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Monday, 7 March 2005
Page: 101


Senator HILL (Minister for Defence) (6:00 PM) —Senator Bartlett has moved three amendments, and I would like to deal with them briefly. His first amendment is for a provision that notifies the person of a right to have part of a sample sent to an accredited laboratory of their own choice for independent testing. Defence has in the past adopted the practice of allowing ADF members who return a positive test result to have their second sample analysed by an accredited laboratory of their choice. Where the second test proves negative, the original positive test result is disregarded and the member is reimbursed for all costs related to the second test. This practice has worked well in the past without any legislative underpinning. It is proposed to provide the same arrangement under the new part VIIIA testing regime. Under the new testing regime it is intended that this requirement be firmly established by incorporation into the Defence instructions which are currently being drafted.

In relation to the second amendment to further protect privacy, it is proposed that Defence instructions will prohibit the unauthorised disclosure of prohibited substance test results. There are currently available a number of penalties where there is an unauthorised disclosure of information relating to test results contrary to the terms of the Defence instructions. A disclosure by a member of the ADF contrary to the terms of the Defence instructions would constitute a failure to comply with a lawful general order and could result in disciplinary action being taken under section 29 of the Defence Force Discipline Act 1982, attracting a penalty of up to 12 months imprisonment. In addition, adverse administrative action may be available. Such action may result in a person being counselled, warned, censured or even discharged, depending upon the severity of the inappropriate behaviour.

The Public Service Act 1999 provides yet further penalties for public servants breaching the code of conduct. The unauthorised disclosure of personal information would constitute a breach of the code and grounds for taking disciplinary action against the offending person. The Privacy Act 1988 also has application in this context. It should be noted that the Privacy Commissioner has the power to order that compensation be paid in relation to breaches of the privacy principles for any loss or damage suffered by complainants. Unauthorised disclosure may also constitute an offence under section 70 of the Crimes Act 1914. Breach of that provision attracts a penalty of up to two years imprisonment. Given all the above means of discouraging the unauthorised disclosure of personal information and the range of criminal and administrative penalties already available in this context, it is the position of the government that it is unnecessary to amend the bill to provide for further penalty for such behaviour.

The third amendment relates to Senator Bartlett’s concern about the status of Defence instructions. It is true that Defence instructions are a unique tool for administering the ADF. The administration of the ADF, including the making of Defence instructions, is provided for by section 9A of the Defence Act. That provision provides that the secretary and the CDF are jointly responsible for the administration of the ADF and that instructions issued by them jointly and pursuant to these powers are to be known as Defence Instructions (General). Section 9A and the command power dealt with in section 9 of the act are statutory recognitions of the executive power. As the Defence instructions are an exercise of this power, they are not legislative in character and therefore do not come within the ambit of the Legislative Instruments Act 2003. Indeed they are specifically excluded from that act. Given their prerogative character it would be inappropriate to make them subject to review and disallowance by parliament.

Defence instructions made for the purposes of prohibited substance testing under part VIIIA of the act essentially deal with the administrative detail of the prohibited substances testing regime such as the procedures for handling and analysing samples and the general conduct of the testing. They are administrative rather than legislative in character, as are other Defence instructions. They do not define the scope of the testing regime. This is done by parliament under part VIIIA of the act and the determinations of prohibited substances and prohibited substance tests by the CDF under the proposed new section 93B. These determinations are legislative in character and will be subject to parliamentary scrutiny and disallowance.