EXPLANATORY STATEMENT
Defence Act 1903
Issued by the Authority of the Chief of the Defence Force
Determination of Prohibited Substances
Recent amendments to Part VIIIA of the Defence Act 1903 (the Act) provided for a more comprehensive regime for the drug testing of the Australian Defence Force. The amendments expanded the range of substances that may be tested for, broadened the circumstances when testing could be required and the types of testing that can be used.
The new 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 five classes of substances as being prohibited substances and seeks to describe four of them by reference to The 2005 Prohibited List, International Standard. This list is found in The World Anti-Doping Code, which came into effect on 1 January 2005. These four classes of prohibited substances are:
- Anabolic agents (including anabolic steroids such as DHEA);
- Hormones and related substances (for example, erythropoietin (EPO), growth hormone (hGH), insulin and insulin-like Growth Factor (IGF-1));
- Beta-2 agonists (for example, bambuterol, fenoterol and reproterol); and
- Diuretics and other masking agents (for example, alpha-reductase inhibitors, epitestosterone, etacrynic acid and plasma expanders).
The fifth class of prohibited substances is Benzodiazepines, which include substances such as valium, temazepam, diazepam, normicin, rohypnol and serepax.
This Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Determination commenced the day after registration on the Federal Register of Legislative Instruments.
Overview
The Defence Act 1903, as recently amended, introduces a more comprehensive regime for the drug testing of members of the Australian Defence Force (ADF). This legislation aims to address the need for an expanded range of substances that can be tested for, as well as the circumstances under which such testing can be required and the types of tests that can be used. The Act empowers the Chief of the Defence Force to determine which substances, or classes of substances, are to be considered prohibited for the purposes of drug testing within the ADF. This determination is crucial for maintaining discipline and ensuring that members of the ADF are not using substances that could impair their performance or health. The amendments also provide that a positive test result will be disregarded if it is attributable to therapeutic use as directed by a qualified medical practitioner. This approach balances the need for stringent drug testing with considerations for legitimate medical use.
Scope and Application
The Defence Act 1903, as amended, establishes a stringent regime for the drug testing of members of the Australian Defence Force (ADF). Under the Act, the Chief of the Defence Force has the authority to designate specific substances or classes of substances as prohibited, thereby expanding the scope of substances for which ADF members may be tested. This includes anabolic agents, hormones and related substances, beta-2 agonists, diuretics and other masking agents, and benzodiazepines, as listed in the Schedule of the Determination. The inclusion of these substances is aligned with the 2005 Prohibited List, International Standard, as outlined in The World Anti-Doping Code. Notably, the Act provides for the disregard of positive test results attributable to therapeutic use as directed by a legally qualified medical practitioner. This Determination operates as a legislative instrument under the Legislative Instruments Act 2003 and took effect upon registration on the Federal Register of Legislative Instruments.
Key Provisions
The main operative sections of the Determination (F2005L01272) include subsection 93B(1) and subsection 98(2) of the Defence Act 1903. Subsection 93B(1) empowers the Chief of the Defence Force to determine which substances, or classes of substances, are considered prohibited for the purposes of Part VIIIA of the Act. This means that the Chief can specify which substances are banned for use by members of the Australian Defence Force (ADF). Subsection 98(2) provides that a positive test result for a prohibited substance will be disregarded if the result is due to therapeutic use in accordance with the directions or recommendations of a legally qualified medical practitioner. This provision ensures that legitimate medical treatments do not unfairly result in disciplinary action against ADF members.
The Determination imposes obligations on the ADF members by prohibiting the use of specified substances. These substances are divided into five classes: anabolic agents, hormones and related substances, beta-2 agonists, diuretics and other masking agents, and benzodiazepines. By listing these substances, the Determination ensures that ADF members are aware of the types of substances that are banned and subject to testing. The substances are further described by reference to the 2005 Prohibited List, International Standard, which is part of the World Anti-Doping Code. This detailed listing helps to standardise the interpretation and application of the prohibited substances across different jurisdictions.
The Determination also outlines the consequences for breaches of the specified provisions. While the Determination itself does not explicitly state penalties for violations, breaches of the Defence Act 1903 provisions related to drug testing and the use of prohibited substances can lead to significant consequences. Under the Defence Act, ADF members found to be in violation of these provisions could face disciplinary action, which may include fines, loss of rank, or even dismissal from the ADF. Additionally, if the use of prohibited substances leads to criminal conduct, such as drug trafficking or supply, separate criminal penalties may apply under other Australian laws.
The Determination serves as a legislative instrument under the Legislative Instruments Act 2003, meaning it has legal force once registered on the Federal Register of Legislative Instruments. Its commencement took effect the day after its registration, ensuring that ADF members are promptly informed of the expanded scope of prohibited substances and the associated testing requirements. This legislative approach ensures a consistent and enforceable framework for drug testing within the ADF, aligned with international standards and practices.