Defence (Prohibited Substances) Determination 2021

This Determination rests on three primary legal and drafting concepts visible in the text: statutory delegation, incorporation by reference with fixed dates, and a hybrid enumeration technique merging external lists and express local entries.

Statutory delegation: the instrument is made under an express delegated power in the Defence Act 1903, namely subsection 93B(1) (s 3). The instrument therefore operates as a subordinate instrument that defines an element used by the parent Act, namely the list of “prohibited substances” for Part VIIIA.

Incorporation by reference with fixed dates: the Determination incorporates two external classification instruments by name, but not in a rolling manner. The World Anti‑Doping Code International Standard Prohibited List 2021 is adopted “as in force under the World Anti‑Doping Code on 1 January 2021” and the Poisons Standard is adopted “as in force on 1 June 2021” (s 5). That establishes a temporal cut‑off: the content of those external instruments for the relevant dates becomes the content of the Determination. Subsequent amendments to the external documents after those dates are not automatically incorporated by this Determination; the Determination fixes the reference point.

Hybrid enumeration technique: s 6 uses three devices concurrently:

• wholesale class adoption from an external list: “a substance in class S0, S1, S2, S4, S6, S7, S8 or S9 of the World Anti‑Doping Code International Standard Prohibited List 2021” (s 6(1));
• wholesale adoption of Poisons Standard schedules: “a substance listed in Schedule 4, 8 or 9 of the 2021 Poisons Standard” (s 6(2)); and
• express local entries for named substances and an open‑ended category: items 3-11 of s 6 include “Alkylamines with stimulant properties”, specific chemical names (for example “1,3‑Dimethylamylamine (DMAA)”), and other named chemicals (for example “Gamma Butyrolactone (GBL)”) (s 6(3)-(11)).

The combination of incorporation by reference and standalone entries is designed to capture both internationally recognised antidoping classes and national pharmaceutical/poisons classifications, while also listing specific chemicals that the instrument-maker wishes to single out.

The Determination contains a mechanism for replacing a prior instrument by express repeal. Schedule 1 enacts a full repeal of the Defence Determination (Prohibited Substances) 2019, so the 2021 Determination is the operative subordinate instrument after commencement.

Terminology control is explicit. The instrument defines the short references it uses (for example “World Anti‑Doping Code International Standard Prohibited List 2021” and “Poisons Standard”) so readers must read the definitions in s 5 for proper interpretation.

The Determination identifies substances “for the purpose of Part VIIIA of the Act” (s 6). The instrument itself does not elaborate the scope of Part VIIIA; it therefore affects those persons and entities subject to Part VIIIA as defined in the Defence Act 1903. The text of this Determination does not specify which groups Part VIIIA covers, so any discussion of specific categories of people (for example, members of the Australian Defence Force, civil staff under the Act, or contractors) would need to be grounded in the Defence Act itself rather than in this Determination. The Determination is, however, targeted to be applied in that statutory context.

Operationally, entities that will need to pay attention to the Determination are the bodies and individuals responsible for implementing Part VIIIA processes under the Act. The Determination was made by the Chief of the Defence Force (s 3 and instrument heading), which signals that decision-making and administrative responsibility for the list sits at the Chief’s delegated level. The Determination will therefore be relevant to:

• decision-makers implementing Part VIIIA (for example those who administer testing, discipline, or medical oversight under the Act), because s 6 supplies the list they must apply;
• medical officers, pharmacists, procurement and logistics personnel who handle medicines, supplements or substances for defence personnel, since the Determination identifies particular Poisons Standard schedules and named chemicals that are treated as prohibited (s 6(2) and s 6(3)-(11)); and
• personnel covered by Part VIIIA, whose conduct and medical status will be assessed against the set of substances declared prohibited by this Determination (s 6).

The Determination’s references to the World Anti‑Doping Code International Standard Prohibited List 2021 and the Poisons Standard June 2021 mean that parties whose occupational or recreational substance use intersects with the classifications in those external documents should take account of the dates fixed by the Determination (s 5). Because the Determination fixes those external documents to particular dates (1 January 2021 and 1 June 2021 respectively), changes to those external lists after those dates do not change what is prohibited under this Determination unless and until the Determination itself is amended.

Finally, the repeal in Schedule 1 removes the 2019 Determination from effect, so any body or individual that relied on the 2019 instrument must transition to applying the 2021 Determination from its commencement date (Schedule 1; s 2).

The Determination does not itself set out procedural duties, investigative powers, sanctions, or appeal rights; it functions as an authoritative list of prohibited substances to be applied under Part VIIIA of the Defence Act 1903 (s 6). The instrument therefore creates, in legal effect, a definitional input into the statutory regime in Part VIIIA rather than expressing duties and rights directly.

What the Determination does impose, in practical terms, is an obligation on administrators applying Part VIIIA to treat the named classes and substances as “prohibited substances” when they are construing and applying that Part (s 6). That means any duties, prohibitions, testing rules, or disciplinary provisions contained in Part VIIIA will be applied against substances within the scope of s 6. The Determination thus affects the content of the statutory obligations and disciplinary consequences created by the Act, but the Determination itself does not restate those obligations.

Key interpretative rights and constraints follow from the text:

• fixed-reference interpretive constraint: because the instrument defines the external documents it incorporates by reference with precise dates (s 5), an affected person has a right to rely on what those documents said on the stated dates when contesting whether a substance was within the Determination’s scope; conversely, they cannot rely on later changes to those external lists to alter the Determination’s content unless the Determination is amended;
• definitional effect: a substance that falls into any of the specified WADA classes (S0, S1, S2, S4, S6, S7, S8 or S9) as at 1 January 2021, or into Schedule 4, 8 or 9 of the Poisons Standard as at 1 June 2021, must be treated as prohibited under s 6; and
• local addition and open category: the Determination creates an immediate obligation with respect to certain named chemicals (items 4-11 in s 6) and a residual open category (“Alkylamines with stimulant properties”), which may require technical or forensic interpretation to determine whether a specific chemical formulation is captured.

Because the Determination is limited to specifying the substances to be treated as prohibited for Part VIIIA, rights to procedural fairness, review, appeal and the like will reside in the Defence Act’s Part VIIIA itself and in the general law; they are not established or altered by this Determination. Readers must therefore consult Part VIIIA of the Act to identify the procedural protections and substantive sanctions that apply when the Determination’s list is invoked.

The Determination does not itself create offences, penalties, enforcement powers, testing protocols, or sentencing regimes. It is a subordinate instrument that defines the substances that are to be treated as prohibited for the purposes of Part VIIIA of the Defence Act 1903 (s 6). Any penalties, enforcement mechanisms, or processes for investigation, testing, discipline, or adjudication are furnished by the Act (specifically Part VIIIA) and by any regulations or Defence administrative procedures authorised by the Act. The Determination therefore functions as a definitional input that will be applied within the Act’s enforcement architecture rather than as an enforcement instrument on its own.

Practical implications flowing from this separation:

• enforcement agencies or decision-makers operating under Part VIIIA must apply the Determination’s list when deciding whether a substance-related fact falls within the statutory prohibitions or disciplinary rules of Part VIIIA (s 6);
• because the Determination fixes the version of the external lists it adopts to specific dates (s 5), the timing of offence or testing events relative to those dates may be legally relevant; an enforcement decision-maker applying Part VIIIA will need to reference the Determination’s date-specific incorporations when establishing whether a tested substance is “prohibited” for the purposes of the offence or disciplinary provision being applied; and
• any prosecution, disciplinary proceeding, or administrative decision that relies on the Determination will need to establish that the substance falls within one of the listed categories in s 6 , which may require cross-referencing the defined external documents as at the stated dates, and technical evidence to match a tested compound to a named entry or class.

Because the Determination itself contains no penalty clauses, readers should not look to it for notice of the specific sanctions that can flow from being found to have used, possessed or supplied a prohibited substance; those sanctions must be sought in the parent Act, subordinate legislative instruments made under the Act, or Defence policies and procedures that implement Part VIIIA.

The Determination explicitly interlocks with several external legal and regulatory instruments by reference and by purposive link:

• Defence Act 1903: the Determination is made under subsection 93B(1) of the Defence Act (s 3). Its operative content is expressly limited to substances “for the purpose of Part VIIIA of the Act” (s 6). Therefore the Determination is a subordinate instrument that supplies a definitional element to the Act; its content is relevant only insofar as Part VIIIA invokes the notion of “prohibited substances”. The Determination does not displace or restate Part VIIIA’s enforcement, procedure, or sanctioning provisions.
• World Anti‑Doping Code and International Standard: the Determination adopts the World Anti‑Doping Code International Standard Prohibited List 2021 as it stood on 1 January 2021 (s 5). The instrument also defines the term “World Anti‑Doping Code” by reference to the definition in the Australian Sports Anti‑Doping Authority Act 2006 (s 5). This creates an explicit point of contact between Defence’s prohibited‑substance regime and the international antidoping framework incorporated for the fixed date. The Determination therefore aligns its prohibited classes with selected antidoping classes but only as at the stated date.
• Poisons Standard: the Determination adopts the Poisons Standard June 2021 as in force on 1 June 2021 (s 5) and then makes all substances listed in Schedule 4, 8 or 9 of that Poisons Standard prohibited for Part VIIIA purposes (s 6(2)). That produces a direct interface between medicines/poisons regulatory classifications and Defence’s prohibited list, again as at a fixed historical version.
• Prior Defence Determination: Schedule 1 expressly repeals the Defence Determination (Prohibited Substances) 2019 in whole. That is a direct internal interaction between subordinate instruments: the 2021 Determination supersedes and replaces the 2019 Determination (Schedule 1).

Because the Determination uses dated incorporations of external instruments rather than a rolling incorporation, it creates a fixed cross‑reference point rather than a dynamic interface: the legal content of the adopted external lists is the content those lists had on the relevant dates (s 5). This choice interacts with any other legal instrument or policy that instead adopts a later or rolling version of those external lists; there may be temporal mismatches where a substance added to an external list after the fixed date is treated differently across regulatory regimes.

The Determination’s local additions (for example the specific chemical names and the category “Alkylamines with stimulant properties” in s 6) mean that substances might be prohibited under Defence rules even if they are absent from one of the referenced external lists as at the stated dates. Conversely, a substance could appear on a later WADA or Poisons Standard list and not be captured by this Determination until the Determination itself is updated.

Finally, the Determination’s reliance on the Australian definition of the World Anti‑Doping Code (s 5) links it to the national legislative frame governing antidoping. That link is definitional rather than procedural, but it creates a common legal vocabulary across Defence and other statutory regimes that reference the WADA Code.

The text supplied shows a single point of instrument-level change at the time of making: this Determination repeals the Defence Determination (Prohibited Substances) 2019 in its entirety (Schedule 1). The operative entries on amendment history within the Determination are:

• the Determination is made under subsection 93B(1) of the Defence Act 1903 (s 3), and it is dated 5 October 2021 in the heading;
• it commences on the day after registration (s 2); and
• Schedule 1 effects a complete repeal of the Defence Determination (Prohibited Substances) 2019, expressed as “The whole of the instrument , Repeal the instrument” (Schedule 1).

There are no other amending provisions, saving clauses, transitional arrangements or sunset clauses in the text supplied. The Determination fixes the versions of the external lists it incorporates by reference as at 1 January 2021 (World Anti‑Doping International Standard Prohibited List 2021) and 1 June 2021 (Poisons Standard June 2021) through the s 5 definitions. That is, the Determination’s substantive scope is tied to those dated versions unless and until the Determination is itself amended.

Because the Determination repeals the 2019 instrument in full, any changes between the 2019 Determination and the 2021 Determination will be effectual from the 2021 Determination’s commencement date. The instrument contains no transitional text, so compliance systems, disciplinary guidelines, procurement practices and medical supply chains must transition from applying the 2019 Determination to applying the 2021 Determination immediately on commencement. The Determination contains no express savings for conduct that occurred under the 2019 Determination; any retrospective or transitional questions would therefore have to be resolved by reference to the Act and to general principles of statutory interpretation and administrative practice, not by the Determination itself.

No subsequent amendments to this Determination are recorded in the text provided.

The Determination text contains no references to litigation, court decisions, or legal challenges. It does not record any judicial consideration of the Determination or of its predecessor instrument. The instrument is a subordinate legislative instrument: any litigation about its application would be expected to arise in the course of proceedings under Part VIIIA of the Defence Act 1903 or in collateral challenges to administrative decisions using the Determination, but the Determination itself provides no narrative or record of court outcomes.

Where a party wishes to challenge the application of the Determination in a particular case , for example, whether a particular chemical tested in a proceeding falls within an item in s 6 , the Determination supplies the legal text that courts or tribunals would apply to characterisation questions: the relevant WADA classes as at 1 January 2021, the Poisons Standard schedules as at 1 June 2021, and the named chemicals and open category in s 6. Any litigation record would therefore need to analyse those sources and any technical evidence about chemical identification. There is no express provision in the Determination concerning admissibility, evidentiary standards, or expert evidence; those matters would be dealt with in the relevant adjudicative forum and under the Defence Act and general law.

In short, the Determination as supplied records no litigation history. Any litigation that engages it will concern interpretation and application of the textual categories in s 6 in the statutory context of Part VIIIA.

The Determination is compact, but it contains a number of textual and operational features that create legal and practical friction points for users. These are matters of interpretation, timing, and implementational workload that derive directly from the instrument’s text.

Fixed‑date incorporations. The Determination adopts external lists “as in force” on precise past dates: the World Anti‑Doping International Standard Prohibited List 2021 as at 1 January 2021, and the Poisons Standard June 2021 as at 1 June 2021 (s 5). The effect is that later amendments to those external instruments do not alter the Determination’s content. This produces a timing mismatch risk where other regimes or later Defence policies refer to the latest WADA list or a later version of the Poisons Standard. Implementers must take care to use the correct dated versions; using a later version could produce false positives or false negatives when deciding whether a substance is prohibited under Part VIIIA.

Omissions of classes. The Determination incorporates WADA classes S0, S1, S2, S4, S6, S7, S8 and S9 (s 6(1)). Notably S3 and S5 are not included in that list. The Determination therefore excludes those particular WADA classes from the wholesale WADA adoption, which may be intentional to limit coverage, but the instrument does not explain the policy reasons. An operative effect is that a substance that falls solely within WADA class S3 or S5 as at 1 January 2021 will not be captured by s 6(1) unless it is captured by another provision such as the Poisons Standard schedules or the express entries in s 6.

Broad and imprecise textual categories. Item 3 in s 6 designates “Alkylamines with stimulant properties”. That is an open-ended chemical category requiring technical definition in practice (which alkylamines, which alkyl chain lengths, which substituents, salts, stereoisomers or esters are captured?). The Determination does not provide chemical structure definitions, CAS numbers, or cross-reference tables. Enforcement and compliance decisions that hinge on whether a specific compound qualifies as an “alkylamine with stimulant properties” will therefore require technical chemical analysis and may produce disputes about category boundaries.

Named entries without identifying numbers. Several specific chemicals are listed by name (for example 1,3‑Dimethylamylamine (DMAA); 1,5‑Dimethylhexylamine (DMHA); 1,4‑Dimethylpentylamine (DMPA); Gamma Butyrolactone (GBL); Isopropyl Nitrite; Phenpromethamine; 1,1,1‑Trichloroethane) (s 6(5)-(11)). The Determination does not provide alternate names, brand names, synonyms or CAS registry numbers. Substances often circulate under multiple chemical names, trade names or salt forms; implementers will need technical reference resources to match a tested sample or a product label to the list entries.

Overlap of WADA classes and Poisons Standard schedules. s 6(1) and s 6(2) create two routes to prohibition: WADA classes and Poisons Standard schedules. A substance could be captured by both, by one, or by the express entries. Implementers must check both sources as at the fixed dates. This is a double‑edge in practice: it increases capture coverage but also increases complexity for laboratory interpretation and for providers of medical treatment who may rely on the Poisons Standard but not the WADA list.

Repeal without transitional provisions. Schedule 1 repeals the entire 2019 Determination, and there are no transitional or saving clauses in the 2021 Determination. That means on commencement bodies must switch to the 2021 list immediately. Any transitional questions about consequences for conduct that occurred while the 2019 Determination was in force are not addressed by the Determination and must be resolved under the Defence Act and general legal principles.

Scope limited to Part VIIIA. The Determination is expressly “for the purpose of Part VIIIA of the Act” (s 6). It therefore does not purport to affect other areas of law (for example civilian criminal law, general employment law, or other statutory regimes). Practitioners must avoid assuming the Determination creates offences or standards outside Part VIIIA.

Potential for classification disputes. Because parts of the list are adopted from external instruments and parts are locally enumerated, disputes may arise about whether a tested compound is the same as a listed compound, whether a compound is a derivative or analogue, or whether a salt, ester or metabolite is caught. The Determination gives no interpretive guidance on these points; they will be matters for technical evidence and legal argument when the Determination is applied.

In short, the primary operational gotchas are: the need to use the correct dated versions of external documents (s 5); potential gaps where some WADA classes are omitted (s 6(1)); the presence of broad categories lacking technical definition (s 6(3)); the absence of chemical identifiers beyond names; and the lack of transitional or procedural detail in the Determination itself.

Compliance requires reading the Determination as a definitional input to Part VIIIA of the Defence Act 1903 and then aligning administrative, medical, procurement and disciplinary processes to the Determination’s textual categories. The following steps flow directly from the instrument’s text and will reduce legal and operational risk.

1. Confirm applicability and the relevant statutory framework. The Determination applies “for the purpose of Part VIIIA of the Act” (s 6). To understand duties, sanctions, testing procedures and appeal rights you must consult Part VIIIA of the Defence Act 1903 and any Defence regulations, policies, or procedural instruments that implement Part VIIIA. The Determination alone does not specify those procedures.

2. Use the precise dated external documents. The Determination defines its incorporated external documents in s 5: the World Anti‑Doping Code International Standard Prohibited List 2021 as in force on 1 January 2021, and the Poisons Standard June 2021 as in force on 1 June 2021. For compliance checks, use those exact dated versions. Maintain archival copies or snapshots of those documents as at the stated dates for evidentiary clarity.

3. Map the Determination’s categories to operational lists. Construct an internal, authoritative register that cross-references:

   • the WADA classes included (S0, S1, S2, S4, S6, S7, S8, S9) with the substances listed under those classes in the 1 January 2021 WADA document (s 6(1));
   • the Poisons Standard Schedule 4, 8 and 9 entries as at 1 June 2021 (s 6(2)); and
   • the express named substances in s 6(3)-(11), plus the open category “Alkylamines with stimulant properties” (s 6(3)). For each entry, include synonyms, trade names, CAS numbers, and typical formulations to improve detection and avoid misclassification.

4. Establish laboratory and technical protocols for identification. Because the Determination contains broad categories and chemical names without CAS numbers, compliance requires laboratory protocols that map test results to the textual categories. For ambiguous categories (for example “Alkylamines with stimulant properties”), obtain expert chemical analysis and written expert evidence standards to underpin classification decisions.

5. Update procurement, medical and supply chains. Medical officers, pharmacists and logistics personnel should review their formularies and supply lists against the Determination’s entries. Items that fall within Poisons Standard Schedules 4, 8 or 9 as at 1 June 2021 are captured (s 6(2)). Where necessary, prepare alternative approved medicines or approved processes for legitimate therapeutic use, noting that the Determination does not itself create therapeutic exemptions , those will arise in Part VIIIA or operational policy.

6. Revise personnel guidance and testing consent forms. Personnel subject to Part VIIIA need to know what substances are prohibited. Provide training materials that show the definitive sources and the dated cut‑offs (s 5), and explain that this Determination supersedes the 2019 Determination from commencement (Schedule 1).

7. Track and document changes. Because the Determination fixes external lists to historical versions, maintain a change log that records any future updates to the Determination itself, and note differences between the Determination’s fixed lists and the current versions of WADA and the Poisons Standard. That will assist in adjudicating cases that involve substances added to external lists after the Determination’s fixed dates.

8. Legal and technical reviews for edge cases. For substances not obviously listed (for example analogues, new designer stimulants that may fall within “alkylamines”), obtain contemporaneous legal advice and forensic chemistry reports before making enforcement or disciplinary decisions. Document the basis for any classification decision with reference to the Determination’s text, the fixed external documents, and expert evidence.

9. Administrative transition from the 2019 Determination. Because Schedule 1 repeals the 2019 Determination in full, ensure that all compliance databases, disciplinary protocols and medical guidance are migrated to reference the 2021 Determination on its commencement date (s 2; Schedule 1). Remove conflicting references to the 2019 Determination from internal policies.

10. Preserve records for evidentiary purposes. Where a enforcement action, test or discipline relies on the Determination, preserve the Determination text, the archived versions of the referenced external documents as at the defined dates, and laboratory records mapping a sample to a listed entry. Those preserved documents will be central to any legal or administrative review given that the Determination’s content depends on dated external sources (s 5).

These steps flow from the text and structure of the Determination. Because the Determination supplies a list and not procedure, compliance combines legal mapping (to Part VIIIA and the dated external lists) with technical mapping (to laboratory and supply chain realities) and administrative change control to ensure consistent application across the Defence environment.