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Australian drug and alcohol aviation laws should inform NZ review


(Please note, this matter is not currently being litigated in Australia)

A fatal hot air balloon collision with power lines on 7 January 2012 has been reported, by the New Zealand Transport Accident Investigation Commission (TAIC), as being partially due to the pilot’s use of cannabis. Poor judgment and poor decision making were found to be safety factors contributing to the crash, and it is well known that cannabis affects judgment and decision making abilities. The pilot landed in a paddock bounded by powerlines and performed unsafe manoeuvres like descending to a height lower than the powerlines while continuing to travel across the paddock. The balloon became entangled with the powerlines and the subsequent fuel fed fire caused the death of all 10 passengers and the pilot.

The TAIC, in its report issued 31 October 2013, noted that it had already made recommendations to the New Zealand Government about the need for legislation to address the safety issues around the use of performance-impairing substances in all modes of transport. The TAIC also made pressing recommendations about maintenance practices for hot air balloons including the lack of regulation covering private balloon flights.

A key lesson from this accident report, was the use of cannabis and other substances and their ability to impair the performance of complex tasks such as piloting.

Australia, as often is the case, has for better or for worse been forced to face the same issues as its neighbour, and in much the same way. In 2004 a multi-fatal Piper Cherokee accident on Hamilton Island prompted the Australian Transport Safety Bureau (ATSB), in 2006, to recommend to the then Department of Transport and Regional Services and the Civil Aviation Safety Authority (CASA) to jointly examine the benefits of an alcohol and drug testing regime for aviation in Australia.  This resulted in the Civil Aviation Safety Amendment Regulations (No. 1) 2008, which incorporated a new Part 99 into Australia’s Civil Aviation Safety Regulations 1998 (Cth).

Shine Lawyers has experience in interpreting and advising pilots and aviation stakeholders on the requirements of DAMP plans and alcohol and other drug (AOD) testing in the aviation sector.

Part 99 – “Drug and alcohol management plans and testing” came into effect on 23 September 2008 and introduced a range of new regulatory and industry mechanisms to deal with problematic alcohol and drug (AOD) use in Australian aviation. The policy behind Part 99 as expressed by CASA in the Explanatory Statement of the legislation which created it, is to “focus on early detection and management of issues that may arise from the use of alcohol and other drugs”. Therefore, it is a model of how to use a regulatory tool as a preventer of accidents, rather than as a purely punitive measure. This is wholly consistent with CASA’s performance of its roles under ss 9A(1) of the Civil Aviation Act 1988 (Cth) which provides “in exercising its power and performing its functions, CASA must regard the safety of air navigation as the most important consideration”.

The legislation has many facets, but the most primal obligations are: large organisations (“DAMP organisations”) such as airlines and airport operators which employ people to conduct safety sensitive aviation activities (SSAA), must implement a drug and alcohol management plan (DAMP). Second, the regulator, CASA, is enabled to conduct random testing of SSAA personnel and to audits organisations’ DAMPs. Also, drug and alcohol education programs are essential within DAMPs.

DAMP plans, as they are known, generally permit DAMP organisations to test their own pilots and new recruits, mechanics and other aviation SSAA personnel for AOD use, and set out policies in relation to positive testing and consequences for employees thereafter. There are criminal offences prescribed in Part 99 for those who do not comply with DAMP and random testing procedures. The limits applied to SSAA personnel are a breath alcohol concentration of below 0.02%, and  for urine testing in relation to cocaine, cannabis, opioids and amphetamines the limits are determined using Australian/NZ Standard 4308:2008. Breath samples are taken for initial alcohol testing and oral fluid swabs are done for drug testing.

The New Zealand Government review, including research which has been commissioned by the Ministry of Transport, would likely find significant efficiencies if it capitalised on the significant work of, and regulatory successes of, CASA. While the particular legislative regime for New Zealand may not need to be as comprehensive as the one in Australia, due to the lower number of people and organisations who would be involved in testing and administration of such a regime, the risks and consequences of AOD use in aviation remain the same everywhere in the world. The latest experience with such efforts is likely to be that completed by Australia’s aviation safety regulator in the 5 years since the system came into force.

 

Written by Shine Lawyers on October 31, 2013. Last modified: September 26, 2018.

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