Div 9Drug and alcohol testing by Regulator

Division 9—Drug and alcohol testing by Regulator 122A—Interpretation urine test includes— (a) the screening of a sample of a person's urine; and (b) the analysis of a sample of a person's urine, for the presence of drugs in the sample. 123—Testing for presence of drugs or alcohol A rail safety worker may be required to undertake a test for the presence of a drug or alcohol in accordance with this Law and the application Act. 124—Appointment of authorised persons (1) The Regulator may, by instrument in writing, appoint— (a) a rail safety officer; or (b) a person with qualifications or experience considered by the Regulator to be appropriate for the performance of relevant functions under this Law and the application Act, to be an authorised person for a term, and subject to the conditions, specified in the instrument. A person appointed under subsection (1)(b) need not be an employee of a government agency or instrumentality. (2) The authority of an authorised person may be limited by the relevant instrument of appointment to a particular part of a participating jurisdiction, to a particular railway or to particular rail safety workers, or otherwise. 125—Identity cards (1) The Regulator must give each authorised person appointed under section 124 an identity card that states the person's name and appointment as an authorised person and includes any other matter prescribed by the national regulations. (2) An authorised person to whom an identity card has been issued must produce his or her identity card for inspection on request to a person required by the authorised person to submit to a test or to do any other thing under this Law or the application Act. (3) If a person to whom an identity card has been issued ceases to be an authorised person, the person must return the identity card to the Regulator as soon as practicable. 126—Authorised person may require preliminary breath test or breath analysis (1) Subject to this section, an authorised person may at any time require a rail safety worker who— (a) is about to carry out rail safety work; or (b) is carrying out rail safety work; or (c) is attempting to carry out rail safety work; or (d) is still on railway premises after carrying out rail safety work; or (e) without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence, to submit to testing by means of a preliminary breath test or breath analysis (or both). (2) For the purposes of making a requirement that a rail safety worker submit to a preliminary breath test or breath analysis, an authorised person may— (a) require the worker to provide the worker's name and residential address; and (b) give any other reasonable direction to the worker. An authorised person may (for example) direct the rail safety worker to accompany the authorised person and attend at a specified place for the purposes of carrying out the preliminary breath test or breath analysis. (3) A rail safety worker must immediately comply with a direction given by an authorised person (whether under this section or the application Act) for the purpose of requiring the worker to submit to a preliminary breath test or breath analysis. (4) The application Act and regulations made under the application Act may prescribe the manner in which a preliminary breath test or breath analysis is to be conducted and may (for example) require that more than 1 sample of breath is to be provided for testing or analysis (and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the preliminary breath test or breath analysis for the purposes of this Law, the application Act or any other Act). 127—Authorised person may require drug screening test, oral fluid analysis, urine test and blood test (1) Subject to this section, an authorised person may at any time require a rail safety worker who— (a) is about to carry out rail safety work; or (b) is carrying out rail safety work; or (c) is attempting to carry out rail safety work; or (d) is still on railway premises after carrying out rail safety work; or (e) without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence, to submit to a drug screening test, oral fluid analysis, urine test or blood test (or any combination of these). (2) For the purposes of making a requirement that a rail safety worker submit to a drug screening test, oral fluid analysis, urine test or blood test, an authorised person may— (a) require the worker to provide the worker's name and residential address; and (b) give any other reasonable direction to the worker. An authorised person may (for example) direct the rail safety worker to accompany the authorised person and attend at a specified place for the purposes of carrying out the drug screening test, oral fluid analysis, urine test or blood test. (3) A rail safety worker must immediately comply with a direction given by an authorised person (whether under this section or the application Act) for the purpose of requiring the worker to submit to a drug screening test, oral fluid analysis, urine test or blood test (or any combination of these). (4) The application Act and regulations made under the application Act may prescribe the manner in which a drug screening test, oral fluid analysis, urine test or blood test is to be conducted. 127A—Facilitation of testing (1) The person with control or management of railway premises must do all that is reasonably necessary to facilitate an authorised person to exercise powers under this Division in relation to requiring a rail safety worker to undertake a test for the presence of a drug or alcohol, including (for example)— (a) allowing the authorised person entry to the railway premises; and (b) making the rail safety worker available for such testing; and (c) making any other person at the premises available for the purpose of giving the authorised person reasonable help to exercise the authorised person's powers under this Division. (2) A person required to facilitate or give reasonable help under this section must not, without reasonable excuse, fail to comply with the requirement. (3) Subsection (2) places an evidential burden on the accused to show a reasonable excuse. (4) An authorised person may be accompanied by a rail safety officer to assist the authorised person under this Division if the authorised person considers the assistance necessary. 128—Offence relating to prescribed concentration of alcohol or prescribed drug (1) A rail safety worker must not carry out, or attempt to carry out, rail safety work— (a) while there is present in his or her blood the prescribed concentration of alcohol; or (b) while a prescribed drug is present in his or her oral fluid or blood; or (c) while so much under the influence of alcohol or a drug as to be incapable of effectively discharging a function or duty of a rail safety worker. In some participating jurisdictions, provision is made that, for the purposes of this Law, a concentration of alcohol in a sample of a person's breath will be taken to indicate a concentration of alcohol in the person's blood. (1a) For the purposes of subsection (1), and without limiting the circumstances in which a rail safety worker will be taken to be carrying out, or attempting to carry out, rail safety work, if a rail safety worker— (a) has arrived at the rail safety worker's place of work; and (b) — (i) has signed on for the purpose of carrying out rail safety work (in such manner as may be required by the practices and procedures at the worker's place of work and however described) and is available to carry out the rail safety work; or (ii) is otherwise on duty for the purpose of carrying out rail safety work, then the rail safety worker will be taken to be carrying out, or attempting to carry out, rail safety work. (2) For the purposes of subsection (1)(c), a person is incapable of effectively discharging a function or duty of a rail safety worker if, owing to the influence of alcohol or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired (but this subsection does not restrict in any way the operation of subsection (1)(c)). (3) Subject to subsection (4), it is a defence to a charge of an offence against subsection (1)(b) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood. (4) Subsection (3) does not apply if the defendant consumed the prescribed drug believing that he or she was consuming a substance unlawfully but was mistaken as to, unaware of, or indifferent to, the identity of the prescribed drug. (5) For the purposes of this section— prescribed concentration of alcohol, in relation to a rail safety worker, means— (a) any concentration of alcohol in the blood; or (b) if some other concentration of alcohol is prescribed in the national regulations (being a specified amount of alcohol in 100 millilitres of blood) for the purposes of this definition—that concentration; prescribed drug means— (a) any of the following substances: (i) delta‑9‑tetrahydrocannabinol; (ii) Methylamphetamine (Methamphetamine); (iii) 3,4‑Methylenedioxymethylamphetamine (MDMA); and (b) any other substance declared by the national regulations to be a prescribed drug for the purposes of this section. 128A—Offence to hinder or obstruct authorised person A person must not intentionally hinder or obstruct an authorised person in exercising powers under this Division, or induce or attempt to induce any other person to do so. 128B—Offence to assault, threaten or intimidate authorised person A person must not directly or indirectly assault, threaten or intimidate, or attempt to assault, threaten or intimidate, an authorised person or a person assisting an authorised person. Maximum penalty: $50 000 or imprisonment for 2 years, or both. 128C—Interfering or tampering with, or destroying, samples A person must not interfere or tamper with, or destroy, a sample of a person's oral fluid, urine or blood provided or taken for the purposes of this Division unless the action occurs— (a) by or at the direction of a person authorised to analyse the sample (whether under the Law or the application Act) in the course of or on completion of the analysis; or (b) in accordance with the requirements under the Law or the application Act. 129—Oral fluid, urine sample or blood sample or results of analysis etc not to be used for other purposes A sample of oral fluid, urine or blood taken under this Part or the application Act (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis, urine test or blood test) must not be used for a purpose other than that contemplated by this Part or the application Act, in connection with the control or management of any work or activity associated with railway operations, or for the purpose of disciplinary proceedings against a rail safety worker.