Overview

The Defence Determination (Prohibited Substances – Authorised Persons) 2019 was enacted to establish a framework for identifying authorised persons under the Defence Act 1903 who are responsible for testing Australian Defence Force members for prohibited substances. This legislative instrument is underpinned by section 93A of the Defence Act 1903, which empowers the Chief of the Defence Force to designate individuals as authorised persons through legislative means. The determination was developed following consultations with various Defence entities, including the Director Military Personnel Policy and the Director General Health Policy Programs and Assurance, ensuring a comprehensive approach to the issue at hand. The objective of this determination is to streamline the identification process of authorised persons, thereby reinforcing the integrity and effectiveness of the ADF's drug testing regime. This Determination was enacted by the Chief of the Defence Force, General Angus J Campbell, in accordance with the authority granted by the Defence Act 1903. It is compatible with the human rights and freedoms as 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. The determination replaces the previous Defence Determination (Prohibited Substances – Authorised Persons) 2019, signed on 7 March 2019.

Scope and Application

The Defence Determination (Prohibited Substances – Authorised Persons) 2019/1 applies to persons designated as authorised under section 93A of the Defence Act 1903, specifically for the purpose of testing for prohibited substances within the Australian Defence Force (ADF). This legislative instrument, which has authority under the Defence Act, aims to identify and authorise individuals who are permitted to conduct such tests. The scope of the determination extends across the Commonwealth, meaning it applies nationally and encompasses all members and relevant personnel within the ADF. This instrument operates under the Defence Act 1903, which provides a comprehensive framework for drug testing within the ADF, and it repeals a previous instrument, Defence Determination (Prohibited Substances - Authorised Persons) 2019, to update and streamline the authorisation process. The determination does not specify exclusions, exemptions, or thresholds, but it is subject to potential amendments through subordinate instruments, ensuring its relevance and effectiveness in line with the ADF's evolving needs and policies.

Key Provisions

The main operative sections of this Determination are contained in Section 5, which specifies the authorised persons for the purpose of testing for prohibited substances within the Australian Defence Force (ADF). According to this section, the Chief of the Defence Force has the authority to designate certain individuals as authorised persons. These individuals are responsible for conducting drug tests and handling the results, ensuring compliance with the ADF's stringent drug policies. This determination is crucial in maintaining the operational integrity and safety standards of the ADF, as it establishes who is legally permitted to conduct these tests. The obligations and requirements imposed by this Determination on the parties involved, particularly the authorised persons, include adherence to the protocols and procedures outlined in Part VIIIA of the Defence Act 1903. Authorised persons must be adequately trained and authorised to carry out drug testing and must ensure that tests are conducted in a manner that is both fair and accurate. They are also responsible for maintaining the confidentiality of test results and ensuring that the testing process is conducted without bias. These obligations ensure that the drug testing process within the ADF is conducted in a professional and ethical manner, thereby upholding the high standards expected of the ADF. In terms of offences, penalties, or consequences for breach, the Determination itself does not explicitly outline penalties. However, under Section 93A of the Defence Act 1903, failure to comply with the provisions of this Determination could potentially lead to disciplinary actions within the ADF. Such actions could range from formal reprimands to more severe consequences such as dismissal from service, depending on the severity and nature of the breach. Additionally, if the breach involves misconduct or breaches of military law, it could also lead to criminal charges under other relevant legislation. The maximum penalties for such offences would depend on the specific breaches and the applicable laws, but they could include fines and imprisonment.