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Australian Parliamentary Joint Committee on Human Rights |
Legislative instruments
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Purpose
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This legislative instrument revises the types of substances for which
members of the Australian Defence Force may be tested
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Portfolio
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Defence
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Authorising legislation
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Last day to disallow
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15 sitting days after tabling (tabled in the House on
25 October 2021 and in the Senate on 22 November 2021)
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Rights
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Work; privacy; equality and non-discrimination
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2.101 The committee requested a response from the minister in relation to the legislative instrument in Report 13 of 2021.[2]
2.102 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]
2.103 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]
2.104 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.
2.105 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]
2.106 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.
2.107 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.
2.108 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]
2.109 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.
2.110 The committee noted 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 noted 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. The committee noted that the statement of compatibility does not recognise that any human rights are engaged and sought the minister's advice as to the matters set out at paragraph [2.109].
2.111 The full initial analysis is set out in Report 13 of 2021.
2.112 The minister advised:
What is the legitimate objective sought to be achieved by prohibiting the substances in the Defence (Prohibited Substances) Determination 2021?
The objective of the Determination is to provide an administrative function for the operation of Part VIIIA under the Defence Act 1903 ie to list the drugs that are prohibited and that could adversely affect an individuals, health, ability to perform their duties and/or compromise the persons and Defences’ ability to meet their obligations under the Work Health and Safety Act 2011.
The provisions in Part VIIIA of the Defence Act 1903 which authorise the Determination provide a balance in protecting the safety and welfare of members and the public, noting the nature and requirements of military duty, as well as the ADF’s and Australia’s reputation in having a disciplined military force.
Why it is considered necessary to include a broad list of prohibited substances, including banned substances developed in the context of sport?
The CDF Determination regarding prohibited substances is based on both the World Anti-Doping Agency Prohibited List and the Therapeutic Goods Administration (TGA) Poisons Standard. Both of these lists are formulated based on subject matter expert analysis which has been peer reviewed by Australian government entities such as the National Measurement Institute, Sports Integrity Australia and the TGA. As such these lists of prohibited substances are regularly updated to address the new prohibited substances available within the ever-evolving illicit drug market and reviews by the TGA.
Note that these lists are mitigated by the fact that the substances or drug types listed in them are only prohibited if they have not been prescribed, administered to them or taken for a legitimate health issue and that a positive test result can be declared negative based on the information provided by the member or medical officer.
Defence is aware that the World Anti-Doping Agency (WADA) Prohibited List has been developed for a different purpose and to that end their lists are divided into in and out of competition. However, the Defence approach is that any substance within those lists that would meet Defence’s definition of a prohibited substance (ie one that would impact Defence and member’s safety, discipline, morale, security or reputation) are included in the Defence Determination (Prohibited Substances) 2012.
The use of these selected sections/schedules out of the WADA Prohibited List 2021 and the 2021 TGA Poisons Standard is appropriate as:
a. these documents are also used by other Australian Government agencies drug testing programs (e.g. the Sports Integrity Australia);
b. it allows Defence to capture new and evolving substances that would otherwise require a new CDF Determination to do so (e.g. WADA Schedule 0–Non-approved substances);
c. they allow for the testing for and identification of more prohibited substances than those listed in:
i. AS/NZS: 4308:2008 – Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine (which only sets out laboratory procedures and cut-off testing ranges for the screening of drugs in urine for amphetamine type substances, benzodiazepines, cannabis metabolites, cocaine metabolites and opiates);
ii. AS/NZS: 4760:2019 – Procedure for specimen collection and the detection and quantification of drugs in oral fluid (which only sets out laboratory procedures and cut-off concentration testing ranges for amphetamine-type substances, cannabinoids, cocaine and metabolites, opiates and oxycodone), and
iii. the Society of Hair Testing guidelines (which only lists the cut-off levels concentration testing ranges for amphetamines, cannabinoids, cocaine, opiates methadone and buprenorphine).
d. they are monitored and reviewed by experts in the field of substance misuse and peer reviewed and approved within the world scientific toxicology and medical community, and they provides the scientific names for a number of prohibited substances (e.g. 1 Epiandrosterone (3β-hydroxy-5α-androst- 1-ene-17-one)) which can help a member identify a prohibited substance when checking the ingredients listed on the label of a supplement or medication that they are thinking of taking.
Note that it is common that prohibited substance testing policies of organisations do not list every individual substance that they consider to be a prohibited substance. Rather, the policies generally state that substances which belong to a category of drugs are prohibited; for example:
a. the Department of Home Affairs defines a prohibited drug as a cocaine, heroin, cannabis, methamphetamines, amphetamines, MDMA (also known as ecstacy), border-controlled performance and image enhancing drugs. In addition to these substances, the Secretary or the Australian Boarder [sic] Force Commissioner may prescribe other drugs, within an instrument, that meet the Department of Home Affairs definition of a prohibited drug; and
b. the NSW Police Force defines a prohibited substance as any drug that is listed in Schedule One of the Drug Misuse and Trafficking Act 1985. Although this schedule lists a large number of prohibited substances it also contains the caveat that a prohibited drug is also any substance that is an analogue of a drug prescribed in the Schedule.
What, if any, safeguards exist to ensure that any limitation on rights is proportionate, particularly for persons with ongoing medical conditions?
Testing procedures are in place to ensure personal privacy during the collection process at prescribed by section 95 of the Defence Act 1903, and personal information including personnel information regarding medical and or psychiatric conditions and treatment is managed in accordance with the Privacy Act 1988, Australian Privacy Principles, Permitted General Situations and the Defence Privacy Policy.
Prior to testing Defence personnel are informed in writing:
a. The purpose of the prohibited substance test.
b. That they have the right to privacy and that they may request a chaperone, however, the inability for the testing staff to provide a chaperone who meets their particular requirements will not excuse individuals from testing and they will be required to provide the requested sample(s) at that time.
c. That they have the right to not inform test staff of any medication(s), supplements, food or drinks that they may be taking for a legitimate reason which could result in a positive test result.
d. That the disclosure of their test results is authorised for purposes which are:
i. necessary for administration of testing - including disclosure to authorised laboratories where required;
ii. necessary to carry out any administrative or personnel management action following the testing - which may include disclosure to Commanders and personnel agencies necessary for management and recording of the test results;
iii. de-identified results - for statistical purposes;
iv. necessary for the purposes of medical treatment or rehabilitation – following consultation with the person concerned; or
v. otherwise necessary to carry out the functions specified in the Defence Act 1903, other legislation or MILPERSMAN Part 4, Chapter 3.
If in the course of participating in the Australian Defence Force Prohibited Substance Testing Program information is obtained that leads to a suspicion of a criminal offence having been committed, information relevant to that offence may be disclosed to the Australian Federal Police, or the relevant State or Territory police force.
What level of detail are Defence personnel required to provide to Defence as to why they are taking this substance?
Defence personnel are not required to provide personal health information to the testing staff as part of the testing process, and at the time of testing Defence personnel are not compelled to inform test staff of any medication(s), supplements, food or drinks that they have taken. However, they are warned that failing to provide relevant information or providing misleading information when required may result in action being taken against them that would otherwise have been avoided.
Should the person return a laboratory confirmed positive prohibited substance test result the person is requested to provide a statement of reason to the decision maker. Reasons may include that a medication was administered, prescribed or recommended by a Defence medical or health practitioner. This information is managed in accordance with the Privacy Act 1988 and the Defence Privacy Policy.
Termination of service for prohibited substance use is not automatic, the decision on whether an ADF member is retained is based on procedural fairness where the individual circumstances of the case, the member’s written statement and other factors such as performance history, perceived likelihood of re-offending and organisational needs are taken into consideration.
In those instances where the delegate decides that the ADF member is to be retained in the Service, the individual will be informed of any conditions under which they are to be retained, such as ongoing targeted testing, the requirement to undertake a rehabilitation program or additional administrative sanctions. As Defence recognises that a positive test result can be very stressful for ADF members, Defence provides administrative and welfare support (e.g. by Australian Defence Force medical officers, Defence psychologists, Defence chaplains, and through Defence Member and Family Support and Open Arms counsellors) to those affected.
Where there is a positive laboratory confirmed result, the ADF member’s medical records are reviewed by a medical officer who can declare that the positive test result is related to legitimate use of a medication for treatment of a particular health condition and is consistent with the therapeutic use of that substance. Certain foods, such as poppy seeds, can also lead to a positive test, and this would also be considered by a Defence medical officer, in the case of a positive test result.
Are Defence personnel tested required to explain this each time the substance is detected?
No. Defence personnel are provided the opportunity to inform test staff of any medication(s), supplements, food or drinks that they have taken as part of the testing process each time a test is undertaken. If the Defence person has noted a medication administered, prescribed or recommended by a Defence medical or health practitioner on their testing form, a medical officer may review the medical record each time a positive result is returned, as individual circumstances may change over time. Where it has been determined by the reviewing medical officer that the result was due to the directions or recommendations of a Defence medical or health practitioner, no further explanation will be required by the Defence person.
2.113 In relation to the objective of prohibiting a broad range of drugs, the minister advised that the listed drugs are those that could adversely affect an individual's health, ability to perform their duties and/or compromise work health and safety obligations. The minister advised that this provides a balance 'in protecting the safety and welfare of members and the public, noting the nature and requirements of military duty, as well as the ADF’s and Australia’s reputation in having a disciplined military force'. Protecting safety and welfare and having a disciplined military force are likely to constitute legitimate objectives for the purposes of international human rights law. However, under international human rights law, it must also be demonstrated that any limitation on a right has a rational connection to the objective sought to be achieved. The key question is whether the relevant measure is likely to be effective in achieving the objective being sought. In this case, while it would appear that prohibiting illicit drugs would likely be effective to achieve the objective of maintaining discipline and protecting safety and health, no information has been provided as to how prohibiting all of the drugs in the World Anti-Doping Code would be effective to achieve this objective. As such, it has not been established that listing all of these drugs is rationally connected to the stated objective.
2.114 Further, a key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. In this respect, it is necessary to consider a number of factors, including whether a proposed limitation is sufficiently circumscribed; whether it is accompanied by sufficient safeguards; and whether any less rights restrictive alternatives could achieve the same stated objective.
2.115 As to whether the measure is sufficiently circumscribed, and why it is necessary to include a broad list of prohibited substances, including banned substances developed in the context of sport, the minister advised these lists are formulated based on subject matter expert analysis and that all drugs in the list, if not taken for a legitimate health reason, could impact Defence and member’s safety, discipline, morale, security or reputation. The minister also advised that these lists are used by other Australian government agencies drug testing programs (such as Sports Integrity Australia); allow evolving substances to be automatically included without the need for a new determination; allow for the testing of more prohibited substances than in other standards; and are monitored and reviewed by experts and provide the scientific names for a number of prohibited substances. However, these reasons mostly appear to relate to the convenience of referring to existing external lists instead of specifying the drugs in the determination itself, rather than providing an explanation as to why drugs prohibited in a sporting context are required to be prohibited in a defence force context. It remains unclear if the listed drugs are considered likely to enhance an ADF member's physical performance (and if so, what the concern is in this context), affect their performance, or how the listed drugs would interfere with military discipline, morale, security or reputation. It would appear that there may be a less rights restrictive way to achieve the stated objective, by specifically considering each drug and its likely effect on health, safety and discipline, and only listing it once it is clear it meets these criteria.
2.116 As a result of the broad listing of a wide range of drugs, ADF members with specific medical conditions requiring certain medications are likely to need to disclose this to their employer. As the minister has advised, the list of substances or drugs are only prohibited if they have not been prescribed, administered or taken for a legitimate health issue. While the minister advises that ADF members are not required to tell the person carrying out the test about any medications they take, if they do not, and a positive prohibited substance test result is returned, the person is requested to provide a statement of reason to the decision maker (with failure to do so leading to termination of their employment). If a reviewing medical officer considers the positive testing result was 'due to the directions or recommendations of a Defence medical or health practitioner', no further explanation will be required. This suggests that only medication taken on the recommendation of a Defence medical or health practitioner will not be subject to further questioning. Medication prescribed outside of this arrangement would appear to require an ADF member to provide a statement of reasons for why they are taking it in order to ensure continued employment by the ADF. Noting the breadth of drugs captured by the listing, including, for example, medication to deal with hypogonadism or infertility, it would appear there may be circumstances where an ADF member would be required, in order to keep their employment, to disclose personal health conditions to their employer that they may otherwise wish to keep private.
2.117 In conclusion, while the measure seeks to achieve the legitimate objectives of protecting safety and welfare and having a disciplined military force, and while prohibiting illicit substances would appear to be rationally connected to (that is, effective to achieve) that objective, it is not clear that prohibiting all of the drugs listed in the World Anti-Doping list or Poisons Standard would be effective to meet this objective. Further, as a result of the breadth of the drugs listed, this measure would appear to require ADF members to disclose a wide range of medical or health conditions to their employer in order to prevent termination of their employment. If only the drugs that are considered to specifically affect health, safety or discipline were listed this would lessen this requirement, and this would appear to be a less rights restrictive way to achieve the stated aim. As currently drafted, it would appear that the breadth of the listing of prohibited substances risks impermissibly limiting an ADF member's rights to work, a private life and equality and non-discrimination.
2.118 The committee thanks the minister for this response. 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.
2.119 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 rights to work and a private life. 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.
2.120 The committee considers the measure seeks to achieve the legitimate objectives of protecting safety and welfare and having a disciplined military force. It also considers that prohibiting illicit substances and likely other specific substances of concern, would be effective to achieve that objective. However, it is not clear that prohibiting all of the hundreds of drugs listed in the World Anti-Doping list or Poisons Standard would be effective to meet this objective. Further, as a result of the breadth of the drugs listed, this measure would appear to require ADF members to disclose a wide range of medical or health conditions to their employer in order to prevent termination of their employment. The committee considers that if only the drugs that are considered to specifically affect health, safety or discipline were listed this would lessen this requirement, and this would appear to be a less rights restrictive way to achieve the stated aim. The committee considers that, as currently drafted, the breadth of the listing of prohibited substances risks impermissibly limiting an ADF member's rights to work, a private life and equality and non-discrimination.
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Suggested action
2.121 The committee considers that the compatibility of the measure may
be assisted were:
(a) each substance contained in the World Anti-Doping Code and the
Poisons Standards specifically considered to determine if it is
necessary to be
prohibited in order to protect the health of an ADF member or their ability to
perform their duties, the ADF's work
health and safety obligations or the need
for a disciplined military force; and
(b) the determination amended to reflect the outcomes of that
review.
2.122 The committee recommends that the statement of compatibility with
human rights be updated to reflect the information which has
been provided by
the minister.
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2.123 The committee otherwise draws these human rights concerns to the attention of the minister and the Parliament.
Dr Anne Webster MP
Chair
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Defence (Prohibited Substances) Determination 2021 [F2021L01452], Report 1 of 2022; [2022] AUPJCHR 20.
[2] Parliamentary Joint Committee on Human Rights, Report 13 of 2021 (10 November 2021),
pp. 27-31.
[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] International Covenant on Civil and Political Rights, articles 2 and 26.
[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].
[19] The minister's response to the committee's inquiries was received on 8 February 2022. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
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