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Defence Amendment Bill 2005

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2004 - 2005


























(Circulated by the authority of the Minister Assisting the Minister for Defence,


 the Hon De-Anne Kelly MP)


Defence Amendment Bill 2005




This Bill will amend Part VIIIA of the Defence Act 1903 (the Act) to provide a more comprehensive regime for the drug testing of members of the Australian Defence Force.  It will overcome current limitations in Part VIIIA and is considered essential to the operational effectiveness of the Australian Defence Force (ADF). 


The principal purpose of the Bill will be to:

·          expand the range of drugs that may be tested for beyond those narcotic substances currently provided under Part VIIIA;

·          broaden the circumstances when testing could be required beyond those related to combat and combat related duties;

·          make provision for testing by means other than urinalysis, as new tests and new drugs are developed;

·          clarify the power to terminate after return of a confirmed positive test result and clarify the power to take other administrative action; and

·          enable details of the drug testing regime to be set out in Defence Instructions issued under section 9A of the Act, to allow for flexibility in the regime’s administration and enable it to keep pace with modern developments in drugs and drug testing.


This Bill also amends section 9A of the Act to make provision for the incorporation of any instrument in force from time to time in relation to Defence Instructions and expands the delegation provision in relation to the powers in section 9A and Part VIIIA of the Act.




Testing under the expanded drug testing regime will cost approximately $327,000                      a year with funding being met within the current Defence program.


Defence Amendment Bill 2005




Clause 1: Short Title

1. This clause is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2. The Bill will commence on Royal Assent.

Clause 3: Schedule

3. Clause 3 is a formal provision specifying that amendments or repeals are made to the provisions set out in the Items in the Schedule.


Schedule 1:   Defence Act 1903

Item 1 - new subsection 9A(6)


This item inserts a new subsection into section 9A of the Act authorising Defence Instructions to provide for the application, adoption or incorporation of a matter contained in an instrument or other writing as in force at a particular time or as in force from time to time.  This provision allows instruments that are not Acts or disallowable legislative instruments within the meaning of the Legislative Instruments Act 2003 to be incorporated into Defence Instructions as in force from time to time.  It provides the contrary intention for the purposes of section 46AA of the Acts Interpretation Act 1901 which would otherwise limit the prescribing of matters by reference to other instruments or other writings to those in force at a particular time.


Items 2, 3 and 4  - Part VIIIA (heading, application and objects)


These items replace the heading to Part VIIIA and the application and objects provisions for the Part to reflect the broader range of tests, drugs and circumstances available under the expanded drug testing regime.  Testing is no longer restricted to urinalysis testing for narcotic substance use by ADF members undertaking combat duties or combat-related duties.  All defence members and defence civilians, as defined in section 93, will now be subject to testing for use of a range of prohibited substances.


Items 5 to 17 - Section 93 (definitions)


These items amend, repeal and replace various definitions in Part VIIIA to clarify the scope of the new testing regime.


The new definition of ‘accredited authority’ replaces the definition of ‘accredited laboratory’ to make provision for analysis of test results either in a laboratory or by another body or person recognised as an accredited authority under the Defence Instructions.  It thereby allows for testing of samples in an accredited laboratory as well as other means of testing for use of a prohibited substance which might, for example, in the future include on the spot testing by an accredited person without the need to take a sample. 


‘Defence civilian’ and ‘defence member’ have the same meaning as those terms in the Defence Force Discipline Act 1982 (DFDA) ‘Defence civilians’ constitute a small group of persons accompanying a part of the ADF that is on deployment who have consented to subject themselves to Defence Force discipline.  ‘Defence members’ include permanent members and Reserve members who are on continuous full-time service, on duty (defined in the DFDA) or in uniform.


The new definition of ‘positive test result’ in item 13 allows for detection of prohibited substances in samples or by other means.  It provides for the possibility that there may be some substances for which there may be permitted levels of use as specified in Defence Instructions.


A ‘prohibited substance’ is defined in item 14 as either a narcotic substance or a substance determined to be a prohibited substance under subsection 93B(1), and a ‘prohibited substance test’ in item 15 means urinalysis or a test determined for the purpose of subsection 93B(2).  The test may involve testing of a sample provided by the person being tested or some other means of testing for prohibited substance use. A ‘sample’ means any human fluid, tissue or breath.


Item 18 - Sections 93A and 93B (authorised persons and determinations)


This item inserts new section 93A into the Act, allowing the Chief of the Defence Force or a service chief to determine authorised persons for the purposes of carrying out functions under Part VIIIA.


This item also inserts new section 93B allowing the Chief of the Defence Force to make a determination that a substance is a prohibited substance and a test is a prohibited substance test for the purposes of Part VIIIA.


Items 19, 20 and 21  - Division 2 (testing for prohibited substances)


Item 19 replaces the heading to Division 2 of Part VIIIA, item 20 replaces sections 94, 95 and 96 of the Act and item 21 repeals section 97.


New section 94 permits an authorised person to require defence members and defence civilians to undergo prohibited substance testing and to provide a sample, where appropriate.  New section 95 requires the conduct of testing to be supervised by an authorised person and also specifies requirements to ensure that the testing is conducted in a manner that protects the privacy of the person being tested.   New section 96 requires an authorised person supervising the test to give a written notice to the person required to provide a sample explaining how the sample will be dealt with.


Items 22 and 23 - Application of Division 3


These items expand the scope of the application provision in section 98 of the Act for the return of a positive test result to cover prohibited substance tests and prohibited substances.


Items 24 and 25 - sections 99 and 100 (fitness for service and notification)


These items repeal sections 99 and 100 which required members returning a positive test result to be assessed by a medical practitioner for fitness or suitability for further service in the Defence Force and a notice to be given if a person is assessed to be unfit or unsuitable.  New section 100 now requires written notification to all persons returning a positive test result and an invitation to give a written statement of reasons within a specified period of at least 28 days as to why the person returning the positive test result should not be terminated or discharged. The requirement for assessment by a medical practitioner has been removed.


Items 26 to 29 - section 101 and 102 (termination or discharge)


Items 26 and 27 amend section 101 of the Act which provides for the termination or discharge of a person where the person has not given a statement of reasons within the period specified in the notice or where the member’s statement has been taken into account and termination or discharge is considered appropriate.  The amendment extends the operation of section 101 to defence civilians and requires a decision-maker to take into consideration any warning that may have been previously given to a defence member or defence civilian under section 104.  New subsection 101(6) makes it clear that termination or discharge action under section 101 does not require a warning notice to have previously been given under section 104.


Items 28 and 29 extend the operation of section 102 (form and date of effect of termination or discharge) to defence civilians.


Items 30 to 33 - section 103 (reduction in rank)


These items amend section 103 of the Act (possible reduction in rank where defence member not terminated or discharged on return of a positive test result) to take account of the new definition of ‘defence member’ and also to remove reference to repealed section 99.


Item 34 - section 104 (warning)


This item replaces section 104.  New section 104 allows a defence member who has returned a positive test result to be given a warning notice that a subsequent positive test result may result in the person’s termination, discharge, or reduction or further reduction in rank. A warning notice may also be given to a defence civilian that a subsequent positive test result may result in the arrangement under which the person is a defence civilian being terminated.


Item 35 - section 105 (other administrative action)


This item repeals section 105 as it has been moved to Division 4, see the explanation for new subsection 110 in item 39 below.


Item 36, 37 and 38 - offence provisions


These items make minor amendments to sections 106, 107 and 108 of the Act to allow for the new definitions of ‘defence member’, ‘defence civilian’ and ‘accredited authority’ and for the detail of the testing regime to be set out in Defence Instructions rather than regulations.


Item 39 - Defence Instructions and other administrative action


This item inserts new section 109 which describes the kinds of matters that may be set out in Defence Instructions issued under section 9A of the Act for the purposes of Part VIIIA. Defence Instructions may be made in relation to any matter or thing that relates to, or is for the purposes of Part VIIIA of the Act. The list of matters in subsection 109(1) is not intended to in any way limit the operation of section 9A nor is it intended to be exclusive. 


New subsection 109(2) (which is similar to repealed section 97) also provides that particular procedures specified in the Defence Instructions need not be strictly complied with and that substantial compliance is sufficient.  However, any substantial compliance provided for under the Defence Instructions cannot apply to procedures for ensuring that a sample is not interfered with or procedures for ensuring that a sample is securely contained and identified.


New section 110, formerly section 105, has been moved to Division 4 to make it clear that it applies to Part VIIIA of the Act in its entirety and that nothing in that Part  precludes defence members who refuse to undergo prohibited substance testing or who return a positive test result, from being subject to the full range of administrative action that may be taken against any defence member. This might, for example, include subjecting a member to such action as targeted follow-up testing, loss of seniority, particular posting action or attachment, but is in no way limited to such kinds of administrative action.


Items 40 to 43 - delegation of powers


Item 40 inserts new powers of delegation into section 120A of the Act.  New subsection 120A(3) allows the Governor-General to delegate to the Chief of the Defence Force or the service chiefs the powers he exercises as a ‘relevant authority’ under Part VIIIA.


New subsection 120A(3A) to (3D) provide for the delegation of the power to issue Defence Instructions (General) under subsections 9A(1) and (2) of the Act.  The Secretary and the Chief of the Defence Force hold this power jointly.  Each of them may by written instrument delegate all or any of these powers to the same delegate or they may each nominate a separate delegate with a view to the power being exercised jointly.  Any delegate must be at least a two-star military officer or SES Band 2 employee or equivalent.


New subsection 120A(3E) allows the Chief of the Defence Force to delegate to officers holding the rank of Brigadier or equivalent or higher, the power to determine authorised persons under new section 93A.


Items 41 to 43 amend section 120A of the Act to allow the service chiefs to delegate their power to issue service specific Defence Instructions under subsection 9A(3) of the Act and their power to determine that persons are authorised persons under new section 93A of the Act.