EXPLANATORY STATEMENT
Defence (Prohibited Substances) Determination 2021
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Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.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 World Anti-Doping Code International Standard Prohibited List 2021 as in force at 1 January 2021 and freely accessible at the World Anti-Doping Agency website www.wada-ama.org.
- The Poisons Standard June 2021 as in force at 1 June 2021and 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.
Schedule 1—Repeals
Section 1 repeals Defence Determination (Prohibited Substances) 2019.
Consultation
Before this Determination was made, consultation was undertaken with Director Military Personnel Policy, Director Navy Recruiting, Retention and Transition, Chief of Staff Career Management – Army, Director Personnel Policy – Air Force and Office of the General Counsel - Defence Legal. The rule maker 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 (Prohibited Substances) Determination 2021
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 (Prohibited Substances) Determination 2021 was enacted to address the need for updating the types of substances that members of the Australian Defence Force (ADF) can be tested for under the Defence Act 1903. This legislative instrument was introduced by the Chief of the Defence Force, exercising authority under subsection 93B(1) of the Defence Act 1903. The primary objective of this Determination is to ensure that the ADF's drug testing regime remains aligned with contemporary standards and international best practices, thereby maintaining the integrity and effectiveness of the ADF's drug testing program. The Determination incorporates the World Anti-Doping Code International Standard Prohibited List 2021 and the Poisons Standard June 2021 to reflect the most current classifications of prohibited substances. This approach ensures that the ADF's testing protocols are in line with global anti-doping efforts and national health regulations, thus enhancing the reliability and fairness of the testing process.
Scope and Application
The Defence (Prohibited Substances) Determination 2021 applies to members of the Australian Defence Force (ADF) and serves to update the substances for which they may be tested under the Defence Act 1903. It extends to the Commonwealth level, aligning with the legislative authority provided under subsection 93B(1) of the Defence Act. The Determination incorporates the World Anti-Doping Code International Standard Prohibited List 2021 and the Poisons Standard June 2021, effectively establishing a comprehensive list of prohibited substances. This legislative instrument does not specify exclusions or exemptions but operates through the authority granted to the Chief of the Defence Force. Additionally, the Determination repeals the Defence Determination (Prohibited Substances) 2019, ensuring that the regulations remain current and relevant. The Determination is compatible with human rights as it does not engage any human rights issues as declared in the Human Rights (Parliamentary Scrutiny) Act 2011.
Key Provisions
The Defence (Prohibited Substances) Determination 2021 primarily serves to update the types of substances that members of the Australian Defence Force (ADF) may be tested for under the Defence Act 1903 (section 6). This is achieved by incorporating the World Anti-Doping Code International Standard Prohibited List 2021 and the Poisons Standard June 2021, ensuring that the list of prohibited substances aligns with current international standards and Australian legislative requirements (section 5). The determination also repeals the Defence Determination (Prohibited Substances) 2019 (Schedule 1), replacing it with the updated list of prohibited substances.
Entities and individuals governed by the Defence Act 1903, particularly members of the ADF, are required to comply with the updated list of prohibited substances outlined in the Determination. This includes adherence to the provisions that specify the substances that are banned within the ADF, which are detailed in the incorporated World Anti-Doping Code and Poisons Standard (section 6). The Chief of the Defence Force has the authority to determine these substances through legislative instruments, and any updates to this list must be followed strictly by all ADF members.
Breach of the provisions in this Determination can lead to significant consequences for ADF members. While the explanatory statement does not detail specific offences or penalties, the Defence Act 1903 generally outlines penalties for breaches related to drug testing and the presence of prohibited substances within the ADF. The penalties can include disciplinary action, administrative sanctions, and potential legal consequences depending on the severity of the breach and the specific circumstances involved. The exact penalties are not specified in this Determination but would be aligned with the provisions of the Defence Act 1903.