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Wednesday, 16 February 2005
Page: 6

Mr BEVIS (9:30 AM) —The Defence Amendment Bill 2005 deals with the regime for testing for drugs and other prohibited substances in the Australian Defence Force. At the outset I would like to acknowledge and thank the minister for arranging a briefing for me and my staff concerning some of the detail of this bill. I also extend the thanks of the shadow minister for defence, Robert McClelland, and his staff who participated in that briefing. We appreciated that opportunity to receive details of the provisions of the bill.

Labor has long held the view that the Defence Force should be free of substance abuse. I made that point not that long ago, following the last election, when there was an incident at Duntroon. I issued a press statement at the time, headed `ALP supports tough drugs stand at Duntroon', saying:

There is no place for drug-taking in the military.

I also noted:

... the Army has shown that only the highest standards are acceptable.

It is clearly a matter of concern for those in the military that they participate in activities alongside other military personnel who are free of substance abuse. I should also say at the outset that this should not be exaggerated into a belief that there is widespread problem of abuse within the military—that is not the case. Indeed, the statistics demonstrate that, in the same age cohort, use in the military is much lower than in the wider civilian community. Nonetheless, I am sure it is apparent to all that substance abuse is potentially dangerous in any walk of life; in the military it is not only potentially dangerous to the individual but also to those around them, both in uniform and in the broader community.

In her second reading speech introducing the bill, the Minister for Veterans' Affairs gave some background to the reasons for the appearance of this bill. I want to briefly quote from the minister's speech. She said:

... limitations under the legislative drug-testing program were a major reason why a command initiated program of drug testing was implemented. This program was used for drug testing until September last year, when a Defence Force magistrate's finding was made that there is no scope for such testing outside part VIIIA of the Defence Act. The command initiated program has therefore been temporarily suspended whilst changes to part VIIIA have been pursued to ensure that the legislation better reflects Defence Force policy regarding drug use.

I would have to say that is accurate but somewhat incomplete. The actual background to this goes back some time prior to that. In fact, on 17 September 2002 the then assistant defence minister, Danna Vale, promised to introduce regulations for random drug testing of defence personnel. That did not occur. Indeed, more than two years later nothing had appeared from the government to honour that commitment that the then assistant defence minister gave in September 2002.

It was because of that inaction on the part of the government that the government was confronted with a magistrate's decision that dismissed a drugs charge against an officer after a ruling that the Army's urinalysis testing was unlawful. Defence Minister Robert Hill confirmed in the Senate on 7 December last year that the government's failure to introduce the new regulations had resulted in the magistrate dismissing the charges against the officer. However, it is worth noting the way Senator Hill did that. In answer to a question in the Senate, he said:

The magistrate found that the method adopted to require the taking of these tests was, and I am paraphrasing, `inconsistent with part 8A', I think, `of the Defence Act'.

He went on to say:

It is true that Defence decided to bring in this system through command rather than through legislative prescription. Advice has been sought on the consequence of the ruling of that particular Defence Force magistrate, and the government is considering advice on this issue at the moment.

In typical Howard government fashion, having failed to do what it said in 2002 it would do and then being confronted with the problems of its own inaction, Senator Hill decided last year in the Senate to blame the Defence Force. There was no responsibility on the part of the government; no responsibility in his office as Minister for Defence; no responsibility on the part of the former assistant minister—who I am pleased to see is in the chamber—who in September 2002 said regulations would be introduced, though they never were. There was no accountability by anybody with ministerial responsibility.

In the Senate, Senator Hill blamed the defence department and the men and women in uniform because of this government's bungling. That is so typical of the approach this government has displayed whenever it gets caught with its fingers in the cookie jar. It is always someone else's responsibility. Plausible deniability: ministers get insulated from knowledge that they either have or should have but which cannot be proved. Well, on this occasion it can be proved—because the assistant defence minister, on 17 September 2002, gave that commitment of behalf of the government to introduce the regulations, and it did not occur. Rather than acknowledge that error, the big man that he is, Senator Hill decided he would blame someone else, so he blamed our defence personnel. I think that was a reprehensible action on the part of the minister who, at the end of the day, is indeed responsible for what happens in the defence department. But on this occasion it was not even the defence department's responsibility; it was the government's and the minister's, and he ducked for cover and tried to shift the blame. I think that is reprehensible.

Let me move to the provisions of this bill which now address those concerns that were identified in 2002 but unfortunately were not acted on legislatively. The bill is designed to clarify and strengthen the drug testing procedures within the defence forces. The objective, which we clearly support on this side of the House, is a drug-free Defence Force. The bill is intended to provide benefits to the health and safety of the individuals and the safety of other service personnel, and improved performance and greater operational efficiency. In particular, the bill will expand the range of drugs that may be tested, beyond those narcotic substances currently included, to include other prohibited substances. The bill will authorise the Chief of the Defence Force, by legislative instrument, to determine that a substance is a prohibited substance. I understand that that will be a disallowable instrument, and I think that is an appropriate mechanism. It affords the Chief of the Defence Force the scope to take into account substances that may not necessarily be prohibited substances but whose use may be inappropriate for defence personnel.

The bill will also broaden testing, beyond ADF members undertaking combat duties or combat related duties, to include all defence members and defence civilians. Defence civilians constitute a small group, accompanying a part of the ADF on deployment, who have consented to subject themselves to Defence Force discipline. My past experience in this portfolio leads me to think that many of those defence civilians have previously been in uniform. In any event, they knowingly agree to these arrangements in advance. It also allows the Chief of the Defence Force, or an officer delegated by him, to make provisions for testing by means other than urinalysis. That is an appropriate thing as new tests become available and as some drugs are not easily identified by urinalysis. Indeed, some drugs have a very short timeframe in which they will show up in urinalysis, whereas other tests will provide a more comprehensive assessment of whether or not drugs have been used or are present in the body. It also clarifies the power to terminate employment after the return of a confirmed positive test and clarifies the power to take other administrative actions.

The bill enables the details of the drug testing regime to be set out in Defence instructions, thereby, I suspect, overcoming one of the core concerns of the Defence Force magistrate, to which I earlier referred. In line with the bill and current practices, a prohibited substance test must be conducted in circumstances affording reasonable privacy to the person being tested. In dealing with these matters, it is important not just for the broader community but in this case specifically for those in uniform to recognise the rights of the individuals concerned. When we place these added responsibilities on those in uniform we should also ensure that they are afforded appropriate individual rights and respected. I am satisfied that the processes provide privacy. They also provide an opportunity for a number of other safeguards.

Before a sample is provided, a person required to undergo a prohibited substance test must be given written notice explaining such matters relating to the dealing of the sample as are specified in the defence instructions. I anticipate and expect that that would include an explanation of what is to follow—what that individual's rights are during the course of the processes and what the consequences may be, depending on the outcome of the test. A person found with a positive test result is to be given 28 days to provide a written statement of why his or her employment should not be terminated. Importantly, a person so accused can have the second sample—which is collected at the same time as the first sample—sent for analysis, and those results can form part of the statement of reasons. I understand from advice given at the briefing that the person against whom the allegation is made will have the opportunity to choose where that second test is analysed from among a number of accredited testing authorities. I think that affords an appropriate level of rights to the individual. It also accords with my understanding of the broader practices of drug testing regimes in a number of major sports.

I think it is particularly important to also ensure that the privacy of these matters is respected. That is important for all personnel; it has a particular ramification, though, for reserves. Reserves usually have a civilian employer as well as the Defence Force. It would be an unacceptable case of double jeopardy if a compulsory test in the military were not only to result in action relating to their engagement as an ADF officer but also cause problems for their civilian employment. I am satisfied with the responses I have received from the minister's office and the department that those issues have been addressed, but I want to record them here in this debate.

The information collected under the legislation is protected from disclosure to third parties under the Privacy Act 1988. With particular reference to disclosing the results of a test to a civilian employer of a Reserve member of the Defence Force, it is noted that disclosure of such information would be very unlikely to come within any of the exemption provisions in the Privacy Act. The bill proposes no changes to the current privacy requirements, noting that there has been no criticism of and no identified problems with the current situation in relation to the protection of personal information. Those assurances I have received are reasonable in the circumstances, but I do want to place my concerns on record in this debate to ensure that those practices continue into the future. As I said, I would not want to see a situation of double jeopardy unfold for a reservist whereby, if they return a positive test, they may find themselves disciplined within the military and, were that information to be more widely distributed, they may find their civilian employment jeopardised as well. So I am pleased that those assurances have been provided.

There is one other related issue that I also want to mention in this debate. Australia has a comparatively small number of people in uniform who are on exchange with different forces around the world. This is not a large issue in terms of numbers, but nonetheless I think it is worth mentioning. Not all defence forces share Australia's view about the use of what would otherwise be unlawful substances. I have previously raised in this parliament my concern about the practice of the United States Air Force of providing its pilots with amphetamines—speed pills. I asked questions in the last parliament of the Minister Assisting the Minister for Defence about this on 27 November 2003. In the answers I was assured that ADF pilots overseas are aware that amphetamines are not listed on the approved list of drugs, but I am not quite sure whether anything is done to ensure that Australians who serve on exchange with the United States Air Force have this information clearly put before them or whether there is any process or protocols with the United States Air Force to make sure that United States Air Force management know that this is a requirement that we have and that therefore Australian pilots on exchange with the US Air Force are not obliged, encouraged or pressured to take the same amphetamines that USAF pilots take.

I was also concerned at the time to raise the question of United States Air Force, Navy or Marine Corps pilots operating US military aircraft in Australia. We have a number of joint exercises on a pretty regular basis, and aircraft transit our airspace and often use our bases for refuelling and other purposes. I asked the minister at that time what action he had taken to ensure that these pilots were not using amphetamines. The minister's answer to my question No. 2800 was: none. That is, the government has taken no action whatsoever to even communicate with the United States Air Force about whether their pilots here are using amphetamines, even though we know that it is standard practice for the United States Air Force to supply them. I regard that answer as completely unsatisfactory, and frankly it is inconsistent with the government's stated policy in this bill. We quite rightly expect a high standard from those in uniform and when it comes to issues of substance abuse we impose on people in the Australian Defence Force a higher standard than is applicable to the general community. But when it comes to overseas pilots—in this case, United States Air Force pilots—we make no inquiry. We do nothing to prevent their pilots using these amphetamines.

This is not just a passing triviality. The use of amphetamines by USAF pilots has been the subject of some legal cases in the United States. We all know of incidents of friendly fire, where US pilots have inadvertently killed their own troops or allied troops. One notable case has arisen from an incident in Afghanistan. In that case two US pilots are in the process of being court-martialled because they mistakenly bombed a Canadian military group and killed four Canadian soldiers. As part of the court case the pilots have, in their defence, said, `We were pumped up with amphetamines; we were on the edge of our nerves and we ended up doing the wrong thing.'

That worries me. What the American pilots want to do with their policies is a matter for the Americans, but what any country wants to do when it flies combat aircraft around Australia is our business. And the government's official answer to me in 2003 was: we do nothing about that. Well, I think it is time the government took that issue on board. I think it is time, in the many dialogues we have with our close friends in the United States, to say, `This is the requirement we have on our troops with respect to substance abuse, and we require undertakings of the same standard for troops from anywhere who are exercising here in Australia.' I think that is a simple and fair proposition and for the life of me I do not understand why the government's official position is: we do not want to do a thing about it.

It is of more than passing interest within the debates around the United States Defence Force. For example, the United States Navy's official guides for flight surgeons, Performance Maintenance During Continuous Flight Operations, says an intermittent low dose of amphetamines or `go pills':

... has the capability of maintaining aviator performance yet avoiding undesired medication effects.

The problem with that is that the drug manufacturers who supply the very drugs that the USAF hand out say something else. The people who make the drug say:

Amphetamines may impair the ability of the patient to engage in potentially hazardous activities such as operating machinery or vehicles; the patient should therefore be cautioned accordingly.

The manufacturers of these drugs say, `Beware of driving a car if you take these pills.' The United States Air Force gives these pills to people and then puts them in the cockpits of combat aircraft. You have to wonder about this when you see some of the friendly fire incidents that have occurred in theatres of war in the last few years. Schools have been bombed, their own troops have been bombed and allied troops have been bombed. I recall that in Iraq a group of US special forces who were protecting a senior Iraqi Kurd leader ended up being bombed as they called in an attack on a Saddam Hussein Iraqi tank that was within range. The pilot mistook their Humvee for the tank. That would be a matter of some concern to anybody.

When the manufacturers of these drugs say, `Do not drive a car,' but the USAF thinks it is all right to give these pills to people and then put them into a combat aircraft, that bewilders me. But as I said, the United States Air Force and the marines are entitled to whatever policy they wish to adopt. But when we have those people here in Australia surely the Australian standard should be applied. I have raised this issue for, roughly, the last two years in this parliament and hope that the government will take some notice of it.

Let me conclude by returning to the specifics of the bill. The bill is supported by the Labor Party. It addresses a problem with the administration of drug testing within the Australian Defence Force. That problem would not have existed had the government acted on its undertaking in 2002 to take action then. Better late than never, and this bill does address that concern while ensuring the proper protection of the individual rights of serving men and women. Therefore, we will support the bill in this place and in the Senate.