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Monday, 7 March 2005
Page: 8

Senator MARK BISHOP (12:59 PM) —The Defence Amendment Bill 2005 enacts the drug-testing regime for the defence forces promised by the Howard government nearly 2½ years ago. At the outset, we say it is about time. This bill will amend part VIIIA of the Defence Act to provide a more comprehensive prohibited substance testing regime. It will ensure that all members of the ADF can be drug tested at any time. This includes members of the Reserve and defence civilians who accompany the ADF on operations and are therefore subject to ADF discipline. The bill also details powers of discharge for any member of the ADF who tests positive to a prohibited substance. The Chief of the Defence Force can also make a disallowable determination to introduce new testing regimes. The nature of prohibited substances, such as steroids, party drugs and others, will be determined by the Chief of the Defence Force. As I said, it is about time.

In September 2002 the then Minister for Veterans’ Affairs promised to introduce regulations for random drug testing of all ADF personnel. That, of course, did not happen until the current time. Instead, a drug-testing regime was introduced under the ADF command structure. That is not, we make the point, what the minister at the time promised. It has also proved to be ineffective. A magistrate dismissed a drugs charge against an officer on the basis that the ADF’s testing was unlawful—that is, it was done without power. This represents a fair degree of maladministration by the Howard government. Yet, uncharacteristically for this government, they have not denied this particular piece of maladministration.

In December last year, the Minister for Defence, Senator Hill, confirmed that the government had bungled. However, Senator Hill did revert to government type when he went on to say:

It is true that Defence decided to bring in this system through command rather than through legislative prescription.

We make the point that this is classic Howard government disinformation. The Howard government failed to do what it said it would do. The government was then confronted with a problem solely of its own making. So Senator Hill took the standard line of defence for any minister in the Howard government: he blamed his department. He blamed service men and women and diligent serving Commonwealth officers. This is further proof that currently there is little or no accountability by anybody with ministerial responsibility. It is just more of the Howard government’s ‘kids overboard’ form.

We are used to mean and tricky acts from the Howard government, but I cannot remember the last time I saw a minister—or a Prime Minister, for that matter—so eager to have their photo taken with our service men and women. Nor can I recall ministers being so eager to shift to those service men and women the blame for their own government’s inaction. The Minister for Veterans’ Affairs, in her second reading speech in the other place, said of this bill:

The Defence Amendment Bill 2005 is an important part of the coalition government’s commitment to a more operationally ready Australian Defence Force and to ensuring that the ADF is drug free. That is what the Australian people expect …

Mrs Kelly, the minister, is correct—the Australian people do expect an operationally ready Defence Force. That is why the Australian people looked on with amazement at this government’s recent hurried deployment of extra troops to Iraq.

Senator Hill admits that not all the Australian light armoured vehicles, the ASLAVs, accompanying the Iraqi task force will be fitted with the Kongsberg remote weapons station. The shadow minister for defence, Mr McClelland, has pointed out that without them the ASLAVs are at a distinct disadvantage in a fire fight. There is concern that this will heighten the risk to the ADF personnel who will serve in and rely upon these vehicles. In relation to the ASLAVs’ protective armour system, there is expert debate as to the relative protection provided by spall linings or spall curtains, but the minister is not concerned. According to the minister, all the vehicles will have either spall linings or spall curtains. Comparing the two systems, the minister said, only on 2 March:

The curtains I gather have a little more inconvenience but in terms of protection it’s the equivalent.

So the minister ‘gathers’. He is about to deploy Australian men and women to a theatre of war, yet it appears he has not actively sought to satisfy himself that these personnel will have the best available protection.

Labor understands the need for and needs of a strong and ready defence force. The current leader of the federal Labor Party clearly demonstrated this in his time as defence minister. Our men and women in the field operate heavy and dangerous armour and aircraft and use live rounds and ordnance. This must be absolutely clear if we are to avoid the types of friendly fire incidents which so plague some of our allies.

Happily, it is not just the Australian Labor Party who want to keep the Australian Defence Force drug free. Nor is it just we who understand the potential danger ADF personnel under the influence of drugs pose to themselves and their colleagues. There is a deeply embedded culture amongst our service personnel—a culture of honour and duty. That culture has no place for drug use in the ADF. Whilst drug testing is a valid part of an antidrug regime, it must be coupled with a strong antidrug culture. Encouraging a drug-free culture will help retain the current situation, where testing shows that only a very small percentage of ADF personnel use illicit drugs. Tolerance of anything else will ultimately weaken the efforts of the ADF in its battle against drugs.

Labor supports these efforts to keep the ADF drug free. We also wish to ensure that the testing regime enacted by this bill will provide natural justice to those tested and accused. My colleague in the other place Mr Arch Bevis MP, the shadow minister for defence planning, procurement and personnel, has been diligent in reviewing this bill. He has also sought a number of clarifications from the minister. A key concern is the situation of reservists, who usually have a civilian employer as well as the ADF. It would be an unacceptable case of double jeopardy if a military drug test resulted in action taken against them by the ADF and again by a civilian employer. I understand Mr Bevis has been advised that the information collected under the legislation is protected from disclosure to third parties under the Privacy Act 1988. We note that disclosing test results to a civilian employer of a reserve member 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. We note also there have been no identified problems with the current situation relating to the protection of personal information.

Mr Bevis, on behalf of the Labor Party, was also concerned that proposed section 109(2) of this bill means that the Defence instructions provide that ‘substantial’ rather than ‘strict’ compliance with the instructions is sufficient. In the interests of security of samples given by ADP personnel, Mr Bevis queried this with the minister, Mrs Kelly. Her reply indicated that ‘substantial’ compliance reflects the modern approach to achieving appropriate levels of compliance based on a decision—presumably a High Court decision—of Justice Kirby. The minister, Mrs Kelly, further wrote:

This provision does not represent a change of policy. Current section 97 of the Defence Act 1903 has a similar provision which states that regulations prescribing the procedures in relation to dealing with samples may provide that particular procedures need not be strictly complied with except those procedures for ensuring that a sample is not interfered with by unauthorised persons.

The minister went on to say:

It should be noted that under new subsection 109(2) the strict compliance requirement is wider because it also requires strict compliance with containment and identification of samples. The provision is modelled on the Australian Federal Police legislation.

Labor thanks the minister and is satisfied with this explanation. I am advised that Mr Bevis was also concerned that there are acceptable rules covering the privacy of those tested. He noted that the bill does not contain any penalties for unauthorised disclosure of information relating to the testing of the results. Again, this was taken up with the minister, Mrs Kelly. The minister’s reply indicated that the Defence Force Discipline Act 1982, the Public Service Act 1999, the Privacy Act 1988 and the Crimes Act 1914 contain the relevant penalties relating to unauthorised disclosure of drug-testing information. I indicate for the record that Labor is satisfied with this response.

We understand that, where a positive test is returned, the person involved will have the opportunity to have a second contemporaneous sample sent to an accredited laboratory of his or her choice. We also understand that the intention is for this procedure to be defined within the Defence instructions. On 3 March 2005, the opposition shadow minister, Mr Bevis, wrote to Mrs Kelly, the minister, seeking clarification on this issue. He wrote:

... the procedural rights of those who return a positive test to have a second sample sent to an accredited laboratory of their choice do not have legislative support.

The opposition places its position on the record that a right exists only in the Defence instructions. We understand that the minister was going to give a formal response to our request for review of this matter in the second reading speech tabled by the Minister for Communications, Information Technology and the Arts, Senator Coonan, in this chamber.

Labor unreservedly supports the men and women of the Australian defence forces. We wish them every success and safe return, regardless of whether Labor supports the basis upon which they have been deployed by the Howard government. Labor supports the men and women of the ADF who carry out their duties as professionals and do not engage in illicit drug use. We want to ensure that such men and women are never placed in danger as a result of drug use by their colleagues. The opposition is of the view that this bill provides a sound regime to help keep drugs out of the ADF and, therefore, Labor supports this bill.