CASA EX112/21 — Implementation of DAMPs (Provision of Safety-Sensitive Aviation Activities by Non-DAMP Organisations) Instrument 2021

DAMP means a Drug and Alcohol Management Plan as defined in regulation 99.010 of CASR and required under Part 99 for certain aviation organisations. A DAMP organisation is an organisation that must have a DAMP. Non-DAMP organisation is defined simply as “a person other than a DAMP organisation”. That broad definition captures any individual or entity that is not a DAMP organisation, including contractors, labour-hire firms, or independent operators providing SSAA.

DAMP-like program is a plan of a non-DAMP organisation that: (a) complies with regulation 99.045 of CASR as if the organisation were a DAMP organisation, and (b) is approved in writing by CASA. Regulation 99.045 sets requirements for the content of a DAMP, including policies on testing, training, record-keeping, and response to positive test results. Because the instrument applies Part 99 provisions with modifications, the DAMP-like program must meet the same substantive standards as a DAMP, but the approval process is separate. CASA’s written approval is a condition for the non-DAMP organisation to operate under this instrument.

Applicable SSAA (safety-sensitive aviation activity) and SSAA employee are defined in regulation 99.010. These terms cover activities such as flight crew, cabin crew, aircraft maintenance, air traffic control, and other designated roles. The instrument only affects SSAA performed by a non-DAMP organisation’s employees or contractors for a DAMP organisation.

Employee or contractor of a non-DAMP organisation is treated as an SSAA employee of the DAMP organisation for Part 99 purposes, but the DAMP-like program substitutes for the DAMP. The instrument also adapts the roles of DAMP medical review officer, DAMP contact officer and DAMP supervisor to the non-DAMP organisation’s context. For example, the medical review officer must have competence in interpreting drug and alcohol test results, knowledge of substance use disorders, and knowledge of Part 99 contents , the same standard as for a DAMP.

The exemption in section 5 is the central operational concept. It allows a DAMP organisation to avoid applying its own DAMP to a contractor’s workers if it has a written contract and reasonably believes the non-DAMP organisation is implementing its DAMP-like program. “Reasonably believes” is a subjective but testable standard; the DAMP organisation must record the grounds for that belief and keep the record for five years (subsection 6(2)). The exemption does not apply to the DAMP organisation’s obligations under subregulation 99.065(2) concerning immediate refusal to permit an impaired worker or one involved in an accident to perform SSAA.

Directions were issued to both DAMP organisations and non-DAMP organisations but, as noted, those directions (sections 6(1) and 7) were repealed on 30 September 2023. Subsection 6(2) remains in force until the full instrument is repealed, requiring DAMP organisations to keep records of their reasonable belief grounds for five years and then destroy or delete drug/alcohol test results after that period.

The instrument directly affects three categories of parties: DAMP organisations, non-DAMP organisations, and their respective employees or contractors. CASA is also affected as the approving and oversight body.

DAMP organisations are entities such as airlines, major maintenance providers, or air traffic service providers that are required by Part 99 to have a CASA-approved DAMP. They commonly contract with external labour providers for SSAA , for example, a ground handler or a maintenance contractor. Before this instrument, the DAMP organisation had to include those contracted workers under its own DAMP, which imposed testing, reporting and training obligations on the principal organisation. The instrument allowed the DAMP organisation to shift those obligations to a non-DAMP organisation with an approved DAMP-like program, reducing the DAMP organisation’s compliance burden. However, the DAMP organisation still retained residual responsibility for impairment and accident-related decisions (subregulation 99.065(2)). After the early repeal of section 5 on 30 September 2023, DAMP organisations can no longer rely on the exemption; they must now ensure their DAMP covers all workers performing SSAA, including contractor workers, unless some other instrument or amendment now provides otherwise. That shift represents a significant increase in compliance costs for DAMP organisations that had relied on the instrument.

Non-DAMP organisations are the contractors: labour-hire firms, specialised aviation service providers, or even individuals operating as sole traders. To benefit from the instrument, they had to develop a DAMP-like program that complies with Part 99’s content requirements, obtain CASA’s written approval, implement it, and respond to CASA requests for information or changes. That creates a significant regulatory burden for smaller entities that might not otherwise be subject to Part 99. The cost of designing a compliant program, obtaining legal or consultant advice, training supervisors, and maintaining records for five years can be disproportionate to the revenue from the contract. The instrument also required the non-DAMP organisation to make the DAMP-like program available to each affected employee or contractor (subsection 7(3)), and to comply with CASA’s power to demand changes or a new program (subsection 7(4)). After the repeal of section 7, those directions no longer apply from CASA’s perspective, but note the application provisions in section 4 still apply Part 99 regulations to non-DAMP organisations insofar as the instrument requires. The repeal of section 7 means the explicit directions to non-DAMP organisations are gone, but if a non-DAMP organisation still wishes to operate under a DAMP-like program (if any other provision permits that after the repeal , likely none does), the underlying Part 99 requirements would still apply via section 4 only if some other operative provision triggers them. Since the exemption (section 5) is also repealed, there is no longer a gateway for non-DAMP organisations to use DAMP-like programs in lieu of the DAMP organisation’s DAMP. So the practical effect is that non-DAMP organisations likely must now be covered by the DAMP organisation’s DAMP or become DAMP organisations themselves.

Employees and contractors of non-DAMP organisations are affected because their drug and alcohol testing regime under a DAMP-like program would have been different from that under a DAMP organisation’s DAMP. They also have rights to access the DAMP-like program (subsection 7(3), now repealed). The instrument did not create any individual cause of action; it is a regulatory framework.

CASA bears the cost of approving DAMP-like programs, monitoring compliance, and potentially issuing directions. The instrument gave CASA broad discretion to demand changes or a new program, imposing uncertainty on non-DAMP organisations.

The instrument imposes several duties, though many were time-limited. The key duties still in force after the early repeal are limited. Pre-repeal duties are still relevant for historical compliance and potential retrospective enforcement.

Duty on DAMP organisations to record and retain grounds for reasonable belief (subsection 6(2)): This duty was not repealed with the rest of section 6. It requires a DAMP organisation that relied (or relies) on the exemption to record the grounds for its reasonable belief that the non-DAMP organisation was implementing its DAMP-like program, state the date the record was created, keep the record in a secure location for five years from that date, and within six months after the five-year period destroy or delete the record or any parts relating to drug or alcohol test results. This duty continues even after the exemption itself is gone; a DAMP organisation that invoked the exemption before 30 September 2023 must still maintain those records for the full five-year period. The mandatory deletion of test results after five years (but not of the grounds record itself) suggests a concern for privacy. Non-compliance with this duty could be enforced under the Civil Aviation Act or CASR as a breach of a direction.

Pre-repeal duty on DAMP organisations to notify (subsection 6(1)): Until 30 September 2023, if a DAMP organisation implemented its own DAMP regarding a contractor worker under subregulation 99.065(2) (impairment or accident), it had to notify the non-DAMP organisation in writing as soon as practicable, and notify CASA if it did not permit the worker to perform SSAA. This was a transparency mechanism to avoid confusion between overlapping programs.

Duties on non-DAMP organisations (section 7, repealed 30 Sep 2023): These included complying with regulations 99.080 and 99.085 (implementation and review) as applied, making the DAMP-like program available to affected workers, and complying with CASA requests for copies, information, changes, or a new program. CASA could effectively compel a non-DAMP organisation to redesign its program, creating a risk of regulatory caprice. After repeal, these duties are no longer enforceable, but past breaches could still be pursued.

Right to exemption for DAMP organisations (section 5, repealed 30 Sep 2023): The only substantive right created was the exemption from certain Part 99 obligations. The exemption was conditional on a written contract, the non-DAMP organisation having an approved DAMP-like program, and the DAMP organisation’s reasonable belief. There was no right to appeal CASA’s refusal to approve a DAMP-like program; the instrument does not provide for merits review.

Rights of employees/contractors: The instrument did not confer any individual rights enforceable by workers, such as a right to challenge a test result or to be notified of testing. The only right mentioned is access to the DAMP-like program (section 7(3)), which is now repealed.

The instrument itself does not create new penalty provisions. Instead, it operates within the existing enforcement architecture of the Civil Aviation Act 1988 and the Civil Aviation Safety Regulations 1998. Failure to comply with a direction given under this instrument (for example, a DAMP organisation failing to keep records under subsection 6(2), or a non-DAMP organisation failing to comply with a CASA request before the repeal) would likely be a breach of a civil aviation requirement, potentially attracting administrative action or civil penalties under the Act.

The instrument does not specify penalty amounts. Under the Act, contraventions of directions can attract infringement notices or court proceedings. For corporations, penalties can be significant, often up to hundreds of penalty units for each day of non-compliance. The instrument’s note at section 2 refers to the cessation of directions on repeal; enforcement for past non-compliance is still theoretically possible, though in practice CASA may not pursue historical breaches where the relevant provisions have been repealed.

The most significant potential enforcement risk for DAMP organisations relates to the record-keeping duty in subsection 6(2). If a DAMP organisation fails to keep the required records for the full five-year period (even though the exemption has expired), it could face enforcement action. For non-DAMP organisations, the risk is lower due to repeal, but any failure to have an approved DAMP-like program while claiming the benefit of the exemption before March 2023 could expose them to enforcement.

CASA also retains the power to conduct audits or request information under the Civil Aviation Act generally. The instrument’s giving of specific powers to CASA (subsection 7(4), now repealed) was more explicit, but general powers still apply.

This instrument is a legislative instrument made under the Civil Aviation Act 1988 and regulations 11.160 and 11.245 of CASR. It expressly applies provisions of Part 99 of CASR (regulations 99.010-99.090) to non-DAMP organisations with modifications. Part 99 sets out the framework for DAMPs, including the obligations of DAMP organisations to have an approved plan, conduct testing, train staff, and report results. The instrument overlays a parallel regime for entities not directly subject to Part 99.

The instrument interacts with the primary legislation (the Act) as a delegated law. It cannot override the Act; it may be disallowed by Parliament if not approved. Inconsistency with the Act would render the instrument invalid, though none appears.

It also interacts with the general law of contract: the exemption requires a “written contract” between the DAMP and non-DAMP organisation. The terms of that contract would govern commercial arrangements, but the instrument does not prescribe contract terms. The contract must specify that the non-DAMP organisation provides SSAA and that the DAMP-like program applies instead of the DAMP. Parties were free to negotiate allocation of costs and liability.

The instrument may have interacted with workplace health and safety laws (Work Health and Safety Acts). A DAMP organisation that shifts drug and alcohol management to a contractor still retains a duty under WHS law to ensure the safety of workers at its workplace, regardless of who performs the testing. The instrument’s exemption did not relieve the DAMP organisation of that broader duty. Similarly, privacy laws (Privacy Act 1988) apply to the handling of drug and alcohol test results; the forced deletion of test results after five years (subsection 6(2)(d)) reflects a privacy-sensitive approach.

The instrument does not interact with industrial or employment law directly. It does not create unfair dismissal or discrimination protections, though Part 99 itself requires certain procedural fairness for positive tests.

Importantly, the instrument was always intended to be temporary, with a sunset of 31 March 2029. The early repeal of the key operational sections means it now interacts with Part 99 only as a matter of historical record. Anyone seeking to understand current obligations should look directly at Part 99 in its current form, not rely on this instrument.

The instrument does not record any formal amendments; it is a single instrument. However, it contains built-in amendment provisions through its duration and repeal sections (section 2). Subsection 2(3) provides that sections 5, subsection 6(1) and section 7 are repealed at the end of 30 September 2023. This is a de facto amendment: the instrument automatically ceased to have effect for those provisions on that date. The note clarifies that the directions in sections 6 and 7 cease to be in force on repeal. The remainder of the instrument (sections 1-4, subsections 2(1)-(2), and subsection 6(2)) continued until 31 March 2029.

No other amendments are recorded or implied. The instrument was registered on 30 September 2021 (likely, since it commences the day after registration) and the early repeal occurred exactly two years later. The sunset of the whole instrument on 31 March 2029 is a common CASA practice for time-limited exemptions. The rationale for the early repeal is not stated in the instrument; but given the nature of exemptions, CASA may have decided to revoke the contractor exemption earlier than originally planned because of concerns about safety or effectiveness, or because permanent amendments to Part 99 were introduced.

Readers should check whether Part 99 of CASR has been amended since 30 September 2023 to incorporate a permanent regime for contractor DAMP programs. If not, DAMP organisations must now treat all SSAA workers under their own DAMP.

The source text contains no references to litigation. It is a legislative instrument, not a court decision. As an Australian legislative instrument, it could be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the common law if a party challenged CASA’s decision to approve or refuse a DAMP-like program, or to enforce a direction. No reported cases are known from publicly available sources that specifically interpret CASA EX112/21. Given the instrument’s limited duration and technical nature, litigation is unlikely. However, general principles of administrative law apply: CASA must not act unreasonably or fail to consider relevant matters. An affected non-DAMP organisation that had a DAMP-like program approval refused may have sought review, but the instrument does not create an internal merits review mechanism.

The early repeal of the core provisions may itself have been a response to feedback or legal risk, but that is speculative.

For a deep dive, it is sufficient to state that no litigation history is provided in the source. Analysts should check legal databases for any challenge, but none is recorded in the instrument text.

Several aspects of this instrument deserve careful attention.

The early repeal is the biggest trap. After 30 September 2023, sections 5, 6(1) and 7 were automatically repealed. This means the exemption for DAMP organisations and the directions to both DAMP and non-DAMP organisations no longer exist. Anyone who continued to rely on the exemption after that date would be non-compliant with Part 99. Contracts signed before the repeal that reference the instrument may need renegotiating. The remaining provisions (sections 1-4, subsection 6(2)) do not provide any exemption; they only define terms and apply Part 99. So a contract that states “the DAMP organisation is exempt under section 5” becomes legally ineffective. Parties must verify current compliance.

The “reasonable belief” standard is ambiguous. Subsection 5(1)(b) required the DAMP organisation to “reasonably believe that the non-DAMP organisation is implementing its DAMP-like program”. What constitutes reasonable belief? A bare assertion in the contract may not be enough. The record-keeping duty in subsection 6(2) required the DAMP organisation to record the grounds for that belief. If those grounds were weak, CASA could later challenge the exemption. Even though the exemption is repealed, past reliance could be relevant if CASA audits historical compliance.

The five-year record-keeping and destruction requirement continues. Subsection 6(2) was not repealed and remains in force until the full instrument’s sunset on 31 March 2029. A DAMP organisation that relied on the exemption before 30 September 2023 must still keep records of its reasonable belief grounds for five years from the date the record was created, and then destroy drug/alcohol test results within six months after that period. Failure to do so could lead to enforcement. The destruction obligation is specific: “the record; or any parts of the record that relate to the results of drug or alcohol testing.” That means the DAMP organisation must, after five years, delete test result data from records but may keep other parts (e.g., the contract, the grounds). This is an ongoing burden for bookkeeping.

CASA’s power to demand changes was broad but now moot. Section 7(4) allowed CASA to require a non-DAMP organisation to make changes to its DAMP-like program or prepare a new one. That provision is repealed, but its past exercise could have left non-DAMP organisations committed to ongoing compliance as a condition of CASA approval. Even though the direction power is gone, if CASA previously approved a DAMP-like program with conditions, those conditions likely survived under general law.

No grandfathering after repeal. The instrument does not contain a saving provision for exemptions that were in force before the repeal. Once section 5 was repealed, all exemptions ceased. Non-DAMP organisations that had approved DAMP-like programs could no longer use them to exempt the DAMP organisation. Their CASA approval might still be valid as a separate program, but the exemption that made it useful is gone.

Applicable SSAA definitions matter. The instrument applies only to applicable SSAA as defined in regulation 99.010. Not all aviation activities are covered. A non-DAMP organisation providing non-SSAA services (e.g., catering, admin) would not need a DAMP-like program. Misclassification could lead to accidental non-compliance.

The instrument does not address liability. It does not specify who bears liability if a worker under a DAMP-like program causes an accident due to drug impairment. The DAMP organisation likely retains vicarious liability and primary safety duties under WHS law. The exemption does not transfer legal risk. A DAMP organisation that delegates testing without ensuring effective implementation still faces liability.

Given the current status of the instrument (with the key operational provisions repealed), the compliance steps are largely historical or cautionary. For current operations, compliance with Part 99 of CASR directly is essential.

For DAMP organisations (current) : Ensure that any contractor or labour-hire worker performing SSAA is covered by the DAMP organisation’s approved DAMP. Do not rely on a non-DAMP organisation’s DAMP-like program unless some other current instrument or amendment to Part 99 allows it , which CASA EX112/21 no longer does. Review all contracts with non-DAMP organisations to ensure they require the contractor to cooperate with the DAMP organisation’s DAMP. Update the DAMP to include provisions for contractor workers, as required by Part 99. Conduct training and testing accordingly. Maintain records of all testing and decisions. If the DAMP organisation had previously relied on the exemption and created records under subsection 6(2), continue to keep those records for the full five-year period (from the date the record was made). Set a calendar reminder to destroy test result data within six months after that period ends.

For DAMP organisations (historical compliance) : If CASA ever audits the period before 30 September 2023, the DAMP organisation must be able to produce the record of grounds for reasonable belief under subsection 6(2). Ensure those records are still in a secure location. If they were not created at the time, the organisation may have difficulty defending past reliance on the exemption. Seek legal advice.

For non-DAMP organisations : Because the exemption is repealed, there is no regulatory benefit to maintaining a DAMP-like program under this instrument. If a CASA-approved DAMP-like program exists, it is likely no longer used for its original purpose. However, the non-DAMP organisation could consider whether it is now required to become a DAMP organisation itself under Part 99 if it directly employs its own SSAA employees. Under Part 99, any organisation that employs SSAA employees and provides them to a DAMP organisation may have obligations directly (depending on the current version of Part 99). Contact CASA or an aviation lawyer to determine current obligations. Do not assume the DAMP-like program approval remains in effect as a substitute for a DAMP.

For both parties : Review the current version of Part 99 of CASR, including any amendments made after September 2023. CASA may have introduced a permanent regime for contractor DAMP programs (e.g., amendments to regulation 99.030 or a new regulation). If not, the default is that the DAMP organisation must cover all SSAA workers. Ensure all drug and alcohol testing complies with the Civil Aviation Act, CASR, and any applicable Australian Standards (such as AS/NZS 4308). Keep detailed records for at least five years, as required by Part 99. Seek legal advice specific to the organisation’s structure and contracts.

Documentation and training : Train supervisors on recognising impairment and on the DAMP or DAMP-like program requirements (if applicable). Ensure all affected workers have access to the relevant program. Cooperate with any CASA requests for information, though the specific request power in the instrument is repealed; general compliance powers still apply.

Consider the sunset : The instrument’s remaining provisions (mainly the record-keeping in subsection 6(2)) will expire on 31 March 2029. After that date, the five-year retention obligation ends earlier if the period has already run. Destroy or delete any remaining records as required before the sunset to ensure compliance with any privacy obligations.