Repatriation Commission Advisory

No 1/2005

This is an advisory note only.  Veterans' Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

Prohibited Substance Use and Alcohol Abuse within the Australian Defence Force

Purpose

To provide decision makers with guidance on the role of disqualifying provisions in the Veterans' Entitlements Act 1986 (VEA) in relation to claims involving the use of prohibited substance use or alcohol abuse during service on or after 24 October 1980.

Legislation

2.Subsections 8(2), 9(3), 70(9) of the VEA provide that an injury or disease cannot be taken to be war-caused or defence-caused if it resulted from:

•      the person's serious default or wilful act; or
•      arose from a serious breach of discipline by the person; or
•      an occurrence that happened while the person was committing a serious breach of discipline.

3.In this Advisory, any reference to subsection 9(3) should also be read as a reference to subsections 8(2) or 70(9) as applicable.

Prohibited Substance Use

What is a prohibited substance?

4.The Australian Defence Force (ADF) defines a prohibited substance as a 'narcotic substance as defined in the Customs Act 1901, or any other substance determined to be a prohibited substance by the Chief of the Defence Force'.

5.This advisory uses the ADF definition of a prohibited substance.

What is a prohibited substance?

6.For a full list of  prohibited substances see:

definition of 'narcotic substance' in section 4 of the Customs Act 1901 http://www.austlii.edu.au/au/legis/cth/consol_act/ca1901124/

and

items S1, S2, S3, and S5 of The World Anti-Doping Code, 2005 Prohibited List.  The Customs Act 1901 http://www.wada-ama.org/rtecontent/document/list_2005.pdf

Examples of prohibited substances

7.The following list provides examples of prohibited substances by type as determined by the Chief of the Defence Force:

a.Narcotic substances including amphetamine, cannabinoids, cocaine, codeine, heroin, hydrocodone, morphine, methadone, opium, pentazocine and pethidine;

b.Anabolic agents (steroids) including androstenediol, androstenedione and

dehydroepiandrosterone (DHEA);

c.Hormones and related substances including erythropoietin (EPO), growth hormone (hGH), gonadotrophins (LH, hCG), insulin, insulin-like Growth Factor (IGF-1) and

corticotrophins;

d.Beta-2 agents including bambuterol, clenbuterol, fenoterol, formoterol and reproterol;

e.Diuretics and other masking agents including acetazolamide, bumetanide, etacrynic acid, frusemide (furosemide), triamterene, epitestosterone, alpha-reductase inhibitors, and plasma expanders; and

f.Benzodiazepines including diazepam (valium), temazepam (normison), flunitrazepam (rohypnol) and oxazepam (serepax).

Should the use of prohibited substances be treated differently from the use of legal drugs?

8.Yes.  The use of prohibited substances is illegal.  It is different from the use of legal drugs such as alcohol, tobacco and medication which is used as prescribed by a qualified medical practitioner and should be treated differently.

What is the ADF policy on prohibited substance use and how does it affect claims under the VEA?

9.Since at least October 1980, the ADF has had a policy of zero tolerance to prohibited substance use.  It is treated by the ADF as a serious breach of discipline.  Ongoing education campaigns ensure that the zero tolerance policy is well known by all ADF members.  In
June 2005,  a wider range of random and targeted testing was introduced and reinforces the ADF commitment to zero tolerance.

10.The zero tolerance policy is likely to result in the immediate discharge of any member who is involved in prohibited substance use.  This very strict approach by the ADF supports the application of subsection 9(3) of the VEA to exclude the veteran from receiving a pension as a result of the veteran's use of prohibited substances during service.  Generally, claims stemming from or involving the use of prohibited substances during service should be refused.

Alcohol Use

What is the ADF policy on alcohol use?

11.The ADF does permit the consumption of alcohol during general peacetime service.  However, the Department of Defence advises that, on average, alcohol consumption is banned in the majority of deployments.  Where alcohol consumption is permitted on deployment, it is restricted to a small number of drinks per day, usually no more than one or two.  These restrictions do not apply to ADF members while they are on leave outside of the operational area during the period of deployment.

How does the ADF policy on alcohol use affect claims under the VEA?

12.As the ADF does not have a zero tolerance policy in relation to alcohol, claims for alcohol related conditions are not to be treated in the same way as those involving the use of prohibited substances.  Alcohol related conditions can be considered as the basis for a claim provided that there is an appropriate causal link between alcohol consumption, service, and the condition claimed.

13.However, there may be extreme cases where using alcohol to excess may, depending on the circumstances, give rise to the application of subsection 9(3).  For example, pilots in the RAAF are not allowed to consume alcohol within 8 hours of flying.  If a pilot breached this rule and subsequently crashed an aircraft, or had a car accident on the way to the airfield where he/she was to fly an aircraft, subsection 9(3) would apply to claims resulting from these incidents.

Application of Disqualifying Provisions

Are there any situations when subsection 9(3) might not apply to prohibited substance use and alcohol abuse?

14. The application of subsection 9(3) may not be relevant in cases where the prohibited substance use or alcohol abuse did not occur until after the clinical onset of a claimed condition that can be linked to service.  For example, if a member has PTSD due to an event on service, and as a consequence of this condition, commenced using drugs post service then subsection 9(3) may not apply.  Similarly, if the member's alcohol abuse is the result of a medical condition or an incident on service then subsection 9(3) may not apply.

At what point in the decision making process should subsection 9(3) be considered when the claim involves prohibited substance use during service?

15.In cases involving the use of prohibited substances during service, and prior to the clinical onset of the claimed condition, subsection 9(3) can be applied at the initial stages of the claim examination.  There is no need to examine causal aspects of the claimed condition.  This approach is possible due to the zero tolerance policy of the ADF that any prohibited substance use during service will constitute a serious breach of military discipline.  Therefore, where it is confirmed that a claim involves the use of prohibited substances during service, subsection 9(3) can be applied and the claim finalised without further investigation.

At what point in the decision making process should subsection 9(3) be considered when the claim involves abuse of alcohol use during service?

16.In cases involving the abuse of alcohol during service, and prior to the clinical onset of the claimed condition, subsection 9(3), when considered relevant, is applied at the final stage in the decision making process.  That is, after the contention has been found to contain one or more of the factors in the relevant Statement of Principles (refer to stage 4 of the Commission Guideline CM5542).

Obtaining information

17.The Statement of Service for Army members includes information on offences and penalties.  However, Statements of Service for RAAF and Navy members only include service details.  While information on offences is available, it will not be provided unless it is specifically requested.

18.Therefore, in cases where it appears that RAAF and Navy personnel used prohibited substances or abused alcohol, information on offences and penalties should be requested from RAAF and Navy records.  This request can be made at the same time that service information is requested, or later if necessary.

Cases to be referred to National Office

19.All cases where subsection 9(3) may apply due to:

• prohibited substance use; or
• the excessive use of alcohol;

should be referred to the Director, VEA Compensation Policy Section, National Office for advice prior to determination.

Branch Head

Veterans' Compensation

    November 2005