Project SS 14/03 - CASR Part 99 technical amendments

Issue

Part IV of the Civil Aviation Act 1988 (the Act) empowers the making of regulations for the conduct of alcohol and other drug (AOD) tests on persons 'performing or available to perform' a prescribed 'safety-sensitive aviation activity' (SSAA).  Part 99 of the Civil Aviation Safety Regulations 1998 (CASR) details the requirements for the conduct of AOD tests contemplated in Part IV of the Act.

CASA has identified several technical issues with the operation of Subpart 99.C of the CASR, which deals with the conduct of AOD tests by CASA officers.  CASA proposes to amend Subpart 99.C to correct these issues and to improve the efficiency and effectiveness of the AOD testing scheme.

Test of 'performing or available to perform' a safety sensitive aviation activity

The test of 'performing or available to perform' (an SSAA) is a threshold issue that determines who can be asked to provide a body sample for AOD testing. Further, that test is relevant to many of the offence provisions in Part 99 as well as several procedural requirements.

Part 99 confers on CASA AOD testing officers certain powers in connection with the administration of AOD tests. Those powers include requiring a person being tested to cease performing or being available to perform an SSAA, and to remain in the testing officer's presence during the testing process. Consistent with these powers, CASA's procedures enable CASA AOD testing officers to require that persons cease carrying out an SSAA, and remain in the testing officer's presence, for the time it takes for the person to provide a body sample and for the testing process to be completed.

There is an ambiguity in the legislation that makes it desirable to confirm that a person who has started the testing process is considered to be 'performing or available to perform' an SSAA for the purpose of completing the test.

In addition, the present scheme presently operates so that a person who returns a positive result on an initial AOD test immediately becomes unavailable to perform an SSAA while a confirmatory test is conducted. One implication of this operation of the scheme is that a person who is no longer performing or available to perform an SSAA cannot be the subject of any further Part 99 test. For example, a person who returns a positive drug test is prohibited from being available to perform an SSAA, meaning that CASA is unable to require the person to undergo an alcohol test.

The implications of this outcome include that CASA is unable to check whether a person who tests positive to alcohol also has a problem with drugs (or vice versa). This raises a particular risk in relation to a person who, for example, returns a low reading positive alcohol test but who also has a significant drug problem that adversely affects safety and that cannot be tested. Given that no priority should be assigned between drugs and alcohol, the legislation should be corrected to enable CASA to require persons to undergo both tests.

Body samples for initial drug tests

As noted above, a person that returns a positive result on an initial AOD test becomes unavailable to perform an SSAA, pending the result of a confirmatory AOD test.  In the case of a confirmatory drug test, it takes several days for a confirmatory test to be completed by a laboratory.

Highly portable drug testing devices, which are appropriate for use in initial drug tests conducted by CASA AOD testing officers, are less reliable than laboratory tests. CASA is aware that these portable devices in some cases return 'false positive' results.

To reduce the risk of a person being stood down on the basis of a false positive, CASA proposes to conduct two initial drug tests using different devices that employ different technology.  A sample will only be sent for a confirmatory drug test in respect of a person who tests positive on both of the initial drug tests. The particular testing regime applicable at any point in time in accordance with the CASR will be set out in the legislative instrument made for the purpose of CASR 99.140. 

Accordingly, it is proposed that Subdivision 99.C.2.2 of the CASR be amended so that it enables CASA AOD testing officers to take up to two body samples for the purpose of two initial drug tests.  The conduct of two initial drug tests will not be made compulsory, so that CASA has discretion about how to conduct initial drug tests, for example in light of changes to technology or new information about the reliability of testing devices. 

Consequential amendments will also be required, including to CASR 99.280(3) that deals with evidentiary certificates. 

A number of related amendments are also proposed.  Among these will be revisions to CASR 99.170(3) and 99.170(4).

CASR 99.170(3) provides discretion for CASA AOD testing officers to send either the body sample for an initial drug test or a further body sample (CASR 99.170(1)) to a laboratory for a confirmatory drug test. In practice, the body samples taken by the devices used by CASA for initial drug tests are sufficient only for those initial drug tests and only the further body sample is suitable for the purpose of the confirmatory test. Accordingly, it is proposed that CASR 99.170(3) be repealed.

In addition, CASR 99.170(4) requires a CASA AOD testing officer to notify a person being tested which body sample will be sent for a confirmatory drug test and to destroy the other sample. It is proposed that this provision be amended to reflect:

• the practice that only the further body sample CASR 99.170(1) will be sent for laboratory testing, and
• the fact that body samples taken by the devices used by CASA for initial drug tests are unviable for any purpose after that initial drug test.

Certification of statutory notices by CASA AOD testers

CASR 99.175(1)(f) and CASR 99.265(1)(j) require that the statutory notice under those provisions, following an AOD test, must state the initials of the CASA AOD testing officer for identification purposes.  The requirement for CASA AOD testing officers to initial statutory notices represents a lower standard for identification than a requirement for CASA AOD testing officers to 'sign' statutory notices.

Accordingly, CASA proposes amendments that will require CASA AOD testing officers to sign the statutory notices required by the above mentioned CASRs.

Objective

The objects of the project are to amend CASR Part 99 to:

1. change the test of 'performing or being available to perform', so that it is applied before an AOD test is commenced.  This means that the conduct of the AOD test will be unaffected by any interruption of the person from his or her duties that is caused by the testing process
2. ensure that a person who returns a positive result on an initial alcohol test can be required to undergo an initial drug test, and vice versa
3. enable up to two body samples to be taken and used in initial drug tests, to reduce the risk that false positive results on initial drug tests cause persons to become unavailable to perform an SSAA
4. require the signature of CASA AOD testing officers on statutory notices under CASR Part 99, rather than initials of those officers.

The amendments will necessitate changes to CASA instrument 125/09 setting out CASA's AOD testing procedures, as well as CASA's AOD testing operational documents such as the 'Event Log' used by CASA AOD testing officers in the field.

Status

This project was approved by Peter Boyd, EM Standards Division on 31 January 2014.

Rules affected

Part 99 of CASR

Project management

Project Leader/s: paul.hibberd@casa.gov.au, Special Counsel, Legal Services Division

Project Sponsor/s: Adam Anastasi, EM Legal Services Division

Standards Officer/s: grant.mazowita@casa.gov.au, Manager, Standards Development and Quality Assurance

Priority

High

History