Project SS 14/03
CASR Part 99 technical amendments
Issue
Recent practice and advice of the Director of Public Prosecutions have identified flaws in the Part 99 legislative scheme relating to alcohol and other drug (AOD) testing.
Although Part 99 is presently the subject of a post implementation review, urgent amendments to the scheme correcting these issues is essential to the basic efficacy of the scheme. Legislative change is required because the current legislation is likely to preclude the basic operation of the scheme.
There are two main issues:
The first issue is a technical one. The legislation applies to persons who are 'performing or available to perform' safety-sensitive aviation activities. The test of 'performing or being available perform' is a threshold issue that determines who can be asked to provide a body sample for AOD testing. Further, the test of 'performing or being available to perform' is relevant to many of the offence provisions in Part 99 as well as several procedural requirements.
Part 99 also confers on 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 a SSAA, and to remain in the testing officer's presence during the testing process. As part of CASA's standard procedures, testing officers require persons to cease carrying out any applicable SSAA, and to remain in the testing officer's presence, for the time it takes to provide a body sample and to complete the testing process.
The DPP recently returned a brief for prosecution under CASR 99.375 of a pilot who failed an alcohol test. One element of the offence in that regulation is that the person must provide a body sample for testing while the person is performing or available to perform a SSAA. The DPP expressed the view that the offence provision could not be made out because, having been required to remain in the testing officer's presence, the person was no longer available to perform the applicable SSAA. Accordingly, the element of the offence described above is impossible to satisfy.