EXPLANATORY STATEMENT
Defence Act 1903
Defence (Prohibited Substances) Determination 2015
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 update the types of substances for which members of the ADF may be tested and to incorporate the latest Prohibited List and Poisons Standard.
Section 1 names the Determination- Defence (Prohibited Substances) Determination 2015
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 (1) of the Defence Act 1903.
Section 4 provides for the repeal in Schedule 1 of Defence (Prohibited Substances) Determination 2012.
Section 5 provides for Definitions in this instrument.
Section 6 of this Determination updates the prohibited substances lists which including benzodiazepine derivatives, hormone and metabolic modulators and synthetic tetrahydrocannabinols:
a. a substance mentioned in item S0, S1, S2, S3, S4, S5, S6, S7, S8 or S9 of the 2015 Prohibited List of the World Anti-Doping Code ; and
b. a substance mentioned in Schedule 4, 8 or 9 to the Poisons Standard July 2015
Schedule 1 repeals the whole of the previous Determination.
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.
The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003
Human Rights Compatibility Statement
The purpose of the Determination is for the Chief of the Defence Force to update the types of substances for which members of the ADF may be tested and to incorporate the latest Prohibited List and Poisons Standard
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.
Authority: Subsection 93B (1) of the Defence Act 1903