CASA EX19/25 — CASR Subpart 99.B DAMP Requirements for Foreign Air Transport AOC Holders Exemption 2025

The instrument defines several key terms, many of which borrow their meaning from the Civil Aviation Act 1988 and the regulations. A body sample donor is defined in two limbs: (a) a donor (as that term is used in the CASR framework), or (b) a person who is asked to give, or has given, a body sample for the purposes of a test. This captures both voluntary donors and persons compelled or requested to provide a sample. Place means the place where the circumstances mentioned in paragraphs 99.050(2)(b), (c) and (d) of CASR occurred. Those paragraphs refer to an accident or serious incident involving an SSAA employee, an employee returning to duty after being excluded for a positive test, and circumstances where there are reasonable grounds to consider that an employee may be adversely affected by a testable drug or alcohol. The definition of place is important because it grounds the standard for testing devices: the Standard means the minimum requirements to be met for the device to be considered by the Standards body to be reliable and effective for its purpose, and Standards body means the organisation officially recognised for setting Standards in a place. This allows the testing device to comply with the local standard of the country where the relevant incident or circumstance occurred, rather than requiring an Australian standard. The test for the presence of a testable drug or alcohol in a body sample is defined as either (a) a test using a commercial device that complies with the Standard for such devices in the place, or (b) a test by a medical practitioner registered to practise medicine in the place. This is a pragmatic concession to foreign operators whose employees may be tested outside Australia or by medical practitioners not registered in Australia. The term relevant organisation is the central entity: the holder of a foreign air transport AOC that is engaged in international air navigation and not engaged in domestic air navigation in Australia. This excludes operators who fly domestically within Australia, as they would be subject to the full DAMP regime. Other terms such as AOC, approved tester, DAMP, DAMP supervisor, donor, drug or alcohol test, foreign air transport AOC, regular SSAA employee, SSAA and testable drug have the same meaning as in the Act and regulations, and are not redefined in this instrument. The instrument also refers to applicable SSAA, which is not defined here but takes its meaning from the CASR framework. Understanding these concepts is critical because the exemption and conditions turn on them: for example, the obligation to conduct tests under section 6(3) applies only to an SSAA employee who falls within a listed circumstance or whom the organisation has reasonable grounds to consider may be adversely affected.

The primary affected entity is the relevant organisation: the holder of a foreign air transport AOC engaged only in international air navigation into, out of, or over Australia, and not engaged in domestic air navigation. This includes foreign airlines operating flights to Australian airports, but not those that also operate domestic services within Australia (e.g., a foreign airline that has a domestic subsidiary or codeshare with a domestic carrier that would bring it within the domestic definition). The exemption is not automatic; it requires the organisation to proactively notify CASA of a senior person for liaison regarding body sample donors. Without that notification, the organisation remains subject to the full Subpart 99.B DAMP requirements. The organisation’s employees who perform or are available to perform an applicable SSAA are also directly affected. They benefit from the alternative identification procedure: instead of producing the specific photographic identification listed in subregulation 99.125(3) (which typically requires Australian-issued ID such as a driver licence or passport), they may produce photographic identification issued by the employing organisation, provided they do so immediately or within one hour of being asked by an approved tester. This exemption applies only when CASA requests a body sample under Subpart 99.C (which deals with testing by CASA or its authorised testers). CASA itself is affected as the regulatory body that must receive the notification of the senior contact person, process requests for employee information, specify timeframes for responses, and receive reports about positive tests, refusals, interference, and employee cessations. The approved tester (a person authorised under the regulations to conduct tests) is affected because they must accept the organisational photo ID in lieu of the usual prescribed identification, and must wait up to one hour for its production. The CASA medical review officer is affected because under section 6(5)(c) they must approve an employee before that employee can return to SSAA duties after a positive confirmatory drug or alcohol test under Subpart 99.C, or after a refusal or interference with such a test. The instrument also affects any person who acts as a DAMP supervisor equivalent: under note 1 to section 6(3), the organisation may have a person performing equivalent duties to a DAMP supervisor who reasonably considers that an employee may be adversely affected by a testable drug or alcohol, which then triggers the testing obligation. Thus, the practical effect extends to whoever within the organisation manages drug and alcohol risks, even if not formally titled a DAMP supervisor.

The instrument imposes several distinct duties on the relevant organisation and confers certain rights on both the organisation and its employees. The central duty is the notification requirement in section 4(2): before the exemption from Subpart 99.B can operate, the organisation must notify CASA in writing of the name, title, and contact details (including emergency contact details) of a senior person within the organisation with whom CASA may liaise in relation to a body sample donor. This is a condition precedent; non‑compliance means the organisation is not exempt and must have a full DAMP. Once notified, the exemption applies subject to the further conditions in section 6. The first condition (section 6(1) and (2)) requires the organisation, upon CASA’s request, to provide the name, date of birth, addresses (both inside and outside Australia where applicable), and telephone numbers (both inside and outside Australia where applicable) of each employee who performs or is available to perform an applicable SSAA and who is unable to produce either the usual prescribed photographic identification or the organisational photo ID under section 5. The timeframe is either as specified by CASA or, if none specified, as soon as practicable. This allows CASA to identify employees who lack any acceptable photo ID. The second condition (section 6(3)) imposes a testing duty despite the absence of a DAMP. The organisation must ensure that tests for testable drugs or alcohol are conducted on any SSAA employee who falls within a circumstance mentioned in CASR paragraph 99.050(2)(b) (accident or serious incident involving an SSAA employee) or paragraph 99.050(2)(d) (employee returning to SSAA after being excluded because of a positive drug or alcohol result). Additionally, the organisation must conduct tests on any SSAA employee whom it has reasonable grounds for considering may be adversely affected by a testable drug or alcohol while performing or available to perform an applicable SSAA. This mirrors the trigger in paragraph 99.050(2)(c) of CASR. Notably, the instrument does not exempt the organisation from complying with Subpart 99.C (CASA‑initiated testing); that Subpart continues to apply. The third condition (section 6(4)) is a prohibition duty: the organisation must prevent an employee from performing or being available to perform an applicable SSAA in any circumstance mentioned in regulation 99.065 of CASR, including where that circumstance arises from a test under section 6(3) or from Subpart 99.C. Regulation 99.065 sets out the mandatory exclusion circumstances (e.g., positive test, refusal, interference). The fourth condition (section 6(5)) imposes a progressive return‑to‑duty process. Once the organisation prevents an employee under subsection (4), it must ensure the employee does not perform SSAA inside Australian territory until three things happen: (a) each applicable circumstance in subregulation 99.070(2) of CASR has occurred (those are the steps required to re‑qualify an employee after a positive test, such as assessment, education, and follow‑up testing); (b) the organisation has informed CASA in writing of the action taken following the test, refusal, or interference (with specific sub‑paragraphs for different scenarios); and (c) for employees who had a positive confirmatory drug or alcohol test under Subpart 99.C or who refused/interfered with such a test, the employee has been approved by a CASA medical review officer to perform SSAA. The fifth condition (section 6(6)) imposes a notification duty if the employee ceases to be a regular SSAA employee before all the return‑to‑duty requirements are completed. The organisation must notify CASA as soon as practicable after cessation, providing the employee’s name and ARN (if applicable), addresses inside and outside Australia, date of cessation, and current or proposed employment (if known). This ensures CASA can track employees who leave the organisation while still under a prohibition. As for rights, the employee has the right to produce organisational photo ID under section 5 and to have a one‑hour grace period to produce it. The organisation has the right to rely on the exemption from Subpart 99.B once it has notified CASA and complies with the conditions. CASA has the right to request information and specify timeframes.

The instrument itself does not prescribe penalties; it is an exemption instrument made under the Civil Aviation Safety Regulations. Enforcement would occur through the broader CASR framework. Breach of a condition of the exemption would likely result in the exemption being ineffective, meaning the organisation would be in contravention of Subpart 99.B for not having a compliant DAMP. That failure could attract the civil and criminal penalty provisions of the Civil Aviation Act 1988 and the regulations. Specifically, regulation 11.205 under which the exemption is made typically allows CASA to impose conditions, and failure to comply with a condition may render the exemption void or may be an offence under the regulations. The instrument references key CASR provisions: paragraphs 99.050(2)(b) and (d) (accident/incident and return‑to‑duty triggers), regulation 99.065 (mandatory exclusion from SSAA), subregulation 99.070(2) (return‑to‑duty requirements), subregulation 99.325(1) (identification requirements), and Subpart 99.B as a whole. A relevant organisation that fails to conduct tests under section 6(3) when required may be in breach of the condition, and CASA could take enforcement action, including varying or revoking the exemption, issuing a direction, or seeking civil penalties. Similarly, failure to prevent an employee from performing SSAA under section 6(4) could expose the organisation to enforcement for permitting a person to perform safety‑sensitive activities while disqualified. The notification duties under sections 4(2), 6(1), 6(5)(b), and 6(6) are conditions; non‑compliance with a notification duty may mean the organisation is not in full compliance with the exemption, and CASA could treat the organisation as not exempt. The instrument gives CASA the power to specify timeframes for information requests (section 6(2)(a)), and the note states that CASA generally specifies a timeframe. If the organisation fails to meet that timeframe, the condition is not met. The instrument does not specify criminal penalties for false information, but giving false or misleading information to CASA is an offence under the Act or regulations. The definition of test in section 3 allows tests by a medical practitioner registered in the place, but if the organisation uses a device that does not comply with the local Standard or a practitioner not registered in the place, that test may not be valid for the purposes of the condition, potentially creating a gap in compliance. The enforcement picture is therefore one where the exemption creates a bespoke compliance regime, and any deviation from its conditions would remit the organisation to the default requirements of Subpart 99.B, with all associated enforcement possibilities.

The instrument operates solely within the framework of the Civil Aviation Safety Regulations 1998 (CASR) and the Civil Aviation Act 1988. It exempts a relevant organisation from Subpart 99.B of CASR, but only on the conditions stated. Subpart 99.B is the part that requires an AOC holder to have a DAMP and to follow specified procedures for drug and alcohol testing, education, and return‑to‑duty. By exempting the organisation from that Subpart, the instrument removes the obligation to have a DAMP, but replaces it with a more limited set of duties under section 6. However, Subpart 99.C of CASR (which deals with testing by CASA or its authorised testers) continues to apply fully. The instrument specifically references Subpart 99.C in sections 5(2)(b) and 6(5)(b)(ii) and (iv), confirming that CASA retains the power to test employees of foreign AOC holders and that the conditions in section 6 respond to outcomes of that testing. The instrument also cross‑references specific CASR provisions: regulation 99.050 (circumstances for testing), regulation 99.065 (mandatory exclusion), subregulation 99.070(2) (return‑to‑duty steps), subregulation 99.125(3) (prescribed identification), and subregulation 99.325(1) (alternative identification requirement for certain employees). The instrument uses the definitions from the Act and regulations for terms like AOC, approved tester, body sample, DAMP, DAMP supervisor, donor, drug or alcohol test, foreign air transport AOC, regular SSAA employee, SSAA, and testable drug. This means those terms carry the same breadth they do in the primary legislation, including any interpretive nuances from case law or CASA guidance. The instrument does not affect the operation of other Commonwealth laws, such as the Fair Work Act 2009 or work health and safety legislation, except indirectly insofar as the testing and exclusion provisions may interact with employment obligations. The instrument is made under regulations 11.160 and 11.205 of CASR. Regulation 11.160 deals with exemptions from the regulations, and regulation 11.205 addresses conditions on exemptions. This instrument is therefore a legislative instrument that sits within the hierarchy of aviation safety regulation. It is also subject to the Legislation Act 2003 for registration, tabling, and disallowance. The instrument has a fixed lifespan (1 March 2025 to 29 February 2028), so its interaction with other laws is time‑limited. After repeal, foreign AOC holders engaged in international air navigation would be subject to the full Subpart 99.B unless a new exemption is made. The instrument does not interact with state or territory drug and alcohol laws; it does not purport to override local laws requiring testing or prohibiting drug use. It only addresses the regulatory requirements under the CASR framework.

The instrument bears instrument number CASA EX19/25 and is dated 26 February 2025. It was signed by Daniel Bernard O’Hagan as a delegate of CASA, in the role of Section Manager Drafting. There is no amendment history provided in the text; the instrument appears to be the original version. It is a new exemption instrument, not an amendment to a previous one. The instrument’s commencement date is 1 March 2025, and it is repealed at the end of 29 February 2028, giving it an operative period of three years less one day. No amending instruments are referenced. The instrument includes a preamble stating it is made under regulations 11.160 and 11.205 of CASR. The “CASA EX” prefix indicates it is an exemption instrument. The instrument is a standalone legislative instrument, not an amendment to another instrument. Given its sunset date, any future amendment would need to be made by a new instrument. The note in section 6(2) contains a reference to CASA generally specifying a timeframe, but that is explanatory, not an amendment. The instrument does not contain a transitional or savings provision, meaning its repeal will cause a reversion to the default position for affected organisations.

The instrument text does not reference any litigation history. It is a relatively new instrument, having commenced on 1 March 2025, and there is no mention of any court or tribunal decisions concerning its interpretation or validity. No cases are cited in the instrument. The instrument relies on CASR provisions that may have been subject to litigation, but the instrument itself does not discuss any such cases. As an exemption instrument that creates a conditional carve‑out, it is unlikely to be litigated often, but challenges could arise if CASA seeks to enforce conditions or revoke the exemption, or if an employee disputes a test conducted under section 6(3). Because the instrument is new and time‑limited, litigation history is absent from the source and cannot be invented. The deep dive should state that the instrument does not record any litigation history, and that it is too early for case law to have developed.

Several aspects of the instrument could catch relevant organisations off guard. First, the exemption from Subpart 99.B is not automatic; it requires proactive notification to CASA of a senior contact person. An organisation that assumes it is exempt simply because it holds a foreign AOC will be non‑compliant if it has not made that notification. Even after notification, the exemption is conditional on ongoing compliance with section 6. Second, the identification exemption for employees (section 5) only applies when CASA requests a body sample under Subpart 99.C. It does not apply to testing initiated by the organisation itself under section 6(3). In that case, the organisation must rely on its own procedures, and the employee may still need to produce the usual prescribed identification. Third, the one‑hour window to produce organisational photo ID is tight; if the employee cannot produce it within an hour, the identification requirement is not satisfied, and the employee may be considered non‑compliant, potentially leading to a refusal‑to‑test finding. Fourth, the organisation’s testing obligation under section 6(3) arises even though the organisation does not have a DAMP. The organisation must have procedures for conducting tests in the specified circumstances. If it does not have such procedures, it is still required to conduct the tests , there is no exemption from the underlying need to test. The organisation cannot plead lack of a DAMP as a reason for not testing. Fifth, the reasonable grounds test in section 6(3)(b) is broad and mirrors paragraph 99.050(2)(c) of CASR. The organisation must have a mechanism for identifying employees who may be adversely affected, whether through observation, reports, or other risk management. The note suggests that a person performing equivalent duties to a DAMP supervisor could make that assessment, but if the organisation has not designated such a person, it may still be imputed with constructive knowledge. Sixth, the return‑to‑duty process under section 6(5) requires CASA medical review officer approval for employees who had positive confirmatory tests under Subpart 99.C or who refused/interfered with such tests. The organisation cannot simply allow the employee back after completing the steps in subregulation 99.070(2); it must also obtain that external approval. Seventh, the notification duty under section 6(6) upon cessation of employment is triggered even if the employee leaves the organisation before completing the return‑to‑duty process. The organisation must provide current or proposed employment if known, which may involve difficult information‑gathering. Eighth, the instrument does not prescribe consequences for failing to provide the required information about employees under section 6(1), but CASA could specify a very short timeframe, and failure could be treated as non‑compliance with the condition. Ninth, the definitions of Standard and Standards body are tied to the place where the relevant circumstance occurred. This could be problematic if the place has no officially recognised Standards body, or if the device used does not meet that standard. In such cases, the test might not be considered valid under the instrument, potentially leaving the organisation unable to prove it conducted a required test. Tenth, the instrument does not address how to handle employees who are citizens of countries that do not permit drug testing, or who have privacy rights that conflict with the information‑sharing obligations. Those employees would still be subject to the conditions.

A relevant organisation seeking to rely on this exemption should take the following steps. First, before the exemption can operate, the organisation must identify a senior person within the organisation who can act as CASA’s liaison regarding body sample donors. The organisation must then notify CASA in writing of that person’s name, title, and contact details, including emergency contact details. This notification should be sent to the appropriate CASA office, and a copy should be retained with evidence of receipt. Without this notification, the organisation is not exempt from Subpart 99.B. Second, the organisation should prepare for requests under section 6(1). It should maintain a register of all employees who perform or are available to perform an applicable SSAA, and identify which of those employees are unable to produce either the usual prescribed identification (e.g., Australian driver licence or passport) or the organisational photo ID. For those employees, the organisation must be able to provide to CASA upon request: name, date of birth, addresses (both inside and outside Australia), and telephone numbers (both inside and outside Australia). The organisation should have a process to gather this information proactively and update it regularly, and to respond to CASA within any specified timeframe or otherwise as soon as practicable. Third, the organisation must develop and implement procedures for conducting drug and alcohol tests in two specific circumstances: (a) after an accident or serious incident involving an SSAA employee (per CASR paragraph 99.050(2)(b)); and (b) when the organisation has reasonable grounds to consider that an SSAA employee may be adversely affected by a testable drug or alcohol (per paragraph (b) of section 6(3), based on CASR paragraph 99.050(2)(c)). Additionally, tests must be conducted when an employee returns to SSAA after being excluded due to a positive test (per CASR paragraph 99.050(2)(d), referenced in section 6(3)(a)). The organisation does not need a full DAMP, but must have some means of identifying when these triggers occur and arranging for a test that complies with the definition in section 3 , either using a commercial device that meets the Standard in the place where the trigger occurred, or using a medical practitioner registered in that place. The organisation should document these procedures and ensure that personnel understand how to activate them. Fourth, the organisation must establish a system to prevent employees from performing SSAA in any circumstance set out in regulation 99.065 of CASR. That regulation lists mandatory exclusions, such as after a positive test, refusal, or interference. The organisation must enforce this prohibition regardless of whether the triggering event arose from its own testing under section 6(3) or from CASA testing under Subpart 99.C. Fifth, when an employee is prevented from performing SSAA, the organisation must manage the return‑to‑duty process. The employee must not be allowed to perform SSAA inside Australian territory until all applicable steps in subregulation 99.070(2) have occurred (these are the standard return‑to‑duty requirements, such as assessment by a medical practitioner and follow‑up testing). The organisation must also inform CASA in writing of the action taken following the test, refusal, or interference, specifying which category applies (positive test under organisation’s test, positive confirmatory test under Subpart 99.C, refusal/interference under section 6(3) or Subpart 99.C). For employees who had a positive confirmatory test under Subpart 99.C or who refused/interfered with such a test, the organisation must obtain approval from a CASA medical review officer before allowing the employee back to SSAA. The organisation should keep a record of all communications with CASA and the medical review officer. Sixth, if an employee ceases to be a regular SSAA employee before completing the return‑to‑duty process, the organisation must notify CASA as soon as practicable with the employee’s name, ARN (if applicable), addresses inside and outside Australia, date of cessation, and current or proposed employment if known. Seventh, for identification purposes, the organisation should issue photographic identification to its employees and ensure that the ID format is acceptable under section 5. Employees should be trained to produce that ID immediately or within one hour when asked by an approved tester under Subpart 99.C. The organisation should also have a contingency for employees who lose their ID or cannot produce it within the hour. Eighth, the organisation should maintain a log of all tests conducted under section 6(3), all exclusions under section 6(4), all reports to CASA, and all return‑to‑duty outcomes. Ninth, the organisation should review its procedures at regular intervals and ensure that any changes in CASA contact points are communicated promptly. Tenth, because the exemption expires on 29 February 2028, the organisation should plan for the re‑application of Subpart 99.B after that date, or seek a new exemption. Throughout, the organisation should keep copies of all notifications and reports sent to CASA, and evidence of compliance with timeframes.