EXPLANATORY STATEMENT
Defence Act 1903
Defence (Prohibited Substance Tests) Determination 2017
Issued by the Authority of the Chief of the Defence Force
The Australian Defence Force (ADF) Prohibited Substances Testing Program (PSTP) is enabled by the Defence Act 1903 (the Act), Part VIIIA—Testing for prohibited substances. The Chief of the Defence Force (CDF), acting under subsection 93B (1) of the Act, determines substances and classes of substances that are tested and, under subsection 93B (2) determines methods of testing in addition to urinalysis.
Purpose and operation of this Determination
Urinalysis is the only testing method specifically identified under Part VIIIA of the Act. Therefore, to enhance the deterrence effect of the PSTP a new CDF determination under section 93B (2) is required to enable the conduct of prohibited substances testing under the PSTP using saliva and hair testing methods.
An evaluation of the additional tests and testing methods will be considered to inform any further decisions on the application of those testing methods in addition to urinalysis. PSTP policy is being redrafted to enable the implementation of additional testing and testing methods.
Hair testing is to incorporate onsite sample collection and offsite testing at a National Association of Testing Authorities (NATA)-accredited laboratory.
Saliva testing is to incorporate onsite sample collection and onsite sample screening. Screened samples that return a provisional positive ie (pending) result are dispatched for offsite laboratory-conducted confirmatory testing. A urine sample will be also be collected from the person who returned the pending result which will also be sent to a laboratory for prohibited substance testing.
The procedures of saliva and hair collection testing will:
- comply with legislative requirements and associated Defence policies
- be authorised by CDF under section 93B(1) within the technical limitations of the testing methods enabled by a NATA accredited agency or those methods that comply with the requirements ISO 15189—Medical Laboratory – Requirements for Quality and Competence or has been accredited against ISO 17025—General requirements for the competence of testing and calibration laboratories
- meet Defence chain of custody requirements
- comply with the Privacy Act 1988 (Cth) and Defences privacy standards and obligations.
Consultation
Personnel representing each of the Services, Joint Health Command, Defence Legal and Defence People Group were engaged in the making of this instrument. The Service Chiefs of Navy, Army and Air Force have provided their formal agreement.
Commencement
This Determination commences the day after registration.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Details of the Defence (Prohibited Substance Tests) Determination 2017
Section 1 names the Determination- Defence (Prohibited Substance Tests) Determination 2017
Section 2 provides the commencement date to be the day after the instrument is registered.
Section 3 provides the authorisation for this Determination which is made under subsection 93B (2) of the Defence Act 1903.
Section 4 of this Determination provides that a prohibited substance test involves testing a sample of hair or saliva. The Services will be testing a minimum of 150 hair and 1,500 saliva samples during the conduct of the trial of these methodologies running from 1 October 2017 to 31 July 2018. Hair samples will only be collected from above shoulder height and at no stage is a Defence member to be required to remove their clothing to obtain body hair.
In accordance with Commonwealth Procurement Rules, and to ensure best value for money through the aggregating buying power, Defence will be utilising the existing contract arrangement between the Department of Immigration and Border Protection and MEDVET Pty Ltd for the services relating to hair and saliva collection and testing. The Department of Immigration and Border Protection contract with MEDVET will be updated to include Service specific requirements.
Hair and saliva testing will be conducted as an adjunct to urinalysis. As there are jurisdictional constraints within the Department of Immigration and Border Protection contract, the collection and screening processes associated with hair and saliva collection will only be carried out in Australia.
No training costs will be incurred by Defence for the collectors or persons required to perform the collection or initial screening of hair and saliva samples as these functions will be carried out by MEDVET employed personnel.
The collection, initial screening and postage or transportation to the laboratories will be in accordance with the requirements of the contract.
The laboratories that will be used will be accredited and meet relevant Australian Standards.
The personal information relating to Defence members and Defence Civilians tests will be managed in accordance with the Privacy Act 1988 (Cth) and Defence privacy obligations and standards.
Following any pending and or positive test result procedural fairness principles and processes will be employed to give individuals an opportunity to present a case as for why they have a positive test result and ensure a fair decision making process. This will ensure that all aspects associated with the result can be considered by the decision maker when determining the administrative action that is to be taken (if any) against the member or Defence civilian.
Human Rights Compatibility Statement
The purpose of the Determination is for the Chief of the Defence Force to update the type of prohibited substance testing for which members of the ADF may be tested to include testing a sample of hair or saliva.
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.
Overview of the Legislative Instrument
The ability to conduct prohibited substance testing for ADF members was introduced by Part VIIIA of the Act in 2005. The Act requires Determinations (legislative instruments) for a class of substances and a class of tests outside urinalysis. This subject Determination will provide Defence with the scope to introduce a further layer of drug testing with hair and saliva; it will be in addition to the current testing of urinalysis.
The background and objective would be to ensure the health and welfare of ADF members and to promote an environment free of prohibited substance abuse. The introduction of hair and saliva testing for prohibited substance use provides a 'window' of historical usage greater then would be revealed by the current urinalysis testing. This would further promote a safe and healthy work environment.
Human Rights Implications
- Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Right to safe and healthy working conditions-
Though the specific amendments themselves do not appear to directly engage this right, one of the purposes of the testing scheme as a whole would be to ensure there are not Defence personnel operating in the workplace under the influence and therefore endangering the lives of others. To the extent that the amendments bolster the scheme as a whole, this right may be engaged and promoted.
- Article 17 of the International Covenant on Civil and Political Rights (ICCPR), Right to privacy- provides that everyone has a right not to be subjected to arbitrary or unlawful interference with privacy. The taking of personal samples and their use, storage and recording will engage the right to privacy under Article 17 of the ICCPR. Defence is extending the range of prohibited substance tests to include analysis of hair and saliva samples is for the legitimate purpose of deterring prohibited substance use by Defence members and Defence civilians.
The prohibitive substance testing process is in line with the Australian Standards -Procedures for specimen collection and the detection and quantification of drugs in oral fluids AS 4760-2006. This standard allows for individual privacy.
Privacy and personal information and retention of records would be in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.
The testing analysis would be conducted off site by a NATA accredited laboratory.
The Defence Act 1903 provides that prohibited drug testing will only be conducted by an authorised person on Defence members and Defence civilians for the purpose of testing for prohibited drugs. While the requirement to give hair and saliva samples is intrusive to Defence members’ and Defence civilians’ privacy, these measures are for the legitimate purpose of deterring prohibited substance use by Defence personnel and Defence civilians, and are reasonable, necessary and proportionate to achieving that purpose, providing they are carried out in a manner that minimises the invasiveness of such tests. Section 95 of the Defence Act 1903 provides that the prohibited substance test must be conducted in circumstances affording reasonable privacy to the person being tested and must not involve the removal of more clothing than is necessary for the purposes of conducting the test. Hair samples are only collected from above shoulder height and at no stage is a Defence member or Defence civilian required to remove their clothing to obtain body hair.
- Article 14(2) of the ICCPR), Presumption of innocence- provides that a person charged with a criminal offence has a right ‘to be presumed innocent until proven guilty according to law’.
It is possible that a person could fail to provide the requested sample and have a reasonable excuse for not doing so such as a medical or physical condition that restricts their production of hair or sufficient quantities of saliva.
The situation where a person fails to provide a sample (without reasonable excuse) or commits an unauthorised act in relation to a sample would usually result in administrative and disciplinary action taken under the Defence Force Discipline Act 1982.
Conclusion
This Determination is compatible with human rights because it promotes human rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Authority: Chief of Defence Force
Subsection 93B (2) of the Defence Act 1903