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Monday, 7 March 2005
Page: 94


Senator CROSSIN (5:30 PM) —Mr Acting Deputy President, they say good things come to those who wait long enough. I rise to provide some contribution—


Senator Hill —We nearly closed the debate before question time.


Senator CROSSIN —I understand that, Senator Hill, but having such a significant and fantastic representation of the Defence Force in the Northern Territory, how could I let this opportunity to say something about it go by? The Defence Amendment Bill 2005 deals with the regime for the testing of drugs and other prohibited substances in the Australian Defence Force. It also applies to those people who serve in the reserves and to defence civilians. This bill is designed to clarify and strengthen the drug-testing procedures within the defence forces. The objective is a drug-free Defence Force. Let me clearly say at the outset that that is also a position that the Labor Party takes: we want a Defence Force that is drug free, but we want a Defence Force that has fairness in its procedures for dealing with people who may be suspected of using drugs.

This bill is intended to provide benefits for the health and safety of the individual and other service personnel, improved performance and greater operational effectiveness. In particular, I want to summarise what this legislation is meant to do. It is meant to expand the range of drugs tested beyond those narcotic substances currently provided to include other prohibited substances. It will authorise the Chief of the Defence Force by legislative instrument to determine that a substance is a prohibited substance. It will broaden testing beyond ADF members undertaking combat-related duties to all defence members and defence civilians. Defence civilians constitute a small group accompanying a part of the ADF on deployment who have consented to subjecting themselves to Defence Force discipline, in particular the reservists. It will allow the Chief of the Defence Force, or an officer delegated by him—or her as the case may be, one day in the future—to make provisions for testing by means other than urinalysis as new tests and new drugs are developed. The bill will clarify the power to terminate employment after the return of a confirmed positive test result and clarify the power to take other administrative action. It will enable details of the drug-testing regime to be set out in Defence instructions.

Let me say, though, that this bill is nearly 2½ years too late. We welcome this bill and we are certainly going to support it, but you have to ask yourself why it has taken this government so long to take action on this particular aspect relating to our Defence Force. We know that on 17 September 2002 the assistant defence minister at the time, Danna Vale, promised to introduce regulations for random drug testing of defence personnel. That was more than two years ago. The regulations had not appeared during that time. Of course, it was only the trigger that occurred last year that forced this government to take any action in respect of this matter.

In fact, a question that I asked the Minister for Defence, Senator Hill, in this chamber on 7 December last year might just have twigged and prompted this government to do something about it. That question related to whether or not it was true that a Defence Force magistrate, hearing an appeal from an ADF member regarding the issue of drug testing, had no option other than to rule in favour of the officer because the government had not made the regulations to legally authorise officers to collect urine samples for drug-testing purposes. To this day, as I said back then, this government has done nothing about that. As I said, the magistrate at that time was forced to rule in favour of the officer. A drug charge against the officer was dismissed because the magistrate had no option. There was no legal avenue for the magistrate to rule otherwise. That is because this area had been neglected by this government. Senator Hill’s response to me was as follows:

Apart from that, yes, a magistrate did dismiss a case. The magistrate found that the method adopted to require the taking of these tests was, and I am paraphrasing, ‘inconsistent with part VIIIA’, I think, ‘of the Defence Act’.

Then the blame, once again, was placed on the defence department. This is not a government that would say: ‘We’re at fault. I am at fault as a minister for not picking this up, for not getting my parliamentary secretary to say to me, “Wait a second, there was a problem about this a couple of years ago.” What’ve we done? We’ve done nothing. Now we have to have a ruling from a magistrate that makes us look silly because it brings to light the fact that we haven’t done anything about this for two years.’ We then have this flurry of activity and finally legislation. At the time, the minister’s answer was:

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

Someone must have authorised Defence to do that. Obviously, bringing this system into place through command, rather than through a legislative process, was not strong enough and did not give the Defence Force magistrate the powers he needed at the time to uphold the ruling against the officer. We have a system of always shifting blame from this government—not a responsibility whereby the minister fairly says, ‘Well, that was totally my responsibility and I should have done something about it beforehand, but I didn’t.’ They have to shift the blame to the Defence Force. Again, back then advice was sought on what this government ought to do and finally, of course, we see this legislation come into play.

Senator Hill, at the time, also said to me in his response:

... it is not related to the issue of regulations under the Defence Act, because there are significant shortcomings within that provision that would have limited the capacity to test for the drugs in question. The military has chosen to proceed through command.

The military must have surely done it with the knowledge of this government and this minister. If it was inadequate at the time, someone should have said to the military, ‘No, that is not the strongest course of action you can take. The better course of action and the stronger course of action would be to ensure that this process is held in a legislative instrument.’

In introducing this speech into parliament, the Minister for Veterans’ Affairs, who represents the Minister for Defence in the House of Representatives, went on to say:

These 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.

Once again this highlights that we had to have a trip-wire in the system—a magistrate’s finding—before this government finally realised that what it had in place was not strong enough and was not comprehensive enough to deal with the issues. The issues came about following the drug raids in October 2003 at the Robertson Barracks in Darwin, where we now know 47 personnel returned positive drug tests. But if the regulations to allow the random drug testing in the ADF had been introduced when they were due to be—which was September 2002, some 13 months before—then this person would not have had their conviction overturned. In fact, there would have been a legal regime in place to ensure that those 47 cases were dealt with and that there was a strong outcome in relation to how these officers were dealt with. It is interesting that we finally do have this legislation before us, although it is somewhat too late. This bill is designed to clarify and strengthen the drug-testing procedures within the Defence Force. As I said, the position of our party is that we want a drug-free Defence Force. The bill expands the range of drugs that may be tested and enables, as I said, the Chief of the Defence Force to determine that a substance is a prohibited substance.

I turn briefly to the issue of the effect on defence members and defence civilians, because this bill will also broaden the testing regime beyond ADF members undertaking combat or combat related duties. As I said, it will include defence civilians—that is, mainly reservists. Defence civilians constitute a small group among the ADF—that is for sure—accompanying a part of the ADF on deployment and must be those who have consented to subject themselves to Defence Force discipline. From my experience in dealing with defence civilians, there is very little recourse for these people in terms of fair and proper procedures when it comes to being dealt with by the Defence Force. If they are at all under discipline or they are at all under duress in their position as a reservist within the Defence Force, there are very few impartial procedures and processes that these people can use. So, while we welcome this bill and we welcome the expansion to include all of those people who will be undertaking active duty within the ADF, we must now be satisfied that this new legal regime will fit not only the regular members of the Defence Force but defence civilians as well. We need to be satisfied and we need to satisfy ourselves that if this legislation is applied to defence civilians they will get a fair, proper and impartial hearing.

Following the recent decision by this government to deploy a significant number of our defence personnel—up to 450—these personnel will come from 1st Brigade in Darwin at Robertson Barracks. They are a splendid group of young men and women who are extremely professional and dedicated. The drug testing and the drug raid that was carried out found that a very small number of ADF personnel were caught up in this. It is a shame that sometimes such stories about the ADF and the actions of a small group overwhelm the tremendous professional actions that are taken by a large number of ADF personnel, particularly in a place like Darwin. But this was a situation that only set off a trip-wire last year when the magistrate’s ruling was handed down. It is good to see that this government has finally done something about ensuring there is a legislative base in place so that those people who are in the ADF and who are caught taking drugs do not have an easy out—that they cannot use the loophole that was used last year in getting their matters overturned. This legislation is welcomed. It is 2½ years too late but I suppose it is better late than never. It is good to finally see the minister taking some responsibility for this rather than shifting the blame once again to his senior officers in the Defence Force.