DEFENCE LEGISLATION AMENDMENT ACT (NO. 1) 1999 - SCHEDULE 1 - Urinalysis testing of members of the Defence Force who undertake combat and combat-related duties

Commonwealth Consolidated Acts

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DEFENCE LEGISLATION AMENDMENT ACT (NO. 1) 1999 - SCHEDULE 1

- Urinalysis testing of members of the Defence Force who undertake combat and combat-related duties

Defence Act 1903

1 After Part VIII

Insert:

Part VIIIA—Urinalysis testing of members of the Defence Force who undertake combat and combat-related duties
Division 1—Preliminary
91 Application of Part

This Part applies to a member who is undertaking combat duties or combat-related duties.

92 Object of Part

The object of this Part is to make provision for the urinalysis testing of members to determine whether they have used any narcotic substance.

93 Definitions

In this Part, unless the contrary intention appears:

"accredited laboratory" means a laboratory that, under the regulations, is an accredited laboratory for the purposes of this Part.

"authorised person" means a person who, under the regulations, is an authorised person for the purposes of the provision of this Part in which the expression occurs.

"combat duties" means duties that require, or are likely to require, the person performing them to commit, or participate directly in the commission of, an act of violence in the event of armed conflict.

"combat-related duties" means:

(a): duties that require, or are likely to require, the person performing them to undertake training or preparation for, or in connection with, combat duties; or
(b): duties that require, or are likely to require, the person performing them to work in support of a member undertaking combat duties.

"narcotic substance" has the same meaning as in the Customs Act 1901 .

"positive test result", in relation to a member, means a finding made by an accredited laboratory, by means of testing a sample provided by the member, to the effect that the testing reveals the presence of a narcotic substance in the sample.

"relevant authority", in relation to a member, means:

(a): if the member is an officer who holds a rank not below the rank of Brigadier (or an equivalent rank)—the Minister; or
(b): otherwise—the relevant service chief.

"sample", in relation to a member, means a sample of the member's urine.

Division 2—Provision and testing of sample
94 Requirement to provide sample

An authorised person may, in circumstances specified in the regulations, require a member to provide a sample.

95 Provision of sample

(1): A member who has been required to provide a sample is entitled to pass the sample without being observed by any other person.
(2): Subject to subsection (1), the process of collecting a sample is to be supervised:

(a): if the exigencies of service in the Defence Force permit—by a legally qualified medical practitioner; or
(b): otherwise—by a person whose duties include the provision of medical assistance.

96 Notice to member explaining matters relating to dealing with sample

If a member is required to provide a sample, a person who is to supervise the process of collecting the sample must, before the sample is provided, give to the member a written notice explaining such matters relating to dealing with the sample as are prescribed by the regulations.

97 How sample is to be dealt with

(1): The regulations may prescribe procedures for dealing with samples provided by members.
(2): The regulations are to include provision for informing the member who provided a sample of the result of the testing of the sample.
(3): Subject to subsection (4), the regulations may provide that particular procedures prescribed for the purposes of this section need not be strictly complied with and substantial compliance is sufficient.
(4): Subsection (3) does not apply to procedures for ensuring that a sample is not interfered with by anyone who is not authorised to do so.

Division 3—Return of a positive test result
98 Application

(1): This Division applies if the testing of a sample provided by a member returns a positive test result.
(2): A positive test result is to be disregarded if an authorised person is satisfied that the presence of any narcotic substance revealed by the testing was wholly attributable to something done in accordance with the directions or recommendations of a legally qualified medical practitioner.

99 Assessment of member for fitness or suitability for further service

An authorised person is to arrange for a legally qualified medical practitioner to provide an assessment as to whether the member who provided the sample is fit or suitable for further service in the Defence Force having regard to the positive test result.

100 Notice to be given if member assessed to be unfit or unsuitable for further service

(1): If a member is assessed under section 99 to be unfit or unsuitable for further service, the relevant authority must give the member a written notice:

(a): stating that the member has been so assessed; and
(b): inviting the member to give the relevant authority a written statement of reasons why:

(i): if the member is an officer—the officer's appointment should not be terminated; or
(ii): if the member is not an officer—the member should not be discharged; and

(c): specifying a period ending not less than 28 days after the day on which the notice is given as the period within which a statement of reasons must be given to the relevant authority.

(2): In working out when a period specified in a notice given under subsection
(1): ends, any period during which a complaint made by the member is being investigated is not to be taken into account.
(3): In this section:

"complaint" by a member means a complaint that:

(a): is made by the member:

(i): under the regulations; or
(ii): to the Defence Force Ombudsman under the Ombudsman Act 1976 ; and

(b): relates to the application to the member of any of the provisions of this Part.

101 Termination or discharge

(1): If a member to whom a notice is given under section 100 is an officer who holds a rank not below the rank of Major-General (or equivalent rank) and:

(a): the officer does not give the relevant authority, within the period specified in the notice, a statement of reasons why the officer's appointment should not be terminated; or
(b): having considered such a statement given by the officer, the relevant authority is of the opinion that the officer's appointment should be terminated;

the Governor-General must terminate the appointment.

(2): If a member to whom a notice is given under section 100 is an officer who holds a rank below the rank of Major-General (or equivalent rank) and:

(a): the officer does not give the relevant authority, within the period specified in the notice, a statement of reasons why the officer's appointment should not be terminated; or
(b): having considered such a statement given by the officer, the relevant authority is of the opinion that the officer's appointment should be terminated;

the relevant authority must terminate the appointment.

(3): If a member to whom a notice is given under section 100 is not an officer and:

(a): the member does not give the relevant authority, within the period specified in the notice, a statement of reasons why the member should not be discharged; or
(b): having considered such a statement given by the member, the relevant authority is of the opinion that the member should be discharged;

the relevant authority must discharge the member.

102 Form and date of effect of termination or discharge

(1): The termination under subsection 101(1) or (2) of the appointment of an officer or the discharge under subsection 101(3) of a member other than an officer must be in writing.
(2): The document effecting the termination or discharge must specify the day on which the termination or discharge is to take effect.
(3): A copy of the document effecting the termination or discharge must be given to the member.
(4): The day to be specified is a day:

(a): not earlier than the day on which the member is given a copy of the document effecting the termination or discharge; and
(b): not later than 3 months after the day referred to in paragraph (a).

(5): The termination of appointment or the discharge, as the case may be, takes effect on the day specified.

103 Reduction in rank

(1): This section applies if a sample provided by a member returns a positive result (whether or not the member has been assessed under section 99 as unfit or unsuitable for further service) and:

(a): if the member is an officer—the officer's appointment is not terminated under subsection 101(1) or (2); or
(b): if the member is not an officer—the member is not discharged under subsection 101(3).

(2): Subject to the following provisions of this section, the relevant service chief may reduce the member to the next lower rank.
(3): If the relevant service chief proposes to reduce a member's rank, he or she must:

(a): inform the member in writing of the proposal; and
(b): give the member a reasonable opportunity to show cause why the member's rank should not be reduced.

(4): A reduction in rank must be in writing.
(5): The document effecting the reduction in rank must specify the day on which the reduction in rank is to take effect.
(6): A copy of the document effecting the reduction in rank is to be given to the officer or other member.

104 Warning to member the testing of whose sample returns a positive result

If the testing of a sample provided by a member returns a positive result, the relevant authority may give to the member a notice containing a warning that, if the testing of a sample subsequently provided by the member returns a positive test result:

(a): if the member is an officer—the officer's appointment may be terminated; or
(b): if the member is not an officer—the member may be discharged; or
(c): in either case—the member may be reduced, or further reduced, in rank.

105 Other administrative action not precluded

Nothing in this Part precludes the taking, in relation to a member, of any administrative action that could, if this Part had not been enacted, be lawfully taken because he or she is a member.

Division 4—Miscellaneous
106 Failure to provide sample

A member is guilty of an offence if:

(a): an authorised person has required the member under section 94 to provide a sample; and
(b): the member intentionally refuses or fails to provide the sample.

Maximum penalty: Imprisonment for 6 months.

107 Unauthorised acts in relation to sample

A person is guilty of an offence if:

(a): the person intentionally interferes with, or otherwise intentionally deals with, a sample provided by a member pursuant to a requirement made by an authorised person under section 94; and
(b): the person is not authorised under this Part or the regulations to do so.

Maximum penalty: Imprisonment for 6 months.

108 Finding made as a result of testing not admissible in certain criminal proceedings

A finding made by an accredited laboratory by means of testing a sample provided by a member under this Part is not admissible in evidence in any proceeding against the member for:

(a): an offence under the Defence Force Discipline Act 1982 ; or
(b): an offence against section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914 in relation to an offence under the Defence Force Discipline Act 1982 .

2 Subsection 120A(4AA)

Omit "and 44A", substitute ", 44A, 100, 101 and 103".

3 Subsection 120A(4AB)

Omit "and 44A", substitute ", 44A, 100, 101 and 103".

4 Subsection 120A(4C)

Omit "and 44A", substitute ", 44A, 100, 101 and 103".

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