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Monday, 7 March 2005
Page: 98

Senator BARTLETT (5:46 PM) —by leave—I move:

(1)    Schedule 1, item 25, page 8 (after line 15), at the end of subsection 100(1), add:

    ; and (c)    notify the person of the right to have part of the sample sent to an accredited laboratory of their own choice for independent testing.

(2)    Schedule 1, page 11 (after line 4), after item 37, insert:

37A  At the end of section 107


         (3)    The Defence Instructions made under this Part must provide for penalties for unauthorised disclosure of test results.

(3)    Schedule 1, item 39, page 12 (after line 11), after section 109, insert:

109A  Defence Instructions to be legislative instruments

                  Notwithstanding section 7 of the Legislative Instruments Act 2003, a Defence Instruction made for the purposes of this Part is a legislative instrument for the purposes of that Act.

These three amendments were circulated in my name about four or five hours ago, and I remind the chamber that this bill did not appear in the chamber until 12.30 p.m. or a bit after that today. I addressed all the matters in my speech on the second reading. I understand the reasons why the minister made a brief statement in reply there. I do not anticipate that these amendments are likely to be successful but I would certainly like to get issues relating to them from the government’s side of things on the record. Senator Bishop from the opposition put some things on the record and a bit has been put on the record in the other place but, personally, I think issues could be elaborated on a bit further on the record by the minister, particularly given that he is the relevant minister for the defence forces.

I have moved these three amendments together to save time, even though they deal with slightly separate matters. The first of these amendments deals with the right of people to have an independent test done of a positive drug test or a positive sample of a prohibited substance. This was alluded to in the debate on the second reading and an indication was given that the government has pledged that the Defence instructions or determinations to be made down the track will include the right of a person to have a sample sent for testing a second time to an accredited laboratory of their choice. Of course, the issues there are how many different accredited facilities there are going to be, how much choice people will have and exactly how independent those places will be.

I am not suggesting skulduggery on the part of the government or the Defence Force in relation to that, but the fact is that drug testing in other arenas has shown that, when an independent second test has happened, there have been problems with or doubts raised about the veracity of the first test. I think that, for something as significant as this, whereby a serving member of the Defence Force potentially faces very serious charges and dismissal, it should be very clear—their right should be in law, rather than just a promise from the government—that they do get the opportunity to have an independent second test of that sample if they return a positive test on the first. As I said in my remarks in the second reading debate, I am afraid I have had too many pledges from the government in the chamber or in writing that have not been followed through and I would much prefer, if the opportunity is there, as I believe it is, that the guarantee or the rights of a person be put in the legislation.

People would be aware of examples in the sports arena where the independent second testing of drug tests has produced a different result. I also point to the recent case in Victoria where a man from Ballarat was identified as the first person in the world to have returned a positive roadside drug-driving test. Yet, when he had an independent test done, it contradicted the official results. The results of drug tests are not necessarily reliable. Despite careful testing and analytical procedures, false-negative and false-positive test results are possible, so that right of review is fundamental to that principle of natural justice. We all support strong efforts to do what is reasonable and possible to ensure the defence forces are drug free, but that should not go beyond the realms of natural justice. We should ensure that checks and balances are in place. I believe that putting it in place in legislation is a better safeguard than just a promise from the minister.

The second amendment relates to penalties for unauthorised disclosure. The very thorough work by the shadow minister, Mr Bevis, in the House of Representatives, extracted an indication from the government that any unauthorised disclosure would potentially breach a range of different acts, the Privacy Act included. This is particularly important for reservists, who quite often have a job outside the Defence Force. If they happen to test positive for any prohibited substance—and we are not just talking about illegal substances or narcotics here; pretty much anything can technically be determined by the CDF as a prohibited substance down the track—they can be sure that that information is not going to be passed on to another person, even inadvertently. If it is, there are penalties in place. I accept the minister’s assurances in the other place that that would be a breach of an act. I still believe it would be helpful if the Defence instructions themselves provided specific penalties for unauthorised disclosure just to emphasise the point.

The third amendment ensures that the Defence instructions that will implement this whole legislative regime are legislative instruments and therefore disallowable by the Senate. I need to talk a bit on this point because Senator Ferguson touched on it in his remarks following on from my speech earlier. This bill allows the introduction of legal authority for Defence instructions that will detail a whole range of specifics about how these tests for drugs and other prohibited substances will be carried out in the future. We do not know what those details are—and to some extent it is understandable that the fine print cannot be determined now and cannot be determined in the legislation—but I believe very strongly that, when they are brought in down the track, there should be scope for proper parliamentary scrutiny and a proper opportunity for disallowance of those instruments if they prove to be deficient, particularly if they are deficient in getting a balance between basic justice and basic civil liberties and freedoms.

Senator Ferguson in his contribution said that you could not get any better scrutiny than the Senate already provides—that we have the Senate estimates process where you can question at length the Chief of the Defence Force himself and a range of other military personnel. That is true. I very much value and recognise the statements from the government about how important that process is and I certainly hope that when the government get control of the Senate they do not seek to curtail that very valuable process. But the fact is that an instrument that is disallowable by the parliament gives an extra level of scrutiny beyond just asking a range of questions, because you have the power, underneath those questions, to disallow an instrument if you find that it is being implemented improperly or if you find, after questioning, that it does not meet the criteria or guidelines that you believe it should.

Senator Ferguson said that the estimates process gives far better detail on and scrutiny and examination of issues than any debate he has ever seen in this chamber on a disallowance motion. I would not necessarily agree with that—

Senator Ludwig —We have had plenty of good disallowance debates.

Senator BARTLETT —because we have had some very good disallowance debates, as Senator Ludwig said, and, despite the breadth of areas you can cover in estimates, there are plenty that do not get examined in much detail. It is not just a matter of having something there so that we can whack it with a sledgehammer and say, ‘That’s disallowed.’ The importance of Defence instructions being disallowable instruments is not just so we can say no in the Senate and make ourselves feel like we have still got a little bit of a finger in the pie of power. It is actually much more important than that, because most of the improvements and mechanisms that ensure that legislative instruments are up to scratch come by virtue of the people that are doing them up, knowing that they have to get them right or they will get pulled into line.

I know Senator Ferguson has been in this place a long time. I do not know if, in all that time, he has had the joy of being on the Senate Standing Committee on Regulations and Ordinances. If he has not, he may not be aware of the valuable work that that committee does without using sledgehammers to smash regulations or disallowing instruments left, right and centre. It does it simply by methodically going through every single one of those disallowable instruments and assessing them against a non-partisan set of criteria, including basic things like natural justice, due process and appropriate delegations of powers. Some may say that all of those things are boring; nonetheless, they are fundamental requirements to ensure that the powers that we give people under the laws that we pass in this place are not misused.

I note that, just before, notice was given on behalf of the chair of the regulations and ordinances committee, Senator Tchen, to disallow a whole range of regulations in 15 sitting days time. It is almost certain that none of those will be disallowed, but giving that notice sends a signal to the minister that the government have to reply to the concerns raised by the committee. If they do not they could potentially have a disallowance. It has happened once or twice but not very often, because the ministers do respond. It is one of those areas where, in a completely non-partisan way, the Senate or a Senate committee does what it can to ensure that the instruments are up to scratch so that the basic rights of people remain and that, when they are dealing with the huge morass of bureaucratic instruments, they are given at least a bit of a fair go.

To give an indication of how wide ranging this is, I draw attention to the documents tabled here that probably nobody pays much attention to: the documents tabled by the Clerk. One tabled today has 212 different instruments, declarations, regulations, dispensations, determinations, guidelines and approvals. Not all of them are disallowable but the vast majority of them are potentially disallowable. Probably none of them will be, but every one of them that is potentially disallowable will be examined by the regulations and ordinances committee to make sure that it meets basic, decent standards of drafting. People are going to be subject to these powers: they are still laws. Just because they are regulations or determinations does not mean they are not laws. You can still get pinged under them, you can still get fined, you can still lose your job and you can still get pulled up before the courts. So they must meet the basic standards.

I believe it is important to consider mechanisms such as the Defence instructions proposed in this bill because they exercise quite significant powers. The legal power to introduce a workplace drug-testing regime and those sorts of things, I believe, if you are dealing with activities carried out by Commonwealth officers, should be done via a mechanism that ensures a basic level of scrutiny. It does not mean that we are going to debate them in this parliament every single time and it does not mean that we have to ask questions about them in every single committee hearing; it just means that when the determinations are brought down there will be a parliamentary committee that will run the ruler over them and make sure that they meet the promises and basic standards that have been in place via the regulations and ordinances committee for about 60 or 70 years, to ensure that at least those baseline standards are met.

That is why I believe these sorts of amendments are important. It is not so that the Senate can feel like it will still have some power in there somewhere down the track but to ensure that there is still that extra obligation on officers who are doing up these legal instruments that give them quite significant powers—that they will meet those standards and that, if they do not, there is action that can be taken beyond asking questions in estimates committees. I think that needed to be pointed out, given Senator Ferguson’s comment.

There are different aspects of the work of the Senate and they all play different roles, and the role of ensuring the opportunity for proper scrutiny of instructions like these is quite important. Whilst I moved these amendments together, the government can vote on them separately if they have been massively persuaded by my arguments! But, if people are leaning towards any of the amendments, certainly amendment (3) would be one that I would ask people to give specific consideration to.