EXPLANATORY STATEMENT
Specification of Prohibited Drugs No.1 of 2014
Customs Administration Act 1985
Subsection 16H of the Customs Administration Act 1985 (the Administration Act) allows the CEO of Customs, by legislative instrument, to specify drugs for the purposes of the definition of prohibited drug in section 3 of the Administration Act.
Background
Sections 16C and 16D of the Administration Act allow an authorised officer to require a Customs worker to undergo a prohibited drug test. ‘Prohibited drug test’ is defined in section 3 of the Administration Act as a test of a body sample of a person to determine the presence (if any) of a prohibited drug in the sample.
‘Prohibited drug’ is then defined as meaning a narcotic substance (within the meaning of the Customs Act 1901) or any drug specified in a legislative instrument under section 16H.
This instrument will specify additional drugs as prohibited drugs for the purposes of conducting a prohibited drug test.
Instrument
The drugs specified in the instrument can be broadly classified as benzodiazepines and performance and image enhancing drugs (PIEDS). Both of these classes of drugs have legitimate uses; however, both are also used outside of accepted medical parameters, and there is an illicit trade in both. All of the drugs listed in the instrument are currently subject to border controls via the Customs (Prohibited Imports) Regulation 1956.
Drug and alcohol testing was introduced within Australian Customs and Border Protection Service (ACBPS) in early 2013 as part of other measures to ensure greater integrity within ACBPS. Should an officer’s occupation become known to criminal interests involved in the illicit drug markets, the officer is vulnerable to extortion and may be prepared to assist criminal groups in the hopes of avoiding the consequences of breaching the ACBPS drug policy. In its interim report into Operation Heritage, examining corrupt activities by a small group of ACBPS officers, the Australian Commission on Law Enforcement Integrity noted, ‘A number of the individuals used illicit drugs, and the compromise of individuals—which could be the basis for blackmail, or just the means of assuring loyalty—may also have been a factor in how the network formed and strengthened.’
The addition of benzodiazepines and PIEDs to the ACBPS drug and alcohol testing regime will improve ACBPS’s ability to assess officers’ exposure to criminal groups and to take steps to mitigate any risks detected.
Consultation
Consultation has occurred at several points. A draft Practice Statement was circulated for staff review and comment prior to the beginning of the Drug and Alcohol Management Program (DAMP). The pilot of the DAMP was undertaken on the basis of an interim Practice Statement, which included reference to benzodiazepines, although not PIEDs.
The final Practice Statement, which was circulated in draft form to unions, included the following statement:
Section 16H of the Customs Administration Act 1985 states “the CEO may, by legislative instrument, specify drugs for the purpose of the definition of prohibited drug in section 3”. Testing for border controlled Performance and Image Enhancing drugs and benzodiazepines will occur under this provision.
Finally, throughout this entire process the ACBPS has encouraged staff feedback on the DAMP, both informal and written. The overwhelming majority of officers have been supportive of the program and understand the link between integrity and the non-medical ingestion of border-controlled drugs.
Commencement
The instrument commences on the day on which it is signed. Even though this date is before the date the instrument is registered, no drug testing for these substances will occur until after the instrument is registered. Therefore, this instrument does not contravene subsection 12(2) of the Legislative Instruments Act 2003.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Specification of Prohibited Drugs No.1 of 2014
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
Specification of Prohibited Drugs No. 1 of 2014 (the instrument) specifies drugs for the purposes of the definition of ‘prohibited drug’ contained in section 3 of the Customs Administration Act 1985 (the Administration Act).
Sections 16C and 16D of the Administration Act allow an authorised officer to require a Customs worker to undergo a prohibited drug test. A prohibited drug test is the test of a body sample to determine the presence (if any) of a prohibited drug. The instrument will increase the number of drugs which are defined as prohibited drugs and will therefore allow Australian Customs and Border Protection (ACBPS) to test for the presence of a greater number of drugs for which ACBPS officers have enforcement responsibilities at the border.
Human Rights Implications
Right to Privacy
This Regulation engages the right to privacy contained in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person’s privacy. It provides that persons have the right to the protection of the law against each interference. An interference with privacy will not be arbitrary if it is not inconsistent with the provisions, aims and objectives of the ICCPR and is reasonable in the circumstances. Reasonableness in this context, incorporates notions of proportionality, appropriateness and necessity.
The right to privacy is engaged by this regulation as it will allow ACBPS to test a Customs worker for a greater number of drugs, including drugs which are available for legitimate use. The ACBPS already tests Customs workers for drugs that have legitimate uses, those being drugs within the opiates and amphetamine-type substances classes.
It is necessary for ACBPS to test for these new kinds of drugs because, like the classes of drugs for which ACBPS currently tests, PIEDs and benzodiazepines are trafficked in illicit markets.
Customs and Border Protection officers who involve themselves in illicit markets for drugs make themselves and the ACBPS vulnerable to corruption. Transactions in any markets include contact among buyer and seller. Should one party discover that the other is an ACBPS officer, an opportunity presents itself for that party to use that knowledge to influence or coerce the ACBPS officer to assist with criminal activity or risk having the drug-taking activity exposed.
Testing for these drugs will give the ACBPS greater capacity to assess the extent of the risk of organised criminal influence on ACBPS officers.
Conclusion
This legislative instrument is compatible with human rights as, although it does restrict the right to privacy, this restriction seeks to serve a legitimate purpose and is reasonable, necessary and proportionate to its purpose.
Michael Pezzullo, Chief Executive Officer, Australian Customs and Border Protection Service