken a drug that may affect their ability to carry out an SSAA;

·                      SSAA employees are aware that drug and alcohol testing with require them to provide a body sample; and

·                      its DAMP policy and procedures are recorded using a controlled document protocol.

 

Division 99.B.4 Review and audit of DAMP

New regulation 99.085 - Review of DAMP by DAMP organisation

To ensure that a DAMP organisation’s DAMP remains current and relevant, this regulation makes it an offence of strict liability for a DAMP organisation to fail to review its DAMP every 5 years, or at any other time as directed by CASA.

New regulation 99.090 - Audit of DAMP organisation by CASA

This regulation empowers CASA to audit the operation of a DAMP organisation to ensure appropriate development, implementation and enforcement of its DAMP. The regulation permits CASA to require the DAMP organisation to provide specified information and records, as well as a copy of the DAMP being implemented and other relevant information and records. The regulation makes it an offence for a DAMP organisation to fail to comply with these requirements.

New regulation 99.095 - CASA may direct changes to DAMP

To ensure that a DAMP organisation’s DAMP remains current and relevant, this regulation permits CASA to, at any time, direct a DAMP organisation to make a specified change to the organisation’s DAMP, to prepare a new DAMP, or to submit proposed changes or a newly prepared DAMP to CASA for review. The regulation makes it an offence for a DAMP organisation to fail to comply with such a requirement.

 

Division 99.B.5 Provision of information

New regulation 99.100 - DAMP organisation or DAMP contractor to provide information

To enable CASA to assess the ongoing effectiveness of each DAMP, this regulation requires DAMP organisations to provide prescribed information to CASA in writing within 21 days after the end of each DAMP reporting period. The regulation makes it an offence of strict liability for a DAMP organisation to fail to provide the information, or (to protect individual privacy) to provide information (other than that specified in the regulation) that might identify the employee. The regulation also makes it an offence of strict liability for a DAMP organisation or a DAMP contractor to fail to provide information to identify their SSAA employees when required under new paragraph 99.125(2)(b) to do so for CASA drug and alcohol testing.

New regulation 99.105 - DAMP record-keeping

To enable CASA to assess the accuracy of information provided under new regulation 99.100 if required, this regulation makes it an offence of strict liability for a DAMP organisation not to keep the records used to provide information to CASA for a period of 5 years. The regulation also makes it an offence of strict liability for a DAMP organisation to fail to keep the records in a secure location. Within six months of the 5-year retention period, the DAMP organisation is required to destroy or delete the records.

 

Subpart 99.C Drug and alcohol testing by CASA

CASA will conduct, though a contracted testing provider, scaleable random alcohol and other drug testing in relation to all individuals falling within the definition of personnel undertaking safety sensitive aviation activities. Such random drug and alcohol testing will be driven by reasonable risk assessment so as to maximise the effectiveness of any testing undertaken.

Initial tests for alcohol or other drugs will use point of collection technology, and will provide the donor and the tester with information indicating either a negative result (if the level of detection is not above the specified cut-off) or a positive result (if the level of detection exceeds the specified cut-off). In the case of positive initial results, a second confirmatory test must be conducted. For alcohol, this will be conducted by the same tester shortly after the initial test. For drugs, oral fluid samples will be dispatched to an approved laboratory for more accurate confirmatory testing.

 

Division 99.C.1 Preliminary

New regulation 99.110 - Purposes of Subpart

This regulation provides that the purposes of the subpart, which establishes the regime for random CASA testing, are to specify who may be tested, the powers of approved testers who conduct CASA testing, the devices that may be used for CASA testing, and the manner of conducting CASA testing.

 

Subdivision 99.C.1.1 Who may be drug or alcohol tested

New regulation 99.115 - Who may be drug or alcohol tested

This regulation provides that persons who are performing or available to perform an applicable SSAA may be required to provide a body sample for CASA testing, and specifies that passengers are not liable to CASA testing.

New regulation 99.120 - Body samples may only be taken if person consents

This regulation prohibits approved testers from using force to take a body sample from a person. Failure to provide a body sample when so requested by an approved tester is however an offence - see new regulation 99.330.

 

Subdivision 99.C.1. 2 Powers of approved testers

New regulation 99.125 - Powers of approved testers

This regulation specifies the powers that an approved tester has, in addition to those elsewhere conferred in Part 99, in respect to taking body samples from donors, and conducting initial drug tests or initial and confirmatory alcohol tests. The powers include a power to require a donor (or the donor’s DAMP organisation or DAMP contractor employer) to provide specified identification, and to require the donor give a body sample for CASA testing. As well an approved tester has the power to require the donor to stop performing, or being available to perform, an applicable SSAA and to remain in the tester’s presence for the time it takes to take and test the body sample.

 

Subdivision 99.C.1.3 CASA to approve testing devices

New regulation 99.130 - Approved drug and alcohol testing devices.

This regulation empowers CASA, by legislative instrument, to approve breathalysers for use in alcohol testing, and drug testing devices for use in initial drug testing.

 

Division 99.C.2 Drug Testing

Subdivision 99.C.2.1 General

New regulation 99.135 - Which body samples may be drug tested

This regulation specifies that only oral fluid may be taken for CASA drug testing. While a DAMP organisation’s DAMP may provide for it to conduct drug testing on urine samples (in accordance with the specified relevant standard), CASA drug testing is to be confined to testing of oral fluid samples.

New regulation 99.140 - How samples are taken and tested

This regulation requires approved testers to take and prepare oral fluid samples for CASA testing in accordance with procedures set out in a legislative instrument made by CASA.

New regulation 99.145 - Approved drug testing devices to be used for initial drug tests

This regulation requires approved testers to conduct initial drug tests only with approved drug testing devices, which must be stored, tested, maintained and operated in accordance with a legislative instrument made by CASA.

New regulation 99.150 - Method for determining sample identifiers

This regulation empowers CASA to make a legislative instrument which specifies a method for allocating sample identifiers to oral fluid samples that are to be sent for confirmatory tests after an initial CASA drug test that returns a positive result.

 

Subdivision 99.C.2.2 Initial drug tests

New regulation 99.155 - Taking samples

In order to ensure that oral fluid samples can be taken and are suitable for testing, this regulation permits an approved tester to require a donor to comply with specific instructions prior to taking body samples from the donor for drug testing – e.g. to undertake limited rehydrating, to demonstrate that the donor’s mouth is free from foreign substances, to abstain from smoking, eating, drinking or chewing for 10 minutes, and to remain in the approved tester’s presence prior to testing.

New regulation 99.160 - Initial drug test

This regulation requires the approved tester to do an initial drug test on an oral fluid sample as soon as practicable after taking it.

New regulation 99.165 -- If initial drug test result is not positive

If the result of an initial drug test result is not positive, this regulation requires the approved tester to, as soon as practicable after the result is returned, discard or de-identify the oral fluid sample and give the donor a notice containing the information prescribed in new subregulation 99.175(1). The regulation also requires the tester to give CASA a notice that includes the information given to the donor.

New regulation 99.170 - If initial drug test result is positive

When an initial drug test result is positive, this regulation permits the approved tester to require the donor to provide, as soon as possible, a further oral fluid sample for confirmatory testing by an approved laboratory. Alternatively, if the initial oral fluid sample is of adequate volume and quality, the approved tester may send the oral fluid sample that was subject of the initial test to the approved laboratory. In either event, the approved tester must tell the donor which oral fluid sample will be subject to confirmatory testing and discard any oral fluid sample that is not being used for that purpose. The regulation also requires the tester to give the donor, the approved laboratory to whom the oral fluid sample will be sent for a confirmatory drug test, and CASA, notice containing the information prescribed in new regulation 99.175.

New Regulation 99.175 - Notices of initial drug test

This regulation prescribes the information that notices given to a donor and an approved laboratory in relation to the results of initial drug tests are required to contain. The purpose of the information provided to the donor is to ensure they are properly informed about the conduct and result of the initial test and thereby know that they are not yet able to resume or commence an applicable SSAA. Additionally, a copy of the notice is provided to CASA to ensure that a contemporaneous record is created to support any later enforcement action. The purpose of the information provided to the approved laboratory is to enable it to conduct and properly record confirmatory testing.

New regulation 99.180 - Dealing with samples for confirmatory drug test

This regulation sets out the other procedures an approved tester must follow if the result of an initial drug test on an oral fluid sample is positive. These include allocating a sample identifier to the oral fluid sample that is to be subject to confirmatory testing, dividing that sample into two lots that are to be known as Sample A and Sample B, and placing these in appropriately labelled, sealed and packaged specimen tubes. As discussed below, the creation of Sample B provides an important safeguard for a donor who later wishes to dispute the result of confirmatory testing on Sample A. This regulation includes a requirement that the approved tester ask the donor to witness the tester’s actions under this regulation in respect to the oral fluid sample, initial the tamper evident seals on the tubes, and sign the initial test result notice given to the donor.

New regulation 99.185 - Transporting samples

This regulation requires an approved tester to store and transport oral fluid samples to an approved laboratory for confirmatory drug testing so that they arrive there as soon as possible and in a manner that preserves their integrity. This is to better ensure the accuracy of the results of confirmatory testing.

 

Subdivision 99.C.2.3 Receipt and storage of samples by approved laboratories

New regulation 99.190 - Receipt of samples

This regulation sets out the procedure an approved laboratory must follow to better ensure the integrity of any confirmatory testing when it receives oral fluid samples, including when a specimen tube containing an oral fluid sample is not intact. If the content of both Sample A and Sample B specimen tubes is discarded, the regulation requires the approved laboratory to provide CASA with written notice of this fact, containing the information specified. The regulation also requires CASA, as soon as practicable after receiving this notice from the laboratory, to give written notice to the donor containing the information specified.

New regulation 99.195 - Storage of samples

This regulation sets out the requirements for the storage of body samples by an approved laboratory. Where neither Sample A nor Sample B is discarded in accordance with regulation 99.190, Sample A is to be tested. If the Sample A test is positive, Sample B is to be securely stored for 100 days from the date of that positive result in case the donor wishes to have it tested with a view to challenging the test result for Sample A. If either Sample A or Sample B is discarded as required by regulation 99.190, then the remaining sample is stored for testing.

 

Subdivision 99.C.2.4 Conduct of drug tests by approved laboratories

New regulation 99.200 - Testing Sample A

This regulation requires the laboratory to test Sample A if the laboratory is satisfied that Sample A retains its integrity. If Sample A has been compromised, or is unavailable for confirmatory testing, Sample B becomes Sample A, the laboratory is required to deal with it as if it were Sample A and the regulations apply to it accordingly.

New regulation 99.205 - Samples to be tested in accordance with National Association of Testing Authorities’ accreditation

In order to ensure that confirmatory testing is of an appropriate quality, this regulation requires a laboratory to test body samples in accordance with the standards of the laboratory’s NATA accreditation.

New regulation 99.210 - Notices of Sample A results

This regulation requires an approved laboratory, as soon as practicable after a confirmatory test has been conducted on Sample A, to send written notice to CASA containing the information specified in relation to the conduct and result of the test. The regulation then requires CASA, as soon as practicable after receiving this notice from the laboratory, to give the donor oral notice of the result, followed by a written notice containing the information specified (including details about the donor’s right to have Sample B independently tested). The timely provision of notice to the donor is necessary to ensure that the donor knows whether or not they are able to resume or commence an applicable SSAA.

New regulation 99.215 - Donor may request testing of Sample B

This regulation permits a donor, whose test result for Sample A of a body sample is a positive result, to apply to CASA to have a further confirmatory drug test carried out on Sample B of the body sample, either by the same approved laboratory, or another approved laboratory. This request must be made within 90 days of the date of the written notice of the Sample A test result. Because of the normally very low incidence of error in laboratory drug testing of oral fluid samples, the donor is liable to pay the costs of Sample B and any associated transportation costs. Once a request is made for Sample B to be tested, CASA arranges this and testing is conducted in the same way as for Sample A.

New regulation 99.220 - Approved laboratory to keep Sample B

This regulation provides that, where a Sample A test result is positive, the approved laboratory is to discard Sample B after 100 days unless the donor applies to CASA to have Sample B tested within 90 days of the date of the notice of the Sample A test result.

New regulation 99.225 - Notices of Sample B results

This regulation requires that if a confirmatory drug test is carried out on Sample B of an oral fluid sample, the notices specified in new regulation 99.210 must be given in respect of that test, in the form and within the timeframes required by that regulation. Further, as soon as practicable after giving oral notice to the donor, CASA must give a written notice to the donor, containing the specified information.

New regulation 99.230 - Test results

This regulation clarifies the circumstances in which the result of a confirmatory drug test on an oral fluid sample will be taken to be a positive or not positive result. Importantly, it gives the donor the benefit of any doubt by providing that a negative result of a confirmatory test on Sample B will prevail over a positive result of a confirmatory test on Sample A, and that a positive result of confirmatory testing on Sample A will be deemed to be a negative test result if Sample B cannot be made available for testing. The regulation also provides that a positive result for a confirmatory drug test conducted under Subpart C is taken not to be a positive result where a CASA medical review officer has determined that the positive result could be due to legitimate therapeutic treatment or some other innocuous source.

 

Subdivision 99.C.2.5 Record-keeping

New regulation 99.235 - Approved laboratory to keep records

This regulation makes it an offence of strict liability for an approved laboratory to fail to keep a copy of a notice sent under new regulation 99.210 for 7 years from the date the notice was sent, to fail to keep the copy in a secure location, or to fail to provide CASA with a copy of the notice if requested to within the 7 year period.

 

Division 99.C.3 Alcohol Testing

New regulation 99.240 - Which body samples may be alcohol tested

This regulation specifies that an approved tester conducting a CASA alcohol test may only take a sample of a person’s breath for testing.

New regulation 99.245 - How samples are taken and tested

This regulation requires approved testers to take breath samples for alcohol testing only in accordance with the procedures set out in a legislative instrument made by CASA.

New regulation 99.250 - Approved breathalysers to be used in alcohol tests

This regulation requires approved testers to conduct initial alcohol tests using only approved breathalysers, and to conduct confirmatory alcohol tests using only approved breathalysers that meet the requirements of the specified standard for evidential breath analysers. As a result, an approved tester may use a non-evidential standard or an evidential standard breathalyser for initial alcohol testing, but only the more accurate evidential standard breathalyser for confirmatory alcohol testing (which, under new regulation 99.260, is determinative of the overall test result). The regulation also requires the tester to ensure that the breathalyser is stored, tested, maintained and operated in accordance with a legislative instrument made by CASA.

New regulation 99.255 - Alcohol tests

This regulation sets out the procedure for performing initial and, only if the initial test result is positive, confirmatory alcohol tests. The regulation also specifies the notice an approved tester is required to give to a donor, either when an initial test result is negative or when a confirmatory test has been completed.

New regulation 99.260 - Test results

This regulation clarifies how CASA alcohol test results are to be determined after initial or initial and confirmatory alcohol tests have been completed. Importantly, consistent with the benefit of the doubt that is given to a donor in respect of a CASA drug test, a negative confirmatory alcohol test result prevails over a positive initial test result.

New regulation 99.265 - Notice of alcohol test

This regulation prescribes the information that must be contained in a notice that an approved tester is required to give to a donor under new regulation 99.255 once a CASA alcohol test is completed.

New regulation 99.270 - Notice to CASA

This regulation requires an approved tester to give CASA a notice including the information given to the donor, as soon as practicable after the notice is given to the donor under new regulation 99.255.

 

Subpart 99.D Evidentiary certificates and prescribed proceedings

Division 99.D.1 Purposes of Subpart

New regulation 99.275 - Purposes of Subpart

This regulation provides that the purposes of Subpart D are to make provision for evidentiary certificates and for prescribed proceedings under paragraph 36(4)(d) of the Act (under which the Regulations may specify the proceedings in which an evidentiary certificate is admissible in evidence).

 

Division 99.D.2 Evidentiary Certificates

New regulation 99.280 - Certificates by approved tester

This regulation prescribes the form and content required of an evidentiary certificate by an approved tester concerning an initial drug test or an alcohol test, for the certificate to be admissible as evidence in proceedings under the Act, the Regulations, or the Criminal Code.

New regulation 99.285 - Certificates by approved laboratory

This regulation prescribes the form and content required of an evidentiary certificate by an approved laboratory concerning a confirmatory drug test, for the certificate to be admissible as evidence in proceedings under the Act, the Regulations, or the Criminal Code.

New regulation 99.290 - Document taken to be a certificate unless contrary intention established

This regulation provides that a document purporting to be an evidentiary certificate under new regulation 99.280 or new regulation 99.285 is to be taken to be such unless a contrary intention is established.

New regulation 99.295 - Certificate not to be admitted unless copy given

In order to ensure that a person charged with an offence and their legal advisers have appropriate notice of the matters set out in an evidentiary certificate, this regulation prohibits a certificate from being admitted in evidence under new regulation 99.280 or new regulation 99.285 in any proceedings under the Act, the Regulations or the Criminal Code, unless the person charged with the offence, or the barrister or solicitor appearing for the person in the proceedings, has been given a copy of the certificate, as well as notice of any intention to produce the certificate in evidence in proceedings, at least 14 days before the certificate is sought to be so admitted.

New regulation 99.300 - Person signing the certificate may be called to give evidence

In order to allow a person charged with an offence and their legal advisers to challenge the content of an evidentiary certificate, this regulation permits a person charged with an offence to require the person who signed a certificate that will be admitted in evidence in proceedings to be called as a witness for the prosecution and cross-examined as if he or she had given evidence of the matters stated in the certificate, provided that the prosecutor has been given at least 4 days notice of the person’s intention, or the Court, by order, grants the person’s application to require the calling of the witness.

New regulation 99.305 - Rebuttal evidence

This regulation ensures that any evidence either in support of, or in rebuttal of, a matter stated in an evidentiary certificate is considered on its merits. Further, the evidential burden of rebutting a matter stated in such a certificate is on the balance of probabilities.

New regulation 99.310 - CASA may ask for full certificate

To ensure that CASA is able to obtain an evidentiary certificate covering all matters that may be included in such a certificate, this regulation permits CASA, by notice in writing, to require an approved tester or approved laboratory to provide CASA with a certificate containing the matters listed in either new regulation 99.280 or new regulation 99.285 (as applicable). The regulation makes it an offence of strict liability for a person or approved laboratory to fail to comply with the notice within 7 days of being given it.

 

Division 99.D.3 Prescribed proceedings

New regulation 99.315 - Prescribed proceedings

This regulation provides that, for paragraph 36(4)(d) of the Act, proceedings under the Criminal Code are prescribed. This has the effect that an evidentiary certificate under the Regulations can be admitted in evidence in proceedings under that Code, as well as in proceedings under the Act and regulations made under it.

 

Subpart 99.E Offences for Subpart 99.C

Division 99.E.1 Purposes of Subpart

New regulation 99.320 - Purposes of Subpart

This regulation provides that the purposes of Subpart 99.E are to make provision for offences relating to CASA drug and alcohol testing under Subpart 99.C (that is, not in connection with drug and alcohol testing under a DAMP) and to make provision for CASA medical review officers.

 

Division 99.E.2 Offences

Subdivision 99.E.2.1 Offences relating to giving a body sample

New regulation 99.325 - Failing to carry identification while undertaking applicable SSAA

This regulation makes it an offence of strict liability for a person who is performing, or available to perform, an applicable SSAA to fail to produce prescribed identification to an approved tester within 1 hour of being asked by the tester to do so.

New regulation 99.330 - Refusing or failing to give a body sample

This regulation makes it an offence of strict liability for a person who is performing, or available to perform, an applicable SSAA to fail to give a body sample to an approved tester when the approved tester requires the body sample for a drug or alcohol test in compliance with the requirements of the Part. It is a defence if the person has a medical condition which renders them unable to give the body sample.

New regulation 99.335 - Continuing to perform applicable SSAA after refusing a drug or alcohol test or failing to give a body sample

This regulation makes it an offence of strict liability for a person who is performing, or available to perform, an SSAA and who is required to provide a body sample for CASA testing and who refuses or fails to provide that sample to again perform or become available to perform an applicable SSAA until they have been drug or alcohol tested under the Part.

New regulation 99.340 - Failing to stop performing an applicable SSAA

This regulation makes it an offence of strict liability for a person to fail to comply with a request from an approved tester to stop performing or being available to perform an applicable SSAA for the time it takes the tester to take a body sample and conduct a drug or alcohol test on it.

New regulation 99.345 - Failing to remain in approved tester’s presence

This regulation makes it an offence of strict liability for a person to fail to comply with an approved tester’s request that the person remain in the tester’s presence for the time if takes the tester to take a body sample and conduct a drug or alcohol test on it.

New regulation 99.350 - Person must not interfere with integrity of body sample

This regulation makes it an offence of strict liability for a person who is giving, or has given, a body sample for a drug or alcohol test to interfere with the integrity of that sample.

 

Subdivision 99.E.2.2 Offences occurring after positive test result

New regulation 99.355 - Continuing to perform applicable SSAA between having initial drug test and confirmatory drug test

This regulation makes it an offence of strict liability for a person who has received a positive result for an initial drug test to perform or become available to perform an applicable SSAA while confirmatory drug testing is being conducted by an approved laboratory. It is not an offence to resume SSAA duty where the person’s body sample cannot be subjected to confirmatory testing by an approved laboratory.

New regulation 99.360 - Continuing to perform applicable SSAA after having confirmatory drug test and before result returned

This regulation makes it an offence of strict liability for a person who has received a positive result for an initial drug test to perform or become available to perform an applicable SSAA after confirmatory drug testing has been conducted by an approved laboratory but before the test result has been returned. Whether the person can immediately resume SSAA duty when the test result is returned will depend upon whether or not the result is positive or negative. It is not an offence to resume SSAA duty where the test result cannot be returned because it was not possible to conduct confirmatory testing.

New regulation 99.365 - Continuing to perform applicable SSAA before confirmatory alcohol test result returned

This regulation makes it an offence of strict liability for a person who has received a positive result for an initial alcohol test to perform or become available to perform an applicable SSAA while the result for the related confirmatory alcohol test has not been returned.

New regulation 99.370 - Performing applicable SSAA showing positive result for testable drug

This regulation makes it an offence of strict liability for a person to perform or be available to perform an applicable SSAA at a time when initial and related confirmatory drug tests show a positive result. It is a defence if the person’s Sample B is tested within the permissible time and returns a negative result.

New regulation 99.375 - Performing applicable SSAA showing positive result for a confirmatory alcohol test

This regulation makes it an offence of strict liability for a person to perform or be available to perform an applicable SSAA at a time when initial and related confirmatory alcohol tests show a positive result.

 

Subdivision 99.E.2.3 Offences relating to returning to SSAAs after positive test result

New regulation 99.380 - Continuing to perform applicable SSAA after having confirmatory drug test

This regulation makes it an offence of strict liability for a person who has received a positive result for both an initial and a confirmatory drug test to perform or become available to perform an applicable SSAA until such time as the person has satisfied the prescribed conditions listed in the regulation (which include a comprehensive drug and alcohol use assessment by a DAMP medical review officer or a CASA medical review officer (as appropriate), a further confirmatory drug test result that is not positive and a fitness for work assessment, and may include commencement of a drug or alcohol intervention program).

New regulation 99.385 - Continuing to perform applicable SSAA after confirmatory alcohol test

This regulation makes it an offence of strict liability for a person who has received a positive result for both an initial and a confirmatory alcohol test to perform or become available to perform an applicable SSAA until such time as the person has satisfied the prescribed conditions listed in the regulation (which include a comprehensive drug and alcohol use assessment and a fitness for work assessment by a DAMP medical review officer or a CASA medical review officer (as appropriate), and may include commencement of a drug or alcohol intervention program).

 

Subdivision 99.E.3 CASA medical review officers

New regulation 99.390 - CASA medical review officers

This regulation permits CASA, in writing, to appoint medical practitioners as CASA medical review officers for the purposes of Subpart 99.C. The regulation requires a CASA medical review officer to review positive results, and medical information concerning a person’s failure to give a body sample for testing because of a medical condition, before the result or failure is referred for action for an offence under Subpart 99.E or for other action under the Act or Regulations. The regulation also requires CASA to take account of the review before making a decision to refer a positive result for action for an offence under Subpart 99.E or for other action under the Act or Regulations.

 

Subpart 99.F - Provision of information

Division 99.F.1 Purposes of Subpart

New regulation 99.395 - Purposes of Subpart

This regulation states that the purpose of Subpart 99.F is to make provision for the exchange of information between CASA and DAMP organisations or foreign operators about drug and alcohol tests.

 

Division 99.F.2 Information

New regulation 99.400 - Drug or alcohol test information given or required by CASA

In order to allow CASA to facilitate employer management of persons who return positive results to CASA testing, this regulation empowers CASA to notify a DAMP organisation or a foreign operator of the result of an SSAA employee’s drug or alcohol test, if the result is a positive result. The regulation also empowers CASA to request the organisation or operator to provide CASA with certain information, including what, if any, action was taken in respect of the employee and the test result.

New regulation 99.405 - Information that must be given to CASA following drug or alcohol test

This regulation requires a DAMP organisation to provide CASA with prescribed information if an SSAA employee ceases to be an SSAA employee of the DAMP organisation and the cessation occurs after a positive test result has been provided to the organisation under new regulation 99.400, and before the employee resumes performing or being available to perform an applicable SSAA with the organisation or satisfactorily completes a drug or alcohol intervention program. The purpose of this provision is to allow CASA to monitor as appropriate the future performance of SSAAs by such a person.

 

Subpart 99.G - CASA’s powers in relation to civil aviation authorisations

Division 99.G.1 Purposes of Subpart

New regulation 99.410 - Purposes of Subpart

This regulation states the purposes of this Subpart, which are to make provision for CASA to vary, suspend or cancel a person’s civil aviation authorisation in circumstances related to drug and alcohol testing. The insertion of this Subpart has the effect that CASA is not required to issue a show cause notice before taking a decision to vary, suspend or cancel a person’s civil aviation authorisation on the basis of their drug or alcohol use. If CASA was required to issue a show cause notice, the decision would be automatically stayed under section 31A of the Act. An automatic stay is considered inappropriate where the basis for variation, suspension or cancellation relates to drug or alcohol use of a person performing or being available to perform SSAAs.

New regulation 99.415 - When may CASA vary, suspend or cancel a civil aviation authorisation

This regulation empowers CASA to vary, suspend or cancel a person’s civil aviation authorisation when they have returned a positive test result or have refused to provide a body sample for CASA testing and CASA determines that they have committed any of the offences created by Part 99 (other than failing to carry identification).

New regulation 99.420 - When variation, suspension or cancellation takes effect

This regulation provides that a variation, suspension or cancellation take effects from the date specified in the notice of variation, suspension or cancellation. By application of the general law, this date cannot be earlier than the date of the decision to vary, suspend or cancel.

New regulation 99.425 - Notice

This regulation provides that the holder of a civil aviation authorisation that is varied, suspended or cancelled under new regulation 99.375 is to be given notice of that decision and the reasons for it as soon as practicable.

New regulation 99.430 - Effect of effluxion of time in relation to the suspension of civil aviation authorisation

This regulation provides that a period of suspension does not extend the period of validity of a suspended civil aviation authorisation and that, if the authorisation expires before the end of the suspension period, the holder is not eligible for renewal during the remaining suspension period.

New regulation 99.435 - Effect of suspension of civil aviation authorisation

This regulation provides that, during a period of suspension, an authorisation holder is taken not to be a holder of that authorisation. This is to ensure that the person is not able to conduct activities during that period that they would otherwise be able to conduct only because of the issue of the authorisation.

 

Subpart 99.H - Approved testers and authorisations to conduct drug and alcohol tests

Division 99.H.1 Purposes of Subpart

New regulation 99.440 - Purposes of Subpart

This regulation sets out the purposes of Subpart H, which are to make provision for the appointment of approved testers, the obligations, powers and liabilities of such persons, and identity cards and notices for approved testers.

 

Division 99.H.2 Approvals and authorisations

New regulation 99.445 - CASA may approve persons to take body samples and conduct tests

This regulation empowers CASA to approve a person to take body samples and to conduct alcohol tests and initial drug tests for the purposes of Part IV of the Act. The regulation also empowers CASA to approve a person to conduct confirmatory drug tests for the purposes of Part IV of the Act if the person is accredited by the NATA to Australian Standard 4760, or another standard that is declared by CASA in a legislative instrument. Approval may be granted subject to conditions. Approved testers are to be issued a unique identifying number in accordance with a method approved by CASA. Under Part 11 of the CASRs, CASA can delegate its functions under the Regulations and it is intended that the power of appointment of approved testers will be delegated, subject to appropriate conditions, to the contractor engaged to conduct CASA testing.

New regulation 99.450 - Persons authorised to take body samples and conduct tests

This regulation clarifies the circumstances in which a person will be authorised under subsection 36(2) of the Act to take body samples for drug or alcohol tests, or to conduct initial drug or initial and confirmatory alcohol tests, or to conduct confirmatory drug tests.

 

Division 99.H.3 Obligations on approved testers and protection from liability

New regulation 99.455 - Obligations on approved testers

This regulation requires an approved tester to comply with the requirements of Part 99 when requiring, taking and dealing with a body sample from a donor. The regulation also requires the tester to ensure he or she does not delay the donor for longer than necessary to take the body sample and conduct the test.

New regulation 99.460 - Approved tester not liable in certain cases

This regulation indemnifies approved testers from actions, suits or proceedings that could arise from their acts or omissions provided that they have acted in good faith in the performance or exercise of a function or power under Part 99.

 

Division 99.H.4 Powers of approved testers

New regulation 99.465 - Approved testers’ powers to access premises

This regulation provides that approved testers have rights of access to any place in which it is necessary for them to conduct CASA drug and alcohol testing and makes it an offence of strict liability if a person prevents or hinders that access. Rights of access are dependent upon the approved tester producing their identity card for inspection on request.

 

Division 99.H.5 Identity cards

New regulation 99.470 - Identity cards

This regulation requires CASA to issue each approved tester with an identity card, and sets out the form and content required of the identity card.

New regulation 99.475 - Return of identity card

This regulation makes it an offence of strict liability for a person who has been issued with an identity card to fail to return the card to CASA within 7 days of the person ceasing to be an approved tester, or the person’s approval being suspended, as the case may be.

New regulation 99.480 - Display and production of identity cards

This regulation requires an approved tester, if performing functions or exercising powers under Part 99, to wear their identity card so that it can be readily seen. The regulation also requires the tester to show their identity card to a person (the donor) from whom the approved tester intends to take a body sample for a drug or alcohol test, upon the donor’s request. If the approved tester does not show their identity card when requested by the donor, the donor may refuse to give a body sample for a drug or alcohol test.

New regulation 99.485 - Suspension or revocation of authorisation

This regulation provides that, when an approved tester breaches a condition of approval given under new regulation 99.445 or does not comply with the requirements of Part 99, CASA may impose a further condition of approval on a tester or may suspend or revoke the tester’s authorisation.

New regulation 99.490 - Notices

This regulation requires CASA to give an approved tester notice in writing whenever CASA imposes a further condition on the tester’s approval, or suspends or revokes the tester’s authorisation. The notice must specify the date that the condition, the suspension or the revocation takes effect, as the case may be, and must include a statement setting out the reason for it.

 

Division 99.H.6 Notices to approved testers

New regulation 99.495 - Notice to approved testers

This regulation provides that, if CASA is required under the Regulations to give notice to an approved tester, the requirement is met if CASA gives that notice to the person who, as CASA’s delegate, approved the tester as an approved tester. It is intended that CASA’s delegate will, as a condition of their delegation, be required to pass these notices on to the individual testers approved by it.

 

 

Item 3 - Paragraph 201.016(2)(b)

Item 3 makes a minor technical amendment to existing paragraph 201.016(2)(b) of the CASRs to enable CASA to disclose a person’s ARN (or aviation reference number) (rather than the currently permitted “unique identifier (if any) assigned to the person by CASA for the purposes of CASA’s records”) to an air traffic service provider or a person carrying out search and rescue operations where it is necessary to do so for the safety or air navigation.

 

Item 4- Subregulation 201.016(2) note

Item 4 makes a consequential amendment to existing paragraph 201.016(2)(b) of the CASRs to delete the note to that paragraph, which became redundant following the amendment made by Item 3.

 

Item 5 - Dictionary, after definition of approved maintenance data

Consequential upon Item 3, Item 5 amends the Dictionary to the CASRs to insert a new definition of “ARN or aviation reference number”.


ATTACHMENT B

Civil Aviation Amendment Regulations 2008 (No. 1)

DETAILS OF THE REGULATIONS

Regulation 1 - Name of Regulations

Regulation 1 names the amending regulations as the Civil Aviation Amendment Regulations 2008 (No. 1).

 

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on the commencement of the Civil Aviation Safety Amendment Regulations 2008 (No. 1).

 

Regulation 3 - Amendment of Civil Aviation Regulations 198

Regulation 3 provides that Schedule 1 amends the Civil Aviation Regulations 1988 (the CARs).

 

Schedule 1 Amendments

 

Item [1] - After subregulation 269(4)

Item [1] amends existing regulation 269 of the CARs to provide that the otherwise applicable variation, suspension or cancellation provisions of that regulation do not apply where CASA varies, suspends or cancels a civil aviation authorisation under new Part 99 of the Civil Aviation Safety Regulations 1998 (the CASRs). Were this amendment not made, regulation 269 would allow a decision by CASA to vary, suspend or cancel a civil aviation authorisation because of drug or alcohol use issues to be made only after a show cause notice has been issued to the holder and that person had been allowed a period to make submissions in relation to the proposed decision. Having regard to the potential high risk safety implications of drug or alcohol use by persons performing or available to perform safety sensitive aviation activities, it is intended that CASA should be able to take immediate action (subject to subsequent judicial or administrative review).

 

Item 2 - Subregulation 297A(1), definition of reviewable decision, paragraph (x)

Item [2] amends the definition of reviewable decision in subregulation 297A (1) of the CARs to allow the addition of a new paragraph 297A(1)(y).

 

Item 3 - Subregulation 297A(1), definition of reviewable decision, after paragraph (x)

 

Item [3] adds a new paragraph to the definition of reviewable decision to render a decision by CASA under Part 99 of the CASRs to vary, suspend or cancel a civil aviation authorisation reviewable by the Administrative Appeals Tribunal.

 

 

 

 


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