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Monday, 7 March 2005
Page: 102


Senator LUDWIG (6:06 PM) —We will deal with the three amendments together, as leave was granted to Senator Bartlett to do so. In dealing with them, I will deal with amendment (3) first, because I think that becomes a pivotal point. Once you accept that in this instance the Defence instructions should not be legislative instruments—and I think the case has been made by the government that they are a type of instrument that derives a power from section 9A and provides a prerogative power to allow the Defence Force to operate with instructions which are not legislative instruments—once you accept the administrative nature of the orders that are placed within the instructions, once you accept the need to amend and change those as the need arises to ensure that they deal with the minutiae of the detail that the Defence Force are required to deal with on a day-to-day basis and once you accept that it would be cumbersome, if not impossible, in some instances to bring them back as legislative instruments and allow scrutiny of them in this forum, and I think the minister has made that plain, then the other two amendments fall as a consequence. I will explain that shortly.

I will deal with the third point first. The Defence Force instructions are documents which I am not sure would generally see the light of day in terms of being open to public scrutiny. They are detailed documents that are provided for the running of Defence. If they were to be legislative instruments, then they would have to be put on a legislative database and kept for everybody’s scrutiny. My understanding is that that would probably slow the system down somewhat. It would also be cumbersome, and I think that probably, at the end of the day, it would be impossible to accomplish given the nature of Defence Force instructions. Having had some experience with them in the past, I can understand the range of issues that they cross. They are unlike the legislative instruments or statutory instruments that we meet here.

Once that point is accepted, I think the other two points flow from it. It is appropriate that the drug-testing regime be dealt with as a Defence Force instruction. That is the process the military usually adopt when providing for these types of arrangements—and many others, of course. As the minister has explained, the process is used to ensure that there is fairness in the system in relation to samples and the ability to have a second sample laboratory tested if desired. The minister has given an undertaking to ensure that that will be in the Defence instructions. Once that is finalised, it will meet the general test, at least on the face of it, of being a fair system which will ensure the protection of both the personnel and the Defence testing regime person.

You can then see that it would be cumbersome, if not impossible, to put penalties within the Defence instructions at every step where problems might arise. Many instructions would not actually require penalties or need penalties; they are day-to-day operational instructions as such. Mr Bevis wrote to Mrs Vale and received a letter back—which I think Senator Hill read out in part—detailing how those issues are to be dealt with. Of course, Senator Hill went to the issue of how, under section 29 of the Defence Force Discipline Act, the disclosure would attract a penalty of up to 12 months imprisonment. In other words, it is there where the penalties are found, and that is the logical place to use for a general provision. It is not unusual to find in many acts a provision dealing with these types of breaches as a general catch-all. Once we are persuaded by the force of the argument in (3), then (2) and (1) really fall as a consequence and therefore do not garner the opposition’s support. In that instance we will not be supporting the amendments.

Question negatived.

Bill agreed to.

Bill reported without amendment; report adopted.