Australian Border Force (Prohibited Drugs) Instrument 2024 - New and Ongoing Matters [2024] AUPJCHR 24 (15 May 2024)

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Legislative instruments

Australian Border Force (Prohibited Drugs) Instrument 2024^[154]

FRL No.	F2024L00383
Purpose	This instrument prescribes a list of drugs for the purposes of paragraph (b) of the definition of prohibited drug in subsection 4(1) of the Australian Border Force Act 2015.
Portfolio	Department of Home Affairs
Authorising legislation	Australian Border Force Act 2015
Disallowance	15 sitting days after tabling (tabled in the House of Representatives on 27 March 2024 and in the Senate on 14 May 2024). Notice of motion to disallow must be given by 1 July 2024 in the House and 19 August 2024 in the Senate[155]
Rights	Just and favourable conditions of work; privacy

Drug testing workers

1.92 The Australian Border Force Act 2015 (ABF Act) empowers an authorised person to direct an ‘Immigration and Border Protection worker’^[156] who is in the course of performing their duties, a written direction requiring them to provide a body sample for a prohibited drug test.^[157] The term ‘prohibited drugs’ refers to a narcotic substance within the meaning of the Customs Act 1901, and any other drugs specified by legislative instrument.^[158]

1.93 This legislative instrument specifies 37 drugs (and types of drugs) for which workers may be tested. It repeals and replaces the previous such instrument without amendment. The drugs specified include: natural and manufactured gonadotrophins, including Follicle Stimulating Hormone; anabolic substances; natural and manufactured growth hormones; and a series of Benzodiazepines.

1.94 Failure to comply with a direction to provide a body sample may constitute a breach of the Australian Public Service (APS) Code of Conduct and may result in sanction or termination.^[159] The results of a drug test are admissible against the worker in relation to specified legal proceedings, including proceedings in relation to their employment termination.^[160]

International human rights legal advice

Rights to just and favourable conditions of work; privacy

1.95 Requiring workers to provide body samples for the purposes of drug testing engages and limits the right to privacy, and may engage and limit the right to just and favourable conditions of work.^[161]

1.96 The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[162] It also includes the right to control the dissemination of information about one's private life. The right to just and favourable conditions of work includes the right of all workers to safe working conditions.^[163] These rights 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.

1.97 By way of background, when the committee considered the Australian Border Force Bill 2015 (now Act), which established the power to prescribe the drugs for which people are tested, the committee stated that privacy concerns arose, including because no limitation is placed on the power to prescribe a drug as prohibited, such as a requirement that the ABF Commissioner or Secretary must be satisfied that the drug is illegal and/or has a demonstrated deleterious effect on an individual's ability to perform their functions as an immigration and border protection worker.^[164] The committee also considered a similar legislative instrument in 2022 relating to Australian Defence Force personnel, concluding that by listing a number of drugs it risked impermissibly limiting a worker's rights to work, a private life and equality and non-discrimination.^[165]

1.98 In relation to this legislative instrument, the statement of compatibility only recognises that the legislative instrument engages and limits the right to privacy.^[166] In relation to a legitimate objective, it states that the objective of the measure is to enhance the department’s capacity to assess the extent of the risk of organised criminal influence on workers. This would likely constitute a legitimate objective under international human rights law. However, it is also necessary to demonstrate that a legitimate objective is one that constitutes a pressing and substantial concern that justifies limiting the rights in question. In this regard, no supporting information is provided as to the extent to which this type of criminal influence on workers likely occurs in practice.

1.99 In relation to rational connection (that is, the extent to which this measure is capable of achieving the objective of enhancing the capacity of assessing organised criminal influence on workers), the statement of compatibility states:

It is necessary for the Department to have the ability to test for a broad range of drugs where required, because, like the classes of drugs defined as a narcotic substance, [performance and image enhancing drugs] and benzodiazepines are trafficked in illicit markets. Immigration and Border Protection workers who involve themselves in illicit markets for drugs make themselves and the Australian Border Force (ABF) vulnerable to corruption. Transactions in any markets include contact among buyer and seller. Should one party discover that the other is an Immigration and Border Protection worker, an opportunity presents itself for that party to use that knowledge to influence or coerce the Immigration and Border Protection worker to assist with criminal activity or risk having the drug-taking activity exposed.

1.100 Drug testing could be rationally connected to the objective of identifying and addressing the risk of staff corruption, but only where a worker is using one of the listed drugs for illicit purposes, and the fact that they are doing so is in fact being used to influence or coerce them to assist with criminal activity. The drug testing would not appear to be effective where, for example, any worker involved in drug trafficking or corruption is not actually taking the drugs themselves. In such cases, the worker would pass the drug test, whereas any worker taking one of the listed substances for legitimate medical reasons, or for non-medical reasons but where they are not in fact corrupt, would be captured. Consequently, it may be that this legislative instrument is only effective to identify and address corrupt or compromised workers in only a narrow subset of cases.

1.101 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. Another relevant factor in assessing whether a measure is proportionate is whether there is the possibility of oversight and the availability of review. The statement of compatibility does not explicitly address these factors.

1.102 As to whether the measure is sufficiently circumscribed, the statement of compatibility does not identify why each of the drugs listed, and the three categories of drugs, is required to be included. All of the listed drugs may be prescribed for legitimate medical purposes (and so a direction to undergo a test, and/or a positive test result, would necessitate the worker disclosing that medical purpose to their employer). Consequently, the interference with a worker’s privacy may be substantial. The statement of compatibility does not identify why all departmental workers and contractors (and not merely those in certain higher risk roles) are subject to the requirement to undergo testing. Further, the ABF Act does not confine the circumstances in which a worker may be directed to undergo a test (for example, where some issue has arisen in relation to their work performance or personal manner).^[167] Consequently, it would appear that there are less rights restrictive alternatives to this mechanism (if the ABF Act were amended to confine such circumstances). It is also unclear what safeguards (if any) would apply to the requirement to undergo a test, and no information is provided as to whether the exercise of these testing requirements is subject to independent oversight, and whether a worker may challenge or otherwise seek review of a testing direction or test result. The statement of compatibility does not provide information in relation to these factors.

1.103 Consequently, there is a risk that this legislative instrument constitutes an impermissible limit on the right to privacy, and the right to just and favourable conditions of work.

Committee view

1.104 The committee notes that specifying several drugs (which may be prescribed for medical reasons) for which all Immigration and Border Protection staff and contractors may be tested, engages and limits the right to privacy and the right to just and favourable conditions of work.

1.105 The committee considers that, while the legislative instrument is directed to the important objective of ensuring that workers are not liable to corruption, it would appear to only be capable of addressing such a risk in relation to a subset of workers for whom the illicit use of these specified drugs is related to corruption and other criminal activity. The committee also considers that this power is insufficiently circumscribed, and that it is not clear that there are adequate safeguards, or that the power is subject to independent oversight or subject to review. As such, the committee considers that this legislative instrument risks impermissibly limiting the rights to privacy and to just and favourable conditions of work.

1.106 The committee considers that the information provided in the statement of compatibility is insufficient. The committee expects statements to be able to be read as stand-alone documents, that is, for the reader to understand the legislation without needing to refer to other parts of the explanatory materials (or other legislation).

Suggested action 1.107 The committee considers the proportionality of this measure may be assisted were the Australian Border Force Act 2015 amended to provide that a direction to undergo a drug test may only be given in relation to a concern that has arisen regarding a person’s work performance, potential criminal or corruption concerns, or where there is a specific operational risk. 1.108 The committee recommends that the statement of compatibility be updated to provide a more comprehensive explanation in relation to the right to privacy, and to outline the compatibility of the measure with the right to just and favourable conditions of work.

1.109 The committee draws these human rights concerns to the attention of the minister and the Parliament.

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^[154] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Australian Border Force (Prohibited Drugs) Instrument 2024, Report 4 of 2024; [2023] AUPJCHR 24.

^[155] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[156] This term is defined in section 4 of the ABF Act to include departmental APS employees, customs officers, officers under the Migration Act 1958, public servants performing work for the department, or people engaged by the department as consultants or contractors.

^[157] Australian Border Force Act 2015, Part 5.

^[158] Australian Border Force Act, section 4.

^[159] ABF Act, subsection 35(3). See further, Public Service Act 1999 subsection 13(4) and sections 15, 28 and 29.

^[160] ABF Act, section 40. Results are also admissible in proceedings under the Safety, Rehabilitation and Compensation Act 1988, and proceedings in tort against the Commonwealth that are instituted by the worker.

^[161] Further, if workers with certain attributes or medical conditions were more likely to be required to take some of the 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), it may also engage and limit the right to equality and non-discrimination.

^[162] International Covenant on Civil and Political Rights, article 17.

^[163] See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [2].

^[164] Parliamentary Joint Committee on Human Right, Australian Border Force Bill 2015, 37th Report of the 44th Parliament (16 October 2016), pp. 17–18.

^[165] Parliamentary Joint Committee on Human Rights, Defence (Prohibited Substances) Determination 2021 [F2021L01452], Report 2 of 2022 (25 March 2022), pp. 113–124.

^[166] Statement of compatibility, p. 7.

^[167] While section 36 of the ABF Act provides that a drug test direction may be given where a workplace incident has occurred (e.g. a death), section 35 provides for a general power to direct a worker to undergo a drug test.