Div 2Procedures relating to testing and analyses

Division 2—Procedures relating to testing and analyses 12—Conduct of preliminary breath test or breath analysis (1) This section applies when an authorised person requires a rail safety worker to submit to testing under section 126 (Authorised person may require preliminary breath test or breath analysis) of the Rail Safety National Law. (2) A preliminary breath test or breath analysis to which a rail safety worker has been required to submit may not be commenced more than 8 hours after the worker has ceased to carry out rail safety work or more than 8 hours following a prescribed notifiable occurrence (as the case may be). (3) The performance of a preliminary breath test or breath analysis commences when a direction is first given by an authorised person that the rail safety worker concerned exhale into the preliminary breath test apparatus or breath analysing instrument to be used for the test or analysis. (4) A rail safety worker required to submit to a preliminary breath test or breath analysis must not refuse or fail to comply with all reasonable directions of an authorised person in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the preliminary breath test or breath analysis is conducted in accordance with the directions of the authorised person. (5) It is a defence to a prosecution under subsection (4) that there was, in the circumstances of the case, good reason for the refusal or failure of the defendant to comply with the requirement or direction. (6) If a rail safety worker refuses or fails to comply with a requirement or direction of an authorised person by reason of some physical or medical condition of the worker and immediately makes a request of the authorised person that a sample of his or her blood be taken by a medical practitioner or registered nurse, the authorised person must do all things reasonably necessary to facilitate the taking of a sample of the worker's blood for analysis by— (a) a medical practitioner or registered nurse nominated by the worker; or (b) a medical practitioner or registered nurse nominated by the authorised person at the request of the worker. (7) A rail safety worker is not relieved from the obligation to submit to a breath analysis in accordance with this section or section 126 of the Rail Safety National Law by— (a) the making of a request under subsection (6); or (b) the taking of a sample of the worker's blood under subsection (6). (8) A rail safety worker is not entitled to refuse or fail to comply with a requirement or direction under this section or section 126 of the Rail Safety National Law on the ground that— (a) the worker would, or might, by complying with that requirement or direction, provide evidence that could be used against himself or herself; or (b) the worker consumed alcohol after the worker last performed rail safety work or was involved in a prescribed notifiable occurrence (as the case may be), but before the requirement was made or the direction given. (9) The taking of a blood sample under subsection (6) must be in the presence of an authorised person. 13—Conduct of drug screening tests, oral fluid analyses and blood tests (1) This section applies when an authorised person requires a rail safety worker to submit to testing under section 127 (Authorised person may require drug screening test, oral fluid analysis and blood test) of the Rail Safety National Law. (2) A drug screening test may only be conducted by— (a) a police officer; or (b) an authorised person authorised by the Regulator to conduct such tests. (3) A drug screening test, oral fluid analysis or blood test to which a rail safety worker has been required to submit may not be commenced more than 8 hours after the worker ceased to carry out rail safety work or more than 8 hours following a prescribed notifiable occurrence (as the case may be). (4) The performance of a drug screening test, oral fluid analysis or blood test commences when a direction is first given by an authorised person that the rail safety worker concerned provide a sample of oral fluid or blood to be used for the drug screening test, oral fluid analysis or blood test. (5) A rail safety worker required by an authorised person to submit to a drug screening test, oral fluid analysis or blood test must not refuse or fail to comply with all reasonable directions of an authorised person in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid or blood to be taken in accordance with the directions of the authorised person. (6) It is a defence to a prosecution under subsection (5) that there was, in the circumstances of the case, good reason for the refusal or failure of the defendant to comply with the requirement or direction. (7) If a rail safety worker of whom a requirement is made or to whom a direction is given by an authorised person relating to a drug screening test or oral fluid analysis, refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the worker and immediately makes a request of the authorised person that a sample of his or her blood be taken by a medical practitioner or registered nurse, the authorised person must do all things reasonably necessary to facilitate the taking of a sample of the worker's blood for analysis by— (a) a medical practitioner or registered nurse nominated by the worker; or (b) a medical practitioner or registered nurse nominated by the authorised person at the request of the worker. (8) If a rail safety worker of whom a requirement is made or to whom a direction is given under this section relating to a blood test required in connection with— (a) drug testing—refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the worker and immediately makes a request of an authorised person that an oral fluid analysis be conducted, an authorised person must do all things reasonably necessary to facilitate the conduct of an oral fluid analysis; or (b) alcohol testing—refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the worker and immediately makes a request of an authorised person that a breath analysis be conducted, an authorised person must do all things reasonably necessary to facilitate the conduct of a breath analysis. (9) A rail safety worker is not relieved from the obligation to submit to a drug screening test, oral fluid analysis or blood test in accordance with this section or section 127 of the Rail Safety National Law by— (a) the making of a request under subsection (7) or (8); or (b) the taking of a sample of— (i) the worker's blood under subsection (7); or (ii) the worker's oral fluid under subsection (8)(a); or (c) the conduct of a breath analysis under subsection (8)(b). (10) A rail safety worker is not entitled to refuse or fail to comply with a requirement or direction under this section or section 127 of the Rail Safety National Law on the ground that— (a) the worker would, or might, by complying with that requirement or direction, provide evidence that could be used against himself or herself; or (b) the worker consumed a drug or alcohol after the worker last performed rail safety work or was involved in a prescribed notifiable occurrence (as the case may be), but before the requirement was made or the direction given. (11) The taking of a blood sample under this section must be in the presence of an authorised person. 14—Breath analysis where drinking occurs after rail safety work is carried out (1) This section applies to proceedings for an offence in which the results of a breath analysis under this Part or Part 3 Division 9 of the Rail Safety National Law are relied on to establish the commission of the offence. (2) If in proceedings to which this section applies the defendant satisfies the court— (a) that the defendant consumed alcohol during the relevant period; and (b) that the alcohol was not consumed by the defendant after an authorised person first exercised powers under section 126 of the Rail Safety National Law preliminary to the performance of the breath analysis; and (c) that, after taking into account the quantity of alcohol consumed by the defendant during the relevant period and its likely effect on the concentration of alcohol indicated as being present in the defendant's blood by the breath analysis, the defendant should not be found guilty of the offence charged, the court may, despite the other provisions of this Part or the Rail Safety National Law, find the defendant not guilty of the offence charged. (3) In subsection (2)— relevant period means the period— (a) commencing when 3 hours have elapsed since the prescribed notifiable occurrence or the conduct of the defendant giving rise to the making of the requirement under section 126 of the Rail Safety National Law that the defendant submit to the breath analysis; and (b) ending when the performance of the breath analysis commences. 15—Oral fluid analysis or blood test where consumption of alcohol or drug occurs after rail safety work is carried out (1) This section applies to proceedings for an offence relating to— (a) the presence of alcohol in which the results of a blood test under section 127 of the Rail Safety National Law are relied on to establish the commission of the offence; or (b) the presence of a drug in which the results of an oral fluid analysis or blood test under section 127 of the Rail Safety National Law are relied on to establish the commission of the offence. (2) If in proceedings to which this section applies the defendant satisfies the court— (a) that the defendant consumed alcohol or consumed or used the drug (as the case may be) during the relevant period; and (b) that the alcohol was not consumed or the drug was not consumed or used by the defendant (as the case may be) after an authorised person first exercised powers under section 127 of the Rail Safety National Law preliminary to the performance of the blood test or oral fluid analysis; and (c) that, after taking into account the quantity of alcohol consumed, or drug consumed or used, by the defendant during the relevant period and its likely effect on the concentration of alcohol or drug indicated as being present in the defendant's blood or oral fluid by the test or analysis, the defendant should not be found guilty of the offence charged, the court may, despite the other provisions of this Part or the Rail Safety National Law, find the defendant not guilty of the offence charged. (3) In subsection (2)— relevant period means the period— (a) commencing when 3 hours have elapsed since the prescribed notifiable occurrence or conduct of the defendant giving rise to the making of the requirement under section 127 of the Rail Safety National Law that the defendant submit to the oral fluid analysis or blood test; and (b) ending when the performance of the oral fluid analysis or blood test (as the case may be) commences. 16—Compulsory blood testing following a prescribed notifiable occurrence (1) If a rail safety worker suffers an injury as a result of a prescribed notifiable occurrence and, within 8 hours after the prescribed notifiable occurrence, the worker attends at, or is admitted into, a hospital for the purposes of receiving treatment for that injury, it is the duty of the medical practitioner who attends the worker to ensure that, as soon as practicable, a sample of that worker's blood (despite the fact that the worker may be unconscious), is taken in accordance with this section. (2) If a rail safety worker suffers an injury as a result of a prescribed notifiable occurrence and the worker is dead on arrival at the hospital, or dies before a sample of blood has been taken in accordance with this section and within 8 hours after admission to the hospital, it is the duty of the medical practitioner who, under Part 5 of the Coroners Act 2003, notifies the State Coroner or a police officer of the death— (a) to ensure that a sample of blood from the body of the deceased is taken in accordance with this section; or (b) to notify the State Coroner as soon as practicable that, in view of the circumstances in which the death of the deceased occurred, a sample of blood should be taken from the body under this section. (3) A sample of blood under subsection (1) or (2) may be taken by a medical practitioner or a registered nurse. (4) The State Coroner, on receiving a notification under subsection (2), may authorise and direct a pathologist to take a sample of blood from the body of the deceased in accordance with this section. (5) Any person who, on being requested to submit to the taking of a sample of blood under this section, refuses or fails to comply with that request and who— (a) fails to assign any reason based on genuine medical grounds for that refusal or failure; or (b) assigns a reason for that refusal or failure that is false or misleading; or (c) makes any other false or misleading statement in response to the request, is guilty of an offence. (6) In this section— hospital means an institution at which medical care or attention is provided for injured persons that is declared to be a hospital for the purposes of section 47I of the Road Traffic Act 1961. 17—Processes relating to blood samples The following provisions apply where a sample of blood is taken under this Part or Part 3 Division 9 of the Rail Safety National Law: (a) the medical practitioner or registered nurse by whom the sample of blood is taken must— (i) place the sample of blood in approximately equal proportions in 2 separate containers marked with an identification number distinguishing the sample from other samples of blood and seal the containers; and (ii) give to the person from whom the sample was taken or (in the case of a sample taken under section 16) leave with the person's personal effects at the hospital, a notice in writing— (A) advising that the sample has been taken under the relevant section; and (B) advising that a container containing part of the sample and marked with the identification number specified in the notice will be available for collection by or on behalf of the person at a specified place; and (C) containing any other information prescribed by the regulations; and (iii) complete and sign a certificate containing the information required under paragraph (d); and (iv) make the containers and the certificate available to an authorised person; (b) each container must contain a sufficient quantity of blood to enable an analysis to be made of the concentration of alcohol present in the blood or of the presence of a drug in the blood; (c) it is the duty of the medical practitioner or registered nurse by whom the sample is taken to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper analysis of the concentration of alcohol present in the blood, or the presence of a drug in the blood; (d) the certificate referred to in paragraph (a) must state— (i) the identification number of the sample marked on the containers referred to in that paragraph; and (ii) the name and address of the person from whom the sample was taken; and (iii) the name of the medical practitioner or registered nurse by whom the sample was taken; and (iv) the date, time and place at which the sample was taken; and (v) that the medical practitioner or registered nurse gave the notice referred to in that paragraph to the person from whom the sample was taken, or, as the case may be, left the notice with the person's personal effects; (e) 1 of the containers containing the sample must— (i) as soon as reasonably practicable be taken by an authorised person or approved courier to the place specified in the notice given to the person or left with the person's personal effects under paragraph (a); and (ii) be kept available at that place for collection by or on behalf of the person for the period prescribed by the regulations; (f) after analysis of the sample in a container made available to an authorised person in accordance with paragraph (a), the analyst who performed or supervised the analysis must sign a certificate containing the following information: (i) the identification number of the sample marked on the container; (ii) the name and professional qualifications of the analyst; (iii) the date the sample was received in the laboratory in which the analysis was performed; (iv) the concentration of alcohol, prescribed drug or other drug found to be present in the sample; (v) any factors relating to the sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis; (vi) any other information relating to the sample or analysis that the analyst thinks fit to include; (g) on completion of an analysis of a sample— (i) the certificate of the medical practitioner or registered nurse by whom the sample was taken and the certificate of the analyst who performed or supervised the analysis must be retained on behalf of the medical practitioner or registered nurse by whom the sample was taken; and (ii) copies of the certificates referred to in paragraph (g)(i) must be sent to— (A) the Regulator; and (B) if the sample was taken as a result of testing required by a police officer—the Commissioner of Police; and (C) the person from whom the sample was taken or, if the person is dead, a relative or personal representative of the deceased; (h) if the whereabouts of the person from whom the sample is taken, or the identity or whereabouts of a relative or personal representative of the deceased (as the case may be) is unknown, there is no obligation to comply with paragraph (g)(ii)(C) but copies of the certificates must, on application made within 3 years after the completion of the analysis, be provided to any person to whom they should, but for this paragraph, have been sent. 18—Processes relating to oral fluid samples The following provisions apply where a sample of oral fluid is taken under this Part or Part 3 Division 9 of the Rail Safety National Law: (a) the authorised person who takes a sample of oral fluid for the purposes of an oral fluid analysis must— (i) place the sample of oral fluid (and any other reagent or other substance required by the regulations to be added to the sample) in approximately equal proportions, in 2 separate containers marked with an identification number distinguishing the sample from other samples of oral fluid and seal the containers; and (ii) give to the person from whom the sample was taken a notice in writing— (A) advising that the sample has been taken under section 127 of the Rail Safety National Law; and (B) advising that a container containing part of the sample and marked with the identification number specified in the notice will be available for collection by or on behalf of the person at a specified place; and (C) containing any other information prescribed by the regulations; and (iii) complete and sign a certificate containing the information required under paragraph (d); (b) each container must contain a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug in the oral fluid; (c) it is the duty of the authorised person who takes the sample of oral fluid for the purposes of the oral fluid analysis to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated (other than as required under paragraph (a)) and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid; (d) the certificate referred to in paragraph (a) must state— (i) the identification number of the sample marked on the containers referred to in that paragraph; and (ii) the name and address of the person from whom the sample was taken; and (iii) the identification number of the authorised person by whom the sample was taken; and (iv) the date, time and place at which the sample was taken; and (v) that the authorised person gave the notice referred to in that paragraph to the person from whom the sample was taken; (e) 1 of the containers containing the sample must— (i) as soon as reasonably practicable be taken by an authorised person or approved courier to the place specified in the notice given to the person under paragraph (a); and (ii) be kept available at that place for collection by or on behalf of the person for the period prescribed by the regulations; (f) after analysis of the sample in a container referred to in paragraph (a), the analyst who performed or supervised the analysis must sign a certificate containing the following information: (i) the identification number of the sample marked on the container; (ii) the name and professional qualifications of the analyst; (iii) the date the sample was received in the laboratory in which the analysis was performed; (iv) the information required by the regulations in relation to any prescribed drug or other drug found to be present in the sample; (v) any factors relating to the sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis; (vi) any other information relating to the sample or analysis that the analyst thinks fit to include; (g) on completion of an analysis of a sample— (i) the certificate of the medical practitioner or registered nurse by whom the sample was taken and the certificate of the analyst who performed or supervised the analysis must be retained on behalf of the medical practitioner or registered nurse by whom the sample was taken; and (ii) copies of the certificates referred to in paragraph (g)(i) must be sent to— (A) the Regulator; and (B) if the sample was taken as a result of testing required by a police officer—the Commissioner of Police; and (C) the person from whom the sample was taken or, if the person is dead, a relative or personal representative of the deceased; (h) if the whereabouts of the person from whom the sample is taken or, that person being dead, the identity or whereabouts of a relative or personal representative of the deceased is unknown, there is no obligation to comply with paragraph (g)(ii)(C) (but copies of the certificates must, on application made within 3 years after completion of the analysis, be provided to any person to whom they should, but for this paragraph, have been sent).