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Monday, 7 March 2005
Page: 11

Senator BARTLETT (1:11 PM) —The Defence Amendment Bill 2005 provides an extended regime for random testing of defence service personnel and reservists for prohibited substances. This is one of those areas where it is important to try to get a balance in people’s rights. Obviously, there are issues here concerning the rights of people who are going to be subjected to random drug testing, but those rights have to be balanced against the rights of their colleagues and workmates to safety in, what is occasionally at least, a dangerous working environment. Ensuring that balance is part of the parliament’s responsibility in assessing this legislation. One question mark I would put over all of that is the fact that future defence determinations are to be brought down as to how some of these testings will operate in practice. We are therefore not able to make a judgment at this time on whether that balance of rights will be properly in place.

The issue of workplace drug testing has been the subject of growing debate in the community in a range of different contexts recently. Drug testing is just one of a number of new technologies and practices which is being progressively introduced across different workplaces—different types for different areas, depending on the nature of the work and the need. That brings with it implications for privacy and for the rights and personal dignity of the people who work there. Whilst defence personnel perform a unique and special role, that should not be used as an excuse to ignore the rights and the interests of those people. Employees are increasingly subject to different types of workplace monitoring through the use of computers, optical and telecommunications equipment. Some of this extends further than just monitoring the activity of employees while they are at work. Employees, and sometimes job applicants, are increasingly subject to various forms of psychological and physical testing, including genetic testing, personality testing and drug testing.

In some Australian states, workplace drug testing is already carried out on roads and railways, by some airlines and by mining companies. The debate about the drug testing of professional sports players in some of the football codes has been the subject of differing views, particularly given that the substances tested for include substances that are not performance enhancing and that do not add any risk to the workplace—and, indeed, when testing is done outside of the season. In some of the instances I have outlined the balance regarding people’s basic rights and freedoms has not been achieved. But the special and unique circumstances of Defence Force personnel, including reservists, mean that the particular situation has to be taken into account.

This bill does not introduce a new concept of drug testing to the ADF. Prior to amendments in 1999, all of the armed services carried out some form of drug testing under the provisions of the Defence Force Discipline Act. Over the ensuing years, proposals for the introduction of more widespread drug testing have been considered. Back in 1999 the legislation established a urinalysis drug-testing scheme aimed at helping to ensure that members of the Defence Force would continue to discharge their duties in a safe, efficient and effective manner. As Senator Bishop said, the government’s failure to introduce regulations to ensure the legality of the testing regime compromised those efforts. I would argue that it potentially compromised the safety of personnel. Certainly, it made it more difficult for senior officers trying to address drug taking in the ADF. The Department of Defence opted instead to use the command structure to introduce drug testing, with doubts—and those doubts were upheld—as to whether that was sustainable at law. That wrong-headed approach is the reason that I have extra concerns about the inability of the parliament to adequately scrutinise or disallow some of the future determinations that will be empowered under this bill if it becomes law. Any amendment to the regime being proposed here should be given full consideration, particularly given what Senator Bishop I think rightly labelled ‘maladministration’ in this area in the past.

There are significant privacy issues surrounding workplace drug testing and significant issues of natural justice. We do need to try to ensure that they are included and given full consideration, and that a balance in their operation is struck. The taking of biological samples for drug testing is potentially intrusive of physical privacy as well as information privacy interests because it involves the collection of personal information about the person being tested. The extent to which information privacy is affected by the ADF drug-testing program will depend, among other things, on how the personal information is collected, what information is collected, how it is used and to whom it is disclosed.

Drug-testing processes across workplaces and law enforcement agencies continue to suffer from problems relating to the accuracy and relevance of test results. We would all be aware of disputes in the sporting arena in particular—and it is not only there; it is in other workplace arenas—about the accuracy and validity of various tests that are done. We are talking about people’s livelihoods and careers. I acknowledge there should be a balance between livelihoods and the safety of people’s workmates as well as people they come into contact with. Nonetheless, it is important to ensure, as much as is possible, basic natural justice and due process.

A quite appropriate justification advanced in support of an increased regime of drug testing is that it can improve workplace safety by identifying employees who need to be given assistance to overcome particular drug problems or other health issues or, if necessary, who should be removed from the workplace. Employees who use prohibited substances are considered to represent a greater safety risk than other employees. Employers are obliged to ensure the health, safety and welfare of all of their employees. It is important, though, that testing for drugs is not considered solely with an ‘identify and punish’ mentality.

Obviously, the Defence Force has particular issues in relation to discipline. I do not seek to ignore those. Nonetheless, I think it is in the interests of the broader community, the Defence Force more widely and the individual to take these situations on a case-by-case basis to ensure that there is not just an instant dismissal and zero-tolerance approach every time a positive test is provided. A lot of resources and time are put into training people in the Defence Force. If a heavy-handed, unrealistic or unreasonable approach is taken then a lot of those resources can be wasted unnecessarily. People might be dismissed when quite possibly another approach, with appropriate remedial action, could have enabled them to remain in the Defence Force. This legislation does not require immediate, instant dismissal on all occasions and I am not trying to suggest that it does. I am simply trying to urge the department and relevant military officers to recognise the value of a balanced approach in dealing with people who test positive for particular substances.

This bill extends the testing regime beyond urine analysis to an analysis of other body samples, including blood, breath, hair and saliva. Much of the future testing process is now to be specified in Defence instructions. They will specify who can be required to undergo testing, which laboratories are accredited, how prohibited substances tests are to be conducted, what the permitted level of prohibited substances is, procedures for the handling and analysis of samples and the confidentiality of test results. These are all critical issues for the rights of an individual. The fate of that individual potentially rests very squarely on how these are carried out. I think it therefore follows that they should be subjected to proper parliamentary scrutiny. I am certainly concerned that that is not the case here. Many aspects of Defence instructions will not be subject to future disallowance by the parliament although, obviously, Senate estimates committees and other committees can still inquire about the carrying out of this prohibited substances testing regime.

To ensure maximum scrutiny, particularly given this history of poor administration, we should have a requirement that Defence instructions are disallowable instruments and are more properly scrutinised by the parliament. I do not think it is satisfactory that the government and departments avoid using provisions under which their decisions will be subject to that level of scrutiny, given how important they are, given the history in relation to this area and, indeed, given the wide range of differing community views around what is a difficult and contentious issue. When we pass legislation that provides for legislative instruments that give quite significant legal power to Commonwealth officers, in this case Defence Force officers, to carry out actions under that legislation, and there is an expectation of those circumstances arising contemplated by the enabling act, then in developing the finer detailed procedures for implementing that act there is an argument that there should be a proper legislative instrument made for scrutiny by the Senate. As I understand it, there are currently 42 sets of Commonwealth regulations which impact on the activities of the Australian Defence Force. I believe that one more which also requires parliamentary scrutiny over issues impacting on service personnel would not be particularly difficult.

Senator Bishop has outlined some of the concerns raised about privacy and the protection of, particularly, reservists and other defence civilians and defence personnel that come under this law, ensuring that the results of any samples or, indeed, any information from those samples are not provided to a third party. He indicated some assurances that had been put on the record from the government in relation to that. That is certainly welcome. I believe it would be a help to ensure that there are penalties detailed in the existing act, rather than having to rely on potential breaches of a range of other acts that Senator Bishop outlined.

I would like to flag a couple of other concerns that perhaps the minister—or whoever on behalf of the government ends up speaking on this—could detail in his closing remarks. Apart from the issues of ensuring that there are proper penalties for unauthorised disclosures, the issue of the right for independent testing of samples for a person who returns a positive test is also important. Senator Bishop referred to this as well and, as I understood, he received an assurance from the government that a person would be able to get a sample tested a second time at an accredited facility of their choice and that would be detailed in the instructions. Again, I make the point that those instructions would not be disallowable in any sense. We only have the guarantee of a government minister saying that they will appear in future instructions and, frankly, I would also certainly prefer that that right, which is not there currently, was present in the act. An amendment to that effect would be appropriate, rather than just relying on a ministerial assurance. Without wishing to sound too cynical, I have had too much experience of ministerial assurances in the chamber and in writing that have not been followed through. I would prefer to be safe wherever possible, given that it would not be that difficult to put a line in the legislation ensuring that a person has a right to a second testing. I think that right should be put in there, and that testing should be as independent as possible. We would all be aware of the controversy over the accuracy of testing for prohibited substances and, certainly when it is something that a person’s livelihood could hang on, it is appropriate that we be as sure as possible to avoid any legal complications. We also want to ensure that people can be as sure as possible that the results are accurate.

My understanding is that the potential via this legislation will be that it can extend beyond narcotics to other prohibited substances, and those substances can be determined at a future time by the Chief of the Defence Force. That determination, as I understand it, would be a disallowable instrument but I simply say that to make the point that we are not necessarily solely talking about narcotics. There can be a wide range of other substances that the Chief of the Defence Force believes, for whatever reason, should be prohibited or should be able to be tested for. That power, for that to be determined in the future, is important.

One thing I seek some indication from the government on is that, as I understand it from the Bills Digest, under the act as it exists at the moment, if a person receives a positive test, they must be notified in writing and have 28 days to submit reasons why they should not be terminated or discharged. If they do not submit a statement of reasons within that period, they are likely to be terminated or discharged. Under the existing act if a person complains to the Defence Force Ombudsman that 28 days or show cause period is suspended. As I understand it, according to the Bills Digest, in the new bill here, under section 100, that does not apply—that the period of time continues on, even if a person has put in a complaint about the testing to the Defence Force Ombudsman. I would like some indication from the government of why that is the case and how that might impact on people. Certainly, if you have a complaint before the ombudsman about any aspects of the testing, it would be better for that to be resolved before somebody is required to put in their statement of reasons.

Overall, the Democrats recognise the desperate need for greater legal certainty about the drug-testing regime for people in the Defence Force. We certainly support mechanisms that improve the safety of people in the Defence Force by ensuring that all personnel are, as much as possible, not subject to prohibited substances. We must make sure that the balance is right and that the desire for ensuring a drug-free Defence Force does not occur at the expense of people’s basic rights, freedoms and natural justice. Because, in the end, if that occurs that would be counterproductive for the Defence Force and for the wider community. We need to ensure that we continue to attract people to the defence forces. We need to ensure that people, once they are trained and there, do have access to basic justice and fairness and are not unnecessarily removed from the defence forces. It is in the area of balance that we certainly still have some concerns that I have outlined here today.