Navigation: Previous Page | Contents | Next Page

Customs (Drug and Alcohol Testing) Regulation 2013

FRLI: 2013L00191

Portfolio: Home Affairs

Summary of committee view

1.1        The committee has a number of concerns as to whether the regulations are consistent with the right to privacy. In particular, it is concerned about:

• procedures for the retention of body samples for up to two years, or indefinite retention if used for certain purposes;
• the lack of clarity around provisions which allow 'information obtained from the analysis of a sample' to be used for security vetting - which may go beyond testing for alcohol or prohibited drugs;
• procedures for the identification of persons subject to alcohol and drug tests, which appears to be broader to that explained in the Minister's letter to the committee on 29 October 2012;
• why it is necessary to empower Customs officers to disclose personal information on the general and vague test that the information is already 'publicly known';
• why it is necessary to empower Customs officers to disclose personal information about another Customs worker’s 'medical treatment' (without a requirement for their consent), when there is also provision for information to be disclosed  'if the Customs worker consents in writing to the disclosure'.

1.2        The committee also seeks clarification as to how provisions which allow for the disclosure of information collected for the purpose of drug and alcohol testing and which can be used for the investigation and prosecution of any offence, are compatible with the right not to incriminate oneself.

Overview

1.3        This instrument seeks to prescribe matters for the purposes of drug and alcohol testing of those working for the Australian Customs and Border Protection Service. The Law Enforcement Integrity Legislation Amendment Act 2012 introduced amendments to the Customs Administration Act 1985 to enable drug and alcohol testing, with procedures for carrying out the tests to be set out in regulations. The committee made a number of comments on the amending Act as it was passing through Parliament, including in relation to the provisions that empower the making of this legislative instrument.[1]

Compatibility with human rights

1.4        The legislative instrument is accompanied by a self-contained statement of compatibility that states that the instrument engages a number of rights. It states that, in seeking to ensure that the Customs and Border Protection workplace is drug- and alcohol-free, the instrument promotes the rights of workers under article 22 of the International Covenant on Civil and Political Rights (ICCPR) (the right to freedom of association). The statement does not identify the right to work – which includes the right to safe and healthy working conditions – under article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which is also arguably engaged and promoted.

1.5        There are a number of other rights that are engaged by the regulations; some of which are identified in the statement of compatibility, and some of which are not, including the right to privacy and the right not to incriminate oneself, as set out below.

Retention of information and the right to privacy

1.6        The statement of compatibility notes that the instrument engages the right to privacy under article 17 of the ICCPR:

Measures contained in the Regulation will also increase the collection and use of personal information within Customs and Border Protection's workplace, such as: results from mandatory drug and alcohol testing, mandatory disclosure of personal information, the compulsory physical intervention of a person of testing purposes.[2]

1.7        The statement concludes that the measures are compatible with the right to privacy as the Privacy Act 1988 and the Information Privacy Principles apply and any interference is 'proportionate to the need to protect against corruption in law enforcement'.

1.8        However, the committee has concerns with how the regulations are currently drafted and their effect on human rights.

1.9        Section 8 of the regulations sets out the record-keeping requirements for records relevant to a breath test, blood test or prohibited drug test. It provides that a body sample that indicates the presence of alcohol or prohibited drugs must be kept securely and destroyed within two years from the date of the test. However, no explanation is given as to why this two-year period was chosen. As the explanatory memorandum says in relation to another provision, samples degrade over time. It is unclear why samples need therefore to be kept for such a long period of time, especially as section 16(3)(a) provides that a Customs worker who wishes to collect their sample must do so within six months after the sample was taken. Subsection 8(3) provides that any other record must be destroyed as soon as practicable after the Customs worker ceases to work there – meaning a worker could have the written record destroyed long before their body sample is destroyed.

1.10             The committee intends to write to the Minister for Home Affairs to ask why it is necessary to retain body samples for up to two years and how retention for this length of time is compatible with the right to privacy.

1.11      The committee is also concerned about the breadth of section 8(5) which provides that despite the two-year retention rule (and a requirement to destroy records once a person is no longer employed by Customs), 'information obtained from the analysis of a sample may be retained if it is to be provided to an Agency as part of security vetting of the Customs worker to whom the record relates'. The committee is concerned by the use of the phrase 'information obtained from the analysis of a sample' as this would appear to allow testing other than just for the presence of alcohol and prohibited drugs. In addition, this provision disapplies the preceding subsections which set out when the record is to be destroyed, and in so doing it appears that this would allow samples to be retained indefinitely.

1.12      The samples in question include blood samples, strands of a person's hair, any 'human biological fluid', 'human biological tissue (whether alive or otherwise)' or 'any human breath'.[3] This type of information is extremely personal. The UN Human Rights Committee has, to date, said little on the topic of body samples. However, the European Court of Human Rights has examined this in the context of the right to privacy and the retention of DNA samples. As the Minister for Home Affairs has previously noted, the committee's general reference to international human rights bodies may encompass the European Court of Human Rights as it contains rights that are analogous to those in the ICCPR.[4] 

1.13      The Court has said that genetic information: 

contain[s] much sensitive information about an individual, including information about his or her health. Moreover, samples contain a unique genetic code of great relevance to both the individual and his relatives.

Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. [5]

1.14      In addition to the impact on the right to privacy of retaining cellular samples, continued retention raises concerns regarding what that information may be used for in the future. As the European Court of Human Rights has noted:

The Court maintains its view that an individual's concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference [with the right to privacy]. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today.[6]

1.15             The committee intends to write to the Minister for Home Affairs to ask for clarification as to what 'information obtained from the analysis of a sample' in subsection 8(5) is intended to refer to. If this goes beyond testing for alcohol or prohibited drugs, the committee intends to ask how this is consistent with the primary legislation and with the right to privacy.

1.16      In addition, the committee is concerned that this subsection enables body samples and records of such samples to be retained indefinitely for the purposes of security vetting. Such indefinite retention does not appear to be a reasonable and proportionate limitation on the right to privacy under article 17 of the ICCPR.

1.17             The committee intends to write to the Minister for Home Affairs to ask how subsection 8(5), which allows for indefinite retention of body samples, is a reasonable and proportionate limitation on the right to privacy.

1.18      In addition, subsection 8(6) provides: 'A record that does not indicate the presence of alcohol or prohibited drugs when tested must be destroyed no later than 28 days after the day the test was conducted'.  What constitutes a 'record' is not defined in either the primary Act or the regulations. Subsection 8(1) begins by stating that the section applies to 'a record, including a body sample' – but then the remainder of the section separates out records and body samples. The committee is therefore concerned that subsection 8(6) refers only to records that does not indicate the presence of alcohol or prohibited drugs being destroyed, but makes no reference to 'body samples'.

1.19             The committee considers it would be clearer if subsection 8(6) were amended to ensure that records, including body samples, are required to be destroyed after 28 days if there is no indication of the presence of alcohol or prohibited drugs.

Disclosure of information and the right to privacy

1.20      When the amending legislation that introduced the power for alcohol and drug testing of Customs workers was passing through Parliament, the committee wrote to the Minister for Home Affairs setting out its concerns. The committee asked the Minister for:

Further detail on the safeguards that are applicable with regard to the use and disclosure of information collected. Adherence to the Privacy Act 1988 is not, in and of itself, a guarantee that the measures are fully consistent with the right to privacy in article 17 of the ICCPR.[7]

1.21      In response, the Minister wrote to the committee stating:

In the absence of a positive test, it is expected that details of Customs workers subject to drug and alcohol testing will only be accessible to:

• members of the Drug and Alcohol Management Program team
• the laboratory technicians analysing the collected samples, and
• the Medical Review Officer.

In relation to drug testing procedures it is intended that each sample will only be identified by a reference number, therefore neither the laboratory staff nor the Medical Review Officer will know the identities of the persons being tested until such time the Medical Review Officer verifies a sample has returned a 'positive' test. Prior to a test being [sic] it is anticipated that only members of the Drug and Alcohol Management Program will be able to match a reference number to an individual staff member. [emphasis added]

...

It is intended that any other information revealed about the person during this process will only be transmitted to Customs and Border Protection where it is determined the information is likely to cause a significant hazard to the workplace and where it has a direct relationship to the individual's  functions and potential integrity.[8]

1.22      Despite these assurances, the regulations provide that the person conducting an alcohol breath test (who can be a Customs officer who has completed a training course) and an analyst at an accredited pathology laboratory conducting an alcohol or drug test on a body sample, must provide a certificate that sets out the full name of the Customs worker and the results of the test or analysis.[9]

1.23      This is quite different to the procedure set out in the Minister's letter which stated that, in relation to drug testing, samples would only be identified by a reference number 'therefore neither the laboratory staff nor the Medical Review Officer will know the identities of the persons being tested until such time the Medical Review Officer verifies a sample has returned a 'positive' test'. Under the regulations, however, the laboratory staff and anyone who receives a copy of the certificate, will know the name of the person who underwent the test.

1.24             The committee intends to write to the Minister for Home Affairs to ask why the procedure for the identification of persons subject to alcohol and drug tests in the regulations is different to what was set out in the Minister's letter to the committee on 29 October 2012, and what effect this has on the compatibility of these measures with the right to privacy.

1.25      In addition, the regulations allow for a relatively wide information sharing power in relation to the results of a test. Section 9 of the regulations provides that a person may disclose information revealed by a breath test, blood test or prohibited drug test:

(a) if the information is already lawfully publicly known; or

(b) in accordance with this Part; or

(c) for the investigation of any offence or offences generally; or

(d) to enable a conduct issue to be dealt with under the Public Service Act 1999 and to enable any action to be taken by the CEO in relation to the issue; or

(e) for a decision whether to institute proceedings for an offence; or

(f) for proceedings for an offence; or

(g) for the Customs worker’s medical treatment; or

(h) if the Customs worker consents in writing to the disclosure.

1.26      It is unclear why information obtained through testing may be disclosed 'if the information is already lawfully publicly known'. How is a person disclosing the information to determine if something is already 'publicly known'? This exception does not appear to be necessary to establish a functional testing regime and by broadening in this way it may enable the disclosure of sensitive personal information to a wider audience than necessary.

1.27             The committee intends to write to the Minister for Home Affairs to ask why it is necessary to empower Customs officers to disclose personal information on the general and vague test that the information is already 'publicly known'.

1.28       The committee is also concerned that subparagraph 9(g) allows a person, other than the Customs worker who provided the body sample, to disclose personal information 'for the Customs worker’s medical treatment' - without a corresponding requirement that the Customs worker has consented to their personal information being passed on.

1.29             The committee intends to write to the Minister for Home Affairs to ask why it is necessary to empower Customs officers to disclose personal information about another Customs worker’s 'medical treatment' without the need for their consent (particularly where there is also provision for information to be disclosed generally 'if the Customs worker consents in writing to the disclosure').

Disclosure of information and the right not to incriminate oneself

1.30      The Customs Administration Act 1985, under which these regulations are made, provides that a certificate or other document recording the results of an alcohol or drug test, or any other information, answer or document relevant to the test, is not admissible in evidence against the Customs worker in any proceedings. The only listed exceptions to this are use in proceedings relating to a decision to terminate the Custom worker's employment, proceedings under the Safety, Rehabilitation and Compensation Act 1988 and if the Customs worker uses the information to institute proceedings in tort against the Commonwealth.[10] This provision appears to be generally consistent with the right not to incriminate oneself under article 14 of the ICCPR.

1.31      However, section 9 of the regulations provide that a person may disclose information revealed by the alcohol or drug test 'for the investigation of any offence or offences generally', 'for a decision whether to institute proceedings for an offence' or 'for proceedings for an offence'. Allowing information obtained from workers (who were compelled to give it) to be used to investigate and prosecute any offence, may limit the right to not to incriminate oneself as provided for in article 14 of the ICCPR. Any limitation on this right needs to be shown to be necessary and seeks to achieve a legitimate objective. Neither the statement of compatibility nor the explanatory memorandum explains why these provisions have been included. The provisions also appear to conflict with the empowering Act, which lists only three confined reasons as to when such information may be used in evidence – none of which relate to general disclosure for investigating or prosecuting 'any offence or offences generally'.

1.32             The committee intends to write to the Minister for Home Affairs to ask how paragraphs 9(c),(e) and (f) of the regulations, which allow disclosure of personal information for the investigation and prosecution of any offence, are:

(a) consistent with the primary Act, which provides that information obtained by a drug or alcohol test is not admissible in evidence against the customs worker in any proceeding other than proceedings to terminate their employment, safety proceedings or where the worker intends to sue the Commonwealth;[11] and

(b) compatible with the right not to incriminate oneself as guaranteed by article 14 of the ICCPR.

1.33             The committee notes the importance of respecting the right to privacy, including protection of bodily integrity and limited retention of sensitive genetic material. The committee hopes that the Minister for Home Affairs will respond to the committee's concerns in a satisfactory and timely way. The committee notes that where it is not satisfied that the human rights concerns have not been adequately addressed within a legislative instrument, it may give consideration to giving notice of a motion to disallow the instrument as a precautionary measure.

'Prohibited drug'

1.34      The definition of 'prohibited drug' in the Customs Administration Act 1985 is a narcotic substance as defined in the Customs Act 1901 or 'any drug specified in a legislative instrument'.[12] The committee notes its concerns set out in its Fifth Report of 2012[13] and the First Report of 2013 of the potential for the definition of a prohibited drug to be overly broad given the legislation 'does not set out any criteria to guide the CEO's decision-making. This leaves open the possibility that substances unrelated to the objectives of the drug testing regime (i.e. workplace safety and integrity) could be listed'.[14]

1.35             The committee notes that these regulations contain no definition of 'prohibited drug' and intends to write to the Minister for Home Affairs to ask whether it is intended that future legislative instruments will provide a definition.

Navigation: Previous Page | Contents | Next Page