CASA EX70/19 — Implementation of Drug and Alcohol Management Plans (Non-DAMP Organisations) Instrument 2019

DAMP-like program: The central concept of the instrument. It means a plan of a non-DAMP organisation that would meet the requirements of regulation 99.045 of CASR if that regulation were applied with the modified references set out in section 4, and that is approved in writing by CASA or the Regional Manager Eastern, CASA. The modification (section 4) effectively substitutes “non-DAMP organisation” for “DAMP organisation”, “DAMP-like program” for “DAMP”, “employee of the non-DAMP organisation who performs or is available to perform applicable SSAA for the DAMP organisation” for “SSAA employee of the DAMP organisation”, and so on. The regulation 99.045 content requirements are substantial: they mandate a written plan including education and training, drug and alcohol testing procedures, procedures for managing test results, and the appointment of a contact officer, supervisors and a medical review officer. A DAMP-like program must therefore be a fully-fledged drug and alcohol management program, not a simplified version.

Non-DAMP organisation: Defined as “a person other than a DAMP organisation”. A DAMP organisation is an organisation that is required under Part 99 of CASR to have a DAMP, broadly those conducting prescribed aviation activities. Non-DAMP organisations are therefore entities that are not themselves required to have a DAMP but that provide SSAA to a DAMP organisation under contract. The definition of “employee” of a non-DAMP organisation includes a contractor engaged by the organisation, extending the coverage beyond direct employment.

DAMP-like program contact officer: A person appointed by the non-DAMP organisation to liaise with CASA about the program and the organisation’s responsibilities under the instrument and Part 99 of CASR. This role is analogous to the DAMP contact officer in a DAMP organisation.

DAMP-like program supervisor: A person in the non-DAMP organisation who has had relevant training to form an opinion on whether a person may be adversely affected by a testable drug or under the influence of alcohol, and who is authorised by the organisation to conduct drug and alcohol testing on an employee who performs or is available to perform an applicable SSAA for the DAMP organisation.

DAMP-like program medical review officer: A medical practitioner with competence in interpreting drug and alcohol test results, knowledge of substance and use disorders, and knowledge of Part 99 of CASR. This mirrors the DAMP medical review officer role.

Applicable SSAA: Not defined in the instrument itself, but the instrument notes that an employee of a non-DAMP organisation who performs or is available to perform a SSAA for the DAMP organisation is an SSAA employee of the DAMP organisation. The term “applicable SSAA” and “SSAA” are defined in regulation 99.010 of CASR. They refer to safety-sensitive aviation activities such as flight crew, cabin crew, air traffic control, aircraft maintenance and ground handling activities that are specified as SSAA in the regulations.

Reasonable grounds: The DAMP organisation must be “satisfied on reasonable grounds” that the non-DAMP organisation is implementing its DAMP-like program in relation to the employee (section 5(1)(e)). This is a due-diligence standard, not a mere belief. The DAMP organisation must have an objective basis for its satisfaction, which it must later be able to document and justify to CASA.

The component of reg 99.065(2): This is a critical carve-out. Subregulation 99.065(2) of CASR requires a DAMP to include requirements not to permit an SSAA employee to perform or be available to perform an applicable SSAA if (a) there are reasonable grounds to suspect the employee’s faculties are impaired due to alcohol or prescribed drugs, or (b) the employee has been involved in an accident or serious incident. The instrument explicitly states that the exemption does not apply to the DAMP organisation’s implementation of its DAMP regarding an employee of the non-DAMP organisation to the extent the DAMP gives effect to that subregulation. So even when a DAMP organisation is relying on the exemption for testing and general plan compliance, it still must have procedures to remove an impaired or involved employee from duty, and those procedures must be part of its own DAMP, not the non-DAMP organisation’s program.

Sunset and cesser: The instrument uses two different temporal mechanisms. Section 2 provides that the instrument is repealed at the end of 31 March 2027. However, sections 5, 6 and 8 contain their own cesser clauses stating they cease at the end of 30 September 2021. Note 1 to section 2 clarifies this. The directions in section 7 are stated to be in force until the repeal of the instrument. This layered sunset creates a risk of misinterpretation: the instrument is still “in force” after September 2021, but almost all of its substantive content has ceased.

The primary affected parties are DAMP organisations that contract with non-DAMP organisations for the provision of SSAA. Many aviation operators, such as airlines, charter operators, and flying schools, are DAMP organisations. They commonly contract with labour-hire companies, maintenance organisations, ground-handling firms, or other service providers that are not themselves DAMP organisations. Before this instrument, when such a contractor’s employee performed an SSAA for the DAMP organisation, that employee was deemed an SSAA employee of the DAMP organisation, and the DAMP organisation was required to include that employee in its own DAMP for testing and management purposes. This instrument allowed the DAMP organisation to avoid that obligation by relying on the contractor’s own CASA-approved plan, provided the conditions were met.

Non-DAMP organisations that wish to provide SSAA to a DAMP organisation are directly affected because to enable the exemption they must invest in developing, obtaining CASA approval for, implementing and maintaining a DAMP-like program. This imposes a significant compliance burden on smaller entities that may not have previously needed any drug and alcohol management plan. The definition of “employee” includes contractors, meaning a non-DAMP organisation that uses subcontractors to provide SSAA must cover those subcontractors under its DAMP-like program as well, potentially cascading the compliance requirement.

Employees of non-DAMP organisations who perform SSAA for a DAMP organisation are affected indirectly. Under the exemption, they may be tested under the non-DAMP organisation’s program rather than the DAMP organisation’s program. The standards and procedures should be equivalent because the DAMP-like program must meet the same requirements as a DAMP. However, the employee may need to interact with a different set of supervisors and medical review officers, and the contact point for questions or disputes is the non-DAMP organisation, not the DAMP organisation. The instrument does not alter the employee’s own obligations under Part 99 of CASR, such as the prohibition on performing SSAA while impaired.

CASA itself is affected as the approval body for DAMP-like programs. The instrument gives the Regional Manager Eastern, CASA specific authority to approve programs, potentially creating inconsistency if organisations in other regions interact with that office. CASA also gains direction-making powers under section 8 to require changes to a DAMP-like program, to demand information and records, and to require preparation of a new program. These powers are broad: CASA may direct “any change specified by CASA” to a provision in the program. There is no statutory limit in the instrument on what kind of change CASA can require, nor any procedural right of review or hearing for the organisation before such a direction is issued.

The instrument also indirectly affects the DAMP organisation’s own employees and contractors, because if the exemption is used, the DAMP organisation must still implement its DAMP in relation to the employee for the purposes of subregulation 99.065(2). That means the DAMP organisation’s supervisors and medical review officers must be prepared to deal with a contractor’s employee in the event of suspected impairment or an accident. The DAMP organisation must also have systems in place to notify the non-DAMP organisation and CASA if it takes action under that provision.

After 30 September 2021, the effect on non-DAMP organisations largely evaporates. The directions in section 8 cease, so there is no ongoing regulatory compulsion to maintain a DAMP-like program, although any program that was approved remains on file. DAMP organisations that used the exemption before the sunset still face the record-keeping direction until March 2027, so they are affected years after the exemption has ended. For any new contracts entered into after September 2021, the DAMP organisation cannot rely on the exemption and must include the contractor’s employees in its own DAMP, increasing compliance costs.

Duties of the DAMP organisation:

• Before relying on the exemption, it must ensure it has a written contract with the non-DAMP organisation under which the non-DAMP organisation provides an applicable SSAA.
• It must confirm that the non-DAMP organisation has a CASA-approved DAMP-like program that covers the employee in question.
• It must obtain the non-DAMP organisation’s written agreement that the DAMP-like program applies instead of the DAMP organisation’s own DAMP for that employee.
• It must be satisfied on reasonable grounds that the non-DAMP organisation is implementing its DAMP-like program in relation to the employee (section 5(1)(e)). This is a continuing duty; if satisfaction ceases, the exemption likely ceases.
• If the DAMP organisation implements its own DAMP regarding the employee in relation to the matters in subregulation 99.065(2) (e.g., removing the employee from duty due to suspected impairment), it must:
  (a) notify the non-DAMP organisation in writing as soon as practicable; and
  (b) notify CASA in writing if the employee is not permitted to perform or be available to perform an applicable SSAA (section 6).
• It must keep records that evidence the grounds for its satisfaction under section 5(1)(e) (section 7(1)(a)).
• Each record must state the date it was created (section 7(1)(b)).
• Records must be kept in a secure location for five years from the date of creation (section 7(1)(c)).
• Within six months after the end of the five-year period, the DAMP organisation must destroy or delete the records, or at least the parts that relate to drug or alcohol test results (section 7(1)(d)). It may retain non-test-result parts if it wishes, but the direction is to delete at least the test results.

Duties of the non-DAMP organisation (only while section 8 is in force, i.e., until 30 September 2021):

• It must implement and review its DAMP-like program in accordance with regulations 99.080 and 99.085 of CASR, applied with the modified references (section 8(2)). Regulation 99.080 requires ongoing implementation and compliance with the plan; regulation 99.085 requires periodic review and amendment.
• It must make the DAMP-like program available to each employee who performs or is available to perform applicable SSAA for a DAMP organisation (section 8(4)).
• It must comply with a request by CASA to provide specified information and records demonstrating that it has developed and implemented the program; a copy of the program; and any other information and records CASA specifies that are relevant to ensuring appropriate development, implementation and enforcement (section 8(5)(a)-(b)).
• It must comply with any CASA direction to make a specified change to a provision in the program; to prepare a new program that complies with regulation 99.045 as applied; and to submit proposed changes or the newly prepared program to CASA (section 8(5)(c)).
• There is a limited suspension of the non-DAMP organisation’s duties: during any implementation by the DAMP organisation of its DAMP regarding the employee under subregulation 99.065(2), the non-DAMP organisation does not need to meet the implementation requirements of regulation 99.080 to the extent they relate to that subregulation (section 8(3)). This avoids double coverage.

Rights:

• The DAMP organisation has a right to rely on the exemption provided the conditions are met. The exemption is not automatic; it requires active steps.
• The non-DAMP organisation has a right to seek CASA approval of its DAMP-like program. The instrument does not specify a time limit for CASA to decide on such an application.
• The non-DAMP organisation has no express right to challenge a CASA direction to change its program. The instrument is silent on review rights, meaning the default administrative law remedies (such as judicial review under the Administrative Decisions (Judicial Review) Act 1977) would apply, but there is no internal merits review.
• CASA has broad rights to request information and records and to direct changes to the program without any apparent constraint other than relevance to “appropriate development, implementation and enforcement” of the program.

Interaction between duties: Under section 8(3), if the DAMP organisation is implementing its own DAMP regarding an employee under subregulation 99.065(2), the non-DAMP organisation’s duty to implement its program under regulation 99.080 is suspended to that extent. This is a sensible coordination mechanism but imposes a notification burden on the non-DAMP organisation to know when the DAMP organisation is taking action. The non-DAMP organisation must also continue to make the program available and comply with CASA directions even during the suspension period.

The instrument itself does not create any new criminal offences or civil penalty provisions. Its enforcement teeth come from the underlying Civil Aviation Act 1988 and CASR. The key enforcement risks arise from three sources: non-compliance with the conditions of the exemption, non-compliance with the directions, and false or misleading conduct.

Breach of exemption conditions: Section 5(2) exempts the DAMP organisation from compliance with certain CASR provisions only if the conditions in subsection (1) are met and the exemption is subject to the conditions in section 6. If a DAMP organisation purports to rely on the exemption but does not actually meet the conditions (e.g., it is not satisfied on reasonable grounds, or there is no written contract, or the non-DAMP organisation’s program is not approved), then the exemption is not available. The DAMP organisation would then be in breach of subregulation 99.030(4) and regulation 99.035 of CASR. Those provisions themselves carry penalties under Part 99 of CASR. Subregulation 99.030(4) requires a DAMP organisation to give effect to its DAMP; regulation 99.035 requires it to implement its DAMP. Contravention of a regulation under CASR may be an offence with maximum penalties set by the Civil Aviation Act. Additionally, under section 29 of the Civil Aviation Act, a person who contravenes a condition of an exemption commits an offence punishable by a penalty of up to 50 penalty units. The instrument does not state that it is a “CASA exemption” for the purposes of that provision, but it is an instrument made under the Act, so it likely falls within that definition.

Breach of directions: The directions in sections 7 and 8 are made under regulation 11.245 of CASR. Regulation 11.245 empowers CASA to issue directions to persons to whom a CASA instrument applies. A failure to comply with a direction made under that regulation is itself a contravention of a regulation. Regulation 11.250 sets out when such directions cease. The instrument does not designate the directions as civil penalty provisions, so they would likely be enforced as criminal offences under the Act. The maximum penalty for a breach of a regulation under CASR can be up to 50 penalty units (currently $10,000) for an individual and 250 penalty units ($50,000) for a body corporate, but the specific penalty depends on the regulation allegedly breached. It is important to note that the instrument does not incorporate penalty provisions directly; any prosecution would rely on establishing that the direction is valid and that the organisation or person knowingly or recklessly failed to comply.

Consequences for non-DAMP organisations: If a non-DAMP organisation fails to comply with a CASA direction under section 8(5)(c) to change its program, or fails to provide records upon request, it would be in breach of the direction and potentially liable for an offence. The direction power is broad, and the organisation has no express right to object or seek a variation. This gives CASA significant coercive power without a hearing mechanism, which could raise administrative law concerns if exercised arbitrarily.

Record-keeping breaches: The direction in section 7 to keep records for five years and then destroy test results is mandatory. Failure to keep records, to keep them in a secure location, or to destroy test results within the six-month window after five years would be a breach of the direction. The destruction requirement is interesting: it imposes a positive obligation on DAMP organisations to delete or destroy parts of records relating to test results, even if the organisation would otherwise prefer to keep them. Non-compliance could result in enforcement.

Expiry complications: After 30 September 2021, sections 5, 6 and 8 cease. This means the directions on non-DAMP organisations expire, so CASA cannot issue new directions under that section after that date. However, any breach that occurred before 30 September 2021 can still be prosecuted afterwards, subject to statute of limitations. The record-keeping direction in section 7 continues until 31 March 2027. DAMP organisations must continue to comply with that direction even though the exemption that gave rise to the records has long expired.

No civil penalties: The instrument itself does not designate any provisions as civil penalty provisions, unlike some other CASA instruments that do so explicitly. This means enforcement will likely proceed through criminal prosecution rather than civil penalty orders, potentially requiring a higher standard of proof.

Liability of officers and employees: The instrument does not extend liability to directors or officers of an organisation, but the underlying Act and regulations may do so through provisions on executive liability or accessorial liability.

The instrument operates as a legally binding part of the regulatory framework governing drug and alcohol management in Australian civil aviation. It interacts primarily with Part 99 of the Civil Aviation Safety Regulations 1998 (CASR), which establishes the DAMP regime. Specifically, the instrument modifies the application of regulations 99.045, 99.050, 99.055, 99.060, 99.065, 99.070, 99.075, 99.080 and 99.085 for the purposes of defining a DAMP-like program and imposing directions.

Regulation 99.045 sets out the required contents of a DAMP. The instrument adopts that regulation by reference with modifications for non-DAMP organisations. The substantive standards that a DAMP-like program must meet are therefore identical to those for a full DAMP, ensuring regulatory parity. However, because the instrument applies the regulation “as if” certain references were changed, the case law and CASA guidance on what constitutes compliance with a DAMP would be directly applicable to DAMP-like programs.

The instrument also relies on the definitions in Part 99 of CASR. Section 3(2) of the instrument provides that any expression defined in regulation 99.010 of CASR has the meaning given by that regulation. This ensures that terms such as “SSAA”, “applicable SSAA”, “SSAA employee”, “DAMP”, “DAMP organisation”, “testable drug” etc. are consistently interpreted across the instrument and the regulations.

The instrument is made under powers in the Civil Aviation Act 1988. Section 94 of the Act gives CASA the power to make instruments, including exemptions and directions. The instrument is therefore a “CASA instrument” and can be varied or revoked by a later instrument. The instrument also uses powers under regulations 11.160 and 11.205 of CASR, which are general powers to make exemptions and to impose conditions. Regulation 11.245 gives CASA the power to direct persons to whom a CASA instrument applies. Regulation 11.250 sets out when such directions cease; the instrument cites that regulation in sections 7(2) and 8(6).

The instrument does not override or replace the DAMP regime itself; it creates a narrow gateway for substitution. The DAMP organisation remains the ultimate responsible entity under Part 99 for the SSAA employees it uses, including contractors. While the instrument exempts the DAMP organisation from some compliance obligations, it explicitly retains the obligation under subregulation 99.065(2) - the safety-critical impairment and accident rule. This means the DAMP organisation cannot contract out of its duty to prevent impaired personnel from working. The non-DAMP organisation’s program provides testing and education, but the DAMP organisation must still have its own procedures and decision-making for removal from duty in impairment or accident cases.

The instrument does not interact with the workplace drug and alcohol laws of state and territory jurisdictions. Aviation drug and alcohol regulation is primarily a Commonwealth matter under the Civil Aviation Act, but the instrument’s testing and management standards may be comparable to some state workers’ compensation or workplace health and safety requirements. The instrument does not provide any exemption from state laws; a DAMP or DAMP-like program must also comply with applicable state and territory laws regarding testing, privacy and employment.

The instrument may also interact with the Privacy Act 1988 (Cth). Record-keeping of drug and alcohol test results involves sensitive personal information. The direction in section 7 to destroy test results after five years aligns with general principles of data minimisation, but the instrument does not set rules for how records should be stored or who may access them. The DAMP organisation and non-DAMP organisation must separately ensure compliance with the Privacy Act and any applicable privacy codes.

The instrument does not affect the operation of the Criminal Code Act 1995 (Cth) regarding drug offences, nor does it provide any immunity if an employee is found to be in possession of prohibited substances.

For workers’ compensation purposes, drug and alcohol testing conducted under a DAMP-like program may have implications for claims where intoxication is alleged. The instrument does not regulate how test results are used in non-aviation contexts.

The instrument was originally made on 1 November 2019 and registered on the Federal Register of Legislation as F2019L01414. It commenced on 2 November 2019, the day after registration. Section 2 originally provided that the instrument was repealed at the end of 30 September 2021. The exemption in section 5, the conditions in section 6, and the directions in section 8 all had the same cesser date of 30 September 2021.

On 10 February 2020, CASA EX19/20 - Implementation of Drug and Alcohol Management Plans (Non-DAMP Organisations) Amendment Instrument 2020 was registered as F2020L00114. It commenced on 11 February 2020. The amendment made changes to section 2, 5, 6, 7 and 8 of the original instrument.

The critical change was to section 2, which extended the repeal date of the entire instrument from 30 September 2021 to 31 March 2027. This extension was necessary because the record-keeping direction in section 7 required records to be kept for five years from the date of creation. Records created early in the instrument’s life (e.g., November 2019) would need to be retained until November 2024. If the instrument had been repealed on 30 September 2021, the legal basis for the record-keeping direction would have disappeared, potentially making it unenforceable for the remaining retention period. The amendment ensured the direction remained in force until March 2027, well past the five-year retention period for the last records that could be created (September 2021 plus five years is September 2026).

The amendment also made changes to sections 5, 6, 7 and 8. The tables show that these sections were “am.” by F2020L00114, but the exact changes are not detailed in the source. The likely changes included:

• Updating the cross-references to the new sunset dates.
• Possibly adding the specific record destruction requirement in section 7 (the original may not have required destruction, only retention).
• Clarifying the cessation dates for sections 5, 6 and 8 to ensure they still expired on 30 September 2021 even though the instrument overall was extended. The original instrument may have inadvertently tied the expiry of those sections to the instrument’s repeal, so the amendment made them independent.

The instrument is a compilations with only one amendment. Compilation No. 1 is the current version as at 10 February 2020.

The amendment history highlights the practical challenge of sunset clauses that interact with long-term record-keeping obligations. The original drafters may have overlooked the need for the instrument to survive beyond the exemption’s end. The amendment corrected that, but it also effectively extended the life of the instrument by seven years. This is a significant extension that a regulated party might not anticipate. Any person reviewing the instrument in, say, 2023 might see that it is still in force and be unaware that the substantive provisions expired years earlier.

No further amendments have been made. The instrument remains as amended until its repeal in 2027.

The instrument does not reference any litigation, and there is no reported case law specifically concerning this instrument. As an administrative instrument that was in force for less than two years before its substantive provisions expired, it is unlikely to have generated significant litigation. However, several potential legal issues could arise but have not yet been tested.

First, the broad direction-making power in section 8(5)(c) could be challenged on administrative law grounds if CASA issued a direction that was unreasonable, procedurally unfair, or beyond the scope of the instrument. The instrument does not require CASA to give reasons before issuing a direction, nor does it provide for an opportunity for the non-DAMP organisation to be heard. A direction to change a program could impose significant costs, and a court might find that the regulation-making power under which the instrument was made does not authorise such unfettered discretion. However, no such challenge appears in the source.

Second, the definition of “DAMP-like program” requires that the program “would meet the requirements of regulation 99.045 of CASR if applied in accordance with section 4”. This is a hypothetical test: the program must be capable of meeting those requirements, but the instrument does not specify how CASA is to assess that. Disputes over whether a program qualifies could arise. The approval is “in writing by CASA or the Regional Manager Eastern, CASA”. The instrument does not provide for review of a refusal to approve a program. An aggrieved non-DAMP organisation could seek judicial review of a refusal under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), given that the approval decision is a decision under an enactment. The onus would be on the applicant to show that the refusal was legally unreasonable or that CASA applied the wrong test.

Third, the “reasonable grounds” standard in section 5(1)(e) could be litigated if a DAMP organisation is prosecuted for failing to comply with Part 99 of CASR on the basis that its claimed satisfaction was not reasonable. The question would be whether the DAMP organisation took adequate steps to verify implementation. The burden of proof would be on the prosecution to show that the grounds were not reasonable.

Fourth, the interaction between state and federal jurisdiction over aviation safety could produce litigation if a direction under section 8 conflicted with state laws on drug testing or employment. Federal law would likely prevail under section 109 of the Constitution, but a court might need to decide whether the direction was within the Commonwealth’s constitutional head of power.

Fifth, the instrument’s sunset and cesser provisions themselves could be legally contested if someone was prosecuted for breach of a direction after 30 September 2021 but argued that the direction had ceased. The source clearly states that sections 5, 6 and 8 cease at the end of 30 September 2021, and the direction in section 8(6) confirms that. However, if a direction was issued under section 8 before that date but required ongoing compliance (e.g., a direction to prepare a new program), the question would be whether the direction continues in force after the section that authorised it has ceased. The instrument does not say that directions already issued survive the cesser of the section. A court might interpret the cesser as eliminating the legal force of the direction itself, not just the power to issue new directions. This is a risk for parties who received a direction before the sunset and attempted to comply after it.

Overall, the instrument has not generated reported litigation, likely due to its short operational life and the fact that it generally reduced regulatory burden rather than imposing new obligations. The threat of litigation may have encouraged careful compliance.

The expiry of the exemption is earlier than the instrument’s repeal. This is the single most important trap. Many practitioners may see that the instrument is in force until 31 March 2027 and incorrectly assume the exemption is still available. Sections 5, 6 and 8 all expire on 30 September 2021. After that date, a DAMP organisation cannot rely on a non-DAMP organisation’s approved program to cover contracted employees. It must bring those employees within its own DAMP or face non-compliance with Part 99 of CASR. The only operative provision after September 2021 is the record-keeping direction in section 7. This trap is magnified if a party looks only at the “Duration” section 2 (which says repealed 31 March 2027) without reading the note and the individual cesser clauses.

The record-keeping direction has a mandatory destruction element. Section 7(1)(d) requires the DAMP organisation to destroy or delete records or parts of records that relate to drug or alcohol test results within six months after the end of the five-year retention period. This is not a permissive right; it is a direction. Failure to destroy could result in enforcement. This is unusual because in many regulatory contexts, there is no obligation to destroy records, only to keep them. The direction also raises privacy considerations: the organisation cannot simply keep test results indefinitely even if it wants to for other purposes (e.g., defending a workers’ compensation claim). The organisation must delete the test-result portions but may keep other parts (e.g., the general grounds for satisfaction). This creates a record-keeping dichotomy that may be difficult to implement in practice.

The “reasonable grounds” satisfaction is a continuing obligation. Section 5(1)(e) requires the DAMP organisation to be satisfied on reasonable grounds that the non-DAMP organisation is implementing its program. This is not a one-off check at the start of the contract. If circumstances change - e.g., the non-DAMP organisation stops testing or loses its CASA approval - the DAMP organisation’s satisfaction may no longer be reasonable. The DAMP organisation must monitor the non-DAMP organisation’s compliance. If it fails to do so, the exemption may be invalidated retroactively, and the DAMP organisation could be liable for non-compliance with Part 99 for the entire period. The instrument does not specify how often satisfaction must be reassessed.

The approval of a DAMP-like program is not automatic. The non-DAMP organisation must obtain written approval from CASA or the Regional Manager Eastern, CASA. The instrument does not set a time limit for CASA to decide. A non-DAMP organisation could invest significant resources in developing a program only to have approval delayed or refused. The Regional Manager Eastern is the only regional manager specified, which may cause jurisdictional confusion if the non-DAMP organisation is based in Western Australia or the Northern Territory.

The carve-out for reg 99.065(2) is complex. The DAMP organisation remains responsible for not permitting impaired or accident-involved employees to perform SSAA, even if it is using the exemption. This means the DAMP organisation must have mechanisms to identify such situations among contractor employees and to take action. It must also notify the non-DAMP organisation and CASA under section 6. The coordination between two sets of supervisors and medical review officers is fraught with practical difficulty. The DAMP organisation may need its own supervisors trained to spot impairment in employees of another organisation, and the non-DAMP organisation’s supervisors may not be authorised to remove the employee from duty under the DAMP organisation’s operations. The instrument does not resolve this.

The direction power in section 8 is broad and contains no procedural safeguards. CASA can direct a non-DAMP organisation to make “a change specified by CASA” to a provision in the program, prepare a new program, and submit it. There is no requirement for CASA to consult, give reasons, or provide an opportunity to be heard. The non-DAMP organisation has no express right to appeal or seek a variation. This exposes the organisation to the risk of regulatory overreach, especially if CASA’s interpretation of “appropriate development, implementation and enforcement” is expansive. The only check is the possibility of judicial review under the ADJR Act, but that is costly and uncertain.

The word “employee” includes contractors, which expands the scope. The definition in section 3(1) says “employee, of a non-DAMP organisation, includes a contractor engaged by the organisation.” This means the DAMP-like program must cover contractors as well as direct employees. This may increase the compliance burden for non-DAMP organisations that use labour-hire or subcontractors. It also means that the DAMP organisation’s exemption may cover not only the contractor’s employees but also sub-subcontractors. The DAMP organisation must ensure that the non-DAMP organisation’s program adequately covers all those tiers.

The destruction of records requirement applies to test results, not to all records. Section 7(1)(d) requires destruction of “each record; or any parts of each record that relate to the results of drug or alcohol testing.” The organisation has a choice: destroy the entire record or destroy only the test-result parts. But if it destroys the entire record, it loses the evidence of its grounds for satisfaction, which might be needed later for other purposes. The prudent approach is to keep the record but redact test results. However, the instrument does not address how redaction should be done or verified.

The instrument does not address transition for existing reliance after the sunset. If a DAMP organisation was using the exemption on 30 September 2021 for an ongoing contract, what happens the next day? The exemption ceases. The DAMP organisation must immediately include the contracted employees in its own DAMP. There is no grace period. This could create a compliance gap. The DAMP organisation may not have its own testing and education mechanisms in place for those employees because it relied on the non-DAMP organisation’s program. The instrument provides no transitional provisions.

Before relying on the exemption (before 30 September 2021)

For DAMP organisations:

1. Identify all contracts with non-DAMP organisations where an employee performs an applicable SSAA for the DAMP organisation.
2. Verify that the non-DAMP organisation has a CASA-approved DAMP-like program that covers that employee. Obtain a copy of the CASA approval letter. Do not rely solely on the contract.
3. Obtain the non-DAMP organisation’s written agreement that its DAMP-like program will apply instead of the DAMP organisation’s DAMP for the purpose of that employee’s SSAA performance. This should be a formal document signed by both parties.
4. Conduct a due-diligence review to ensure you are satisfied on reasonable grounds that the non-DAMP organisation is actually implementing its program. This review should include checking that training records, testing records, and incident logs exist and are current. Document the review and record the date it was conducted.
5. Enter into a written contract with the non-DAMP organisation under which the non-DAMP organisation provides the applicable SSAA. The contract should reflect the DAMP-like program arrangement, but it may be a separate agreement.
6. Set up internal processes to monitor ongoing compliance. Regularly request evidence of implementation from the non-DAMP organisation.
7. Create a system to track when action is taken under subregulation 99.065(2) (e.g., a supervisor suspects an employee is impaired, or an employee is involved in an accident). If the DAMP organisation implements its own DAMP regarding that employee, notify the non-DAMP organisation in writing as soon as practicable and notify CASA if the employee is not permitted to work.
8. Create a record-keeping system that captures the grounds for satisfaction under s 5(1)(e). Each record must include the date of creation. These records must be kept in a secure location for five years from the date of creation.
9. Plan for the eventual destruction of test-result-related portions of those records. Ensure that within six months after the end of the five-year period, the records are destroyed or the test-result parts are deleted. Mark the calendar for each record’s destruction date.
10. After 30 September 2021, extend your own DAMP to cover the contracted employees, as the exemption will no longer be available.

For non-DAMP organisations seeking to enable the exemption for their DAMP organisation clients:

1. Develop a DAMP-like program that meets the content requirements of regulation 99.045 of CASR as modified by section 4. The program must include: education and training for employees; a drug and alcohol testing process; protocols for managing test results; appointment of a DAMP-like program contact officer, supervisor and medical review officer; and a process for periodic review.
2. Submit the program to CASA or the Regional Manager Eastern, CASA for written approval. There is no prescribed form, but you must demonstrate that the program meets the requirements of regulation 99.045. Consider engaging a consultant familiar with CASA’s expectations.
3. Once approved, implement the program. Appoint the required officers and ensure they have the necessary training and qualifications.
4. Comply with the direction in section 8(2) to meet the requirements of regulations 99.080 and 99.085 as applied. This means the program must be actively implemented and reviewed periodically. Keep records of implementation, testing results, training sessions, and reviews.
5. Make the program available to each employee who performs or may perform an applicable SSAA for a DAMP organisation. This could be via an intranet, employee handbook, or by providing a physical copy.
6. Respond to any CASA request for information or records within a reasonable time. Be prepared to provide a copy of the program, testing records, and evidence of implementation.
7. If CASA issues a direction to change the program or prepare a new one, comply promptly. There is no right to object or delay, so plan for the possibility of changes. Consider maintaining the program in a flexible format to accommodate directions.
8. After 30 September 2021, the directions requiring you to maintain the program expire. You may choose to discontinue the program, but if you do, you will no longer have an approved DAMP-like program. If you continue to provide SSAA to a DAMP organisation after that date, the DAMP organisation cannot rely on the exemption anyway, so the program may be irrelevant. However, if you wish to maintain the program for other reasons (e.g., internal safety policy), you may continue voluntarily, but you are no longer legally required to comply with the directions.

After 30 September 2021

For DAMP organisations:

• The exemption is no longer available. You must ensure that all employees performing SSAA for your organisation - whether direct employees or contractors of a non-DAMP organisation - are covered by your own DAMP. Update your DAMP to include those employees. Implement testing and education for them as required by Part 99 of CASR.
• Continue to comply with the record-keeping direction in section 7 for records created before 30 September 2021. Keep those records for five years from their creation date, then destroy test-result portions within the following six months.
• If you do not have records of grounds for satisfaction because you never used the exemption, section 7 does not require you to create records; it only applies to organisations that were or are exempt under section 5.

For non-DAMP organisations:

• The directions in section 8 have ceased. You have no ongoing regulatory obligation to maintain your DAMP-like program for the purpose of this instrument. However, if your program includes obligations to your employees (e.g., through employment contracts), you may still need to comply with those.
• If you want to continue providing SSAA to a DAMP organisation, the DAMP organisation will now need to include your employees in its own DAMP. You may need to cooperate with that process, but you are not required by this instrument to do so.

General compliance principles

• Document all steps. The evidence of reasonable grounds, approval letters, contracts, and agreements should be kept in a central file.
• Understand that the instrument does not operate indefinitely. Mark the relevant sunset dates in your compliance calendar. The exemption ends 30 September 2021; the record-keeping direction ends 31 March 2027.
• Train relevant staff on the differences between the DAMP organisation’s obligations and the non-DAMP organisation’s obligations, especially regarding subregulation 99.065(2). Ensure that supervisors know who has authority to remove an employee from duty and how to coordinate between organisations.
• Consider engaging legal or regulatory advice when preparing the DAMP-like program for CASA approval, as the requirements are technical and the consequences of non-approval are significant for the business relationship.
• Be aware that CASA has broad information and direction powers. Respond to CASA requests promptly and openly to avoid escalating enforcement. If CASA issues a direction that seems unreasonable, seek legal advice on whether to challenge it, but keep in mind that non-compliance while challenging would be risky.