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This is a Bill, not an Act. For current law, see the Acts databases.
DEFENCE AMENDMENT BILL 2005
2004-2005
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Defence Amendment Bill 2005
No. , 2005
(Defence)
A Bill for an Act to amend the Defence Act 1903,
and for related purposes
i Defence Amendment Bill 2005 No. , 2005
Contents
1
Short title.......................................................................................1
2
Commencement .............................................................................1
3
Schedule(s)....................................................................................1
Schedule 1--Defence Act 1903
3
Defence Amendment Bill 2005 No. , 2005 1
A Bill for an Act to amend the Defence Act 1903,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Defence Amendment Act 2005.
5
2 Commencement
6
This Act commences on the day on which it receives the Royal
7
Assent.
8
3 Schedule(s)
9
Each Act that is specified in a Schedule to this Act is amended or
10
repealed as set out in the applicable items in the Schedule
11
2 Defence Amendment Bill 2005 No. , 2005
concerned, and any other item in a Schedule to this Act has effect
1
according to its terms.
2
Defence Act 1903 Schedule 1
Defence Amendment Bill 2005 No. , 2005 3
1
Schedule 1--Defence Act 1903
2
3
1 At the end of section 9A
4
Add:
5
(6) Defence Instructions (General), Defence Instructions (Navy),
6
Defence Instructions (Army) or Defence Instructions (Air Force)
7
may make provision in relation to a matter by applying, adopting
8
or incorporating, with or without modification, any matter
9
contained in an instrument or other writing, whether as in force at a
10
particular time, or as amended and in force from time to time.
11
2 Part VIIIA (heading)
12
Repeal the heading, substitute:
13
Part VIIIA--Testing for prohibited substances
14
3 Section 91
15
Repeal the section, substitute:
16
91 Application of Part
17
This Part applies to the following persons:
18
(a) defence members;
19
(b) defence civilians.
20
4 Section 92
21
Omit all the words after "provision", substitute "for the testing of
22
persons to whom this Part applies to determine whether they have used
23
any prohibited substance.".
24
5 Section 93
25
Insert:
26
accredited authority means a laboratory or other body, or a person,
27
specified in the Defence Instructions to be an accredited authority
28
for the purposes of this Part.
29
6 Section 93 (definition of accredited laboratory)
30
Schedule 1 Defence Act 1903
4 Defence Amendment Bill 2005 No. , 2005
Repeal the definition.
1
7 Section 93 (definition of authorised person)
2
Omit "who, under the regulations, is", substitute "determined under
3
section 93A to be".
4
8 Section 93 (definition of combat duties)
5
Repeal the definition.
6
9 Section 93 (definition of combat-related duties)
7
Repeal the definition.
8
10 Section 93
9
Insert:
10
defence civilian has the same meaning as in the Defence Force
11
Discipline Act 1982.
12
11 Section 93
13
Insert:
14
Defence Instructions means Defence Instructions (General),
15
Defence Instructions (Navy), Defence Instructions (Army) or
16
Defence Instructions (Air Force) issued under section 9A.
17
12 Section 93
18
Insert:
19
defence member has the same meaning as in the Defence Force
20
Discipline Act 1982.
21
13 Section 93 (definition of positive test result)
22
Repeal the definition, substitute:
23
positive test result, in relation to a prohibited substance test in
24
respect of a person, means a finding by an accredited authority that
25
the test in respect of the person reveals:
26
(a) the presence of a prohibited substance in a sample provided
27
by the person, or otherwise reveals the use by the person of a
28
prohibited substance; and
29
Defence Act 1903 Schedule 1
Defence Amendment Bill 2005 No. , 2005 5
(b) if a permitted level for that substance is specified in the
1
Defence Instructions--that the permitted level has been
2
exceeded.
3
14 Section 93
4
Insert:
5
prohibited substance means:
6
(a) a narcotic substance; or
7
(b) any substance that is a prohibited substance because of a
8
determination under subsection 93B(1).
9
15 Section 93
10
Insert:
11
prohibited substance test means:
12
(a) urinalysis; or
13
(b) another test that:
14
(i) is for the purpose of determining whether a person has
15
used a prohibited substance, whether by means of
16
testing a sample provided by the person or by other
17
means; and
18
(ii) is a prohibited substance test because of a determination
19
under subsection 93B(2).
20
16 Section 93 (definition of relevant authority)
21
Repeal the definition, substitute:
22
relevant authority means:
23
(a) in relation to a defence member who holds a rank not below
24
the rank of Major-General (or an equivalent rank)--the
25
Governor-General; or
26
(b) in relation to a defence member who holds a rank below the
27
rank of Major-General (or an equivalent rank)--the relevant
28
service chief; or
29
(c) in relation to a defence civilian--the commanding officer
30
who has responsibility for the defence civilian.
31
17 Section 93 (definition of sample)
32
Repeal the definition, substitute:
33
Schedule 1 Defence Act 1903
6 Defence Amendment Bill 2005 No. , 2005
sample means:
1
(a) any human biological fluid; or
2
(b) any human biological tissue (whether alive or otherwise); or
3
(c) any human breath.
4
18 At the end of Division 1 of Part VIIIA
5
Add:
6
93A Authorised person
7
The Chief of the Defence Force or a service chief may, by written
8
instrument, determine that a person is an authorised person for the
9
purposes of a provision of this Part.
10
93B Determinations about prohibited substances and prohibited
11
substance tests
12
(1) The Chief of the Defence Force may, by legislative instrument,
13
determine that a substance, or a substance included in a class of
14
substances, is a prohibited substance for the purposes of this Part.
15
(2) The Chief of the Defence Force may, by legislative instrument,
16
determine that a test, or a test included in a class of tests, is a
17
prohibited substance test for the purposes of this Part.
18
19 Division 2 of Part VIIIA (heading)
19
Repeal the heading, substitute:
20
Division 2--Testing for prohibited substances
21
20 Sections 94, 95 and 96
22
Repeal the sections, substitute:
23
94 Requirement to undergo a prohibited substance test
24
An authorised person may require a person to whom this Part
25
applies:
26
(a) to undergo a prohibited substance test; and
27
(b) if the prohibited substance test involves testing a sample--to
28
provide a sample for the purposes of the test.
29
Defence Act 1903 Schedule 1
Defence Amendment Bill 2005 No. , 2005 7
95 Conduct of testing
1
(1) The conduct of a prohibited substance test under section 94 must
2
be supervised by an authorised person.
3
(2) A prohibited substance test:
4
(a) must be conducted in circumstances affording reasonable
5
privacy to the person being tested; and
6
(b) must not be conducted in the presence of a person whose
7
presence is not necessary for the purposes of conducting or
8
supervising the test; and
9
(c) must not involve:
10
(i) the removal of more clothing; or
11
(ii) more visual inspection;
12
than is necessary for the purposes of conducting the test.
13
96 Notice to person required to provide a sample
14
If a person is required to provide a sample for the purposes of a
15
prohibited substance test under section 94, the authorised person
16
supervising the test must, before the sample is provided, give to the
17
person a written notice explaining such matters relating to dealing
18
with the sample as are specified in the Defence Instructions.
19
21 Section 97
20
Repeal the section.
21
22 Subsection 98(1)
22
Omit "the testing of a sample provided by a member", substitute "a
23
prohibited substance test in respect of a person".
24
23 Subsection 98(2)
25
Omit "narcotic", substitute "prohibited".
26
24 Section 99
27
Repeal the section.
28
25 Section 100
29
Repeal the section, substitute:
30
Schedule 1 Defence Act 1903
8 Defence Amendment Bill 2005 No. , 2005
100 Notice to be given of a positive test result
1
(1) If a prohibited substance test in respect of a person returns a
2
positive test result, the relevant authority in relation to the person
3
must:
4
(a) give the person written notice of the positive test result; and
5
(b) invite the person to give to the relevant authority a written
6
statement of reasons as to:
7
(i) if the person is an officer--why the officer's
8
appointment should not be terminated; or
9
(ii) if the person is a defence member other than an
10
officer--why the defence member should not be
11
discharged; or
12
(iii) if the person is a defence civilian--why the arrangement
13
under which the person is a defence civilian should not
14
be terminated.
15
Note:
Subsection 98(2) provides that a positive test result is to be
16
disregarded in specified circumstances, so in such circumstances a
17
notice under this section would not be given.
18
(2) A notice under subsection (1) must specify a period ending not less
19
than 28 days after the day on which the notice is given as the
20
period within which a statement of reasons must be given to the
21
relevant authority.
22
26 Section 101
23
Omit "member" (wherever occurring), substitute "defence member".
24
27 At the end of section 101
25
Add:
26
(4) If a person to whom a notice is given under section 100 is a
27
defence civilian and:
28
(a) the person does not give the relevant authority, within the
29
period specified in the notice, a statement of reasons why the
30
arrangement under which the person is a defence civilian
31
should not be terminated; or
32
(b) having considered such a statement given by the person, the
33
relevant authority is of the opinion that the arrangement
34
under which the person is a defence civilian should be
35
terminated;
36
Defence Act 1903 Schedule 1
Defence Amendment Bill 2005 No. , 2005 9
the relevant authority must terminate that arrangement.
1
(5) In considering under this section whether:
2
(a) an officer's appointment should be terminated; or
3
(b) a defence member other than an officer should be discharged;
4
or
5
(c) the arrangement under which a person is a defence civilian
6
should be terminated;
7
the relevant authority must take into consideration any warning
8
previously given to the officer, defence member or defence civilian
9
under section 104.
10
(6) Nothing in this section or in section 104 is to be taken to require
11
that a notice under section 104 must have been given in respect of
12
a previous positive test result before:
13
(a) an officer's appointment is terminated; or
14
(b) a defence member is discharged; or
15
(c) the arrangement under which a person is a defence civilian is
16
terminated;
17
under this section.
18
28 Subsection 102(1)
19
Omit all the words from and including "officer" (first occurring) to and
20
including "officer" (second occurring), substitute "officer, the discharge
21
under subsection 101(3) of a defence member or the termination under
22
subsection 101(4) of an arrangement in relation to a defence civilian".
23
29 Subsections 102(3) and (4)
24
Omit "member" (wherever occurring), substitute "defence member or
25
defence civilian".
26
30 Subsection 103(1)
27
Repeal the subsection, substitute:
28
(1) This section applies if a prohibited substance test in respect of a
29
defence member returns a positive test result and:
30
(a) if the defence member is an officer--the officer's
31
appointment is not terminated under subsection 101(1) or (2);
32
or
33
Schedule 1 Defence Act 1903
10 Defence Amendment Bill 2005 No. , 2005
(b) if the defence member is not an officer--the member is not
1
discharged under subsection 101(3).
2
31 Subsections 103(2) and (3)
3
Omit "member" (wherever occurring), substitute "defence member".
4
32 Subsection 103(3)
5
Omit "member's", substitute "defence member's".
6
33 Subsection 103(6)
7
Omit "member" (wherever occurring), substitute "defence member".
8
34 Section 104
9
Repeal the section, substitute:
10
104 Warning if a prohibited substance test returns a positive result
11
(1) If a prohibited substance test in respect of a defence member
12
returns a positive test result, the relevant authority may give to the
13
defence member a notice containing a warning that, if a subsequent
14
prohibited substance test in respect of the defence member also
15
returns a positive test result:
16
(a) if the defence member is an officer--the officer's
17
appointment may be terminated; or
18
(b) if the defence member is not an officer--the defence member
19
may be discharged; or
20
(c) in either case--the defence member may be reduced, or
21
further reduced, in rank.
22
(2) If a prohibited substance test in respect of a defence civilian returns
23
a positive test result, the relevant authority may give to the defence
24
civilian a notice containing a warning that, if a subsequent
25
prohibited substance test in respect of the defence civilian also
26
returns a positive test result, the arrangement under which the
27
person is a defence civilian may be terminated.
28
35 Section 105
29
Repeal the section.
30
36 Sections 106 and 107
31
Defence Act 1903 Schedule 1
Defence Amendment Bill 2005 No. , 2005 11
Omit "member" (wherever occurring), substitute "defence member or
1
defence civilian".
2
37 Paragraph 107(1)(b)
3
Omit "regulations", substitute "Defence Instructions".
4
38 Section 108
5
Omit all the words from and including "laboratory" to and including
6
"member" (second occurring), substitute "authority by means of testing
7
a sample provided by a defence member or defence civilian under this
8
Part is not admissible in evidence in any proceeding against the defence
9
member or defence civilian".
10
39 At the end of Part VIIIA
11
Add:
12
109 Defence Instructions
13
(1) Without limiting section 9A, the Defence Instructions may make
14
provision, not inconsistent with this Part, in relation to the
15
following:
16
(a) the persons or classes of persons who may be required to
17
undergo prohibited substance tests under section 94;
18
(b) laboratories, bodies or persons that are accredited authorities
19
for the purposes of this Part;
20
(c) the provision of samples for the purpose of prohibited
21
substance tests under section 94;
22
(d) the conduct of, and procedures relating to, prohibited
23
substance tests under section 94;
24
(e) the devices used in conducting prohibited substance tests
25
under section 94, including the calibration, inspection and
26
testing of those devices;
27
(f) levels of prohibited substances that are permitted levels for
28
the purposes of this Part;
29
(g) the procedures for the handling and analysis of the following:
30
(i) samples taken in connection with prohibited substance
31
tests under section 94;
32
(ii) the giving of prohibited substance test results in
33
certificates or other documents and the evidentiary
34
effect of such certificates or other documents;
35
Schedule 1 Defence Act 1903
12 Defence Amendment Bill 2005 No. , 2005
(h) the confidentiality of prohibited substance test results;
1
(i) notices to be given to persons who are to undergo, or who
2
have undergone, prohibited substance tests;
3
(j) any other matter or thing that relates to, or is for the purposes
4
of, this Part.
5
(2) The Defence Instructions may provide that strict compliance with
6
procedures specified in the Defence Instructions is not required and
7
substantial compliance is sufficient, other than in respect of
8
procedures relating to the following matters:
9
(a) ensuring that a sample is not interfered with;
10
(b) ensuring that a sample is securely contained and identified.
11
110 Other administrative action not precluded
12
Nothing in this Part precludes the taking, in relation to a defence
13
member, of any administrative action that could, if this Part had
14
not been enacted, be lawfully taken because he or she is a defence
15
member.
16
40 After subsection 120A(2)
17
Insert:
18
(3) The Governor-General may, by instrument in writing, delegate all
19
or any of his or her powers under sections 100, 101 and 104 to:
20
(a) an officer of the Army who holds the rank of
21
Lieutenant-General or a higher rank; or
22
(b) an officer of the Navy who holds the rank of Vice-Admiral or
23
a higher rank; or
24
(c) an officer of the Air Force who holds the rank of Air Marshal
25
or a higher rank.
26
(3A) The Secretary and the Chief of the Defence Force may, by
27
instrument in writing signed by each of them, delegate all or any of
28
the powers that they hold jointly under subsections 9A(1) and (2)
29
to issue the instructions known as Defence Instructions (General)
30
to:
31
(a) an officer of the Army who holds the rank of Major-General
32
or a higher rank; or
33
(b) an officer of the Navy who holds the rank of Rear-Admiral or
34
a higher rank; or
35
Defence Act 1903 Schedule 1
Defence Amendment Bill 2005 No. , 2005 13
(c) an officer of the Air Force who holds the rank of Air
1
Vice-Marshal or a higher rank; or
2
(d) an SES employee who holds an SES Band 2 position, or an
3
equivalent or higher position, in the Department.
4
(3B) The Secretary and the Chief of the Defence Force may, by
5
instrument in writing signed by each of them, delegate all or any of
6
the powers that they hold jointly under subsections 9A(1) and (2)
7
to issue the instructions known as Defence Instructions (General)
8
to 2 persons to exercise jointly.
9
(3C) Each person to whom a power is delegated under subsection (3B)
10
must be a person specified in paragraph (3A)(a), (b), (c) or (d).
11
(3D) To avoid doubt, the powers of delegation under subsections (3A)
12
and (3B) extend only to the powers of the Secretary and the Chief
13
of the Defence Force to issue Defence Instructions (General), and
14
not to any other powers that the Secretary and the Chief of the
15
Defence Force have under that section.
16
(3E) The Chief of the Defence Force may, by instrument in writing,
17
delegate his or her power under section 93A to:
18
(a) an officer of the Army who holds the rank of Brigadier or a
19
higher rank; or
20
(b) an officer of the Navy who holds the rank of Commodore or
21
a higher rank; or
22
(c) an officer of the Air Force who holds the rank of Air
23
Commodore or a higher rank.
24
41 Subsection 120A(4AA)
25
Omit all the words after "under", substitute "subsection 9A(3) to issue
26
Defence Instructions (Army) and sections 93A, 100, 101, 103 and
27
104.".
28
42 Subsection 120A(4AB)
29
Omit all the words after "under", substitute "subsection 9A(3) to issue
30
Defence Instructions (Navy) and sections 93A, 100, 101, 103 and 104.".
31
43 Subsection 120A(4C)
32
Omit all the words after "under", substitute "subsection 9A(3) to issue
33
Defence Instructions (Air Force) and sections 93A, 100, 101, 103 and
34
104.".
35