Rail Safety (Adoption of National Law) Regulation 2018
In ForceNSW
Jurisdiction
New South Wales
Act Number
396 of 2018
Collection
regulation
Plain English Summary
8/10 complexity
What it does: Sets detailed procedures for drug and alcohol testing of rail safety workers (breath, blood, oral fluid, urine), how samples are taken, handled and analysed, what test results or certificates are admissible in court, and a radio communications/back‑up requirement for trains.
It affects rail safety workers, rolling‑stock operators, rail infrastructure managers, authorised persons and approved laboratories; it matters because it creates compliance duties, penalties, evidentiary shortcuts and regulatory discretion, and lets workers fund independent re‑analysis (see cl 11(6), 16(4), 17(5), 18(6)).
This Regulation prescribes procedural, evidentiary and equipment requirements that operationalise the Rail Safety National Law (NSW) offences concerning alcohol and other drugs and introduces technical and operational obligations for trains on the NSW rail network. The principal mechanical changes in the text are: (a) detailed rules for drug and alcohol testing of rail safety workers, including who may be tested and how tests are to be selected and conducted (Part 2, Divisions 1-4); (b) specified chain‑of‑custody, sample handling and laboratory analysis rules and which laboratories and devices are accepted (cl 3; cls 16-19; cl 29); (c) additional criminal offences and penalties connected to testing compliance and sample handling (cls 21-23); (d) rules on what evidence is prima facie and when laboratory or device results are taken to relate to the relevant time (cls 25-30); and (e) a separate operational requirement that each train be fitted with a radio communications system and a back‑up means of communication, with limited exemption powers for the Regulator (cls 31-32).
Mechanically, the Regulation does the following with source citations:
Defines terms and lists approved laboratories, approved oral fluid analysing instruments and approved oral fluid testing devices (cl 3). The defined list includes named laboratories (NSW Health Pathology Forensic & Analytical Science Service at Lidcombe and North Ryde; selected Victorian and private pathology providers) and named device models (cl 3).
Permits selection of rail safety workers for testing on a random or targeted basis (cl 7).
Sets limits on when an authorised person may require tests (for example not after the expiration of three hours from the time the worker carried out the work or was due to commence it; cl 8(b)), and provides for sobriety assessments when breath testing devices are not available (cl 10).
Current sections
Direct links to the current provisions in Rail Safety (Adoption of National Law) Regulation 2018.
analyst means a person employed by the owner or operator of an approved laboratory as an analyst.
approved laboratory means—
(a) in relation to blood samples—the following laboratories—
(i) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at Lidcombe,
(ii) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at North Ryde, and
(b) in relation to urine samples—a laboratory that has been accredited by the National Association of Testing Authorities, Australia for AS/NZS 4308:2023, and
(c) in relation to oral fluid samples—the following laboratories—
(i) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at Lidcombe,
(ii) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at North Ryde,
(iii) the laboratory at Racing Analytical Services Ltd at Flemington, Victoria,
(iv) the laboratory at Douglass Hanly Moir Pathology at 14 Giffnock Avenue, Macquarie Park.
approved oral fluid analysing instrument means—
(a) an approved oral fluid analysing instrument within the meaning of Schedule 3 to the Road Transport Act 2013, or
(b) the device known as Thermo TSQ Quantum Ultra, or
(c) the device known as Thermo TSQ Quantum Access, or
(d) the device known as Thermo TSQ Orbitrap Discovery, or
(e) the device known as AB Sciex QTrap 5500, or
(f) the device known as Shimadzu High Performance Liquid Chromatography Mass Spectrometer LCMS-8060, or
(g) the device known as Sciex TripleQuad 6500+ system, or
(h) the device known as Agilent 6460 Triple Quadrupole LC/MS.
approved oral fluid testing device means—
(a) an approved oral fluid testing device within the meaning of Schedule 3 to the Road Transport Act 2013, or
(b) the device known as Medvet Oral7, or
(c) the device known as Clonal Technologies Oral Fluid Drug Test 7, or
(d) the device known as Oranoxis ToxWipe 7+.
AS/NZS 4308:2023 means AS/NZS 4308:2023, Procedures for specimen collection and the detection and quantification of drugs in urine.
authorised sample taker has the same meaning as in Schedule 3 to the Road Transport Act 2013.
drug screening test means a test carried out by an approved oral fluid testing device for the purpose of ascertaining whether any drugs are present in a person’s oral fluid.
hospital means any of the following—
(a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,
(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,
oral fluid analysis means a test carried out by an approved oral fluid analysing instrument for the purpose of ascertaining, by analysis of a person’s oral fluid, the presence of drugs in that person’s oral fluid.
preliminary breath test means a test for the purpose of indicating the concentration of alcohol in a person’s breath or blood, carried out on that person’s breath by means of a device, not being a breath analysing instrument, of a type that complies with the requirements of AS 3547:2019, Breath alcohol testing devices, as reissued in January 2021, or of a type approved by the Governor by order published in the Gazette for the purposes of the Road Transport Act 2013.
sample, in relation to urine, includes, if the sample is divided into portions, a portion of the sample.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2) A reference in this Regulation to a police officer authorised by the Commissioner of Police to carry out a breath analysis is a reference to a police officer so authorised under the Road Transport Act 2013.
(3) For the purposes of this Regulation, a power to require a person to provide a sample of blood, oral fluid or urine includes a power to require a person to provide samples of any one or more of blood, oral fluid or urine.
(4) Notes included in this Regulation do not form part of this Regulation.
(a) the document commencing proceedings may allege that more than one drug was present in the blood or oral fluid of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the document, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the blood or oral fluid of the defendant—
(i) a prescribed drug described in the document commencing proceedings, or
(ii) a combination of prescribed drugs any one or more of which was or were described in the document.
(a) the document commencing proceedings may allege that the person was under the influence of more than one drug and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the document, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was so much under the influence of—
(i) a drug described in the document commencing proceedings, or
(ii) a combination of drugs any one or more of which was or were described in the document,
as to be incapable of effectively discharging a function or duty of a rail safety worker.
(3) In subclause (2), drug includes alcohol.
5
Measurement of alcohol concentrations
5 Measurement of alcohol concentrations
5 Measurement of alcohol concentrations
(1) For the purposes of the Rail Safety National Law (NSW) and this Part, the concentration of alcohol present in a person’s breath or blood may be expressed as follows—
(a) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the breath—the amount of alcohol in grams in 210 litres of breath,
(b) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the blood—the amount of alcohol in grams in 100 millilitres of blood,
(c) in the case of a sample of blood—the amount of alcohol in grams in 100 millilitres of blood.
(2) An amount of alcohol in grams present in breath when measured by reference to 210 litres of breath is, for the purposes of the Rail Safety National Law (NSW) and this Part, taken to be equivalent to the same amount of alcohol in grams present in blood when measured by reference to 100 millilitres of blood.
6
Test results may not be used for offence where worker had not commenced work
6 Test results may not be used for offence where worker had not commenced work
6 Test results may not be used for offence where worker had not commenced work
The results of any breath test, breath analysis, drug screening test, oral fluid analysis or blood or urine test conducted on a rail safety worker who was about to carry out work are not admissible in any proceedings for an offence under section 128 of the Rail Safety National Law (NSW).
Division 2
Testing for alcohol or other drugs
Division 2 Testing for alcohol or other drugs
Division 2 Testing for alcohol or other drugs
7
Random and targeted testing of rail safety workers
7 Random and targeted testing of rail safety workers
7 Random and targeted testing of rail safety workers
The selection of a rail safety worker for testing for the presence of a drug or alcohol under the Rail Safety National Law (NSW) or this Part may be conducted on a random or targeted basis.
8
Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
8 Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
8 Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
An authorised person must not require a rail safety worker to undergo a breath test, submit to a sobriety assessment, breath analysis or drug screening test or provide a sample of blood, oral fluid or urine—
(a) if it appears to the authorised person that it would (because of injuries sustained by the worker) be dangerous to the worker’s medical condition if the worker complied with the requisition, or
(b) at any time after the expiration of 3 hours from the time the worker carried out the rail safety work (or was due to commence the rail safety work) to which the requisition relates, or
(c) in the case of a person other than a worker who has been involved in an accident or irregular incident while carrying out rail safety work, after the person has ceased to be on duty on a particular day, or
(d) at the worker’s home.
9
Supervisee may perform functions of authorised sample taker or authorised person
9 Supervisee may perform functions of authorised sample taker or authorised person
9 Supervisee may perform functions of authorised sample taker or authorised person
(1) Any duty of an authorised sample taker or an authorised person under this Part may be performed by a person acting at the direction or under the supervision of the authorised sample taker or an authorised person.
(2) A duty performed by any such person is taken to have been performed by the authorised sample taker or authorised person.
10
Sobriety assessment if breath testing device not available
10 Sobriety assessment if breath testing device not available
10 Sobriety assessment if breath testing device not available
(1) An authorised person may require a rail safety worker to submit to a sobriety assessment in accordance with the directions of the authorised person if—
(a) the authorised person is entitled under the Rail Safety National Law (NSW) and this Regulation to require the worker to undergo a breath test, and
(b) the device required to carry out the breath test is not readily available.
(2) A requirement that a rail safety worker submit to a sobriety assessment is not open to challenge in any proceedings merely on the basis that the device was readily available.
11
Breath analysis of rail safety workers following breath testing
11 Breath analysis of rail safety workers following breath testing
11 Breath analysis of rail safety workers following breath testing
(1) An authorised person may require a rail safety worker to submit to a breath analysis in accordance with the directions of the authorised person only if—
(a) it appears to the authorised person, as a result of a preliminary breath test or sobriety assessment under this Regulation, that the prescribed concentration of alcohol may be present in a rail safety worker’s breath or blood, or
(b) a rail safety worker who is required by an authorised person to undergo a preliminary breath test, or to submit to a sobriety assessment under this Regulation, refuses or fails to do so in accordance with the directions of the authorised person.
(2) If a police officer is entitled to require a rail safety worker to submit to a breath analysis, the officer may—
(a) arrest the worker without a warrant, and
(b) take the worker with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the worker for the purposes of the breath analysis.
(3) If an authorised person (other than a police officer) is entitled to require a rail safety worker to submit to a breath analysis, the authorised person may direct the worker to attend the nearest police station, or such other place as the authorised person may require, and there submit to a breath analysis.
(4) A breath analysis must be carried out by—
(a) an authorised person (other than a police officer), or
(b) a police officer authorised by the Commissioner of Police to carry out a breath analysis,
at or near a police station or such other place as the authorised person or police officer considers desirable.
(5) As soon as practicable after a rail safety worker has submitted to a breath analysis the authorised person or police officer operating the breath analysing instrument must deliver to the worker a statement in writing signed by the authorised person or police officer specifying—
(a) the concentration of alcohol determined by the analysis to be present in the worker’s breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood, and
(b) the day on which and time of the day at which the breath analysis was completed.
(6) A rail safety worker who is required to submit to a breath analysis may request the authorised person or police officer making the requisition to arrange for the taking by an authorised sample taker (in the presence of an authorised person or a police officer) of a sample of the worker’s blood for analysis, at the worker’s own expense.
(7) The making of any such request or the taking of a sample of a rail safety worker’s blood does not relieve the worker from the obligation imposed on the worker to submit to a breath analysis in accordance with this clause.
12
Oral fluid analysis following drug screening test or request
12 Oral fluid analysis following drug screening test or request
12 Oral fluid analysis following drug screening test or request
(1) An authorised person may require a rail safety worker to provide an oral fluid sample in accordance with the directions of the authorised person for the purposes of an oral fluid analysis if—
(a) it appears to the authorised person from one or more drug screening tests carried out by the authorised person under the Rail Safety National Law (NSW) that the device by which the test was carried out indicates that there may be one or more drugs present in the person’s oral fluid, or
(b) the person refused to submit to a drug screening test required under that Law or fails to submit to that test in accordance with the directions of the authorised person.
(2) An authorised person may require a person to provide a blood sample in accordance with the directions of an authorised sample taker if the person—
(a) has attempted to provide an oral fluid sample as directed under this clause, but
(b) has been unable to comply with that direction (for example, because no oral fluid was able to be produced).
(3) If a police officer is entitled to require a rail safety worker to provide an oral fluid sample for an oral fluid analysis, the officer may—
(a) arrest the worker without a warrant, and
(b) take the worker with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the worker for the purposes of providing the oral fluid sample for the oral fluid analysis.
(4) If an authorised person (other than a police officer) is entitled to require a rail safety worker to provide an oral fluid sample for an oral fluid analysis, the authorised person may direct the worker to attend the nearest police station, or such other place as the authorised person may require, and there provide an oral fluid sample for an oral fluid analysis.
13
Samples taken at hospitals from rail safety workers involved in accidents in carrying out rail safety work
13 Samples taken at hospitals from rail safety workers involved in accidents in carrying out rail safety work
13 Samples taken at hospitals from rail safety workers involved in accidents in carrying out rail safety work
(1) If a rail safety worker attends or is admitted to a hospital for examination or treatment because the worker has been involved in an accident while carrying out rail safety work, an authorised person may require the worker to provide as soon as practicable a sample of the worker’s blood or urine in accordance with the directions of a medical practitioner who attends the worker at the hospital.
(2) A rail safety worker is not required to provide a sample of blood or urine unless the medical practitioner who attends the worker at the hospital (or, if no medical practitioner is present to attend the person, a registered nurse) has been notified of the intention to make the requisition and the medical practitioner or nurse does not object on the ground that compliance would be prejudicial to the proper care or treatment of the worker.
(3) If there is no medical practitioner present to attend the person at the hospital, the blood or urine sample is to be taken by a registered nurse.
(4) Any such medical practitioner or nurse must take the sample if informed by the authorised person that the sample is required to be taken by the practitioner or nurse under this Regulation.
(5) A requirement under subclause (1) need not be made directly to the rail safety worker concerned but may be made through a medical practitioner or any such nurse who attends the worker at the hospital.
(6) Nothing in clause 29 enables evidence to be given of or in relation to the presence of a drug, or the presence of a particular concentration of a drug, in the blood or urine of a person charged with an offence under section 128 of the Rail Safety National Law (NSW) (as determined by an analysis of a sample obtained under this clause) unless the court is satisfied that the analysis was not arranged in contravention of this Regulation.
14
Additional circumstances when blood or urine samples may be taken
14 Additional circumstances when blood or urine samples may be taken
14 Additional circumstances when blood or urine samples may be taken
(1) An authorised person may require a rail safety worker to provide a sample of the worker’s blood or urine if—
(a) the authorised person is entitled under the Rail Safety National Law (NSW) and this Regulation to require the worker to submit to a breath analysis, and
(b) a breath analysing instrument is not readily available.
(2) An authorised person who has a reasonable belief that, by the way in which a rail safety worker was acting, the worker might be under the influence of alcohol or a drug, may require the worker to provide a sample of the worker’s blood or urine if—
(a) the worker has undergone a preliminary breath test in accordance with this Regulation, and
(b) the result of the test does not permit the worker to be required to submit to a breath analysis, and
(c) the authorised person has required the worker to submit to a sobriety assessment and—
(i) the worker refuses to submit to the assessment, or
(ii) after the assessment is made, the authorised person has a reasonable belief that the worker is under the influence of alcohol or a drug.
(3) A requirement that a rail safety worker provide a sample is not open to challenge in any proceedings merely on the basis that a breath analysing instrument was readily available.
15
Taking of blood samples or urine
15 Taking of blood samples or urine
15 Taking of blood samples or urine
(1) This clause applies if an authorised person is entitled under the Rail Safety National Law (NSW) or this Regulation to require a rail safety worker to provide a sample of the worker’s blood or urine.
(2) The authorised person may require the worker to provide the sample of urine in accordance with the directions of the authorised person.
(3) The authorised person may require the rail safety worker to provide the sample of blood at a hospital in accordance with the directions of an authorised sample taker.
(4) An authorised sample taker must take a sample of blood if informed by the authorised person that the sample is required to be taken under the Rail Safety National Law (NSW) and this Regulation.
(5) If a police officer is entitled to require a rail safety worker to provide a sample of blood, the officer may—
(a) arrest the worker without a warrant, and
(b) take the worker with such force as may be necessary to a hospital and there detain the worker for the purpose of obtaining the sample.
(6) If an authorised person is entitled to require a rail safety worker to provide a sample of blood, the authorised person may direct the worker to attend the nearest hospital for the purpose of obtaining the sample.
16
Action to be taken with respect to blood samples
16 Action to be taken with respect to blood samples
16 Action to be taken with respect to blood samples
(1) An authorised sample taker or other person by whom a sample of a rail safety worker’s blood is taken under this Regulation must—
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood, and
(e) as soon as reasonably practicable after the sample is taken, hand the sample to the authorised person who was present at the time the sample was taken.
(2) The authorised person to whom a sample of blood is handed under subclause (1) must—
(a) immediately on being handed the sample, place the sample in a security box of a type approved by the Commissioner of Police and lock the box, and
(b) as soon as reasonably practicable thereafter, arrange for the sample to be submitted to an approved laboratory for analysis by an analyst to determine the concentration of alcohol or drugs in the blood.
(3) The blood sample must be kept in the security box until it is submitted to an approved laboratory for analysis.
(4) The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory referred to in subclause (2) for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by that person.
(5) A medical practitioner, registered nurse or other sample taker of another jurisdiction who, under the Rail Safety National Law of that jurisdiction, takes a sample of blood in consequence of an occurrence in this jurisdiction may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of alcohol or drugs in the blood.
17
Taking and dealing with oral fluid samples
17 Taking and dealing with oral fluid samples
17 Taking and dealing with oral fluid samples
(1) A police officer who is provided with a sample of a rail safety worker’s oral fluid under this Regulation or the Rail Safety National Law (NSW) must—
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s oral fluid, and
(e) immediately place the sample in a security box of a type approved by the Commissioner of Police and lock the box.
(2) An authorised person (other than a police officer) who is provided with a sample of a rail safety worker’s oral fluid under this Regulation or the Rail Safety National Law (NSW) must—
(a) collect the sample in accordance with AS/NZS 4760:2019, section 2, and
(b) give the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s oral fluid.
(3) The police officer or other authorised person may carry out an oral fluid test on a portion of the sample before dealing with the remaining portion of the sample under subclause (1) or (2). In such a case, a reference in this clause and clause 29 to the sample that is submitted to an approved laboratory is taken to be a reference to the remaining portion of that sample.
(a) in any case—must, as soon as practicable after being provided, be submitted to an approved laboratory for analysis by an analyst to determine the concentration of drugs in the oral fluid, and
(b) in the case of a sample provided to a police officer—must be kept in the security box until it is submitted to an approved laboratory, and
(c) in the case of a sample provided to an authorised person who is not a police officer—must be transported in accordance with AS/NZS 4760:2019, section 2.
(5) A person from whom a sample is taken may, within 6 months after the taking of the sample, apply to the laboratory at which the sample is being, or was, analysed for a portion of the sample to be sent for analysis, at the person’s own expense, to a medical practitioner or laboratory nominated by the person.
(6) A medical practitioner, authorised person or other sample taker of another jurisdiction who, under the Rail Safety National Law of that jurisdiction, takes a sample of oral fluid in consequence of an occurrence in this jurisdiction may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of drugs in the oral fluid.
(7) In this clause—
AS/NZS 4760:2019 means Australian/New Zealand Standard 4760:2019, Procedure for specimen collection and the detection and quantification of drugs in oral fluid, as reissued in September 2020.
cl 17: Am 2022 (503), sec 3(2)–(4).
18
Action to be taken with respect to urine samples
18 Action to be taken with respect to urine samples
18 Action to be taken with respect to urine samples
(1) If an authorised person requires a rail safety worker to provide a sample of urine, the sample must be collected in accordance with AS/NZS 4308:2023, section 2.
(2) The authorised person who required the worker to provide a sample must arrange for the sample to be submitted for urine screening testing.
(3) Urine screening testing may be carried out—
(a) at the place where the sample was taken, using an on-site urine screening device, or
(b) by an analyst at an approved laboratory, in accordance with AS/NZS 4308:2023, section 5.
(4) A sample that is submitted for urine screening testing or confirmatory testing at an approved laboratory is to be transported in accordance with AS/NZS 4308:2023, section 2.
(5) If urine screening testing of the sample indicates that the urine contains a drug or drugs—
(a) in the case of a urine screening test conducted in accordance with subclause (3)(a)—the authorised person who required the worker to provide the sample must arrange for the sample to be submitted to an analyst at an approved laboratory for confirmatory testing in accordance with clause 19, or
(b) in the case of a urine screening test conducted in accordance with subclause (3)(b)—the analyst or another analyst at an approved laboratory is to conduct confirmatory testing in accordance with clause 19.
(6) If confirmatory testing determines that a urine sample contains a drug or drugs, the person from whom the sample was taken may, within 3 months after the taking of the sample, apply to the laboratory at which the sample is being kept for a portion of the sample to be sent for analysis, at the person’s own expense, to an approved laboratory nominated by the person.
(7) Samples are to be stored in accordance with AS/NZS 4308:2023, section 4.
(8) In this clause—
on-site urine screening device means a device that determines the presence or absence of drugs in urine using an immunoassay technique that meets the screening test cut-off levels listed in AS/NZS 4308:2023, table 3.1.
cl 18: Am 2025 (557), Sch 1[6]–[9].
19
Analysis of samples
19 Analysis of samples
19 Analysis of samples
(1) An analyst to whom a sample of blood is submitted for analysis under this Division may carry out an analysis of the sample, or of a portion of the sample, to determine the concentration of alcohol in the blood or to determine whether the blood contains alcohol or another drug or drugs, as the case requires.
(2) An analyst to whom a sample of oral fluid is submitted for analysis under this Division may carry out an analysis of the sample, or of a portion of the sample, to determine whether the oral fluid contains a drug or drugs.
(3) An analyst to whom a sample of urine is submitted for analysis under this Division may carry out confirmatory testing on the sample, or a portion of the sample, to determine whether the urine contains a drug or drugs. The confirmatory testing must be carried out, and a report provided, in accordance with AS/NZS 4308:2023, section 6.
(4) Confirmatory testing under subclause (3) may be carried out only if urine screening testing determines that the urine contains a drug or drugs.
(5) An analysis under this clause may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample to be analysed and the breaking of any seal securing the sample) may be done, by a person acting at the direction or under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.
(6) Without limiting any other provision of this clause, the Regulator may, generally or in a particular case or class of cases, direct that an analysis is to be carried out in order to determine whether there is present in a sample a drug specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985.
cl 19: Am 2025 (557), Sch 1[10].
20
Authorised sample takers and authorised persons—protection from liability
20 Authorised sample takers and authorised persons—protection from liability
20 Authorised sample takers and authorised persons—protection from liability
(1) No civil or criminal liability is incurred by an authorised sample taker (or by any person acting at the direction or under the supervision of the authorised sample taker) in respect of anything properly and necessarily done by the authorised sample taker in the course of taking a sample of blood or urine from a person if the authorised sample taker—
(a) believed on reasonable grounds that the authorised sample taker was required under this Regulation to take the sample of blood or urine from the person, or
(b) was informed by an authorised person that the person was a person from whom the authorised sample taker was required under this Regulation to take the sample of blood or urine.
(2) No civil or criminal liability is incurred by an authorised person in respect of anything properly and necessarily done by the authorised person in the course of administering a breath test or breath analysis, conducting a sobriety assessment, administering a drug screening test or a urine screening test or taking a sample of oral fluid or urine in the exercise of the functions of an authorised person under the Rail Safety National Law (NSW) or this Regulation.
Division 3
Offences relating to testing for alcohol or other drugs
Division 3 Offences relating to testing for alcohol or other drugs
Division 3 Offences relating to testing for alcohol or other drugs
21
Additional offences relating to testing
21 Additional offences relating to testing
21 Additional offences relating to testing
(1) Any rail safety worker who, when required under this Regulation to do so, refuses or fails to submit to a sobriety assessment in accordance with this Regulation is guilty of an offence.
Maximum penalty—10 penalty units.
(2) A rail safety worker who, when required under the Rail Safety National Law (NSW) or this Regulation to provide a sample of blood, oral fluid or urine, fails to provide a sample of his or her own blood, oral fluid or urine, is guilty of an offence.
Maximum penalty—10 penalty units.
(3) It is a defence to a prosecution for an offence under subclause (1) if the defendant satisfies the court that the defendant was unable on medical grounds to comply with the requirement concerned.
22
Interfering with results of test
22 Interfering with results of test
22 Interfering with results of test
A rail safety worker who does anything, or causes anything to be done, to introduce, or alter the concentration of, alcohol or any drug in the worker’s or another worker’s breath, blood, oral fluid or urine before the worker or another worker submits to a breath analysis or provides a sample of blood, oral fluid or urine under the Rail Safety National Law (NSW) or this Regulation is guilty of an offence if the worker does so for the purpose of preventing or restricting the use of the results of the analysis in any proceedings against the worker or other worker.
Maximum penalty—25 penalty units or imprisonment for 9 months, or both.
23
Taking of samples
23 Taking of samples
23 Taking of samples
(1) An authorised sample taker who, when required under the Rail Safety National Law (NSW) or this Regulation to take a sample of blood from a rail safety worker—
(a) refuses or fails to take the sample, or
(b) does not comply with the requirements of clause 16 with respect to any sample taken,
is guilty of an offence.
Maximum penalty—10 penalty units.
(2) It is a defence to a prosecution for an offence under subclause (1) if the authorised sample taker satisfies the court that—
(a) the authorised sample taker believed on reasonable grounds that the taking of the sample from the rail safety worker would be prejudicial to the proper care and treatment of the worker, or
(b) the authorised sample taker was, because of the behaviour of the rail safety worker, unable to take the sample, or
(c) there was other reasonable cause for the authorised sample taker not to take the sample.
(3) Any person who, when taking a sample of blood, oral fluid or urine from a rail safety worker under the Rail Safety National Law (NSW) or this Regulation, does not comply with the requirements of clause 16, 17 or 18 with respect to any sample taken is guilty of an offence.
Maximum penalty—10 penalty units.
(4)–(6) (Repealed)
cl 23: Am 2020 (89), cl 3(1).
24
24
24 (Repealed)
Division 4
Admission of evidence in proceedings
Division 4 Admission of evidence in proceedings
Division 4 Admission of evidence in proceedings
25
Evidence of concentration of alcohol in breath or blood determined by breath analysis
25 Evidence of concentration of alcohol in breath or blood determined by breath analysis
25 Evidence of concentration of alcohol in breath or blood determined by breath analysis
(1) This clause applies to any proceedings for an offence against section 128(1)(a) of the Rail Safety National Law (NSW).
(2) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the breath or blood of the person charged, as determined by a breath analysing instrument operated by—
(a) an authorised person (other than a police officer), or
(b) a police officer authorised by the Commissioner of Police to carry out a breath analysis.
(3) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the blood of the person charged, as determined by an analysis of the person’s blood under this Part.
(4) The concentration of alcohol determined by a breath analysing device or by analysis of the person’s blood is taken to be the concentration of alcohol in the breath or blood of the person at the time the person carried out the rail safety work to which the breath analysis or blood sample relates if—
(a) in the case of evidence concerning breath analysis—the breath analysis was made within 3 hours after that time, or
(b) in the case of evidence concerning a blood sample—the sample of blood was taken within 3 hours after that time.
26
Evidence of presence of drugs in proceedings for offence of having drug in blood or oral fluid
26 Evidence of presence of drugs in proceedings for offence of having drug in blood or oral fluid
26 Evidence of presence of drugs in proceedings for offence of having drug in blood or oral fluid
(1) This clause applies to any proceedings for an offence against section 128(1)(b) of the Rail Safety National Law (NSW).
(2) Evidence may be given in proceedings to which this clause applies of the presence of a prescribed drug in the blood or oral fluid of the person charged, as determined by an analysis of the person’s blood or oral fluid under this Part.
(3) The prescribed drug the presence of which is determined by analysis of the person’s blood or oral fluid is taken to be present at the time the person carried out the rail safety work to which the sample relates if the sample was taken within 3 hours after that time, unless the defendant proves the absence of the prescribed drug at the time the person carried out the rail safety work.
27
Evidence of presence of drugs in proceedings for offence of being under influence of alcohol or drug
27 Evidence of presence of drugs in proceedings for offence of being under influence of alcohol or drug
27 Evidence of presence of drugs in proceedings for offence of being under influence of alcohol or drug
(1) This clause applies to any proceedings for an offence against section 128(1)(c) of the Rail Safety National Law (NSW).
(2) Evidence may be given in proceedings to which this clause applies of the presence of a drug, or the presence of a particular concentration of a drug, in the blood, oral fluid or urine of the person charged, as determined by an analysis of the person’s blood, oral fluid or urine under this Part.
(3) The drug the presence of which is determined or the particular concentration of the drug the presence of which is determined (as the case may be) by analysis of the person’s blood, oral fluid or urine is taken to have been present in the blood, oral fluid or urine of that person at the time the person carried out the rail safety work to which the sample relates if the sample was taken within 3 hours after that time, unless the defendant proves the absence of the drug, or the presence of the drug in a different concentration, at the time the person carried out the rail safety work.
(4) In this clause, drug includes alcohol.
Division 5
Certificate evidence
Division 5 Certificate evidence
Division 5 Certificate evidence
28
Certificate evidence about breath analysing instruments
28 Certificate evidence about breath analysing instruments
28 Certificate evidence about breath analysing instruments
(1) This clause applies to proceedings for an offence against section 128(1)(a) or (c) of the Rail Safety National Law (NSW).
(2) A certificate purporting to be signed by an authorised person and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—
(a) the authorised person is duly authorised as an authorised person or, if the authorised person is a police officer, the police officer is authorised by the Commissioner of Police to carry out a breath analysis,
(b) the person named in the certificate submitted to a breath analysis,
(c) the apparatus used by the authorised person to make the breath analysis was a breath analysing instrument within the meaning of the Road Transport Act 2013,
(d) the analysis was made on the day and completed at the time stated in the certificate,
(e) a concentration of alcohol (determined by that breath analysing instrument and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood) was present in the breath or blood of that person on the day and at the time stated in the certificate,
(f) a statement in writing required by clause 11(5) was delivered in accordance with that subclause.
(3) In proceedings for an offence against section 128(1)(a) or (c) of the Rail Safety National Law (NSW), a certificate purporting to be signed by the Commissioner of Police that the police officer named in the certificate is authorised by the Commissioner of Police to carry out a breath analysis is prima facie evidence of the particulars certified in and by the certificate.
(4) In any proceedings for an offence against section 128(1)(a) or (c) of the Rail Safety National Law (NSW), evidence of the condition of a breath analysing instrument or the manner in which it was operated is not to be required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.
29
Certificate evidence about the taking and analysis of samples
29 Certificate evidence about the taking and analysis of samples
29 Certificate evidence about the taking and analysis of samples
(1) This clause applies to proceedings for an offence against section 128(1)(a), (b) or (c) of the Rail Safety National Law (NSW).
(2) A certificate purporting to be signed by an authorised sample taker and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—
(a) that the certifier was an authorised sample taker who attended a specified person at a hospital,
(b) that the certifier took a sample of the person’s blood or urine in accordance with the Rail Safety National Law (NSW) and this Regulation on the day and at the time stated in the certificate,
(c) that the certifier dealt with the sample in accordance with clause 16 or 18,
(d) that the certifier used equipment of a specified description in so taking and dealing with the sample,
(e) that the container was sealed, and marked or labelled, in a specified manner.
(3) A certificate purporting to be signed by an authorised person and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—
(a) that the authorised person took a sample of the oral fluid or urine of the person named in the certificate in accordance with the Rail Safety National Law (NSW) and this Regulation, on the day and at the time stated in the certificate,
(b) that the person dealt with the sample in accordance with clause 17 or 18.
(4) A certificate purporting to be signed by an authorised person and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—
(a) that the authorised person received a sample of a specified person’s blood, oral fluid or urine taken in accordance with this Regulation and submitted to an approved laboratory for analysis (or testing and analysis),
(b) that the authorised person arranged for the sample to be submitted for analysis (or testing and analysis) by an analyst to determine the concentration of alcohol in the sample or the presence or concentration of a drug in the sample (as the case requires),
(c) that the container was sealed, and marked or labelled, in a specified manner.
(5) A certificate purporting to be signed by an analyst and certifying any one or more of the following matters is admissible in proceedings to which this clause applies—
(a) that a sample of a specified person’s blood, oral fluid or urine was received, on a specified day, in a container submitted for analysis (or testing and analysis) under this Regulation,
(b) that the container, as received, was sealed, and marked or labelled, in a specified manner,
(c) that, on receipt of the container, the seal was unbroken,
(d) in the case of an analysis of a blood sample carried out to determine the concentration of alcohol in the blood of the specified person—
(i) that an analysis of the sample was carried out to determine the concentration of alcohol in the sample, and
(ii) that the concentration of alcohol determined pursuant to the analysis and expressed in grams of alcohol in 100 millilitres of blood was present in that sample,
(e) in the case of an analysis of a blood or urine sample carried out to determine the presence or concentration of a prescribed drug or other drug in the blood or urine of the specified person—
(i) that an analysis of the sample was carried out to determine whether any prescribed drug or other drug (as the case requires) was present in the sample, and
(ii) that a specified prescribed drug or other drug (as the case requires) ascertained pursuant to the analysis was present in that sample in a specified concentration,
(f) in the case of an oral fluid analysis carried out on the oral fluid of the specified person—
(i) that an oral fluid analysis of the sample was carried out to determine the presence of any prescribed drugs and other drugs in the sample, and
(ii) that a specified prescribed drug or other drug was determined pursuant to the oral fluid analysis to be present in that sample,
(g) that the analyst was, at the time of the analysis, employed by the owner or operator of an approved laboratory as an analyst.
(6) A certificate referred to in subclause (5) is prima facie evidence—
(a) of the particulars certified in and by the certificate, and
(b) that the sample was a sample of the blood, oral fluid or urine of that specified person, and
(c) that the sample had not been tampered with before it was received.
(7) A certificate purporting to be signed by an interstate sample taker or interstate analyst in accordance with a law of another jurisdiction that substantially corresponds to the relevant provisions of this Regulation concerning sample taking or analysis is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by this certificate.
(8) In this clause—
interstate analyst means a person (however described) who analyses, or who supervised or directed the analysis of, a blood, urine or oral fluid sample in another jurisdiction.
interstate sample taker means a person (however described) who takes, or who supervised or directed the taking of, a blood, urine or oral fluid sample in another jurisdiction.
30
Certificate evidence may specify minimum concentrations
30 Certificate evidence may specify minimum concentrations
30 Certificate evidence may specify minimum concentrations
(1) This clause applies to a certificate under this Division if—
(a) evidence is given by the certificate in proceedings in which evidence is permitted to be given of the results of an analysis undertaken for the purposes of the Rail Safety National Law (NSW) or this Regulation of a sample of a person’s blood, oral fluid or urine, and
(b) the certificate is to the effect that alcohol or a specified drug was found by the analysis to be present in the sample in a concentration not less than a specified concentration.
(2) A certificate to which this clause applies is to be treated as though it stated that the concentration of alcohol or of the other drug concerned was determined by the analysis to be present in the specified minimum concentration.
(3) Evidence given by a certificate to which this clause applies is not open to challenge on the basis that the analysis, merely because it purports to determine a concentration in terms of a minimum, does not meet the requirements of the Rail Safety National Law (NSW) or this Regulation.
Part 3
Miscellaneous
Part 3 Miscellaneous
Part 3 Miscellaneous
31
Train communications systems
31 Train communications systems
31 Train communications systems
(1) A rolling stock operator must ensure that each train for which the person is responsible is, at all times when the train is on the NSW rail network, fitted with a radio communications system that complies with this clause and a back up means of communication to be used if the radio communications system fails.
Maximum penalty—100 penalty units.
(2) A rail infrastructure manager must ensure that a rolling stock operator of rolling stock operated on any part of the NSW rail network vested in or owned, managed or controlled by the rail infrastructure manager complies with subclause (1).
Maximum penalty—100 penalty units.
(3) A radio communications system for a train must—
(a) enable the driver of the train to verbally communicate with any network control officer responsible for the area in which the train is operating, and
(b) be working at all times when the train is being operated, and
(c) be capable of receiving and transmitting emergency calls, and
(d) be fitted with an emergency button that enables an emergency call from the train to be given priority over all other calls and that enables direct communication between the train and the network control officer responsible for the area in which the train is operating, and
(e) be capable of transmitting an emergency communication in a form that will allow any network control officer responsible for the area in which the train is operating to transmit the communication to other trains in that area.
(4) A rail transport operator is taken to comply with subclause (2) if the radio communications system fails but the back up means of communication is operational.
(5) In this clause—
NSW rail network means the railway lines vested in or owned by or managed or controlled by a rail infrastructure owner, within the meaning of the Transport Administration Act 1988, (including passing loops and turnouts from those lines and loops and associated rail infrastructure facilities that are so vested or owned or managed or controlled).
32
Exemptions
32 Exemptions
32 Exemptions
(1) The Regulator may, by notice in writing to one or more rail transport operators, exempt from the operation of clause 31 a particular train or class of trains.
(2) A notice under this clause takes effect from the day specified in the notice, or if no day is specified, from the day it is given to the rail transport operator concerned.
Schedule 1 New South Wales changes and additions to Rail Safety National Law
sch.1-sec Schedule 1 New South Wales changes and additions to Rail Safety National Law
Schedule 1 New South Wales changes and additions to Rail Safety National Law
Insert after paragraph (b) of the definition of emergency services in Schedule 1[1]—
(b1) the Ambulance Service of NSW; or
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Regulation
1 Name of Regulation
1 Name of Regulation
This Regulation is the Rail Safety (Adoption of National Law) Regulation 2018.
2 Commencement
2 Commencement
2 Commencement
This Regulation commences on the day on which it is published on the NSW legislation website.
Note.
This Regulation repeals and replaces the Rail Safety (Adoption of National Law) Regulation 2012, which would otherwise be repealed on 1 September 2018 by section 10(2) of the Subordinate Legislation Act 1989.
3 Definitions
3 Definitions
3 Definitions
(1) In this Regulation—
analyst means a person employed by the owner or operator of an approved laboratory as an analyst.
approved laboratory means—
(a) in relation to blood samples—the following laboratories—
(i) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at Lidcombe,
(ii) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at North Ryde, and
(b) in relation to urine samples—a laboratory that has been accredited by the National Association of Testing Authorities, Australia for AS/NZS 4308:2023, and
(c) in relation to oral fluid samples—the following laboratories—
(i) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at Lidcombe,
(ii) the laboratory at the NSW Health Pathology Forensic & Analytical Science Service at North Ryde,
(iii) the laboratory at Racing Analytical Services Ltd at Flemington, Victoria,
(iv) the laboratory at Douglass Hanly Moir Pathology at 14 Giffnock Avenue, Macquarie Park.
approved oral fluid analysing instrument means—
Prescribes when breath analysis may be required and the powers of police to arrest and detain for breath analysis (cl 11(1)-(3)), and parallels rules for oral fluid analysis (cl 12(1)-(4)).
Provides specific procedures for sample-taking, labelling, sealing, storage, transfer and security box requirements (cls 16-18) and sets standards for collection and transport (AS/NZS and AS standards referenced in cl 3, cl 17, cl 18).
Sets time presumptions for evidentiary use of results: in general analyses or breath analysis are taken to represent the time the person carried out the rail safety work if the sample/analysis was made within three hours (cls 25-27).
Prescribes certificate evidence rules, making specified certificates prima facie evidence (cls 28-30).
Imposes duties on rolling stock operators and rail infrastructure managers to ensure radio communications systems with an emergency button and a back‑up means of communication (cl 31), with the Regulator authorised to exempt particular trains or classes (cl 32).
Repeals the 2012 Regulation and saves existing acts, matters and things (cl 33).
The Regulation repeatedly cross-references other statutes and standards, so its practical effect is to embed national road transport breath testing device regimes, public health laboratory infrastructure and national drug testing standards into the rail safety enforcement regime (see cl 3 references to Road Transport Act 2013, AS/NZS 4308:2023, AS/NZS 4760:2019, AS 3547:2019). Those incorporations materially determine what devices and analytical standards are accepted in evidence and thus what industry needs to procure and what laboratories to use.
The official notes in the instrument specify commencement upon publication and that the Regulation repeals and replaces the 2012 Regulation (cl 2 and cl 33(1)). The Regulation therefore functions as a granular implementation instrument: it does not define the core criminal offences (those remain in the Rail Safety National Law (NSW) Act 2012), but tightly regulates how testing, evidence and train communications are conducted and proved.
Main concepts
The Regulation organises around three core operational concepts: testing regimes for drugs and alcohol, evidentiary mechanisms, and operational communications requirements for trains.
Testing regimes
Scope: The Regulation governs breath tests, sobriety assessments, breath analyses, drug screening tests, oral fluid analyses, blood and urine tests in connection with the Rail Safety National Law (see Part 2 title and cl 3 for definitions). It permits both random and targeted selection for testing (cl 7).
Who can require tests: The statutes talk consistently about an authorised person and authorised sample taker; police officers authorised by the Commissioner of Police are a distinct category with power to arrest and detain for testing (cl 3(2); cl 11(2); cl 12(3); cl 15(5)).
Limits on requisitions: An authorised person must not require testing where it would endanger the worker’s medical condition, at the worker’s home, or after three hours from the time the worker carried out, or was due to commence, the rail safety work (cl 8(a), (b), (d)). There are also special rules where the worker has ceased duty after an accident (cl 8(c)).
Chain of custody and laboratory standards
Approved labs and instruments: cl 3 expressly lists which laboratories are approved for blood and oral fluid, names approved oral fluid analysing instruments and approved oral fluid testing devices, and adopts AS/NZS 4308:2023 for urine and AS/NZS 4760:2019 for oral fluid collection (cl 3; cl 17; cl 18).
Packaging and transport: cl 16 prescribes sealing, marking, security box procedures and handover responsibilities for blood samples; cl 17 and cl 18 set similar requirements for oral fluid and urine, including security box retention by police and transportation standards for authorised persons.
Analysis: Analysts operating at approved laboratories perform confirmatory testing under the standards (cl 19(1)-(4)). The Regulator can direct that specified drug analyses be carried out (cl 19(6)).
Evidentiary structure
Certificates and prima facie evidence: Clauses 28-30 provide for certificates from authorised persons, authorised sample takers, analysts and interstate equivalents being admissible and prima facie evidence of specific matters (for example, that a breath analysing instrument was used and the concentration it returned; cl 28(2)(c), (e); cl 29(5)(d)-(f)). Clause 30 allows certificates to specify minimum concentrations and treats them for evidentiary purposes as if that minimum concentration were determined by the analysis.
Time presumptions: Clauses 25-27 create the three‑hour evidentiary rule: results are taken to represent concentration at the time of performing or being due to perform rail safety work if the breath analysis or blood sample was taken within 3 hours (cls 25(4), 26(3), 27(3)). For drugs that are present, the defendant may rebut the presumption by proving absence at the relevant time (cl 26(3), 27(3)).
Offences and procedural rules
New or reinforced offences: Offences include refusal to submit to a sobriety assessment (10 penalty units; cl 21(1)), failure to provide a required sample (10 penalty units; cl 21(2)), interfering with test results (25 penalty units or 9 months imprisonment or both; cl 22), and failing to take samples or comply with sample handling requirements (10 penalty units; cl 23).
Protections for authorised actors: cl 20 protects authorised sample takers and authorised persons from civil or criminal liability for acts done reasonably and in their authorised functions.
Train communications
Duty: Rolling stock operators must ensure each train is fitted with a radio communications system that works at all times, enables verbal communication between driver and network control officer, can receive/transmit emergency calls, has an emergency button that prioritises the call, and can allow network control to transmit emergency communications to other trains (cl 31(1), (3)(a)-(e)).
Back‑up and enforcement: A back‑up communication means must be fitted and operational if the radio fails (cl 31(1), (4)), and rail infrastructure managers are obliged to ensure rolling stock operators comply when the stock operates on infrastructure they own or control (cl 31(2)). Penalties for non‑compliance are 100 penalty units (cl 31(1)-(2)).
Exemptions: The Regulator can exempt a particular train or class from cl 31 by written notice (cl 32).
Standards and cross‑references
The Regulation imports standards and provisions from other statutory regimes (Road Transport Act 2013, AS/NZS and AS standards, Drug Misuse and Trafficking Act 1985 references, Health Services Act 1997 and Private Health Facilities Act 2007 definitions for hospitals). These references constrain accepted devices, collection procedures and laboratory accreditation (cl 3; cl 17; cl 18; cl 19(6)).
Overall, the main concepts make the Regulation an operational rulebook that sets accepted testing technologies, time and place limits on testing requisitions, detailed chain‑of‑custody rules, specific evidentiary certificates and presumptions to streamline prosecutions, and a separate safety requirement for train communications systems enforced by significant monetary penalties.
Who it affects
This Regulation creates obligations, powers and rights that fall principally on five groups: rail safety workers, authorised persons and sample takers (and police), rolling stock operators and rail infrastructure managers, and approved laboratories and analysts. There are secondary effects on medical practitioners, hospitals and nominated private laboratories.
Rail safety workers
Defined as persons carrying out rail safety work under the Rail Safety National Law; they are the subjects of random or targeted testing (cl 7), may be required to undergo a range of tests (breath tests, sobriety assessments, breath analysis, drug screening tests, oral fluid, blood, urine; Part 2) and face criminal penalties for refusal or interference (cls 21-22). Workers also have limited procedural rights, for example to request blood analysis at their own expense (cl 11(6)) and to apply for a portion of a sample for independent analysis within specified timeframes (cl 16(4), cl 17(5), cl 18(6)).
Authorised persons, authorised sample takers and police
An authorised person may administer breath tests, sobriety assessments, drug screening and take samples of oral fluid and urine; they also have directions and supervisory roles over sample takers (cl 9). Authorised sample takers (medical practitioners, registered nurses or other qualified persons) must take blood samples when required (cl 15(3)-(4)), and both categories are protected from civil or criminal liability when acting reasonably and under the Regulation (cl 20).
Police officers who are authorised by the Commissioner of Police have a distinct power set: they may arrest without a warrant and detain a worker for breath analysis or oral fluid sampling (cl 11(2); cl 12(3); cl 15(5)). The Regulation also treats police custody and the security box procedure differently: samples provided to police must be placed into an approved security box and kept until submission to the approved laboratory (cl 16(2)(a), cl 17(1)(e), cl 17(4)(b)).
Rolling stock operators and rail infrastructure managers
Rolling stock operators are directly responsible for ensuring radio communications with back‑up are fitted and operational on each train when on the NSW rail network (cl 31(1)). Rail infrastructure managers must ensure that rolling stock operators operating on infrastructure vested in or controlled by them comply with the communications duty (cl 31(2)). Both attract the same maximum penalty of 100 penalty units for non‑compliance (cl 31(1)-(2)).
Approved laboratories, analysts and device providers
The Regulation identifies which laboratories are approved for blood and oral fluid (cl 3) and which devices are approved for oral fluid analysis and testing (cl 3). Analysts employed by approved laboratories perform analyses and produce certificates admissible as prima facie evidence (cl 19(1)-(3); cl 29(5)). These approvals concentrate the analytical market to named providers and equipment models; organisations in the supply chain (labs, device manufacturers and maintenance providers) are directly affected.
Medical practitioners, hospitals and nurses
Hospitals and attending medical staff have defined roles in clause 13 when a worker is admitted after an accident: an authorised person may require blood or urine samples to be taken “as soon as practicable” in accordance with the directions of the attending medical practitioner, but a practitioner or nurse may object if compliance would prejudice proper care or treatment (cl 13(1)-(2)). In the absence of a medical practitioner, a registered nurse may take the sample (cl 13(3)).
Regulator and Commissioner of Police
The NSW Regulator has direction-making powers over analyses (cl 19(6)) and exemption powers for communications requirements (cl 32). The Commissioner of Police decides which officers are authorised to carry out breath analysis and certificates of that authorisation are prima facie evidence in proceedings (cl 28(3)).
Employers and compliance officers
Although not named as a class, employers (rolling stock operators and rail transport operators more broadly) must establish testing programs (random or targeted), appoint authorised persons and ensure that operational equipment and lab arrangements meet the Regulation’s standards. They bear direct compliance costs and exposure to penalties for operational failures and for derivatively failing to arrange for lawful testing and analyses.
Other stakeholders
Individuals who may be subjected to testing have limited but specified rights to independent retesting at their own expense and to certain procedural protections (cl 16(4), cl 17(5), cl 18(6)). Device manufacturers and equipment suppliers are affected because only named devices or those approved by Governor or standards are accepted (cl 3; cl 3 approval cross‑referenced to Road Transport Act 2013 schedule definitions).
In short, the Regulation principally affects workers subjected to testing, the persons and agencies authorised to conduct tests and analyses, the laboratories that perform confirmatory testing, the rail operators responsible for equipment and compliance, and the Regulator and police who supervise and enforce the processes.
Key duties and rights
This section sets out the operative duties the Regulation imposes and the attendant rights. All references are to clauses in the Regulation.
Duties to conduct, submit to and administer tests
Selection and requisition: An authorised person may select a rail safety worker for testing on a random or targeted basis (cl 7). Where an authorised person requisitions a worker for testing, that person must comply with prohibitions on timing and place: not if it would be dangerous for medical reasons, not after the expiration of three hours from the time the worker carried out or was due to commence the work, not at the worker’s home, and in accidents not requiring testing of a non‑worker after they have ceased duty (cl 8).
Breath testing and sobriety assessments: If a breath testing device is unavailable, an authorised person can require a sobriety assessment (cl 10(1)). That requirement is not open to challenge merely because the device was, in fact, readily available (cl 10(2)).
Breath analysis: Breath analysis may be required only when the authorised person forms a reasonable view based on preliminary testing or sobriety assessment that the prescribed alcohol concentration may be present, or when the worker refused or failed to submit to a preliminary breath test or sobriety assessment (cl 11(1)(a)-(b)). Police authorised to require breath analysis may arrest and detain a worker for this purpose (cl 11(2)).
Oral fluid analysis: An authorised person may require oral fluid analysis where a drug screening test indicates drugs, or where a person refused or failed to submit to a drug screening test (cl 12(1)). If an oral fluid sample cannot be provided, an authorised person may require blood (cl 12(2)).
Sample taking, handling and analysis duties
Blood samples: An authorised sample taker must take blood samples when required (cl 15(4)) and must follow packaging, sealing, labelling and handover rules, including issuance of a certificate to the donor and submission to an approved laboratory as soon as reasonably practicable (cl 16(1)-(2)). Samples must be kept in an approved security box until submitted (cl 16(3)).
Oral fluid samples: Samples provided to police must be sealed and immediately placed in a security box; samples provided to non‑police authorised persons must be collected in accordance with AS/NZS 4760:2019, section 2 (cl 17(1)-(2)). Oral fluid samples must be submitted to an approved laboratory as soon as practicable (cl 17(4)(a)-(b)).
Urine samples: Urine samples must be collected per AS/NZS 4308:2023 section 2, may be screened on‑site or submitted to an approved laboratory, and confirmatory testing must follow AS/NZS 4308:2023 section 6 (cl 18(1)-(4), (3)(a)-(b)). Transportation and storage rules are set out (cl 18(4), (7)).
Evidentiary duties and presumptions
Certificates and prima facie evidence: Specific certificates made by authorised officers, sample takers and analysts are admissible and are prima facie evidence of specified facts (cl 28; cl 29). Certificates from interstate compliant jurisdictions are admissible where provisions substantially correspond (cl 29(7)).
Time presumptions: If breath analysis or blood/oral fluid/urine samples are taken within three hours of the time the person carried out rail safety work, the analysis is taken to represent the presence/concentration at that time, subject to the defendant’s ability to disprove the presumption in drug influence cases (cls 25-27).
Criminal duties and prohibitions
Refusal and failure: It is an offence for a worker to refuse or fail to submit to requested sobriety assessments, blood, oral fluid or urine samples (cl 21(1)-(2)); defences are available on medical grounds for some refusals (cl 21(3)).
Interference: Introducing or altering alcohol or drug concentrations in a sample to defeat evidence is an offence with up to 25 penalty units or 9 months imprisonment, or both (cl 22).
Sample taker duties: An authorised sample taker who refuses to take required blood or fails to comply with clause 16 procedures may be guilty of an offence (cl 23(1)). There are statutory defences for sample takers who can show reasonable grounds they were unable to take the sample (cl 23(2)).
Rights and procedural protections
Right to independent analysis: A person from whom a sample is taken may, within defined timeframes, apply (at their own expense) to an approved laboratory to have a portion of the sample sent to a nominated practitioner or laboratory for analysis (cl 16(4), cl 17(5), cl 18(6)). The timeframes differ by sample type: 12 months for blood (cl 16(4)), 6 months for oral fluid (cl 17(5)), 3 months for urine (cl 18(6)).
Medical treatment precedence: For hospitalised workers, samples cannot be required if the attending medical practitioner or, where none present, a registered nurse objects on the ground that compliance would prejudice proper care or treatment (cl 13(2)).
Protections for authorised actors: cl 20 provides protection from civil and criminal liability for authorised sample takers and authorised persons acting reasonably and believing they were required under the Regulation to take the sample or having been informed they were required.
Operational duties for train communications
Rolling stock operators must ensure each train is fitted with a compliant radio communications system and a back‑up means of communication while on the NSW rail network (cl 31(1)). The radio must enable driver‑to‑network control verbal communication, be working at all operational times, transmit and receive emergency calls, have a priority emergency button and be capable of relaying emergency communications to other trains (cl 31(3)(a)-(e)). Rail infrastructure managers must enforce compliance for stock on infrastructure they own or control (cl 31(2)). The Regulator may grant written exemptions (cl 32).
In sum, the Regulation imposes detailed process and documentation duties on authorised officers and operators while preserving limited rights for tested workers (chiefly retesting at own expense and medical‑care protections). The evidentiary regime privileges certificates from authorised participants and sets statutory presumptions that favour timely sample analysis.
Penalties and enforcement
This Regulation creates a mix of administrative, criminal and procedural enforcement mechanisms. Penalties are expressed in penalty units, and some offences carry imprisonment. Enforcement powers are also vested in authorised persons and police officers. The following summarises the primary penalty and enforcement regimes, with clause citations.
Penalties specified in the Regulation
Communications requirement (cl 31): Maximum penalty 100 penalty units applies to a rolling stock operator who fails to ensure each train is fitted with a compliant radio communications system and back‑up while on the NSW rail network (cl 31(1)). A rail infrastructure manager who fails to ensure rolling stock operators comply attracts the same maximum penalty of 100 penalty units (cl 31(2)). These are the highest penalties in the Regulation.
Refusal or failure to submit to sobriety assessment or sample (cl 21): A rail safety worker who refuses or fails to submit to a sobriety assessment when required under the Regulation is guilty of an offence, maximum 10 penalty units (cl 21(1)). A worker who fails to provide a required sample of blood, oral fluid or urine is guilty of an offence, maximum 10 penalty units (cl 21(2)). A medical‑ground defence applies for the sobriety assessment refusal (cl 21(3)).
Interfering with test results (cl 22): A rail safety worker who introduces or alters the concentration of alcohol/drugs in breath, blood, oral fluid or urine to prevent or restrict use of the analysis results is guilty of an offence. Maximum penalty is 25 penalty units or imprisonment for 9 months, or both (cl 22).
Failures by authorised sample takers or handlers (cl 23): An authorised sample taker who refuses or fails to take a required blood sample or who fails to comply with clause 16 requirements is guilty of an offence, maximum 10 penalty units (cl 23(1)). There are statutory defences if the authorised sample taker had reasonable grounds to believe sample taking would prejudice care, was prevented by behaviour, or had other reasonable cause (cl 23(2)). A person who does not comply with clause 16, 17 or 18 handling requirements when taking blood, oral fluid or urine is guilty of an offence with maximum 10 penalty units (cl 23(3)).
Enforcement and operational powers
Police powers: Police officers authorised by the Commissioner of Police to carry out breath analysis have power to arrest without a warrant and detain a rail safety worker for the purposes of breath analysis and for oral fluid samples where the officer is entitled to require such a sample (cl 11(2); cl 12(3); cl 15(5)). Where an authorised person (non‑police) requires breath analysis or an oral fluid sample, they may direct the worker to attend the nearest police station or such other place as required (cl 11(3); cl 12(4); cl 15(6)).
Regulator powers: The Regulator can direct that an analysis be carried out for drugs specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985 (cl 19(6)), and may issue written exemptions from the communications requirement in cl 31 (cl 32). Those directions and exemptions are administrative enforcement levers.
Security and chain‑of‑custody enforcement: Clause 16 requires immediate placement of blood samples in a security box approved by the Commissioner of Police and for the authorised person to arrange submission to an approved laboratory. Clause 17 requires similar security box placement for oral fluid samples provided to police and AS/NZS‑compliant transport for non‑police authorised persons. Clause 29 makes certificates about chain‑of‑custody prima facie evidence (cl 29(2)-(5)), effectively streamlining prosecutions where procedures have been followed.
Evidentiary enforcement mechanics
Prima facie certificates: Clauses 28-30 provide that certificates by authorised persons, sample takers, analysts and recognised interstate equivalents are admissible and prima facie evidence of key matters, including the concentration determined and that instruments used were proper. Clause 30 specifically protects certificates that certify minimum concentrations from being challenged on the ground the analysis did not meet requirements solely because it states a minimum concentration.
Time presumption enforcement: Clauses 25-27 create a statutory presumption that measurements taken by breath analysis or laboratory tests within three hours are to be treated as concentrations at the time the person was carrying out rail safety work. For drug presence/concentration offences (s 128(1)(b) and (c) of the Rail Safety National Law (NSW)), the defendant can rebut the presumption by proving absence or a different concentration at the time (cl 26(3); cl 27(3)).
Administrative and compliance enforcement
Operators’ obligations: For the communications obligation (cl 31), regulatory enforcement can come through the Regulator requiring compliance or issuing exemptions (cl 32). Non‑compliance exposure is at the operator and infrastructure manager level where the operator operates on the manager’s tracks (cl 31(2)).
Internal compliance ramifications: While outside the text, the procedural strictures and the prima facie nature of certificates create an internal incentive for operators to ensure testing protocols, authorised person appointments and sample handling conform rigidly to the Regulation, or else risk evidence being admissible and presumptions applying in prosecutions.
In summary, enforcement combines criminal sanctions for workers and sample takers, administrative penalties and exemptions for operators, police arrest and detention powers to secure testing, and evidentiary rules (primarily certificates and three‑hour presumptions) designed to streamline prosecutions where prescribed procedures are followed.
How it interacts with other laws
The Regulation is densely cross‑referenced to other Acts and technical standards. Its operation depends on, and modifies in limited respects, the application of other statutory regimes. The Regulation expressly incorporates aspects of the Road Transport Act 2013, the Rail Safety National Law (NSW), national standards, health and drugs statutes, and administrative law frameworks.
Key cross‑references and incorporations
Rail Safety National Law (NSW) Act 2012 (the Act): The Regulation is an adoption instrument for the Rail Safety National Law in NSW and repeatedly operates in support of the Act. The offences whose evidentiary processes the Regulation governs are in s 128 of the Rail Safety National Law (NSW) (see multiple clauses across Part 2 referencing “an offence under section 128” , e.g. cl 4 refers to section 128(1)(b) and (c)). The Regulation does not create the primary offences but provides the testing, sampling, evidentiary and procedural machinery for enforcing them.
Road Transport Act 2013: Several definitions are adopted from the Road Transport Act 2013. Clause 3 incorporates definitions for “authorised sample taker”, “breath analysing instrument” and “breath analysis” from Schedule 3 of the Road Transport Act 2013. Clause 3 also cross‑references the Road Transport Act for approved oral fluid analysing instruments and approved oral fluid testing devices as items that are acceptable in rail testing contexts. This means devices approved for road policing are also used to determine suitability for rail testing.
AS/NZS and AS Standards: The Regulation incorporates technical standards for specimen collection and device types. For example, AS/NZS 4308:2023 is adopted for urine collection, screening and confirmatory testing (cl 3 and cl 18), AS/NZS 4760:2019 for oral fluid collection and transport (cl 17), and AS 3547:2019 for preliminary breath testing devices (cl 3). Those standards are required to be met by on‑site and laboratory testing practices in the Regulation.
Drug Misuse and Trafficking Act 1985: Clause 19(6) allows the Regulator to direct that an analysis be carried out to determine presence of a drug specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985. This cross‑reference connects rail testing to the statutory list used in drug control law.
Health Services Act 1997 and Private Health Facilities Act 2007: Clause 3 includes “hospital” definitions that pull in public hospitals, statutory health corporations and private health facilities from those Acts to define where samples may be taken and who may be the authorised sample taker in hospital settings (cl 3; cl 13).
Transport Administration Act 1988: Clause 31 uses the phrase “NSW rail network” and cross‑references rail infrastructure owners within the meaning of the Transport Administration Act 1988 to determine the geographic and ownership scope of the communications obligation.
Subordinate Legislation Act 1989 and Interpretation Act 1987: The Regulation’s commencement note (cl 2) expressly references the Subordinate Legislation Act 1989, noting the 2012 Regulation would otherwise be repealed under s 10(2), while cl 3 notes the Act and the Interpretation Act provide definitions that affect interpretation. This anchors the Regulation within the NSW subordinate legislation architecture.
Practical effects of these interactions
Devices and instruments already approved for road policing can be used in rail prosecutions (cl 3 cross‑reference to Road Transport Act 2013). That aligns enforcement technology across road and rail but also means device approvals at the national road level materially determine available options for rail operators and authorised persons.
Adoption of national testing standards (AS/NZS 4308 and AS/NZS 4760) embeds nationally accepted collection, transport and laboratory standards into rail prosecutions; failure to follow those standards may risk procedural challenges, while compliance supports admissibility and prima facie certificates (cls 17-19; cl 29(5)).
The Regulation’s evidentiary and certificate provisions create a bridge between administrative laboratory procedures and criminal prosecutions under the Rail Safety National Law (cl 28-30). Certificates produced under the Regulation are given prima facie status in prosecutions under the Rail Safety National Law, increasing the practical evidential weight of compliance.
Police powers authorised under the Road Transport Act or by the Commissioner of Police (cl 3(2); cl 11(2), cl 12(3)) interact with rail enforcement by giving police an enforcement role for breath analysis and oral fluid sample collection; where police are not the authorised person, authorised persons can direct a worker to a police station for testing (cl 11(3), cl 12(4)).
Limitations and boundaries
The Regulation does not create or alter the substantive offences in s 128 of the Rail Safety National Law; rather it provides the procedural mechanisms for evidence and testing. Any questions about the elements of offences, defences or sentencing beyond the penalties in the Regulation are governed by the Rail Safety National Law and general criminal procedure law.
The Regulation’s reliance on external standards and approvals means changes in those external instruments (for example, amendments to AS/NZS 4308 or to device approvals under the Road Transport Act) will directly affect what is permissible under the rail regime. The Regulation’s approach therefore operationally links rail testing to the maintenance and updates of other statutory and standards frameworks.
In summary, the Regulation is an implementing instrument that integrates laboratory standards, device approvals and police authorisations from other statutory spheres into the Rail Safety National Law enforcement process and creates a tightly interwoven compliance and evidentiary regime across statutes and technical standards.
Amendment history
The Regulation includes amendment annotations that record changes to definitions, procedures and related clauses. The instrument also expressly repeals and replaces the Rail Safety (Adoption of National Law) Regulation 2012 (cl 2 and cl 33). The following lists the amendment notations that appear in the text and the clauses they affect, taking the instrument’s annotations as its amendment history record.
Repeal and replacement of 2012 Regulation: Clause 2 notes this Regulation commences on publication and repeals and replaces the Rail Safety (Adoption of National Law) Regulation 2012, which would otherwise have been repealed under s 10(2) of the Subordinate Legislation Act 1989 (cl 2).
Clause 3 amendments: The definition clause carries multiple amendment annotations: "cl 3: Am 2022 (503), sec 3(1); 2022 (691), sec 3; 2024 (331), Sch 3[1][2]; 2025 (557), Sch 1[1]-[5]". Those notations indicate successive amendments in the years 2022, 2024 and 2025 affecting definitions, the list of approved laboratories and devices, and standards references. The specific textual updates visible in the clause include additions of devices and the updated AS/NZS 4308:2023 reference.
Clause 17 amendment: "cl 17: Am 2022 (503), sec 3(2)-(4)." Clause 17 amendments concern oral fluid sample handling and the adoption of AS/NZS 4760:2019, as the clause now specifies collection standards and certain procedural rules.
Clause 18 amendment: "cl 18: Am 2025 (557), Sch 1[6]-[9]." Clause 18 now incorporates AS/NZS 4308:2023 for urine collection, screening and confirmatory testing and adds rules on on‑site urine screening devices and storage, reflecting the 2025 amendment package.
Clause 19 amendment: "cl 19: Am 2025 (557), Sch 1[10]." Clause 19 updates analysts’ role and adds the Regulator's power to direct analyses for drugs specified in the Drug Misuse and Trafficking Act 1985 (cl 19(6)).
Clause 23 amendment: "cl 23: Am 2020 (89), cl 3(1)." Clause 24 was repealed in 2020 (89), cl 3(2). Clause 23 amendments in 2020 appear to have adjusted offences relating to sample takers and duties.
Clause 17 and clause 3 device lists: The presence of device model names in cl 3 (for approved oral fluid analysing instruments and testing devices) appears to have been expanded in later amendments (annotations to cl 3 show updates across 2022-2025).
Schedule 1 insertion: The Regulation also amends the Rail Safety (Adoption of National Law) Act 2012 by inserting “the Ambulance Service of NSW” into the definition of emergency services in Schedule 1 via Schedule 1 of the Regulation (sch.1-sec). The schedule simply directs insertion after paragraph (b) of the definition of emergency services , see Schedule 1, and the inserted paragraph (b1).
The amendment annotations demonstrate an active regime of updates, especially in 2022 and 2025, aligning laboratory standards to newer AS/NZS releases (for example AS/NZS 4308:2023), expanding approved laboratories and devices, and adjusting procedural provisions. The annotations in the source are the only record of amendments in this text; the Regulation does not include extended policy notes or a consolidated list of amendment particulars beyond those notations.
Users should note:
The Regulation expressly records that some clauses were amended or repealed by later instruments with year and instrument numbers. Those annotations indicate that the Regulation is subject to iterative technical updates, particularly regarding standards and approved instruments.
The Regulation’s adoption of updated technical standards (for example AS/NZS 4308:2023 and AS/NZS 4760:2019) appears in the amendment entries and the text; compliance obligations therefore change when the Regulation is amended to adopt newer editions.
For a complete statutory history and the precise text changes for each amendment, practitioners must consult the official NSW legislation database entries for the cited amending instruments (for example, the 2022 instruments numbered 503 and 691, the 2024 instrument numbered 331 Sch 3, the 2025 instrument numbered 557 Sch 1, and the 2020 instrument 89 cl 3), because the Regulation’s internal annotations only provide a citation trail and not the full amendment language.
Litigation history
The Regulation itself contains no case law or decisions. It does not name any judicial decisions, and there are no litigation annotations in the text provided. The Regulation establishes evidentiary rules intended for use in prosecutions under section 128 of the Rail Safety National Law (NSW) and provides for certificates to be prima facie evidence (cls 28-30), but it does not cite or reference court decisions interpreting those provisions.
Practically, the Regulation is designed to shape courtroom practice by:
Creating statutory presumptions and making particular certificates prima facie evidence (cls 25-30), which will affect prosecutorial proof strategies and defence responses in s 128 proceedings.
Specifying chain‑of‑custody, sealing, labelling and security procedures (cls 16-18) that, if followed, are intended to reduce the scope for evidentiary challenges about sample integrity; conversely, failure to follow those procedures features as an offence in cl 23 and could be a defence point in prosecutions.
Because the Regulation is largely procedural and evidentiary, litigation questions likely to arise (not named in the Regulation but foreseeable given the text) include:
Whether the prerequisites for requiring a breath analysis, oral fluid analysis or blood/urine sample have been met, including compliance with the three‑hour restrictions in cl 8(b) and the medical safety ground in cl 8(a) and cl 13(2).
Challenges to the admissibility of certificates and analyses where certificate particulars are incorrect or where chain‑of‑custody provisions in cls 16-18 or the standards in AS/NZS 4308 and AS/NZS 4760 were not complied with.
Disputes about the adequacy of authorised person authorisations and whether police officers were validly authorised to carry out breath analyses, which relate back to cl 3(2) and cl 28(3).
However, the Regulation does not record or summarise any judicial treatment of these provisions. Practitioners seeking judicial interpretations or precedent will need to search court databases for cases prosecuting s 128 offences which rely on the Regulation’s certificates, chain‑of‑custody rules or three‑hour presumption.
Gotchas
The Regulation contains a number of specific procedural and evidential traps for operators, authorised persons, sample takers and workers. Below are concrete "gotchas" drawn directly from the text that could create compliance or litigation risk if overlooked.
Three‑hour timing rules and admissibility restrictions
Prohibition on requisition after 3 hours: Clause 8(b) forbids an authorised person from requiring a worker to undergo testing at any time after the expiration of 3 hours from the time the worker carried out the rail safety work (or was due to commence it). This is a strict time limit on requisitions; if a test is sought after that window, the authorised person is acting outside the Regulation. Practically, operators must ensure prompt test requisitioning after incidents.
Three‑hour evidentiary presumption: Clauses 25-27 treat results as representing the concentration at the time of work if the analysis or sample was taken within three hours. That ties admissibility and the strength of evidence tightly to timely sampling. Failure to obtain samples within the three‑hour window does not automatically bars all evidence, but it removes the statutory presumption and may permit defendants to challenge temporal relevance (cl 26(3), cl 27(3)).
Inconsistency with "worker about to carry out work" rule: Clause 6 makes results of testing conducted on a rail safety worker who was about to carry out work not admissible in proceedings for a s 128 offence. That means samples taken before commencement of any work may be unusable in prosecutions. Practitioners must align timing of testing and the basis for requisition carefully.
Device lists and approval specificity
Enumerated devices: Clause 3 lists specific approved oral fluid analysing instruments and testing devices by model name. If equipment is not listed or is not approved under the Road Transport Act 2013 cross‑reference, an authorised person or operator risk having results challenged. Device procurement and maintenance must track the Regulation’s approved list and any Governor orders under cl 3.
Laboratory concentration: Approved laboratories for blood (NSW Health Pathology Forensic & Analytical Science Service at Lidcombe and North Ryde) and named oral fluid labs are limited (cl 3). This centralisation can produce logistical bottlenecks for sample submission and testing turnaround time, potentially endangering compliance with the three‑hour window.
Sobriety assessment challenge immunity
Non‑challengeable sobriety assessment requisitions: Clause 10(2) says a requirement to submit to a sobriety assessment is not open to challenge merely because the breath device was in fact readily available. That creates a procedural advantage for authorised persons but also a potential risk that an authorised person could sidestep device use; practitioners should document reasons for sobriety assessments to avoid procedural criticism beyond the limited bar on challenge.
Police detention powers and direction to police stations
Arrest and detention for analysis: Police authorised to require breath or oral fluid samples may arrest and take the worker to a police station for testing (cl 11(2); cl 12(3); cl 15(5)). Authorised persons who are not police may direct a worker to attend a police station. Organisations should have clear procedures for handover and custody to avoid chain‑of‑custody disputes.
Chain‑of‑custody and security box requirements
Strict sealing and handling for blood and oral fluid: Clause 16 and clause 17 require immediate sealing, labelling and placement of samples into security boxes of a type approved by the Commissioner of Police and prompt submission to approved laboratories. Failure to comply is an offence (cl 23(3)). Compliance must be documented , certificates required under cl 16(1)(d) and cl 17(1)(d) are pivotal for admissibility under cl 29.
Different handling depending on who takes the sample: Samples provided to police must be kept in a security box until submission (cl 17(1)(e); cl 17(4)(b)), whereas samples provided to non‑police authorised persons must be transported in accordance with AS/NZS 4760:2019 (cl 17(2)(a); cl 17(4)(c)). Mixing or misapplying these routes could compromise admissibility.
Timeframes for independent retesting are short and vary
Differing windows for requests: A person may apply for a portion of a sample to be sent for independent analysis at their own expense but the times differ by sample: 12 months for blood (cl 16(4)), 6 months for oral fluid (cl 17(5)) and 3 months for urine (cl 18(6)). Failure to make the application within these windows eliminates that procedural right.
Costs borne by tested person: All such secondary analyses are at the person’s own expense (cl 16(4); cl 17(5); cl 18(6)). Practitioners should notify workers of these timelines and costs in testing policies.
Interaction of medical care and testing obligations
Medical practitioner objection: Clause 13(2) allows an attending medical practitioner or, if none present, a registered nurse to object to taking blood or urine samples on the ground that compliance would prejudice proper care or treatment. However, clause 13(4) requires the practitioner or nurse to take the sample if informed by the authorised person that the sample is required under the Regulation. This creates a potential conflict: if a practitioner initially objects then is told the sample is required under the Regulation, they must take it. Clear hospital protocols and communication channels are necessary.
Evidentiary certificates and minimum concentration certificates
Certificates specifying minimum concentrations: Clause 30 treats certificates that state a minimum concentration as if they had determined that minimum concentration and makes such certificates not open to challenge on that ground alone. Defence strategies that aim to challenge issues with minimum reporting thresholds may be constrained; however, overall challenges to methodology or process may still be available.
Exemptions to communications obligations are administrative
Regulator discretion: Clause 32 allows the Regulator to exempt particular trains or classes from the communications requirement in cl 31 by written notice. Operators seeking permanent or temporary derogations must engage with the Regulator; a failure to formalise exemptions in writing could still leave operators exposed to the 100 penalty unit maximum (cl 31).
In short, the key practical pitfalls are time windows (particularly the three‑hour rule and varying retest windows), specified approved devices and laboratories, security box and chain‑of‑custody rules, and the interplay between medical care obligations and sample collection. Compliance programs must be precise about timelines, device approvals, handover procedures and documentation to avoid evidentiary or criminal exposure.
How to comply
Complying with the Regulation requires operational protocols, documentation practices, equipment choices and legal processes tailored to the Regulation’s detailed requirements. The following is a compliance checklist and practical roadmap, mapped to specific clauses.
Governance and policy documents
Establish a written drug and alcohol testing policy that specifies random and targeted testing selection procedures (cl 7), roles of authorised persons and authorised sample takers, locations and timelines for testing, and procedures for sobriety assessments where breath devices are unavailable (cl 10).
Incorporate into the policy the prohibition on requiring tests after the 3‑hour window (cl 8(b)) and the rule that tests must not be conducted at a worker’s home (cl 8(d)). Ensure the policy includes training for authorised persons on forming reasonable beliefs and documenting the basis for requisitions (cl 11(1); cl 12(1)).
Appoint and authorise personnel
Designate authorised persons and authorised sample takers in writing, and maintain records of authorisations. For breath analyses, confirm which police officers are authorised by the Commissioner of Police and maintain protocols for referring workers to police stations where required (cl 3(2); cl 11(2)-(3)).
Provide training on permitted procedural steps, and ensure authorised sample takers are clinically competent to take blood and urine samples per cl 15(3)-(4) and cl 13 procedural requirements in hospital settings.
Equipment procurement and maintenance
Ensure breath testing devices and preliminary breath testing devices meet AS 3547:2019 as reissued, or are approved by the Governor under the Road Transport Act 2013 (cl 3). Track device approvals in the Road Transport Act to ensure equipment remains acceptable.
For oral fluid testing and analysing devices, procure only approved models listed in cl 3 or those that correspond to Schedule 3 of the Road Transport Act 2013. Maintain calibration and maintenance records.
For urine testing, ensure on‑site urine screening devices meet immunoassay screening cut‑offs in AS/NZS 4308:2023 table 3.1 (cl 18(8)) and ensure laboratory arrangements for confirmatory testing in accordance with AS/NZS 4308:2023 section 6 (cl 18(3), cl 19(3)).
Laboratory arrangements and contracts
Contract with approved laboratories specified in cl 3 for blood and oral fluid analysis; where an approved laboratory is not listed for a required sample type, confirm accreditation status for AS/NZS 4308:2023 for urine analyses (cl 3; cl 18(1)).
Establish fast‑track submission processes to ensure samples reach approved laboratories as soon as practicable and within the three‑hour window where possible (cls 16-17; cl 25(4)). Maintain secure transport arrangements compliant with AS/NZS 4760:2019 and AS/NZS 4308:2023 (cl 17(4)(c); cl 18(4)).
Chain-of-custody and documentation
Implement documented chain‑of‑custody forms to record sealing, labelling, handover, security box serial numbers, authorisations and time stamps as required by cl 16(1)-(2), cl 17(1)-(4) and cl 18(1)-(5). Ensure the person providing the sample receives the certificate required by cl 16(1)(d), cl 17(1)(d) or cl 17(2)(b).
Retain copies of analyst certificates and all chain‑of‑custody records so they can be readily produced as admissible certificates under cl 28-29.
Timelines and retest rights
Ensure immediate arrangements for testing after incidents to meet cl 8(b) and the three‑hour evidentiary window (cl 25-27).
Notify workers in writing of their right to request that a portion of a sample be sent for independent analysis within the regulation’s timeframes (12 months for blood, 6 months for oral fluid, 3 months for urine) and that such analyses are at the worker’s own expense (cl 16(4); cl 17(5); cl 18(6)).
Hospital and medical protocols
Establish protocols with hospitals and medical staff about notification processes when samples are required after an on‑duty accident (cl 13(1)-(5)). Clarify procedures where medical practitioners or nurses object on care grounds and maintain records of any objections and subsequent instructions from authorised persons (cl 13(2), (4)).
Handling refusals, interference and disciplinary response
Train authorised persons in the legal thresholds for forming reasonable beliefs about impairment and in managing refusals and suspected interference. Ensure staff understand criminal exposure under cl 21-22 and preserve evidence of refusals and attempts to obstruct testing.
Develop disciplinary policies aligned with the Regulation for workers who refuse to submit to valid testing or who interfere with samples, ensuring those policies recognise statutory defences for medical inability to comply (cl 21(3)) and sample taker defences (cl 23(2)).
Communications systems compliance
For rolling stock operators, conduct an audit of radio communications systems on every train to ensure compliance with cl 31(3)(a)-(e): driver‑to‑network control verbal communication, operational continuity, emergency call transmission and an emergency button that prioritises calls.
Install and test back‑up means of communication in case of radio failure (cl 31(1), (4)). Maintain maintenance logs and testing evidence to defend against potential 100 penalty unit exposure for non‑compliance (cl 31(1)-(2)).
If seeking exemption for particular trains or classes, engage with the Regulator to obtain written notice per cl 32 and record the effective date.
Legal and evidential readiness
Maintain a legal playbook for handling prosecutions under s 128 of the Rail Safety National Law that relies on the Regulation’s certificates and presumptions (cls 25-30). Ensure legal teams can quickly produce and authenticate certificates by authorised persons, sample takers and analysts as prima facie evidence (cls 28-29).
In the event of disputes, preserve raw data, device calibration logs, analyst lab notebooks and chain‑of‑custody records to respond to challenges where parties may contest technical aspects notwithstanding the Regulation’s presumptions.
Monitor standards and amending instruments
Because the Regulation adopts external standards and the list of approved devices and labs has been amended several times (see amendment annotations in cl 3, cl 17, cl 18 and cl 19), maintain a compliance register to track amendments (for example 2022, 2024, 2025 amendments noted in cl 3) and update internal procedures and procurement accordingly.
Communications with workforce
Provide clear guidance to rail safety workers about the testing regime, timelines for independent retesting applications, the consequences of refusal or interference, and the contact points for arranging independent analyses. Record receipt of these policies by employees.
Following these steps, aligned to the clause references given, will materially reduce regulatory risk. The twin operational priorities are timely testing and rigorous documentation of chain‑of‑custody and device/equipment compliance.
Division 1Provisions relating to drug and alcohol offences
(a) an approved oral fluid analysing instrument within the meaning of Schedule 3 to the Road Transport Act 2013, or
(b) the device known as Thermo TSQ Quantum Ultra, or
(c) the device known as Thermo TSQ Quantum Access, or
(d) the device known as Thermo TSQ Orbitrap Discovery, or
(e) the device known as AB Sciex QTrap 5500, or
(f) the device known as Shimadzu High Performance Liquid Chromatography Mass Spectrometer LCMS-8060, or
(g) the device known as Sciex TripleQuad 6500+ system, or
(h) the device known as Agilent 6460 Triple Quadrupole LC/MS.
approved oral fluid testing device means—
(a) an approved oral fluid testing device within the meaning of Schedule 3 to the Road Transport Act 2013, or
(b) the device known as Medvet Oral7, or
(c) the device known as Clonal Technologies Oral Fluid Drug Test 7, or
(d) the device known as Oranoxis ToxWipe 7+.
AS/NZS 4308:2023 means AS/NZS 4308:2023, Procedures for specimen collection and the detection and quantification of drugs in urine.
authorised sample taker has the same meaning as in Schedule 3 to the Road Transport Act 2013.
breath analysing instrument has the same meaning as in the Road Transport Act 2013.
breath analysis has the same meaning as in Schedule 3 to the Road Transport Act 2013.
drug screening test means a test carried out by an approved oral fluid testing device for the purpose of ascertaining whether any drugs are present in a person’s oral fluid.
hospital means any of the following—
(a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,
(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,
(c) a private health facility within the meaning of the Private Health Facilities Act 2007.
oral fluid analysis means a test carried out by an approved oral fluid analysing instrument for the purpose of ascertaining, by analysis of a person’s oral fluid, the presence of drugs in that person’s oral fluid.
preliminary breath test means a test for the purpose of indicating the concentration of alcohol in a person’s breath or blood, carried out on that person’s breath by means of a device, not being a breath analysing instrument, of a type that complies with the requirements of AS 3547:2019, Breath alcohol testing devices, as reissued in January 2021, or of a type approved by the Governor by order published in the Gazette for the purposes of the Road Transport Act 2013.
sample, in relation to urine, includes, if the sample is divided into portions, a portion of the sample.
the Act means the Rail Safety (Adoption of National Law) Act 2012.
Note.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2) A reference in this Regulation to a police officer authorised by the Commissioner of Police to carry out a breath analysis is a reference to a police officer so authorised under the Road Transport Act 2013.
(3) For the purposes of this Regulation, a power to require a person to provide a sample of blood, oral fluid or urine includes a power to require a person to provide samples of any one or more of blood, oral fluid or urine.
(4) Notes included in this Regulation do not form part of this Regulation.
Division 1 Provisions relating to drug and alcohol offences
Division 1 Provisions relating to drug and alcohol offences
Division 1 Provisions relating to drug and alcohol offences
4 No duplicity where more than one drug alleged
4 No duplicity where more than one drug alleged
4 No duplicity where more than one drug alleged
(1) If a person is charged with an offence under section 128(1)(b) of the Rail Safety National Law (NSW)—
(a) the document commencing proceedings may allege that more than one drug was present in the blood or oral fluid of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the document, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the blood or oral fluid of the defendant—
(i) a prescribed drug described in the document commencing proceedings, or
(ii) a combination of prescribed drugs any one or more of which was or were described in the document.
(2) If a person is charged with an offence under section 128(1)(c) of the Rail Safety National Law (NSW)—
(a) the document commencing proceedings may allege that the person was under the influence of more than one drug and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the document, and
(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was so much under the influence of—
(i) a drug described in the document commencing proceedings, or
(ii) a combination of drugs any one or more of which was or were described in the document,
as to be incapable of effectively discharging a function or duty of a rail safety worker.
(3) In subclause (2), drug includes alcohol.
5 Measurement of alcohol concentrations
5 Measurement of alcohol concentrations
5 Measurement of alcohol concentrations
(1) For the purposes of the Rail Safety National Law (NSW) and this Part, the concentration of alcohol present in a person’s breath or blood may be expressed as follows—
(a) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the breath—the amount of alcohol in grams in 210 litres of breath,
(b) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the blood—the amount of alcohol in grams in 100 millilitres of blood,
(c) in the case of a sample of blood—the amount of alcohol in grams in 100 millilitres of blood.
(2) An amount of alcohol in grams present in breath when measured by reference to 210 litres of breath is, for the purposes of the Rail Safety National Law (NSW) and this Part, taken to be equivalent to the same amount of alcohol in grams present in blood when measured by reference to 100 millilitres of blood.
6 Test results may not be used for offence where worker had not commenced work
6 Test results may not be used for offence where worker had not commenced work
6 Test results may not be used for offence where worker had not commenced work
The results of any breath test, breath analysis, drug screening test, oral fluid analysis or blood or urine test conducted on a rail safety worker who was about to carry out work are not admissible in any proceedings for an offence under section 128 of the Rail Safety National Law (NSW).
Division 2 Testing for alcohol or other drugs
Division 2 Testing for alcohol or other drugs
Division 2 Testing for alcohol or other drugs
7 Random and targeted testing of rail safety workers
7 Random and targeted testing of rail safety workers
7 Random and targeted testing of rail safety workers
The selection of a rail safety worker for testing for the presence of a drug or alcohol under the Rail Safety National Law (NSW) or this Part may be conducted on a random or targeted basis.
8 Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
8 Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
8 Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
An authorised person must not require a rail safety worker to undergo a breath test, submit to a sobriety assessment, breath analysis or drug screening test or provide a sample of blood, oral fluid or urine—
(a) if it appears to the authorised person that it would (because of injuries sustained by the worker) be dangerous to the worker’s medical condition if the worker complied with the requisition, or
(b) at any time after the expiration of 3 hours from the time the worker carried out the rail safety work (or was due to commence the rail safety work) to which the requisition relates, or
(c) in the case of a person other than a worker who has been involved in an accident or irregular incident while carrying out rail safety work, after the person has ceased to be on duty on a particular day, or
(d) at the worker’s home.
9 Supervisee may perform functions of authorised sample taker or authorised person
9 Supervisee may perform functions of authorised sample taker or authorised person
9 Supervisee may perform functions of authorised sample taker or authorised person
(1) Any duty of an authorised sample taker or an authorised person under this Part may be performed by a person acting at the direction or under the supervision of the authorised sample taker or an authorised person.
(2) A duty performed by any such person is taken to have been performed by the authorised sample taker or authorised person.
10 Sobriety assessment if breath testing device not available
10 Sobriety assessment if breath testing device not available
10 Sobriety assessment if breath testing device not available
(1) An authorised person may require a rail safety worker to submit to a sobriety assessment in accordance with the directions of the authorised person if—
(a) the authorised person is entitled under the Rail Safety National Law (NSW) and this Regulation to require the worker to undergo a breath test, and
(b) the device required to carry out the breath test is not readily available.
(2) A requirement that a rail safety worker submit to a sobriety assessment is not open to challenge in any proceedings merely on the basis that the device was readily available.
11 Breath analysis of rail safety workers following breath testing
11 Breath analysis of rail safety workers following breath testing
11 Breath analysis of rail safety workers following breath testing
(1) An authorised person may require a rail safety worker to submit to a breath analysis in accordance with the directions of the authorised person only if—
(a) it appears to the authorised person, as a result of a preliminary breath test or sobriety assessment under this Regulation, that the prescribed concentration of alcohol may be present in a rail safety worker’s breath or blood, or
(b) a rail safety worker who is required by an authorised person to undergo a preliminary breath test, or to submit to a sobriety assessment under this Regulation, refuses or fails to do so in accordance with the directions of the authorised person.
(2) If a police officer is entitled to require a rail safety worker to submit to a breath analysis, the officer may—
(a) arrest the worker without a warrant, and
(b) take the worker with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the worker for the purposes of the breath analysis.
(3) If an authorised person (other than a police officer) is entitled to require a rail safety worker to submit to a breath analysis, the authorised person may direct the worker to attend the nearest police station, or such other place as the authorised person may require, and there submit to a breath analysis.
(4) A breath analysis must be carried out by—
(a) an authorised person (other than a police officer), or
(b) a police officer authorised by the Commissioner of Police to carry out a breath analysis,
at or near a police station or such other place as the authorised person or police officer considers desirable.
(5) As soon as practicable after a rail safety worker has submitted to a breath analysis the authorised person or police officer operating the breath analysing instrument must deliver to the worker a statement in writing signed by the authorised person or police officer specifying—
(a) the concentration of alcohol determined by the analysis to be present in the worker’s breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood, and
(b) the day on which and time of the day at
This is an opening excerpt, not the complete document.