Specification of Prohibited Drugs No.1 of 2014

Administered by Department of Home Affairs

Legislation au F2014L00264 Not in force Legislative Instrument

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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

Overview

The Specification of Prohibited Drugs No. 1 of 2014 amends the Customs Administration Act 1985 by specifying additional drugs as prohibited drugs for the purposes of conducting prohibited drug tests on Customs workers. Enacted by the Chief Executive Officer of Customs under the authority granted by the Customs Administration Act 1985, this legislative instrument addresses the problem of illicit drug use and trafficking among Customs officers, which can lead to corruption and compromise the integrity of the Australian Customs and Border Protection Service (ACBPS). The policy objective is to enhance the integrity of ACBPS by ensuring that officers are tested for a broader range of drugs, including benzodiazepines and performance and image enhancing drugs (PIEDs), thereby mitigating the risk of corruption and organised crime influencing ACBPS operations. The introduction of these drug tests is grounded in the need to protect the integrity of ACBPS officers and prevent them from becoming susceptible to extortion or coercion by criminal elements involved in illicit drug markets. The legislative instrument builds on existing border controls and is part of a broader program to ensure greater integrity within ACBPS. Consultation with staff and unions has been extensive, with the majority of officers supportive of the program. This legislative instrument does not contravene the Legislative Instruments Act 2003 and is compatible with human rights, particularly the right to privacy, as the restrictions are deemed necessary and proportionate to the legitimate aim of maintaining the integrity of the Customs service.

Scope and Application

The Specification of Prohibited Drugs No.1 of 2014 is a legislative instrument issued under the Customs Administration Act 1985, which aims to specify additional drugs that are considered prohibited for the purposes of conducting prohibited drug tests on Customs workers. This instrument applies to all Customs workers, allowing authorised officers to require these workers to undergo tests to determine the presence of specified drugs in their body samples. The geographic reach of this legislation is national, applying across all jurisdictions within Australia. The specified drugs in this instrument are broadly classified as benzodiazepines and performance and image enhancing drugs (PIEDs), both of which have legitimate medical uses but are also subject to illicit trade. These drugs are already subject to border controls via the Customs (Prohibited Imports) Regulation 1956. The addition of these drugs to the prohibited drug testing regime aims to enhance the integrity of the Australian Customs and Border Protection Service (ACBPS) by assessing officers’ exposure to criminal groups and mitigating associated risks. The instrument does not contravene the Legislative Instruments Act 2003 as it stipulates that no drug testing for these substances will occur until after the instrument is registered. This legislative instrument is compatible with human rights, recognising the right to privacy while asserting that the restriction imposed is reasonable, necessary, and proportionate to the purpose of enhancing the integrity of ACBPS.

Key Provisions

The primary sections of the Specification of Prohibited Drugs No.1 of 2014 are section 16H of the Customs Administration Act 1985 (the Administration Act), which allows the CEO of Customs to specify drugs for the purposes of the definition of prohibited drug in section 3 of 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. This legislative instrument expands the definition of ‘prohibited drug’ to include additional drugs, specifically benzodiazepines and performance and image enhancing drugs (PIEDs). These drugs, which have legitimate uses, are also used outside of accepted medical parameters and are involved in illicit trade. By specifying these additional drugs as prohibited, the instrument allows the Australian Customs and Border Protection Service (ACBPS) to test for their presence in Customs workers, thereby increasing the scope of the drug testing regime. The obligations imposed by this Act on the parties it governs are primarily related to the drug testing regime for Customs workers. Under sections 16C and 16D of the Administration Act, authorised officers are required to require Customs workers to undergo a prohibited drug test. These tests determine the presence (if any) of a prohibited drug in a body sample of the person tested. The expansion of the prohibited drug definition to include benzodiazepines and PIEDs means that Customs workers are now subject to testing for these substances as well. The ACBPS is obligated to administer these tests and ensure compliance with the drug testing regime. The Act also mandates that Customs workers must cooperate with these tests when required by an authorised officer. The legislative instrument outlines specific offences, penalties, and consequences for breach. The Customs Administration Act 1985 provides that any person who wilfully obstructs or interferes with an authorised officer in the execution of their duties, including the requirement to undergo a prohibited drug test, is liable to a penalty. The penalties for such offences can include fines and imprisonment, though the exact penalties are not specified in this explanatory statement. The primary consequence of a breach is the potential exposure of Customs workers to criminal influence, as outlined in the interim report into Operation Heritage by the Australian Commission on Law Enforcement Integrity. This report highlighted how the use of illicit drugs by officers could lead to blackmail and corruption within the service, underscoring the importance of the drug testing regime in maintaining integrity within the ACBPS. In summary, the Specification of Prohibited Drugs No.1 of 2014 expands the definition of prohibited drugs to include benzodiazepines and PIEDs, thereby increasing the scope of drug testing for Customs workers. The Act imposes obligations on authorised officers to require these tests and on Customs workers to comply. Breaches of the drug testing regime can lead to penalties under the Customs Administration Act 1985, with potential consequences including fines and imprisonment. The primary aim of the Act is to mitigate the risks of corruption and criminal influence within the ACBPS by ensuring that officers are not involved in the illicit drug trade.

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Area of Law
Administrative Law
Instrument
Legislative Instrument
Concepts
Definitions & Interpretation
Enforcement Powers
Regulatory Standards
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Prohibited Drugs

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