Defence (Prohibited Substances) Determination 2021 [F2021l01452] [2021] AUPJCHR 133 (10 November 2021)

• Defence (Prohibited Substances) Determination 2021 [F2021L01452]1
• Drug testing of Australian Defence Force members
• Preliminary international human rights legal advice
• Rights to work and privacy
• Committee view

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Defence (Prohibited Substances) Determination 2021 [F2021L01452]^[1]

Purpose	This instrument revises the types of substances for which members of the Australian Defence Force may be tested
Portfolio	Defence
Authorising legislation	Defence Act 1903
Last day to disallow	15 sitting days after tabling (tabled in the House of Representatives on 25 October 2021). Notice of motion to disallow must be given by 4th sitting day in 2022 in the House of Representatives [2]
Rights	Work, privacy, equality and non-discrimination

Drug testing of Australian Defence Force members

1.62 Part VIIIA of the Defence Act 1903 (the Act) provides for the drug testing of Australian Defence Force (ADF) members. It provides that the Chief of the Defence Force (the Chief) may, by legislative instrument, determine that a substance, or a substance included in a class of substances, is prohibited.^[3] A defence member or defence civilian^[4] (an ADF member) can be tested for the presence of any prohibited substance,^[5] and if they test positive the Chief must invite them to give a written statement of reasons as to why their service should not be terminated.^[6] The Chief 'must' terminate the person’s service if they do not give such a statement within the period specified in the notice, or having considered the statement, the Chief is of the opinion that the service should be terminated.^[7]

1.63 This determination specifies the substances that are prohibited under this regime. It lists nine specific types of drugs, but also lists substances in eight classes under the World Anti-Doping Code International Standard Prohibited List 2021 (World Anti-Doping list) and substances listed in three schedules in the 2021 Poisons Standard. The classes of drugs specified under the World Anti-Doping list are broad and the list states that these include:

(a) anabolic agents: which may be found in medications used for the treatment of e.g. male hypogonadism;

(b) peptide hormones, growth factors, related substances, and mimetics: which may be found in medications used for the treatment of e.g. anaemia, male hypogonadism and growth hormone deficiency;

(c) hormone and metabolic modulators: which may be found in medications used for the treatment of e.g. breast cancer, diabetes, infertility (female) and polycystic ovarian syndrome;

(d) stimulants: which may be found in medications used for the treatment of e.g. anaphylaxis, attention deficit hyperactivity disorders (ADHD) and cold and influenza symptoms;

(e) narcotics: which may be found in medications used for the treatment of e.g. pain, including from musculoskeletal injuries; and

(f) glucocorticoids: which may be found in medications used for the treatment of e.g. allergy, anaphylaxis, asthma and inflammatory bowel disease.^[8]

1.64 In addition, Schedules 4, 8 and 9 of the 2021 Poisons Standard^[9] are included in the determination to be prohibited substances. These schedules include a long list of prescription-only medication, controlled substances and prohibited substances.

Preliminary international human rights legal advice

Rights to work and privacy

1.65 Determining a broad list of substances that can lead to the termination of an ADF member’s service unless they can provide sufficient reasons not to have their service terminated, engages and limits the right to work. The right to work provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly deprived of work.^[10] This right must be made available in a non‑discriminatory way.^[11]

1.66 Further, requiring ADF members to provide reasons for why they have taken a particular prohibited substance, which may require them to specify particular medical conditions they are receiving treatment for, engages and limits the right to a private life. The right to privacy prohibits arbitrary and unlawful interferences with an individual's privacy, family, correspondence or home, which includes a requirement that the state does not arbitrarily interfere with a person's private and home life.^[12] A private life is linked to notions of personal autonomy and human dignity. It includes the idea that individuals should have an area of autonomous development; a 'private sphere' free from government intervention and excessive unsolicited intervention by others.

1.67 The rights to work and a private life may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.68 In addition, as ADF members with certain attributes or medical conditions may be more likely to be required to take prohibited substances (e.g. people with intersex variations and those people transitioning genders are more likely to undergo hormone replacement therapy, and females are more likely to be receiving treatment for polycystic ovarian syndrome), the measure also engages the right to equality and non‑discrimination,^[13] including the rights of persons with disability.^[14] The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.^[15] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).^[16] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute, such as sex, gender or disability.^[17] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.^[18]

1.69 However, the statement of compatibility accompanying the determination states that it engages no human rights, and as such it provides no information as to what the objective is in prohibiting these substances and how the measure is proportionate to achieve the stated objective. The explanatory statement also provides no information as to why the specific substances are included as banned substances, stating only that the purpose is to update the substances for which members of the ADF may be tested. It does not explain why it is necessary to have such a broad list of prohibited substances. In particular, it is unclear why all substances banned by a sporting code (being the World Anti-Doping list) need to be banned for all ADF members at all times. It is unclear if it is considered that these drugs will enhance an ADF member's physical performance, affect their performance, or interfere with military discipline. It is also not clear if there are any safeguards in place for persons with ongoing medical conditions, including the amount of detail that is required to be provided to explain why medication is being taken.

1.70 Further information is required in order to assess the compatibility of this measure with the rights to work, a private life, and equality and non-discrimination, in particular:

(a) what is the legitimate objective sought to be achieved by prohibiting the substances in this determination;

(b) why it is considered necessary to include a broad list of prohibited substances, including banned substances developed in the context of sport; and

(c) what, if any, safeguards exist to ensure that any limitation on rights is proportionate, particularly for persons with ongoing medical conditions. In particular, where a person has a medical condition that requires the taking of any of these prohibited substances, what level of detail are they required to provide to their employer as to why they are taking this substance and whether they are required to explain this each time the substance is detected.

Committee view

1.71 The committee notes this determination provides that the Chief of the Defence Force (the Chief) may, by legislative instrument, determine that a substance is prohibited. If an Australian Defence Force member tests positive for a prohibited substance, the Chief must invite them to give a written statement of reasons as to why their service should not be terminated. The committee notes that the determination specifies the substances that are prohibited, which includes nine specific types of drugs, but also lists substances in eight classes under the World Anti-Doping Code International Standard Prohibited List 2021 and substances listed in three schedules in the 2021 Poisons Standard.

1.72 The committee notes that determining a broad list of substances that can lead to the termination of an ADF member’s service unless they can provide sufficient reasons not to have their service terminated, engages and limits the right to work and the right to privacy. The committee further notes that the measure may have a disproportionate effect on ADF members with certain attributes or medical conditions who may be more likely to be required to take prohibited substances, and so may limit the right to equality and non-discrimination. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.73 The committee notes that the statement of compatibility does not recognise that any human rights are engaged and as such provides no information as to the compatibility of the measure with human rights.

1.74 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this instrument, and as such seeks the minister's advice as to the matters set out at paragraph [1.70].

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^[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Defence (Prohibited Substances) Determination 2021 [F2021L01452], Report 13 of 2021; [2021] AUPJCHR 133.

^[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[3] Defence Act 1903, section 93B.

^[4] Defence Act 1903, section 93 defines ‘defence civilian’ as having the same meaning as in the Defence Force Discipline Act 1982. Section 3 of the Defence Force Discipline Act 1982 defines ‘defence civilian’ as meaning a person (other than a defence member) who with the authority of an authorized officer, accompanies a part of the Defence Force that is outside Australia, or on operations against the enemy, and has consented to subject themselves to Defence Force discipline.

^[5] Defence Act 1903, section 94.

^[6] Defence Act 1903, section 100.

^[7] Defence Act 1903, section 101.

^[8] World Anti-Doping Code International Standard Prohibited List 2021, p. 2.

^[9] The determination specifies in section 5 that ‘Poisons Standard mean the Poisons Standard June 2021, as in force on 1 June 2021’, although it is noted that this standard is no longer in force, as it appears it has been replaced by the Poisons Standard October 2021 [F2021L01345].

^[10] International covenant on Economic, Social and Cultural Rights, articles 6–7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].

^[11] International Covenant on Economic, Social and Cultural Rights, articles 6 and 2(1).

^[12] The UN Human Rights Committee further explains that this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. General Comment No. 16: Article 17 (1988).

^[13] Articles 2 and 26 of the International Covenant on Civil and Political Rights.

^[14] See the Convention on the Rights of Persons with Disability.

^[15] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.

^[16] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).

^[17] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

^[18] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].