Bills Digest No. 119 2004–05
Defence Amendment Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
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Contact Officer & Copyright Details
Amendment Bill 2005
House: House of Representatives
To amend the Defence Act to provide a regime for random testing
of service personnel and certain defence civilians for prohibited
In 1999, the Defence Act 1903 was amended to establish
a process for random urine testing of those members of the Defence
Force (or ADF ) participating in combat or combat related
duties.(1) The relevant provisions are found in Part
VIIIA of the Defence Act.
In brief, Part VIIIA provides for termination, discharge and
other sanctions for ADF members who test positive for narcotic
substances. The operation of the regime is contingent on the making
of regulations. Although Part VIIIA of the Defence came into effect
in March 2000, no regulations were ever made. Instead, the ADF
relied on a command initiated program of drug testing.
(2) The procedures were set out in Instructions issued
by each service chief.(3) Between February and September
7,637 [ADF] members were tested and only 110 of
these tests returned confirmed positive test
However, in September 2004 a Defence Force magistrate dismissed
charges against an officer tested under the command initiated
program. The magistrate held that there was no lawful authority for
the command program because Part VIIIA constituted an exclusive
code for urinalysis.(5) As a result of that case, the
command initiated program was temporarily suspended whilst changes
to part VIIIA [were] pursued (6) The Defence Amendment
Bill 2005 is the result.
As stated above, the application of existing Part VIIIA is
confined to urinalysis for narcotics use by Defence Force members
who undertake combat and combat-related duties .(7) The
amendments proposed by the Bill create a considerably expanded Part
VIIIA. Testing will not be confined to urinalysis, nor to narcotic
substances. Instead, it will encompass tests other than urine tests
and extend beyond narcotics to other prohibited substances .
Further, the testing regime will apply to defence members
irrespective of whether they are involved in combat and to defence
civilians ,(8) expressions defined in the Defence
Force Discipline Act 1982.
A defence member is a member of the Permanent Navy, the Regular
Army or the Permanent Air Force; or a member of the Reserves who is
on full-time continuous service, on duty or in
A defence civilian is a person who accompanies the Defence Force
outside Australia or on operations against the enemy and who, by
consent, is subject to Defence Force discipline.(10)
The effect of new section 94 will be that a
defence member or defence civilian may be required by an authorised
person to undergo a prohibited substance test or provide a sample
for such a test. A number of definitions are relevant to
new section 94:
an authorised person is a person with written authorisation from
the Chief of the Defence Force (CDF), the Chief of Navy, the Chief
of Army or the Chief of Air Force (new section
93A). CDF may delegate his power to issue new
section 93A authorisations (see below)
a prohibited substance is a narcotic(11) or any other
substance that is the subject of a determination by the CDF
[item 14 and new subsection
a prohibited substance test is urinalysis, another test or a
test determined by the CDF (item 15), and
a sample means human biological fluid or biological tissue or
human breath (item 17).
The CDF s determinations that a substance is a
prohibited substance or that a test is a prohibited substance test
are legislative instruments(12) and so, under the
Legislative Instruments Act 2003, must be tabled in
Parliament and are subject to disallowance.
If testing involves the provision of a sample, a person must
first be given a written notice explaining how the sample will be
dealt with under Defence Instructions (new section
Testing must be supervised by an authorised person and conducted
in such a way as to afford reasonable privacy to the person being
tested. It must not be conducted in the presence of unnecessary
persons and must not involve the removal of more clothing or more
visual inspection than is necessary (new section
A positive test result is a finding by an accredited authority
(13) showing the presence of a prohibited substance or
showing that a permitted level of a prohibited substance has been
exceeded (item 13).
Neither the Defence Act as it currently stands nor the Bill
provide that a positive test must result in a person being
terminated or discharged. If the presence of a prohibited substance
is wholly attributable to medical treatment,(14) then
the test result is disregarded.
Under existing section 99 of the Defence Act,(15) a
positive test result which is not disregarded is followed by a
medical assessment of the ADF member s fitness or suitability for
further service.(16) A person who is assessed as unfit
or unsuitable must be given written notice and asked to submit a
written statement within a minimum of 28 days addressing why they
should not be terminated or discharged (existing section 100).
In contrast, the Bill provides that if a person s test returns a
positive result and this result is not disregarded , they must be
notified in writing. They then have at least 28 days(17)
to submit reasons why they should not be terminated or discharged
(new section 100). In other words, a medical
assessment does not follow a positive test result. The test result
in itself is enough to generate a written notice asking the person
to show cause.
Additionally, existing section 100 specifies that the show cause
period is suspended if the subject of the testing complains to the
Defence Force Ombudsman. There is no similar requirement in
new section 100.
At present, the Defence Act provides that a Defence Force member
must be terminated or discharged if :
they have not submitted a statement of reasons within the
prescribed period, or
their statement of reasons has been submitted and considered and
the relevant authority concludes that they should be terminated or
The Bill adds similar provisions for defence civilians
It is important to note that the Defence Act currently provides
sanctions other than termination or discharge if an ADF member
tests positive. The alternatives are warnings (section 104),
reduction in rank (section 103) and administrative action (section
105).(19) The Bill amends the Defence Act to provide
that warnings can also be given to defence civilians (item
34). A warning advises a person that if they again return
a positive test result, they may be terminated, discharged or, in
the case of ADF members, reduced in rank.(20) Under the
Bill, an expanded range of administrative sanctions will apply for
ADF members (new section 110). (21)
New section 109 will enable Defence
Instructions to provide details about who can be required to
undergo testing, which laboratories are accredited, the conduct of
prohibited substances tests, permitted levels of prohibited
substances, procedures for the handling and analysis of samples,
and the confidentiality of test results. New subsection
109(2) states that the Defence Instructions can provide
that substantial rather than strict compliance with the
Instructions is sufficient(22) with the exception of
procedures ensuring that a sample is not interfered with and
procedures ensuring that a sample is securely contained and
It is important to note that Defence Instructions are not
legislative instruments and so need not be tabled in Parliament.
Nor are they disallowable.(23)
At present, it is an offence:
for an ADF member to refuse or fail to provide a sample when
required to do so under section 94 (maximum penalty 6 months
for an unauthorised person to interfere with a sample that has
been provided under section 94 (maximum penalty 6 months
The Bill extends the offence of refusing or failing to provide a
sample to defence civilians (item 36).
The Defence Act currently provides that test results from a
sample provided by an ADF member are not admissible as evidence in
proceedings for an offence under the Defence Force Discipline Act
or for certain related Crimes Act offences (section 108). Section
108 is amended by the Bill so that defence civilians are similarly
immune (item 38).
The continued reference to most of the Crimes Act offences
listed in section 108 may need to be rectified. Sections 7, 7A and
86 of the Crimes Act 1914 were repealed by the Law and
Justice Legislation Amendment (Application of Criminal Code) Act
2001. These offences (attempt, incitement and conspiracy) are
now found in the Commonwealth Criminal Code.(26)
Items 40-43 of the Bill deal with
The Governor-General is a relevant authority under the Bill in
relation to a defence member holding the rank of Major-General or
above. As a relevant authority , the Governor-General can give such
officers who return a positive test result a notice and show cause
under new section 100, has the power to terminate
or discharge such persons under new section 101
and has the power to warn under new section 104.
New subsection 120A(3) enables the
Governor-General to delegate these powers to certain high-ranking
officers in each of the armed services.
New subsections 120A(3A) and
(3B) empower the Secretary and CDF to delegate their power
to issue Defence Instructions (General) to specified high-ranking
officers in each of the armed services or to an SES Band 2 officer
in the Defence Department.
Under new subsection 120A(3E), CDF s power
under new section 93A to determine that a person
is an authorised person for the purposes of prohibited substance
testing can be delegated to an Army officer of Brigadier or higher
rank, a Navy officer of Commodore or higher rank or an Air Force
officer of Air Commodore or higher rank. As stated earlier, an
authorised person has significant authority under the proposed
legislation. For instance, he or she can require a person to
undergo a prohibited substance test, must supervise the conduct of
such a test and must give a written notice to a person who is
required to provide a sample.
The issue of privacy was referred to during the Second Reading
debates on the Bill in the House of Representatives. The Shadow
Minister for Defence Planning and Personnel pointed out that
privacy is particularly an issue for Reservists who test positive
for a prohibited substance. Mr Bevis said assurances had been
provided in a briefing to the Opposition that the Privacy Act will
protect against disclosures to third parties, such as a Reservist s
civilian employer.(27) The Bill enables Defence
Instructions to make provision for the confidentiality of
information obtained from the testing process. And the Minister has
said that non-compliance with Instructions may result in
disciplinary action or other sanctions being taken against a person
who breaches the confidentiality requirements.(28)
However, the Bill does not provide penalties for unauthorised
disclosures, unless they fall within the prohibition on interfering
or otherwise dealing with a sample.(29) Parliament may
wish to consider whether additional penalties are required.
It does not appear that the Bill specifically gives a person who
returns a positive test the right to have part of the sample sent
to an accredited laboratory of their own choice for independent
testing. Because of the potential ramifications of a positive test
result, such as termination or dismissal, Parliament may wish to
consider whether a person who returns a positive test should be
given a statutory right along these lines.
Finally, the Bill replaces the current statutory requirement
that the rules governing testing are contained in regulations
subject to parliamentary scrutiny and disallowance to a command
initiated scheme, which is not. Parliament may wish to consider the
advantages and disadvantages of this change.
Defence Legislation Amendment Act (No. 1) 1999.
Minister for Veterans Affairs, Second Reading Speech, Defence
Amendment Bill 2005, House of Representatives, Debates, 10
February 2005, p. 3. See Defence Instructions (Navy) Issue No. Pers
14/2003 Illegal Use of Drugs and Drug Eduction in the Royal
Australian Navy ; Defence Instructions (Army) Issue No Pers 6/2003
Army s Random and Targeted Urinalysis Drug Testing Program ,
Defence Instructions (Air Force) Issue No Pers 12/2003 Illicit drug
testing in Air Force.
In a Senate Committee hearing in August 2004, Lt General Leahy
said he expected that a Defence Instruction (General) would be
issued to provide a common ADF testing regime based on the
processes and procedures that Army, Navy and Air Force are
implementing now. Foreign Affairs, Defence and Trade References
Committee, Committee Hansard, 5 August 2004, p. FAD&T
44. However, these plans may have been overtaken by the case
decided in September 2004.
Second Reading Speech, op. cit, p. 4.
See Mrs Danna Vale MP, House of Representatives,
Debates, 16 February 2005, p. 8.
Second Reading Speech, op. cit. See also Doubts raised on
military s random drugs testing , Sydney Morning Herald, 8
December 2004; Defence force strikes legal hitch on drug tests ,
The Age, 20 December 2004.
The expressions combat duties and combat-related duties are
presently defined in section 93 of the Defence Act. They mean
duties requiring a person to commit acts of violence in the event
of armed conflict or duties requiring a person to undergo training
for such activities. These definitions are repealed by the Bill
(see items 8 and 9,
See new section 91.
Section 3, Defence Force Discipline Act.
See item 10 of Schedule 1,
referring to section 3, Defence Force Discipline Act.
The expression narcotic substance is defined in section 93 of
the Defence Act as having the same meaning as in the Customs
See new section 93B.
A laboratory, other body or a person specified in the Defence
Instructions as an accredited authority see item
By a legally qualified medical practitioner. Subsection 98(2),
Section 99 is repealed by item 24.
One of the purposes of section 99 of the Defence Act appears to
have been that if a person was assessed under that section as being
fit/suitable for further service or unfit/unsuitable for further
service but was able to show that he or she should be retained, a
reduction in rank rather than termination or dismissal might
follow. Explanatory Memorandum, Defence Legislation Amendment Bill
(No. 1) 1999, p. 5.
Depending on what period is specified [new subsection
Section 101, Defence Act.
A defence member or defence civilian may also be charged with
dealing in or possession of narcotic goods under section 59 of the
Defence Force Discipline Act. Other offences under that Act may
also be relevant eg driving a service vehicle while under the
influence of intoxicating liquor or a drug (section 40) and conduct
likely to prejudice the discipline of, or bring discredit to, the
Defence Force (section 60).
The purpose of the warning system, as explained in the
Explanatory Memorandum for the Defence Legislation Amendment Bill
(No. 1) 1999 was to place the member who returned a positive test
result on a regular follow-up testing regime. See p. 6.
The Explanatory Memorandum explains that existing section 105 is
replaced with new section 110 to clarify that it
applies to Part VIIIA in its entirety and that nothing in that Part
precludes defence members who refuse to undergo prohibited
substance testing or who return a positive test result, from being
subject to the full range of administrative action that may be
taken against any defence member. Explanatory Memorandum, p. 5.
There is a similar provision in the current Part VIIIA relating
to regulations (section 97, repealed by item
See item 8 of the table in section 7, Legislative Instruments
Section 106, Defence Act.
Section 107, Defence Act.
Sections 11.1, 11.4 and 11.5, Criminal Code.
If such information was passed on a Reservist could face
difficulties with their civilian employers as well as being subject
to action under the Defence Act. See House of Representatives,
Debates, 16 February 2005, p. 6.
ibid, p. 9.
Paragraph 107(1)(aa), Defence Act.
1 March 2005
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