Div 2Alcohol and drug testing of agents authorised to control crowds

Division 2—Alcohol and drug testing of agents authorised to control crowds 23I—Definitions for this Division In this Division— alcotest means a test by means of apparatus approved for the purpose of conducting alcotests under the Road Traffic Act 1961; analyst means— (a) a person appointed as an analyst for the purposes of the Road Traffic Act 1961; or (b) a person holding an office of a class approved for the purposes of the Road Traffic Act 1961; approved blood test kit means a kit of a kind declared by the Governor by regulation to be an approved blood test kit for the purposes of the Road Traffic Act 1961; authorised officer means an authorised officer under the Fair Trading Act 1987; breath analysing instrument means apparatus of a kind approved as a breath analysing instrument under the Road Traffic Act 1961; breath analysis means an analysis of breath by a breath analysing instrument; licensee means the holder of a security agents licence that authorises the licensee to perform the function of controlling crowds; prescribed concentration of alcohol means any concentration of alcohol in the blood. 23J—Security agent authorised to control crowds may be required to undertake drug testing (1) A police officer or an authorised officer may, by notice in writing, direct a licensee to attend at a specified time and place for the purpose of undertaking a drug testing procedure to determine the level of any prescribed drug in any form in the blood or urine of the agent. (2) A notice under subsection (1) must specify what sample or samples are to be taken. (2a) In the case of a drug testing procedure that involves the collection of a sample of urine, a police officer or an authorised officer may agree with the licensee on a different time or place to that specified in the notice under subsection (1). (3) A police officer or authorised officer may give directions reasonably required for purposes connected with the administration or enforcement of this section. (4) If a sample of blood or urine given by a licensee under this section is found on analysis to be a non-complying sample (within the meaning of the regulations), the Commissioner or the Commissioner of Police may— (a) determine the costs and expenses of carrying out the analysis; and (b) recover the amount so determined from the licensee as a debt in a court of competent jurisdiction. (5) Regulations may be made under this section— (a) regulating the manner of taking and dealing with samples of blood and urine and their analysis; and (b) providing for certificate evidence for use in any proceedings as to the taking and analysis of any urine or blood sample and the authority of a person to carry out an analysis; and (c) requiring a licensee to produce the prescribed form of identification at the time a sample of blood or urine is taken, and providing that a failure to do so is taken to be a failure to comply with a direction under this section. 23K—Security agent authorised to control crowds may be required to undertake alcohol testing (1) A police officer may require a licensee, while performing the function of controlling crowds, to submit to an alcotest. (2) If an alcotest conducted under subsection (1) indicates that the prescribed concentration of alcohol may be present in the blood of the licensee, a police officer may require the licensee to submit to a breath analysis. (3) Performance of a breath analysis required under subsection (2) must be commenced within 2 hours of the licensee having submitted to the alcotest indicating that the prescribed concentration of alcohol may be present in the blood of the licensee. (4) The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the instrument or apparatus will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act. 23L—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood If a licensee submits to an alcotest or a breath analysis and the alcotest apparatus or the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person's breath, the reading will, for the purposes of this Act, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood. 23M—Evidence etc (1) If the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (4) and (5), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the licensee at the time of the analysis. (2) No evidence can be adduced in rebuttal of the presumption created by subsection (1) except— (a) evidence of the concentration of alcohol in the blood of the licensee as indicated by analysis of a sample of blood taken and dealt with in accordance with the procedures prescribed by regulation; and (b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave a false reading of the concentration of alcohol present in the blood of the licensee. (3) If it is proved in proceedings that a concentration of alcohol was present in the licensee's blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the licensee's blood throughout the period of two hours immediately preceding the analysis. (4) As soon as practicable after a licensee has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the licensee a statement in writing specifying— (a) the reading produced by the breath analysing instrument; and (b) the date and time of the analysis. (5) If a licensee has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that licensee by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must immediately— (a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and (b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person. (6) A certificate— (a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or (b) purporting to be signed by a person authorised to operate breath analysing instruments by the Commissioner of Police and to certify that— (i) the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and (ii) the breath analysing instrument was in proper order and was properly operated; and (iii) the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with, is, in the absence of proof to the contrary, proof of the matters so certified. (7) A certificate purporting to be signed by a police officer and to certify that an apparatus referred to in the certificate is or was of a kind approved under the Road Traffic Act 1961 for the purpose of performing alcotests is, in the absence of proof to the contrary, proof of the matter so certified. (8) A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified. (9) A certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified. (10) A certificate purporting to be signed by a person authorised to operate breath analysing instruments by the Commissioner of Police and to certify that— (a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and (b) the breath analysing instrument produced a reading specified in the certificate; and (c) a statement in writing required by subsection (4) was delivered in accordance with that subsection, is, in the absence of proof to the contrary, proof of the matters so certified. (11) A certificate purporting to be signed by a person authorised to operate breath analysing instruments by the Commissioner of Police and to certify— (a) that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and (b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (5)(a); and (c) that— (i) the person did not make a request for an approved blood test kit in accordance with the regulations; or (ii) at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (5)(b), is, in the absence of proof to the contrary, proof that the requirements of subsection (5) were complied with in relation to the person. (12) A certificate purporting to be signed by a police officer and to certify that a person named in the certificate was, at the time of being directed to submit to an alcotest, performing the function of controlling crowds is, in the absence of proof to the contrary, proof of the matter so certified. (13) A certificate purporting to be signed by a police officer and to certify that a person named in the certificate was required under this Division to submit to an alcotest or breath analysis and refused or failed to comply with all reasonable directions of a police officer in relation to the requirement is, in the absence of proof to the contrary, proof of the matter so certified. 23N—Commissioner of Police must report results of breath analysis to Commissioner The Commissioner of Police must, as soon as reasonably practicable after a police officer has required a licensee to submit to an alcotest or breath analysis, provide a report to the Commissioner setting out— (a) whether or not the licensee complied with the requirement; and (b) if the licensee complied with the requirement—the result of the alcotest or analysis. 23O—Cancellation of licence (1) The Commissioner may, subject to this section, cancel a security agents licence if— (a) the licensee fails, without reasonable excuse, to comply with— (i) a notice or direction under section 23J; or (ii) a requirement or direction under section 23K; or (b) a sample of the blood or urine of the licensee taken in accordance with section 23J is found on analysis to be a non-complying sample (within the meaning of the regulations); or (c) the results of a breath analysis undertaken in accordance with this Division demonstrate that the prescribed concentration of alcohol was present in the licensee's blood at a time when the licensee was performing the function of controlling crowds. (2) The Commissioner must, before exercising powers under subsection (1) in relation to a licensee— (a) give written notice to the licensee of the proposed cancellation, including a statement of the reasons that the Commissioner considers justify the cancellation; and (b) allow the licensee a period of 14 days (or such longer period as the Commissioner may in a particular case allow) to show cause why the licence should not be cancelled. (3) At the end of the period allowed by the Commissioner under subsection (2), the Commissioner must— (a) determine, having regard to any response received from the licensee, whether or not to proceed with cancellation of the licence; and (b) advise the licensee by notice in writing of the Commissioner's determination. (4) A notice under subsection (3)(b) must, if the licence is to be cancelled, specify the date from which the cancellation is to take effect (which must be not less than 14 days from the date of the notice) and the grounds for the Commissioner's determination. 23P—Surrender of licence (1) A person whose security agents licence has been cancelled under section 23O must, within 7 days of the date on which the cancellation takes effect, surrender the licence to the Commissioner. (2) A person who, without reasonable excuse, fails to surrender his or her licence in accordance with subsection (1) is guilty of an offence. Maximum penalty: $1 250. 23Q—Appeal (1) A person whose security agents licence has been cancelled under section 23O may appeal to the Court against the decision of the Commissioner to cancel the licence. (2) An appeal must be instituted within 1 month of the making of the decision appealed against.