EXPLANATORY STATEMENT
Defence Determination (Prohibited Substances) 2019
Part VIIIA of the Defence Act 1903 (the Act) provides for a comprehensive regime for the drug testing of the Australian Defence Force (ADF).
Subsection 93B(1) of the Act provides that the Chief of the Defence Force may determine by legislative instrument that a substance, or a substance included in a class of substances, is a prohibited substance for the purpose of Part VIIIA of the Act.
The purpose of this Determination is to update the types of substances for which members of the ADF may be tested.
Section 1 of this Determination sets out the manner in which this Determination may be cited.
Section 2 provides that this instrument commences on the day after registration.
Section 3 provides that this instrument has authority under subsection 93B(1) of the Defence Act 1903.
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Section 5 provides the Definitions in this instrument. Specifically the incorporation of the following documents:
- The Prohibited List as in force at 1 January 2019 and freely accessible at the World Anti-Doping Agency website www.wada-ama.org.
- The Poisons Standard February 2019 as in force at 1 February 2019 and freely accessible at the Federal Register of Legislation-Australian Government website www.legislation.gov.au/.
Section 6 determines the prohibited substances for the purpose of prohibited substance testing.
Consultation
Before this Determination was made, consultation was undertaken with Director Military Personnel Policy, Director Navy People Policy and Governance, Director General Career Management – Army, Director General Personnel – Air Force, Director General Health Policy Programs and Assurance, the Centre for Mental Health, Joint Health Command and Defence Legal Division. The rulemaker was satisfied that further external consultation was not required.
Authority: Subsection 93B(1) of
the Defence Act 1903
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence Determination (Prohibited Substances) 2019
This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
The purpose of this Determination is to revise the types of substances for which members of the ADF may be tested.
Conclusion
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 as it does not engage any human rights.
Angus J Campbell, General, Chief of the Defence Force
Overview
The Defence Determination (Prohibited Substances) 2019 was enacted to update the types of substances for which members of the Australian Defence Force (ADF) may be tested, aligning the ADF's drug testing regime with current international standards and regulations. This Determination is based on subsection 93B(1) of the Defence Act 1903, which empowers the Chief of the Defence Force to designate substances or classes of substances as prohibited for the purposes of Part VIIIA of the Act. The Defence Act 1903 was enacted by the Australian Parliament and provides for the regulation of the ADF, including comprehensive provisions for drug testing. The primary policy objective of this Determination is to ensure that the ADF's drug testing procedures remain consistent with the World Anti-Doping Agency's Prohibited List and the Australian Poisons Standard, thereby maintaining high standards of health, safety, and operational effectiveness within the ADF.
Scope and Application
The Defence Determination (Prohibited Substances) 2019 serves to update the types of substances that may be subject to testing for members of the Australian Defence Force (ADF) under Part VIIIA of the Defence Act 1903. This legislative instrument applies to all individuals serving in the ADF, encompassing all branches of the military, and it is authorised by subsection 93B(1) of the Defence Act 1903. The geographic and jurisdictional reach of this Determination is inherently national, as it pertains to the federal ADF. This Determination incorporates the Prohibited List from the World Anti-Doping Agency and the Poisons Standard from the Federal Register of Legislation as of specified dates, thereby extending its application through these subordinate instruments. The Determination does not explicitly state exclusions or exemptions but rather defines the scope of substances that are subject to testing. The Determination was made following consultation with relevant military and health policy divisions, ensuring that the interests and expertise of various stakeholders were considered in updating the list of prohibited substances.
Key Provisions
The Defence Determination (Prohibited Substances) 2019, under subsection 93B(1) of the Defence Act 1903, specifies the substances that are prohibited for members of the Australian Defence Force (ADF). This Determination is designed to update the list of substances that can be tested for in ADF personnel to ensure that the ADF maintains a drug-free environment and adheres to international standards. Section 4 of the Determination indicates that it incorporates the Prohibited List as in force at 1 January 2019, which is available on the World Anti-Doping Agency website, and the Poisons Standard February 2019 from the Federal Register of Legislation. These documents serve as the authoritative sources for identifying the prohibited substances.
The obligations and requirements imposed by this Determination are primarily on the ADF personnel. According to the provisions, ADF members must refrain from using or possessing any substances listed in the incorporated documents. The Determination also mandates that the ADF conduct drug testing in line with the specified substances to maintain compliance and uphold the integrity of the ADF. Additionally, the Determination requires that the Defence Force stays updated with the latest revisions to the Prohibited List and Poisons Standard to ensure the most current information is used for testing purposes.
Failure to comply with the provisions of this Determination can result in significant consequences for ADF personnel. While specific offences and penalties are not detailed within the Determination itself, the Defence Act 1903 provides a framework for disciplinary actions, including administrative penalties, reduction in rank, or even discharge from the ADF. The seriousness of the offence and the context of the violation will influence the severity of the penalty imposed. Furthermore, any breaches may also have legal ramifications under general Australian law, potentially leading to criminal charges and civil liabilities if the use of prohibited substances leads to harm or endangers public safety.