Defence (Prohibited Substances) Determination 2012

Administered by Department of Defence

Legislation au F2012L01138 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Defence (Prohibited Substances) Determination 2012

 

Defence Act 1903

 

Issued by the Authority of the Chief of the Defence Force

 

 

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 for the Chief of the Defence Force to determine that a substance, or a substance included in a class of substances, is a prohibited substance for the purposes of Part VIIIA of the Act. Subsection 98(2) of the Act provides that a positive test result for a prohibited substance is to be disregarded where the result is attributable to therapeutic use in accordance with the directions or recommendations of a legally qualified medical practitioner.

 

The Act already provides for testing members of the ADF in respect of narcotic substance use. The purpose of the Determination is for the Chief of the Defence Force to expand the types of substances for which members of the ADF may be tested.

 

The Schedule to the Determination lists three items of substances as being prohibited substances as follows:

 

  • Item 1: a substance mentioned in item S1, S2, S3 or S5 of the 2012 Prohibited List;
  •        Item 2: a substance mentioned in Schedule 9 to the Poisons Standard; and
  • Item 3: a benzodiazepine, including temazepam (Normison), diazepam (Valium), flunitrazepam (Rohypnol) and oxazepam (Serepax).

 

Consultation

 

Personnel representing each of the Services, Joint Health Command, Defence Legal and People Strategies and Policy Group were engaged in the making of this instrument. The Service Chiefs of Navy, Army and Air Force have provided their formal agreement. 

 

Human Rights Compatibility Statement

 

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. This legislative instrument engages the following human rights:

 

Privacy and attacks on reputation

 

Right to the prohibition on interference with privacy and attacks on reputation prohibits unlawful or arbitrary interference with a person’s privacy, family, home and correspondence, (article 17(1) International Covenant on Civil and Political Rights).

 

Legitimate objective: the use or involvement with prohibited substances by Defence personnel is incompatible with an effective and efficient Australian Defence Force (ADF).

It leads to reduced performance, health impairment and gives rise to occupational health and safety risks. Furthermore, prohibited substance use or involvement undermines discipline, morale, organisational cohesion and security and can adversely affect the public image and reputation of the ADF.

 

Reasonable, necessary and proportionate: testing for prohibited substances is undertaken through a standard on-site immunoassay test of urine under in the presence of a supervisor and tester. Testing can either be random or targeted. There are no restrictions on when, where or why Defence personnel may be tested. The names of personnel tested are recorded to conform with administrative protocols and for statistical collection. The Privacy Act 1988 and Defence Instruction (General) Personnel 15-5 – Management of the use or involvement with prohibited substances in the Australian Defence Force are strictly adhered to in terms of privacy and limit the purposes for which test results can be disclosed.

 

Right to prevent conduct of cruel, inhuman or degrading treatment or punishment

 

Right to prevent conduct not meeting the threshold for torture but that may be regarded as other acts of cruel, inhuman or degrading treatment or punishment, (article 16(1) Convention against torture and other Cruel, Inhuman or Degrading Treatment or Punishment).

 

Legitimate objective: the use or involvement with prohibited substances by Defence personnel is incompatible with an effective and efficient Australian Defence Force (ADF). It leads to reduced performance, health impairment and gives rise to occupational health and safety risks. Furthermore, prohibited substance use or involvement undermines discipline, morale, organisational cohesion and security and can adversely affect the public image and reputation of the ADF.

 

Reasonable, necessary and proportionate: all Defence personnel who test positive to prohibited substances must be dealt with administratively. This is facilitated under part VIIIA of the Defence Act 1903. This could result in the termination of the member’s service which, based on historical outcomes, has seen four out of five members who have tested positive having their service terminated. Additionally, Defence members who may be retained will normally incur a formal warning, possibly a reduction in rank or other administrative sanction. These members will also be subject to further prohibited substance testing at any time.

 

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

      

         Authority:   Subsection 93B(1) of                                                                                                                            the Defence Act 1903

Overview

The Defence (Prohibited Substances) Determination 2012 is an instrument made under the Defence Act 1903, enacted by the Chief of the Defence Force to expand the range of substances for which members of the Australian Defence Force (ADF) can be tested. The primary problem it addresses is the use of prohibited substances among ADF members, which can lead to reduced performance, health issues, and occupational health and safety risks. Moreover, such use undermines discipline, morale, and security within the ADF, and can negatively impact the public image and reputation of the force. The determination aligns with the Defence Act 1903's objective to maintain an effective and efficient ADF, and it was developed with input from various Defence representatives. The policy objective is to ensure that the ADF remains free from the detrimental effects of prohibited substance use. The Determination lists specific substances, including those from the 2012 Prohibited List, the Poisons Standard, and certain benzodiazepines, as prohibited substances. It ensures that the testing and subsequent administrative actions comply with privacy laws and Defence instructions. The legitimacy of the testing is justified by the necessity to maintain the ADF's operational integrity and public trust, while the procedures are designed to be reasonable, necessary, and proportionate to the legitimate objectives.

Scope and Application

The Defence (Prohibited Substances) Determination 2012 applies to all members of the Australian Defence Force (ADF), including personnel from the Navy, Army, and Air Force. The Act targets the identification, testing, and subsequent administrative actions for members who test positive for prohibited substances. This includes substances listed in the 2012 Prohibited List, substances specified in Schedule 9 to the Poisons Standard, and benzodiazepines such as temazepam, diazepam, flunitrazepam, and oxazepam. The Determination extends the scope of the Defence Act 1903 by adding new categories of substances for which ADF personnel can be tested. The jurisdictional reach of the Act is national, as it is an instrument under the Commonwealth's Defence Act 1903. The Act does not specify any exclusions or exemptions other than allowing for disregard of positive test results attributable to therapeutic use as directed by a legally qualified medical practitioner. The application and enforcement of this Determination can be extended or refined through subordinate instruments, ensuring the regime remains responsive to emerging substance use trends and regulatory changes.

Key Provisions

The Defence (Prohibited Substances) Determination 2012 (F2012L01138) expands the scope of substances for which Australian Defence Force (ADF) members can be tested under the Defence Act 1903. Specifically, it lists substances in the 2012 Prohibited List, substances in Schedule 9 to the Poisons Standard, and benzodiazepines such as temazepam, diazepam, flunitrazepam, and oxazepam as prohibited substances (Schedule, Item 1, Item 2, and Item 3 respectively). This determination allows the Chief of the Defence Force to include additional substances as prohibited, enhancing the regime for drug testing within the ADF. The obligations imposed by this Determination on ADF members are significant. They must comply with drug testing procedures, which include both random and targeted testing. These tests are conducted using standard on-site immunoassay tests of urine, overseen by a supervisor and tester. Members' names are recorded to maintain administrative protocols and for statistical purposes, with strict adherence to privacy laws and Defence regulations to protect personal information. The overarching aim is to ensure that the ADF remains an effective, efficient, and disciplined force by preventing the use of prohibited substances. Breaching the provisions of the Determination can have serious consequences. For ADF members who test positive for prohibited substances, the outcomes can range from formal warnings and reductions in rank to the termination of their service. Historically, the termination rate for members testing positive has been high, with four out of five such members having their service terminated. These measures are designed to uphold the standards of discipline, performance, and safety within the ADF, and to protect the public image and reputation of the force. The penalties and consequences are intended to be both reasonable and proportionate, ensuring that the testing regime remains effective in achieving its objectives.

Legal classification tags

Area of Law
Defence & Security Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Offence Provisions
Testing & Reporting
Catchwords
Prohibited Substances
Privacy & Human Rights

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.