EXPLANATORY STATEMENT
SELECT LEGISLATIVE INSTRUMENT NO. 181, 2014
Issued by the Authority of the Minister for Immigration and Border Protection
Customs Administration Act 1985
Customs (Drug and Alcohol Testing) Amendment Regulation 2014 (No. 1)
Section 18 of the Customs Administration Act 1985 (the Act) provides that the Governor‑General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Sections 16B, 16C and 16D of 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 regulations may make provision 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 Customs (Drug and Alcohol Testing) Amendment Regulation 2014 (No. 1) (the Regulation) is to amend the Drug and Alcohol Testing Regulation to:
- enable a sufficient amount of hair to be taken for the conduct of a prohibited drug test;
- provide more certainty as to where on the body a sample of hair can be taken from for the conduct of a prohibited drug test; and
- subject to existing subsections 8(4) and 8(5) of the Drug and Alcohol Testing Regulation, require the destruction of records, other than body samples, relevant to a breath test, blood test or prohibited drug test conducted under the Act, as soon as practicable after the Customs worker to whom the record relates ceases, for any reason, to be a Customs worker.
Details of the Regulation are set out in the Attachment.
The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.
The Regulation is minor or machinery in nature and does not substantially alter existing arrangements. The amendments enhance the governance and accountability of the Drug and Alcohol Management Program by clarifying provisions relating to the conduct of prohibited drug tests and allowing the ACBPS to maintain more accurate records for auditing and reporting purposes. As a result no formal consultation occurred in relation to the amendments.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
OPC60662-A
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 2014 (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 Regulation amends the Customs (Drug and Alcohol Testing) Regulation 2013 (the Drug and Alcohol Testing Regulation) to:
- enable a sufficient amount of hair to be taken for the conduct of a prohibited drug test;
- provide more certainty as to where on the body a sample of hair can be taken from for the conduct of a prohibited drug test; and
- subject to existing subsections 8(4) and 8(5) of the Drug and Alcohol Testing Regulation, require the destruction of records, other than body samples, relevant to a breath test, blood test or prohibited drug test conducted under the Act, as soon as practicable after the Customs worker to whom the record relates ceases, for any reason, to be a Customs worker.
Human Rights implications
The Regulation does promote a human right.
Right to Work
Article 7 of the International Covenant on Economic, Social and Cultural Rights includes the right to safe and healthy working conditions under the right to work. The Regulation promotes the right to safe and healthy working conditions by enhancing the administration of the Drug and Alcohol Management Program (DAMP) to ensure that the Australian Customs and Border Protection Service (ACBPS) remains a drug and alcohol free workplace.
The ACBPS recognises several imperatives to the DAMP, including:
- the need for the drug and alcohol testing program to have the capability to identify breaches of the drug and alcohol policy and respond appropriately to those breaches;
- the need for drug and alcohol testing to provide a deterrence against behaviours and associations contrary to the ACBPS’s border protection role; and
- the need for the drug and alcohol testing program to have the capability to assure that it is properly governed and accountable.
Clarification regarding the quantity of and sources from which hair which can be taken for the conduct of a prohibited drug test will enable drug-testing methodology to contribute to the DAMP objectives. This methodology can detect evidence of drug use up to six months prior to the test, and thus provide greater assurance to officers that drug use (including historical drug use) can be detected.
The Regulation also engages the following human rights:
Right to Privacy
Article 17 of the International Covenant on Economic, Social and Cultural Rights (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.
Hair Samples
The amendment to the amount of hair that can be taken from a person to conduct a prohibited drug test engages the right to privacy. While the Drug and Alcohol Testing Regulation already authorises the collection of hair samples for prohibited drug tests, the amount of hair that can currently be taken for the conduct of a prohibited drug test is not sufficient to enable a proper test to be undertaken. Analytical laboratories require larger samples.
The amendment will ensure that hair samples are sufficient for hair testing to be an effective drug-testing methodology. To ensure proper protections are in place for Customs workers, the amendment requires the authorised person taking the sample to use the least painful technique known and available to the authorised person and expressly prohibits them from taking hair samples from intimate regions of the body. For example, if a hair sample is required for a prohibited drug test but the individual presents with a shaved head, the amendments will allow a sample of hair to be collected from other parts of the body. This is consistent with international guidance and practice and provides certainty that authorised persons are not to take hair samples from intimate regions of the body.
To the extent that an individual’s right to privacy is affected by the amendments, the impact is not arbitrary. The amendments are reasonable, necessary and proportionate to achieving the legitimate objectives of the DAMP by ensuring hair samples are sufficient for the conduct of a prohibited drug test.
Destruction of Records
Current subsections 8(1) and 8(6) of the Drug and Alcohol Testing Regulation present barriers to the governance and accountability of the ACBPS DAMP. The requirement to destroy any record that does not indicate the presence of prohibited drugs or alcohol within 28 days after the day the test was conducted presents difficulties for the ACBPS to monitor testing which has been carried out under the program.
The amendment to extend the time for which records, other than body samples, not indicating the presence of alcohol or prohibited drugs can be retained will enhance ACBPS’s governance of the DAMP. In particular, the ACBPS will be able to identify Customs workers who have been subjected to a test (regardless of the results) and enable the ACBPS to maintain more accurate records of testing.
The ACBPS should be able to report accurately on the DAMP and its compliance with Commonwealth procurement and spending requirements. This can only be done by compiling ACBPS records of the numbers, dates, and locations of testing, invoices, records of samples sent to the analytical laboratory, laboratory reports resulting from that testing, and reports from the Medical Review Officer. Importantly, body samples which do not indicate the presence of alcohol or prohibited drugs will still be required to be destroyed no later than 28 days after the test was conducted.
To the extent that an individual’s right to privacy is affected by the amendments, the impact is not arbitrary. The amendments are reasonable, necessary and proportionate to achieving the legitimate objectives of the DAMP and will ensure proper governance of the program within the ACBPS.
Finally, the amendments do not limit the obligations of the ACBPS under the Privacy Act 1988 and the Australian Privacy Principles in general. The ACBPS will continue to adhere to the safeguards aligned to the Australian Privacy Principles and thereby meet the requirements of the ICCPR to ensure no unlawful interference with privacy, honour or reputation occurs.
Conclusion
This legislative instrument is compatible with human rights as it seeks to promote a safe and healthy workplace, and contributes to the proper governance and accountability of the DAMP. Although the instrument engages the right to privacy, it maintains all existing protections contained in Australian law and does not seek to limit the right to privacy in any way.
Minister for Immigration and Border Protection
ATTACHMENT
Details of the Customs (Drug and Alcohol Testing) Amendment Regulation 2014 (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 2014 (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(s)
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
Item 1– Subsection 7(4)
Section 7 of the Drug and Alcohol Testing Regulation sets out general rules for the conduct of a breath test, blood test or prohibited drug test under section 16B, 16C or 16D of the Act.
Subsection 7(4) currently provides that where a prohibited drug test requires a Customs worker to provide a sample of hair, the sample must be provided by cutting a strand of hair or removing a strand of hair by its root. In practice however, a strand of hair is not sufficient to enable a prohibited drug test to be undertaken. Analytical laboratories require larger samples.
In addition, section 7 does not currently specify from where on the body a sample of hair can be taken. It is common for samples of hair to be taken from the head however this creates difficulties when, for example, a person presents for a prohibited drug test with a shaved head.
To address these issues, item 1 repeals and substitutes the existing subsection 7(4) to:
- remove references which limit the sample of hair to a strand by cutting or removing the hair by its root;
- allow an authorised person to only collect from a Customs worker the amount of hair necessary to conduct a prohibited drug test;
- require an authorised person to collect a sample of hair from a Customs worker for a prohibited drug test in the least painful technique known and available to the authorised person collecting the sample; and
- clarify that a sample of hair can be taken from any part of a Customs worker’s body, other than the genital or anal area or the buttocks.
This amendment enables a hair sample to be taken in an amount that allows a prohibited drug test to be undertaken and provides more certainty as to where on the body a sample of hair can and cannot be taken from.
Items 2, 3 and 4 – Section 8
Section 8 of the Drug and Alcohol Testing Regulation sets out the storage, retention and destruction requirements for body samples and other records obtained from the conduct of alcohol and prohibited drug tests.
To more accurately reflect the purpose of this section, item 2 repeals and substitutes the heading of section 8 ‘Record keeping’ with a new heading ‘Security and destruction of body samples and other records’.
Pursuant to subsection 8(1) of the Drug and Alcohol Testing Regulation, section 8 applies to a record, including a body sample, that is relevant to a breath test, blood test, or a prohibited drug test conducted for section 16B, 16C or 16D of the Act. Despite this, many of the storage, retention and destruction requirements in this section deal with ‘body samples’ and ‘other records’ as separate concepts. The only exception to this is current subsection 8(6) which requires a ‘record’ that does not indicate the presence of alcohol or prohibited drugs to be destroyed no later than 28 days after the day the test was conducted.
The term ‘body sample’ is defined in section 3 of the Act to mean any of the following:
(a) any human biological fluid;
(b) any human biological tissue (whether alive or otherwise);
(c) any human breath.
‘Other records’ is a term which is not defined in the Act, but includes, for example, the name of the Customs worker tested, the date of the test, the type of test, location of the test, identification of the authorised officer who directed the Customs worker to undergo the test and the name or identification of the authorised person conducting the test.
To eliminate potential confusion regarding the storage, retention and destruction requirements of ‘body samples’ and ‘other records’ in this section, items 3 and 4:
- remove the concept that a record includes a body sample (currently referred to in subsections 8(1) and 8(6));
- consolidate existing storage requirements for ‘body samples’ and ‘other records’ (currently provided in subsections 8(2) and 8(3)); and
- separate the destruction requirements for ‘body samples’ and ‘other records’ which do not indicate the presence of alcohol or prohibited drugs (currently provided in subsection 8(6)).
Specifically, new subsection 8(1) requires a body sample or other record that is relevant to a breath test, blood test or prohibited drug test conducted for section 16B, 16C or 16D of the Act to be kept in a secure location unless it is destroyed in accordance with section 8.
Currently, body samples and other records that do not indicate the presence of alcohol or prohibited drugs when tested must be destroyed no later than 28 days after the day the test was conducted. However, the requirement for ‘other records’ to be destroyed within this 28 day period presents difficulties for the Australian Customs and Border Protection Service (ACBPS) to monitor testing under the Drug and Alcohol Management Program (DAMP). In particular, it prevents the ACBPS from being able to identify Customs workers who have previously been subjected to a test if the results did not detect the presence of alcohol or prohibited drugs. It also inhibits the ACBPS’s ability to report accurately on the DAMP and its compliance with Commonwealth procurement and spending requirements. This can only be done by compiling records of the numbers, dates, and locations of testing, invoices, records of samples, laboratory reports resulting from that testing, and reports from the Medical Review Officer. Presently, these records must be destroyed:
- no later than 28 days after the day a test is conducted if they do not indicate the presence of alcohol or prohibited drugs; or
- if they do indicate the presence of alcohol or prohibited drugs, as soon as practicable after the Customs worker to whom the record relates ceases, for any reason, to be a Customs worker.
To enhance the governance of the ACBPS’s DAMP, new subsection 8(3) allows the ACBPS to retain ‘other records’ regardless of whether they indicate the presence of alcohol or prohibited drugs, until such time as the worker to whom the record relates ceases, for any reason, to be a Customs worker. This would align the destruction requirements for ‘other records’ and enable the ACBPS to accurately monitor testing and report on the DAMP.
The destruction requirements for ‘body samples’ remain the same as those currently provided in the Drug and Alcohol Testing Regulation. New subsection 8(2) simply consolidates them into the one provision. As a result, new subsection 8(2) requires ‘body samples’ to be destroyed:
- No later than 2 years from the day the test was conducted if the sample indicates the presence of alcohol or prohibited drugs; and
- No later than 28 days after the day the test was conducted if the sample does not indicate the presence of alcohol or prohibited drugs.
Item 5 – Part 4 (heading)
Item 5 repeals and substitutes the heading ‘Part 4 – Transitional provisions’ with a new heading ‘Part 4 – Application and transitional provisions’.
Item 6 – At the end of Part 4
Item 6 inserts an application provision for the amendments being made to section 8 of the Drug and Alcohol Testing Regulation. The effect of this item means that section 8, as in force on and after the day the Regulation commences, applies in relation to body samples and other records, whether the relevant breath test, blood test, or prohibited drug test was conducted before, on or after that day.