Rail Safety National Law (South Australia) (Drug and Alcohol Testing) Regulations 2012

The central concept is the rail safety worker, a person who carries out rail safety work. These workers are subject to alcohol and drug testing under the Act. The Regulations operationalise three types of testing: preliminary breath tests (alcotests) and breath analysis for alcohol, drug screening tests (using oral fluid), and confirmatory oral fluid analysis or blood tests for drugs. An authorised person (typically a railway operator’s testing officer or a police officer) has the power to require a rail safety worker to submit to these tests. The concept of “good cause” is important: a refusal or failure to comply with a testing direction is a criminal offence unless the worker has a physical or medical condition that prevents provision of the required sample. The Regulations provide for alternative sample types in such cases: if a worker cannot provide breath, they may request a blood test (for alcohol); if they cannot provide oral fluid, they may request a blood test (for drugs); if they cannot provide blood, they may request an oral fluid or breath test, depending on the context. Another key concept is the “prescribed concentration of alcohol” as defined in section 128(5) of the National Law. The breath analysis procedure in regulation 4 ensures that a reliable reading is obtained by requiring two separate breath samples of at least one litre each, taken two to ten minutes apart. If the second reading is more than 15% higher or lower than the first, both samples are disregarded and further samples may be required. The “approved blood test kit” is a special kit supplied by the authorised person that a worker can use to obtain a voluntary blood test after a positive breath analysis. The kit includes two containers, adhesive seals with an identifying number, and a certificate form. The concept of an “analyst’s certificate” is critical: it must identify any drug found, the date of receipt, the seal number, the analyst’s qualifications, the alcohol concentration (if applicable), and any factors affecting accuracy. The sample retention period of 12 months (regulation 6) allows the worker to collect the sample for independent testing. Destruction of samples (regulation 11) is required once proceedings are finalised or if proceedings are not commenced within the allowed period. The oral advice scripts in Schedule 1 are themselves a key concept: they must be delivered verbatim to the worker when a refusal occurs or when a positive alcohol reading is recorded, to ensure the worker understands the legal consequences and the option for a voluntary blood test.

The Regulations primarily affect rail safety workers, being the individuals who are subject to compulsory alcohol and drug testing. These workers must comply with directions to provide breath, oral fluid, or blood samples as required by authorised persons. Failure to comply without good cause exposes them to criminal liability. The Regulations also impose significant duties on authorised persons, such as testing operators employed by railway operators or police officers. An authorised person must give the prescribed oral advice when a worker refuses or fails to comply with a testing direction; must use only the approved apparatus listed in regulation 3A for alcotests and drug screening tests; must follow the strict breath analysis procedure in regulation 4 (including disregarding samples where errors, mouth alcohol, or a more-than-15% discrepancy occurs); must provide a blood test kit upon request after a positive breath analysis; and must complete a written request form for the kit with the worker (regulation 10). Medical practitioners and registered nurses are affected when they take voluntary blood samples under regulation 8: they must use the supplied blood test kit, divide the sample between two containers, seal them, complete the certificate form, sign it, obtain the worker’s signature, and deliver one sealed container and the original certificate to the worker, and the other sealed container and a copy of the certificate to a police officer or an approved delivery person. The approved delivery person (a courier approved by the Commissioner of Police) must then deliver the sample and certificate to Forensic Science SA. Police officers also have obligations: under regulation 8(1)(ja) they must deliver the copy and container to Forensic Science SA or to an approved delivery person. The Commissioner of Police has the duty under regulation 11 to ensure destruction of oral fluid and blood samples after proceedings are concluded or if proceedings are not commenced in time. The Regulator (the body overseeing rail safety) also receives a copy of the analyst’s certificate under regulation 8(1)(o) and retains request forms for 12 months under regulation 10(2). Forensic Science SA is the designated laboratory that must analyse the blood sample from the voluntary blood test and send an analyst’s certificate to the worker. In summary, the Regulations create a network of obligations on rail safety workers, testing operators, medical professionals, police, couriers, the Regulator, and Forensic Science SA.

The Regulations impose several key duties on authorised persons. Under regulation 4, when conducting a breath analysis, the operator must ensure the worker provides two separate breath samples of at least one litre each, with an interval of not less than two minutes and not more than ten minutes. If a sample indicates an error, mouth alcohol, or a discrepancy greater than 15% between readings, the operator must disregard the sample and may require two further samples from a different instrument or from the same instrument as the case may be. The operator must also follow the prescribed oral advice requirements in regulation 5: when a worker refuses or fails to comply with a direction relating to a preliminary breath test or breath analysis, the operator must give the oral advice set out in Schedule 1 Part 1; for a drug screening test or oral fluid analysis direction, the advice in Part 2 clause 2; for a blood test direction in connection with drug testing, Part 2 clause 3; for a blood test in connection with alcohol testing, Part 2 clause 4. This advice informs the worker that refusal without good cause is a criminal offence and explains the option to request an alternative sample type if a medical condition prevents the primary sample. Under regulation 9, when a positive breath analysis reading is recorded, the authorised person must give the oral advice in Part 3 of Schedule 1 and deliver the written notice in Part 4. This advice explains that the reading indicates a prohibited level of alcohol, that a presumption of accuracy applies for the reading and the preceding three hours, and that the worker may request a voluntary blood test using a special kit. The worker has the right to request an approved blood test kit under section 20(5)(b) of the Act, and regulation 10 sets out the procedure: the request may be made orally initially, then a written request form must be completed, signed by the worker, and attested by the operator or other authorised person. The worker is entitled to retain the original signed request form. The Regulations also give the worker the right to have the sample of blood taken during a voluntary test analysed independently (regulation 8(1)(q)), and to receive the analyst’s certificate from Forensic Science SA by post (regulation 8(1)(n)). Under regulation 6, the worker has the right to collect the blood or oral fluid sample from the authorised person within 12 months of the sample being taken, so that it can be analysed elsewhere. A rail safety worker who has a physical or medical condition that prevents provision of the required sample has the right to request an alternative sample type (Schedule 1 Parts 1 and 2), and the authorised person must assist in facilitating that alternative test.

These Regulations do not themselves create criminal penalties. Instead, they prescribe procedures that support the enforcement of offences under the Act and the National Law. The principal offence addressed is under section 128(1) of the National Law, which makes it an offence for a rail safety worker to carry out or attempt rail safety work while the prescribed concentration of alcohol is present in their blood, or while so under the influence of alcohol as to be incapable of effectively discharging a function or duty. The Regulations provide the evidentiary framework: the breath analysis procedure in regulation 4 ensures that a reliable reading is obtained; the oral advice in Schedule 1 Part 3 informs the worker that the reading will be presumed accurate under section 20(1) of the Act for the reading and the preceding three hours. The worker can challenge that presumption only by obtaining a voluntary blood test under the procedures in regulation 8; if the blood test shows a lower concentration of alcohol, that evidence may be used to rebut the presumption (section 20(2) of the Act). Refusal or failure to comply with a testing direction without good cause is an offence under sections 12(4) and (6) (for breath testing) and 13(5) and (7) or (8) (for drug or blood testing) of the Act. The oral advice in Schedule 1 Parts 1 and 2 explicitly warns the worker that such refusal or failure is a criminal offence and could result in a fine. The Regulations do not specify the quantum of any fine; that is left to the Act. The accuracy of testing depends on strict compliance with the Regulations. If the prescribed breath analysis procedure is not followed (for example, if the required interval between samples is not observed, or if a sample that should be disregarded is nonetheless used), the resulting reading may be inadmissible or unreliable in proceedings. Similarly, if the approved apparatus listed in regulation 3A is not used, the test results may be challenged. The analyst’s certificate, required by regulation 7, must contain the identifying information for any drug found, and must be completed by an analyst with proper qualifications (regulation 8(1)(m)). Failure to comply with the certificate requirements could affect the admissibility of the evidence. The Commissioner of Police has a duty under regulation 11 to ensure destruction of samples once proceedings are determined or the time for commencing proceedings has lapsed. This duty is enforceable as a requirement of the Regulations, though the ultimate sanction for non-compliance would be a breach of the Regulations themselves, potentially leading to consequences under the Act or general law.

These Regulations are made under the Rail Safety National Law (South Australia) Act 2012, which itself adopts the Rail Safety National Law as set out in the Schedule to that Act. The Regulations are the principal subordinate instrument governing drug and alcohol testing for rail safety workers in South Australia. They expressly interact with several other pieces of South Australian legislation. Regulation 8 incorporates by reference the form set out in Schedule 1 Form 6 of the Road Traffic (Miscellaneous) Regulations 2014 for the certificate that a medical practitioner or registered nurse must complete when taking a voluntary blood sample. Subregulation 8(2) provides that references in that form to the Road Traffic Act 1961 or the Rail Safety Act 2007 are to be read as references to the Rail Safety National Law (South Australia) Act 2012 or the corresponding provision. This ensures that the blood test kit form designed originally for road traffic law can be used seamlessly in the rail safety context. The definition of “approved delivery person” in regulation 8(3) ties into the scheme established under the Road Traffic Act 1961, where the Commissioner of Police approves couriers for blood sample delivery. The transitional provisions in Schedule 2 of these Regulations directly reference the repealed Rail Safety Act 2007 and the Rail Safety (Alcohol and Drug Testing) Regulations 2008. For a period of six months after commencement of the relevant amendments, authorised persons could continue to use the forms and notices that were prescribed under the old regime, including the written notice for positive breath analysis (Schedule 2 clause 2(1)), the request form for a blood test kit (clause 2(3)), and the statement required under section 20(4) of the Act (clause 2(5)). Those transitional provisions include cross-reference notes that map old provisions to new ones, ensuring legal continuity. The Act itself (section 20) provides for a presumption of accuracy of breath analysis and a right to a voluntary blood test, and the Regulations flesh out that right with detailed procedures. The National Law (section 128) defines the alcohol offence, and the Regulations support the proof of that offence by providing the testing methodology. There is also likely an interaction with general evidence law and criminal procedure, though the Regulations do not address that directly. The analyst’s certificate under regulation 7, for example, would be tendered as evidence in proceedings. The requirement to destroy samples under regulation 11 interacts with the law of evidence and the rights of a person to have the sample available for independent testing; the 12-month retention period balances the worker’s right to access the sample with the need for the prosecution to preserve evidence.

The Rail Safety National Law (South Australia) (Drug and Alcohol Testing) Regulations 2012 were originally made on 13 December 2012 (Gazette 13.12.2012 p5590) and commenced on 20 January 2013 (regulation 2 of the principal regulations). Since then, they have been amended on several occasions. The first variations occurred in 2014: variation 208/2014 (Gazette 31.7.2014 p3815, commenced 1.9.2014) amended regulation 8(1); variation 242/2014 (Gazette 18.9.2014 p5260, commenced 18.9.2014) further varied regulation 4(1) and regulation 8(1) and inserted regulation 8(3). Also at that time, the original regulation 2 was omitted under the Legislation Revision and Publication Act 2002, and Schedule 2 clause 1 was similarly omitted. In 2018, regulation 3A was inserted by variation 50/2018 (Gazette 19.4.2018 p1413, commenced 24.4.2018), adding the list of approved apparatus for alcotests and drug screening tests. In 2022, significant amendments were made by variation 101/2022 (Gazette 24.11.2022 p6692, commenced 12.12.2022). These amendments affected regulation 8(1) (amended), regulation 11 (original? no, but the legislative history shows Sch1 Parts and clauses were amended). Specifically, Schedule 1 Part 1 clause 1 was amended; Part 3 (the oral advice for positive breath analysis) was amended in multiple places; Part 4 clause 3 was amended; and Part 4 clause 4 subclauses (3), (6), (7), and (9) were amended. The latest amendment as shown is variation 122/2025 (Gazette 20.11.2025 p4507, commenced 20.11.2025), which substituted regulation 3A(2) (the list of approved apparatus for drug screening tests), replacing the earlier list with new devices: Clonal Technologies Oral Fluid Drug Test 7, Medvet Oral7 Point of Collection Device, and Oranoxis ToxWipe 7+. These amendments reflect technological updates and experience in drug testing. The table of provisions varied indicates that regulation 4 (breath analysis procedure) was varied once in 2014; regulation 8 (voluntary blood test procedures) was varied three times; and Schedule 1 has been amended in 2022. The legislative history also notes that the principal regulations revoked the earlier Rail Safety (General) Regulations 2008 and the Rail Safety (Alcohol and Drug Testing) Regulations 2008, consolidating the testing framework under the new National Law.

The source text of these Regulations does not itself contain any case citations, references to litigation, or judicial interpretation of its provisions. The Regulations are a subordinate instrument that prescribes technical procedures; any litigation arising from their application would typically occur in the context of prosecutions for offences under the Act or the National Law. Such proceedings would challenge the admissibility of testing evidence based on non-compliance with the Regulations. For example, a rail safety worker might argue that the breath analysis procedure was not followed in accordance with regulation 4 (e.g., the interval between samples was less than two minutes, or a sample that should have been disregarded was not), or that the approved apparatus used was not listed in regulation 3A at the relevant time. Alternatively, a worker might claim that the prescribed oral advice under regulation 5 was not given before a refusal was recorded, potentially affecting the voluntariness of the refusal or the validity of the offence. A person might also challenge the admissibility of an analyst’s certificate under regulation 7 if the certificate failed to identify the drug found. Because these Regulations have been in force since 2013 and amended several times, it is likely that there has been at least some judicial consideration in the South Australian magistrates courts or the District Court on appeal, but that information is not present in the provided source. The legislative history shows that amendments have been made to the oral advice scripts (Schedule 1) in 2022, which may indicate that earlier wording was the subject of judicial comment or operational feedback. However, the strict instruction for this deep dive is to name only cases that the source names, and the source names none. Therefore, any litigation history would be speculative. The Regulations themselves are procedural, and the ultimate enforcement occurs through the Act’s offence provisions. Practitioners should be aware that any prosecution under section 128 of the National Law will rely heavily on the chain of evidence prescribed by these Regulations, and the defence may scrutinise every step for compliance.

Several provisions in these Regulations contain traps for the unwary. First, the breath analysis procedure in regulation 4 is mandatory: the operator must obtain two separate breath samples of at least one litre each, with a gap of at least two minutes but no more than ten minutes. If the operator inadvertently allows more than ten minutes to elapse between samples, the first sample must be disregarded and two further samples may be required. If the second reading is more than 15% higher or lower than the first, both samples are disregarded. This means that even if the worker provided breath, the result may be invalid if those conditions are not met. A common error might be failing to use a different instrument when an error is indicated (regulation 4(2)(a)(ii)). Second, the approved apparatus list in regulation 3A is exclusive. Only the AlcoQuant 6020 is approved for alcotests, and only the three specified devices (as substituted in 2025) are approved for drug screening tests. Using any other device could render the test results inadmissible. Third, the oral advice in Schedule 1 Parts 1 and 2 must be given when a worker refuses or fails to comply with a direction. If the advice is not given, the refusal may not constitute an offence under the Act, as the worker may not have been properly informed of the consequences and the alternative sample option. The wording is prescribed and must be delivered accurately; paraphrasing may be insufficient. Fourth, the voluntary blood test procedure in regulation 8 is detailed. The worker must not consume any more alcohol before the sample is taken and must not open the blood test kit. If the worker opens the kit, or if the seal is broken, the chain of custody may be compromised and the test may not be usable to challenge the breath analysis. The medical practitioner must follow the exact steps: dividing the blood equally into two containers, sealing with the adhesive seal bearing an identifying number, completing the certificate form, and having it signed by the worker and attested. Failure to do so may mean that the analyst’s certificate cannot be admitted or that the second sample cannot be properly tracked. Fifth, the request form for the blood test kit under regulation 10 must be in a form approved by the Regulator. The transitional provisions allowed the old form to be used for six months after commencement, but after that period, only the current approved form is valid. Sixth, the sample retention period is 12 months from the day the sample was taken (regulation 6). If the worker does not collect the sample within that time, the authorised person is no longer required to keep it. The Commissioner of Police must ensure destruction under regulation 11 once proceedings are concluded or the time for commencing proceedings has passed; this means that if proceedings are delayed, the sample may be destroyed before the worker has a chance to request independent testing. Seventh, the oral advice for a refusal relates specifically to the type of test: the operator must use the correct Part 2 clause for the test involved (e.g., clause 2 for drug screening test refusal, clause 3 for blood test in connection with drug testing, clause 4 for blood test in connection with alcohol testing). Giving the wrong advice could invalidate the process.

For a rail safety worker, compliance means submitting to any lawful direction from an authorised person to undergo a preliminary breath test, breath analysis, drug screening test, oral fluid analysis, or blood test. If the worker has a physical or medical condition that prevents provision of the required sample, they should immediately inform the authorised person and request an alternative sample type as described in the oral advice. The worker must not refuse or fail to comply without good cause, as that is a criminal offence. If a positive breath analysis reading is recorded, the worker may request a blood test kit and must then promptly arrange to attend a hospital, medical practitioner, or registered nurse. The worker must not consume any alcohol before giving the blood sample, must not open the blood test kit, and must deliver it sealed to the medical practitioner. The worker should sign the request form for the kit and retain a copy. When the blood sample is taken, the worker must sign the certificate form presented by the medical practitioner and retain the original. The worker may then arrange for independent analysis of the sample in the container delivered to them. The worker should keep the original request form and certificate for possible use in proceedings.

For an authorised person conducting testing, compliance requires strict adherence to each regulation. The authorised person must ensure that only the approved apparatus listed in regulation 3A is used. When conducting a breath analysis, the operator must follow the two-sample procedure in regulation 4 exactly, including monitoring the interval and comparing readings. If any issue arises (error, mouth alcohol, or discrepancy), the operator must disregard the relevant samples and, if needed, require further samples using a different instrument or the same instrument as appropriate. The operator must give the prescribed oral advice verbatim from Schedule 1 if a worker refuses or fails to comply. When a positive breath analysis reading is recorded, the operator must give the oral advice in Part 3 and deliver the written notice in Part 4. If the worker requests a blood test kit, the operator must complete the written request form in the approved format, have it signed and attested, and supply the kit. The operator must retain a copy of the request form and deliver it to the Regulator or retain it for 12 months. The operator must also ensure that any blood or oral fluid sample taken is kept available for collection by the worker for 12 months. After the relevant period or after proceedings, the Commissioner of Police must ensure destruction of samples under regulation 11. Medical practitioners and registered nurses taking voluntary blood samples must follow the 16-step procedure in regulation 8(1), including using the blood test kit, dividing the sample equally, sealing with the identifying seal, completing the certificate, obtaining signatures, and delivering the sealed containers and certificates as specified. Police officers who receive a sealed container and certificate must deliver them to Forensic Science SA or to an approved delivery person. Forensic Science SA must analyse the blood, complete an analyst’s certificate with the required information (regulation 7), send it to the worker by post, send copies to the Regulator and the Commissioner of Police. The Regulator must retain the copy of the analyst’s certificate and the request forms for the required period. By following each of these steps meticulously, all parties ensure that the testing regime is legally sound and that evidence of any positive results can withstand scrutiny.