EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 180
Issued by the Authority of the Minister for Home Affairs
Customs Administration Act 1985
Customs (Drug and Alcohol Testing) Amendment Regulation 2013 (No. 1)
Section 18 of the Customs Administration Act 1985 (the Act) provides, in part, that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.
Sections 16B, 16C and 16D of the Customs Administration Act 1985 (the Act) allow an authorised officer to require a Customs worker to undergo an alcohol screening test, alcohol breath test, and prohibited drug test. Section 16F of the Act provides that the regulations may make regulations for the purposes of sections 16B, 16C and 16D in relation to certain matters, including the authorisation of persons, the devices to be used in conducting tests, procedures for handling samples taken and the confidentiality of the test results. The Customs (Drug and Alcohol Testing) Regulation 2013 (the Drug and Alcohol Testing Regulation) prescribes matters under section 16F for the purposes of drug and alcohol testing. The purpose of the proposed Regulation is to amend the Drug and Alcohol Testing Regulation to:
- address concerns raised by the Parliamentary Joint Standing Committee on Human Rights in relation to the information which may be collected and retained in accordance with the Drug and Alcohol Testing Regulation;
- clarify the provisions concerning who the CEO may authorise to conduct tests; and
- update the standard to be complied with when conducting urine testing.
The Parliamentary Joint Standing Committee on Human Rights has raised concerns with the Minister for Home Affairs regarding the type of information which may be collected and stored for drug and alcohol testing. To address these concerns, the Regulation inserts a general provision which seeks to restrict the information which may be collected from drug and alcohol testing to only that which is related to the detection of drug and alcohol testing. In addition, the Regulation also makes amendments which are more prescriptive concerning the information which could be retained by Australian Customs and Border Protection for the purposes of a statistical database.
The Regulation also clarifies the provisions concerning who the CEO may authorise to conduct tests by amending the table contained in subsection 5(2) in relation to an alcohol blood test and a prohibited drug test to separate who may be authorised by the CEO to collect the sample and who may be authorised to analyse the sample.
Finally, the Regulation also updates the standard to be complied with when conducting urine testing to the Australian/New Zealand Standard AS/NZS 4308:2008 “Procedures for specimen collection and the detection and quantification of drugs of abuse in urine.” This is a more current version of the Standard.
As the Regulation is of a minor or machinery nature, no consultation was undertaken in relation to the Regulation.
The amending Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
ATTACHMENT
Details of the Customs (Drug and Alcohol Testing) Amendment Regulation 2013 (No. 1)
Section 1 – Name of Regulation
This section provides that the title of the Regulation is the Customs (Drug and Alcohol Testing) Amendment Regulation 2013 (No. 1).
Section 2 – Commencement
This section provides that the Regulation commences on the day after it is registered.
Section 3 – Authority
This section provides that the Regulation is made under the Customs Administration Act 1985.
Section 4 – Schedule
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1–Amendments
Customs (Drug and Alcohol Testing Regulation) 2013
Items 1, 2 & 3 – subsection 5(1)
Section 5 of the Drug and Alcohol testing Regulation prescribes who the CEO may, in writing, authorise to conduct drug and alcohol tests. Subsection 5(1) contains a table which sets out who the CEO may authorise to conduct each of the following:
- an alcohol screening test
- an alcohol breath test
- an alcohol blood test
- a prohibited drug test that requires the collection of a sample of blood
- a prohibited drug test that does not require the collection of a blood sample.
The amendments contained in these items amend the table in relation to an alcohol blood test and a prohibited drug test to separate who may be authorised by the CEO to collect the sample and who may be authorised to analyse the sample.
The amended table specifies who the CEO may authorise for the following purposes:
- conducting an alcohol screening test
- conducting an alcohol breath test
- collecting a sample of blood for purposes relating to the conduct of an alcohol blood test
- analysing a sample of blood for purposes relating to the conduct of an alcohol blood test
- collecting a sample of blood for purposes relating to the conduct of a prohibited drug test
- analysing a sample of blood for purposes relating to the conduct of a prohibited drugs test
- collecting a sample, other than blood, for purposes relating to the conduct of a prohibited drug test
- analysing a sample, other than blood, for purposes relating to the conduct of a prohibited drug test
This amendment adds more clarity to the existing provisions.
Item 4 – Subsection 5(2)
Currently, where the CEO authorises a person to conduct a test in accordance with the table contained in subsection 5(1), subsection 5(2) requires the CEO to give the person a certificate stating that he or she is an authorised person. Subsection 5(2) is amended by this item to remove this general requirement and instead, the CEO will only be required to give a certificate to an officer of Customs or a company the CEO authorises in accordance with subsection 5(1). Where a company is authorised the CEO will give the company a certificate and not individuals within the company.
Item 5 – After section 7
This item inserts new section 7A.
Section 7A provides that the only information which may be collected from a breath test, blood test or prohibited drug test is information relating to the detection of alcohol or prohibited drugs.
This provision is inserted to address concerns raised by the Parliamentary Joint Standing Committee on Human Rights regarding the type of information which may be collected by drug and alcohol tests.
This provision is also inserted to make a general statement which seeks to restrict the information which may be collected from drug and alcohol testing to only that which is related to the detection of drug and alcohol.
Item 6 – subsection 8(4) and (5)
Section 8 of the Drug and Alcohol Testing Regulation provides for the record keeping of information obtained from drug and alcohol testing.
Subsection 8(4) provides that information may be retained for the purpose of compiling a statistical database so long as the information retained cannot be used to identify the Customs worker.
In response to concerns raised by the Parliamentary Joint Standing Committee on Human Rights regarding the information obtained by drug and alcohol testing and retained after the testing had been completed, this item amends subsection 8(4) to prescribe the information which will be retained for the purposes of compiling a statistical database.
New subsection 8(4) provides that it is only information relating to:
(i) the detection of alcohol or prohibited drugs;
(ii) the name of the prohibited drugs detected;
(iii) the quantity of any alcohol or prohibited drugs detected;
(iv) how a urine sample was provided or analysed;
(v) whether a urine sample was provided, or analysed in accordance with the Australian/New Zealand Standard mentioned in section 18.
Paragraphs (iv) and (v) above record consistency with the Australian/New Zealand Standard to assist in assuring quality of testing.
Subsection 8(5) currently allows the Australian Customs and Border Protection Service to retain information obtained from the analysis of a sample if it is provided to an Agency as part of security vetting of the Customs worker.
This item also amends subsection 8(5) to clarify the information which may be retained in response to concerns raised by the Parliamentary Joint Standing Committee on Human Rights.
New subsection 8(5) provides that information obtained from the analysis of a sample may be retained for security vetting purposes only if the information relates to the detection of alcohol or prohibited drugs.
Where disciplinary action has been taken against a worker, this information is able to be provided for security vetting purposes within the existing framework. This amendment would allow Customs to disclose the results of any drug or alcohol test which may form part of any disciplinary action.
Item 7 – paragraph 9(g)
Section 9 of the Drug and Alcohol Testing Regulation allows information revealed by a breath test, blood test or prohibited drug test to be disclosed in certain circumstances. This includes, at paragraph (g), disclosure for the Customs worker’s medical treatment.
In response to comments made by the Parliamentary Joint Standing Committee on Human Rights, this item will amend paragraph 9(g) to clarify that disclosure of information for the Customs worker’s medical treatment will be limited to the situation where the Customs worker does not have capacity to consent in writing to the disclosure.
Item 8 – Paragraph 16(2)(a)
Section 16 of the Drug and Alcohol Testing Regulation requires the analyst who conducted the analysis of the body sample for an alcohol blood test or prohibited drug test to give a certificate to the Customs worker and an authorised officer.
The certificate must contain the information contained in subsection 16(2). This includes, at paragraph (a) the full name of the Customs worker. The Parliamentary Joint Standing Committee on Human Rights raised concerns that the certificate contains the full name of the Customs worker. To address these concerns, this item removes the requirement for the certificate to contain the full name of the Customs worker and instead requires the certificate to contain a unique identifying number relating to the Customs worker.
Item 9 – section 18
This item replaces the standard referred to in section 18 concerning procedures for urine testing and replace it with a more recent version.
The Drug and Alcohol Testing Regulation currently refers to the Australian/New Zealand Standard AS/NZS 4308-2001 “Procedures for the collection, detection and quantification of drugs of abuse in urine” as at 29 March 2001.
Australian Customs and Border Protection referred to this standard relying on the Australian Federal Police’s drug and alcohol testing framework. Australian Customs and Border Protection then became aware of an updated version of this Standard. This item will update the Standard in the regulation with the new Standard, Australian/New Zealand Standard AS/NZS 4308:2008 “Procedures for specimen collection and the detection and quantification of drugs of abuse in urine.”
Part 4 – Transitional provisions
This Part contains transitional provisions relating to the above amendments.
Statement of Compatibility with Human Rights
(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
Customs (Drug and Alcohol Testing) Amendment Regulation 2013 (No. 1)
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
The purpose of this Regulation is to amend the Customs (Drug and Alcohol Testing) Regulation 2013 (the Drug and Alcohol Testing Regulation) to:
- address concerns raised by the Parliamentary Joint Standing Committee on Human Rights in relation to the information which may be collected and retained in accordance with the Drug and Alcohol Testing Regulation;
- clarify the provisions concerning who the CEO may authorise to conduct tests; and
- update the standard to be complied with when conducting urine testing.
Human Rights implications
Right to Privacy
Article 17 of the ICCPR provides the right for persons to not be subjected to arbitrary or unlawful interference with their privacy or have unlawful attacks on their honour or reputation. The right to privacy may be subject to permissible limitations. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity. In essence, this will require that limitations:
- serve a legitimate objective
- adopt a means that is rationally connected to that objective, and
- the means adopted are not more restrictive than they need to be to achieve that objective.
The amendments made by this regulation seek to clarify and limit the information which may be collected and obtained under the Australian Customs and Border Protection drug and alcohol testing regime. This will include inserting a general statement into the Drug and Alcohol Testing Regulation which will restrict the information which may be collected from drug and alcohol testing to only information relating to the detection of alcohol or prohibited drugs.
The Regulation will also amend the Drug and Alcohol Testing Regulation to clarify the exact information which may be retained for the purposes of creating a statistical database and limit when information obtained from a drug and alcohol test may disclosed for the purposes of Customs worker’s medical treatment to the situation whether the Customs worker does not have the capacity to consent.
Conclusion
This legislative instrument is compatible with human rights as it seeks to make amendments to the Drug and Alcohol Testing Regulation to ensure consistency with the right to privacy.
Minister for Home Affairs