Commonwealth Numbered Regulations - Explanatory Statements

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CUSTOMS (DRUG AND ALCOHOL TESTING) REGULATION 2013 (SLI NO 2 OF 2013)

 

EXPLANATORY STATEMENT

 

SELECT LEGISLATIVE INSTRUMENT 2013 No. 2

 

Issued by the Authority of the Minister for Home Affairs

 

Customs Administration Act 1985

 

   Customs (Drug and Alcohol Testing) Regulation 2013

 

 

Section 18 of the Customs Administration Act 1901 (the Act) provides, in part, that the Governor-General may make regulations not inconsistent with the Act prescribing all matters which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act or for the conduct of any business relating to Customs.

The Law Enforcement Integrity Legislation Amendment Act 2012 (the Integrity Amendment Act) made amendments to the Act to, in part, introduce drug and alcohol testing within Customs and Border Protection. The purpose of introducing drug and alcohol testing is to increase the corruption resilience of Customs and Border Protection.

Sections 16B, 16C and 16D, introduced by the Integrity Amendment Act, allow an authorised officer to require a Customs worker to undergo an alcohol screening test, alcohol breath test, and prohibited drug test. Section 16F of the Act provides that the regulations may make regulations for the purposes of sections 16B, 16C and 16D in relation to certain matters, including the authorisation of persons, the devices to be used in conducting tests, procedures for handling samples taken and the confidentiality of the test results. The purpose of the Regulation is to prescribe matters for the purposes of section 16F required to implement drug and alcohol testing within Customs and Border Protection.

Details of the Regulation are set out in the Attachment.

No consultation was undertaken specifically in relation to the amendments; however, extensive consultation and communication has been undertaken with representatives from the Agency business lines as well as with their union representatives in the design of drug and alcohol testing.

The Regulation commences on the day after registration on the Federal Register of Legislative Instruments.

 

             


 

Statement of Compatibility with Human Rights

 

(Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)

 

   Customs (Drug and Alcohol Testing) Regulation 2013

 

 

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Overview of the Regulation

 

This Regulation prescribes matters for the purposes of drug and alcohol testing which is to be conducted in Customs. The ability to conduct drug and alcohol tests on Customs workers was introduced by amendments to the Customs Administration Act 1985 contained in the Law Enforcement Integrity Legislation Amendment 2012 (the Integrity Act). The Integrity Act also allows a number of matters to be prescribed by regulation including the authorisation of persons, the devices to be used in conducting tests, procedures for handling samples taken and the confidentiality of the test results.

 

The Regulation commences on the day after it is registered.

 

 

Human Rights implications

 

The Regulation does promote a human right.

 

Rights in work

 

The protection of worker's rights in the workplace is contained within Article 22 of the International Covenant on Civil and Political Rights (ICCPR).  This Regulation will ensure that the Customs and Border Protection workplace is drug and alcohol free and thereby promotes this specific human right and as a result advances labour rights contained within the International Labour Organisation Convention 1948.

 

The Regulation potentially impacts on the following human rights:

 

Right to protection against arbitrary and unlawful interferences with privacy

 

Article 17 of the ICCPR provides the right for persons to not be subjected to arbitrary or unlawful interference with their privacy or have unlawful attacks on their honour or reputation. The right to privacy may be subject to permissible limitations.  In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances.  Reasonableness, in this context, incorporates notions of proportionality, appropriateness and necessity.  In essence, this will require that limitations: 

 

Measures contained in the Regulation will also increase the collection and use of personal information within Customs and Border Protection's workplace, such as: results from mandatory drug and alcohol testing, mandatory disclosure of personal information, the compulsory physical intervention of a person for testing purposes.

 

Customs and Border Protection will implement a drug testing process in line with the Australian Standards - Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine (AS/NZS 4308:2008) and Procedures for specimen collection and the detection and quantitation of drugs in oral fluid (AS 4760-2006). In relation to alcohol testing procedures, it is anticipated that Customs and Border Protection will use evidentiary breath analysing instruments which are recognised by Australian courts of law.

 

These measures do not limit the obligations of Customs and Border Protection under the Privacy Act 1988 and the Information Privacy Principles in general. Customs and Border Protection will continue to adhere to the safeguards aligned to the eleven Information Privacy Principles and thereby meet the requirements of the ICCPR to ensure no unlawful interference with privacy, honour or reputation occurs.

 

The interferences with the right to privacy contained in this Regulation are proportionate to the need to protect against corruption in law enforcement.

 

Right to security of the person and freedom from arbitrary detention

 

This Regulation may require Customs and Border Protection authorised officers to control movement of workers within a specified area, for the purpose of conducting mandatory testing. The right to liberty and security of the person is contained within Article 9 of the ICCPR. The Regulation contains limitations on the permitted purposes of authorised officer directions, ensuring that the directions are for prescribed purposes and that the worker is aware of the reasoning behind it.

 

Significantly, the Regulation does not prohibit the redress of any worker, in support of this right. Within Australia, the worker can take proceedings before a civil court. This is consistent with the intent of Article 9(4) of the ICCPR - the entitlement (of an individual) to take proceedings before a court, to determine the lawfulness of a direction.

 

Rights against discrimination

 

Article 26 of ICCPR and article 27 of the Convention on the Rights of Persons with Disabilities provides for the protection against discrimination on any ground such as race, colour, sex, language, religion, political or other status.

 

Customs and Border Protection has a responsibility under Commonwealth and State legislation to ensure that employees are not subjected to behaviour that may constitute unlawful harassment, discrimination or victimisation. Customs and Border Protection is committed to providing a work environment that is safe, fair and free from harassment, discrimination or bullying. All Customs workers have a responsibility to ensure that harassment is not tolerated.

 

This Regulation does not limit the obligations of Customs and Border Protection under the existing Commonwealth and State legislation, related to equal opportunity, discrimination or harassment. In addition to legislation, inappropriate conduct may be a breach of the Australian Public Service Code of Conduct.

 

 

Conclusion

 

This legislative instrument does not raise any human rights issues.

 

 

 

 

 

Minister for Home Affairs

 


 

ATTACHMENT

 

ATTACHMENT

DETAILS OF THE CUSTOMS (DRUG AND ALCOHOL TESTING) REGULATION 2013

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Customs (Drug and Alcohol Testing) Regulation 2013.

Section 2 - Commencement

This section provides that the Regulation commences on the day after it is registered.

Section 3 - Authority

Section 3 provides that the authority to make the Regulations is the Customs Administration Act 1985

Section 4 - Definitions

Section 4 inserts a number of definitions for the purposes of the Regulation including:

Approved device means a device approved under section 6.

Medical practitioner has the same meaning as in subsection 3(1) of the Health Insurance Act 1973.

Registered nurse has the same meaning as in subsection 3(1) of the Health Insurance Act 1973.

PART 2     DRUG TESTING

Division 1   General provisions

Section 5 - Persons authorised to conduct tests

Section 3B of the Act allows the CEO to, in writing, authorise an Officer of Customs to perform or exercise the functions or powers of an authorised officer under a particular provision of the Act.

Section 16F of the Act allows the Governor-General to make regulations for the purpose of section 16B, 16C and 16D of the Act which concern drug and alcohol testing. This includes 16F(a) which allows for regulations to make provision in relation to the authorisation of persons to conduct alcohol and prohibited drugs tests.

New subsection 5(1) would insert a table which prescribes persons who the CEO may, in writing, authorise to conduct drug and alcohol testing under sections 16B, 16C and 16D of the Customs Administration Act 1985 (the Act). There are five categories of tests identified in the table as follows:

-          an alcohol screening test

-          an alcohol breath test

-          an alcohol blood test

-          a prohibited drug test that requires the collection of a sample of blood

-          a prohibited drug test that does not require the collection of a blood sample.

In accordance with the table, the CEO can only authorise an Officer of Customs who has successfully completed an approved training course, a police officer of a State or Territory or a company to conduct tests not involving the collection of blood. A company is included here as Customs may outsource the conducting of tests to an external service provider.

Only medical practitioners and registered nurses are able to conduct tests which involve the collection of a blood sample.

New subsection 5(2) provides that where the CEO authorises a person under new subsection 5(1), the CEO must give the authorised person a certificate stating that he or she is an authorised person. In addition, the authorised person must, if requested to do so, show his or her certificate to a Customs worker who is directed to undergo a test for section 16B, 16C or 16D of the Act.

Section 6 -€“ Devices approved for tests

New section 6 allows the CEO to, in writing, approve a device as a device permitted to be used for a drug or alcohol test for section 16B, 16C or 16D of the Act.

Section 7 - Conduct of tests-general

New section 7 sets out general rules concerning the conduct of tests for section 16B, 16C or 16D of the Act.

New section 6 ensures that tests conducted under the Act must be conducted in a respectful manner, affording privacy to the Customs worker undergoing the test and if practicable, be conducted by a person of the same sex.

New subsection 7(4) provides that where a prohibited drugs test to provide a sample of hair, the sample must be provided by cutting a strand of hair or removing a strand by its root. This subsection reflects the equivalent Australian Federal Police regulation which is based on best practice endorsed by the Victorian Forensic Medical Institute, for hair sampling.

Section 8 - Record keeping

New section 8 provides for the record keeping requirements relating to breath, blood or prohibited drug test records, including where the records must be kept and for how long the records must be kept and when they must be destroyed. The regulation would also provide for retaining information for the purposes of compiling a statistical database.

 

Section 9 - Disclosure of information

New section 9 provides for the circumstances in which information revealed by a breath, blood or prohibited drug test may be disclosed. This includes:

-          if the information is already lawfully publicly known; or

-          in accordance with this Part; or

-          for the investigation of any offence or offences generally; or

-          to enable a conduct issue to be dealt with under the Public Service Act 1999 and to enable any action to be taken by the CEO in relation to the issue; or

-          for a decision whether to institute proceedings for an offence; or

-          for proceedings for an offence; or

-          for the Customs worker's medical treatment; or

-          if the Customs worker consents in writing to the disclosure.

Division 2   Alcohol breath tests

New Division 2 sets out matters relating to alcohol breath tests.

Section 10 - Procedures to be followed

New section 10 sets out procedures which must be followed in conducting alcohol breath tests. This includes prescribing the instrument which is to be used (approved by the CEO) and information to be contained in the certificate evidencing the result of the breath test.

New section 10 also allows a Customs worker who is directed to undergo an alcohol breath test to ask the authorised person conducting the test to arrange for the Customs worker to undergo an alcohol blood test. The authorised person is then required to take all reasonable steps to contact a person authorised to conduct an alcohol blood test.

Where a Customs worker makes a request for an alcohol blood test, neither the request nor the alcohol blood test absolves the Customs worker from the obligation to undergo the alcohol breath test.

Section 11 - Approval of courses

New section 11 allows the CEO to approve a training course in conducting alcohol screening tests and alcohol breath tests.

Under section 5, the CEO will only be able to authorise Officers of Customs to conduct alcohol screening tests and alcohol breath tests where the Officer of Customs has completed an approved training course.

Division 3   Blood tests and prohibited drug tests of body samples other than urine

Section 12 - Application of Division 3

New section 12 provides that Division 3 applies to alcohol blood tests and prohibited drug tests of body samples other than urine.

Section 13 - Definitions for Division 3

New section 13 provides definitions of 'analyst' and 'unanalysed sample' for the purposes of Division 3. 

'Analyst' is defined as a person at an accredited pathology laboratory who performs the quantification of a body sample taken by an authorised person.

'Unanalysed sample' is defined as a body sample submitted to an accredited pathology laboratory under paragraph 14(2)(a) for the purpose of making a sample available for independent testing.

Section 14 - Taking of body samples

New section 14 prescribes the process involved in taking a body sample including the sealing and labelling of containers and ensuring that the Customs worker understands the procedures applied to him or her.

Section 15 - Analysis of body samples

New section 15 prescribes the process involved when an analyst analyses the body sample to determine the concentration of alcohol or prohibited drug in the sample. The regulation requires a second analysis of another portion of the sample where the first analysis indicates the presence of alcohol or a prohibited drug.

Section 16 - Certificates

New section 16 provides that as soon as practicable after the analysis is conducted, the analyst must give a certificate to the Customs worker and the authorised person who directed that the Customs worker undergo the test detailing information relating to the analysis including, the results of the analysis and any observations made which may have affected the results.

If two containers were submitted to the accredited pathology laboratory, the certificate must also inform the Customs worker that he or she may collect the unanalysed sample from the laboratory within six months after the sample was taken and have the sample independently tested by another accredited pathology laboratory.

 

 

Section 17 - Disputed results

New section 17 provides that if the results of an analysis are disputed, and the second sample is made available for independent testing, the re-testing must only indicate the presence of the drug or alcohol. Due to degradation of the sample over any period of time, the re-testing need only detect the presence of the drug or alcohol and a lower result in the second test cannot call into dispute the original test results. All positive test results are notified to Custom's Medical Review Officer (MRO). The MRO is a specially trained, licensed medical practitioner with specialised knowledge in the medical use of prescription drugs and the pharmacology and toxicology of drugs. The MRO will consider all confirmed positive results, taking into account information provided by the subject and determine whether a positive result is verified. Test results of secondary samples will also be reviewed by the MRO.

Division 4   Prohibited drug tests using urine samples

Section 18 - Procedures to be followed

New section 17 provides that the provision and analysis of urine samples for the purpose of a prohibited drug test must be conducted in accordance with the Australian/New Zealand Standard.

Section 18 - Approval of courses

New section 18 authorises the CEO to approve a training course in supervising the provision of urine samples.

Under section 5, the CEO will only be able to authorise Officers of Customs to conduct urine tests where the Officer has completed an approved training course.

 

 


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