Western Australian Marine (Alcohol and Drug Testing) Regulations 2024

Prescribed sample taker (regulation 4). The Act’s definition is extended to include pathology collectors and phlebotomists. This widens the category beyond medical practitioners and registered nurses, which may reduce costs and improve availability for marine testing, but also raises questions about training and oversight of non‑medical sample takers in a marine context.

Sampling equipment (regulation 10). This term is defined by reference to equipment provided for blood sampling under the Road Traffic Act 1974 section 69(1a) by an approved body. The equipment must comprise the items set out in the Road Traffic (Blood Sampling and Analysis) Regulations 1975 regulation 5. The definition effectively incorporates road‑traffic standards into marine testing. A technologist from an approved body must prepare and certify the equipment, sealing it in a serially numbered package. This chain‑of‑custody architecture is critical for evidentiary integrity.

Breath analysing equipment (regulation 5). The Dräger Alcotest 9510 is the sole approved device. Its operation is mandated by reference to road‑traffic procedures. The regulation does not allow substitution of other devices, even if equivalent or superior. This creates a monopoly for one manufacturer’s product and may deter innovation or competition in breath‑testing technology for marine use.

Preliminary oral fluid test (regulation 7). The procedure is adopted from the Road Traffic (Drug Driving) Regulations 2007 regulation 5. If that procedure does not fully cover the steps for a particular device, inspectors or police officers may use manufacturer’s instructions. This fallback introduces variability: different devices may have different instructions, and the regulator does not standardise them. It also raises the risk of procedural challenge if the manufacturer’s instructions conflict with the adopted road‑traffic procedure.

Drug impairment assessment (regulation 9). An assessment under section 75FH(4) of the Act is based on observations of behaviour, demeanour, and condition. The regulation lists eight indicia: injury, skin responses, smell of alcohol, affected speech or movement, eye appearance (dilated, constricted, bloodshot), breathing rate or manner, attitude or clothing appearance, and general comprehension. This is a subjective, observational test. It does not require a medical examination or any quantitative measurement. The risk of over‑inclusion is real: a person who is tired, stressed, or under the influence of prescription medication might exhibit some of these signs without being impaired by a prohibited drug as defined in the Act. The regulation does not require the inspector or officer to exclude innocent explanations. This category of assessment is used to trigger further testing or arrest.

Certificate and forms (regulations 13, 15, 16). The chief executive officer approves forms for certification of sampling equipment, certification of blood sample taking, and the request for a blood sample. The regulations do not publish these forms; they are internal documents. Persons subject to testing cannot verify that the correct form was used unless it is produced in evidence. The requirement that two copies be signed and that containers be sealed in separate packages is designed to prevent tampering and ensure a split sample is available for independent testing.

Fee repayment upon conviction (regulations 18(4), 19(3)). If the chief executive officer has paid a fee for sample taking or analysis, and the person tested is convicted of a specified offence under the Act, the court must order repayment. The amount is recoverable as if it were a penalty. This is a mandatory cost‑shifting provision. It means that an acquitted person does not have to repay, but a convicted person bears the full cost of the testing that led to their conviction. This may create a disincentive to contest charges, as the test fee could be added to the penalty. From a cost‑benefit perspective, the fee schedule is tied to road‑traffic fees, which are set administratively and may not reflect the higher cost of marine‑based testing (travel, vessel access, etc.).

The regulations directly affect any person who operates or works on a vessel or marine facility within Western Australian waters where Part 3B of the Act applies. That includes masters, crew, pilots, and possibly passengers if they are suspected of being under the influence of alcohol or drugs while performing a safety‑sensitive function. The Act’s definition of “person” for testing purposes is broad, but the regulations do not limit its scope; they simply provide the procedural mechanisms.

Inspectors and police officers are the enforcers. They conduct the preliminary oral fluid tests, request blood samples, and may assess drug impairment. They are also responsible for ensuring that the procedures in the regulations are followed, including observing blood sample taking and completing forms. The regulations do not impose additional training requirements for marine‑specific testing; inspectors and police officers are assumed to already be familiar with road‑traffic testing procedures, which they now apply in a marine context. This may lead to practical difficulties: marine environments involve moving vessels, limited space, weather conditions, and logistic delays that road‑side testing does not face.

Prescribed sample takers - pathology collectors and phlebotomists - must attend to take blood samples. They must follow the detailed method in regulation 14: use only the provided vacutainer kit, check package integrity, cleanse the site with a sterile non‑alcoholic antiseptic, discharge samples into separate containers, tighten lids, and invert each container at least 20 times. Failure to follow any step could compromise the sample’s probative value. The prescribed sample taker also completes certificates. There is no exemption for emergency situations or for persons with medical conditions that complicate venepuncture; the method is rigid.

The Chemistry Centre (WA) analysts who test blood and oral fluid samples are also affected. They must follow the analytical methods prescribed: for alcohol, either dichromate concentration change or gas chromatography (regulation 17). No specific method is mandated for oral fluid drug analysis; the regulation simply adopts road‑traffic fees for such analysis. The chief executive officer pays the fees upfront, which means the taxpayer bears the initial cost. If the person is convicted, the cost is recovered; if acquitted or charges dropped, the state absorbs the cost.

Employers and operators of vessels are indirectly affected. They must ensure that their workers comply with testing procedures and may face disruption if workers are required to undergo testing. The regulations do not require employers to implement any policies, but the existence of a mandatory testing regime may create pressure on employers to have their own alcohol and drug policies to minimise the risk of workers being tested and convicted.

Finally, convicted persons are directly affected by the fee‑repayment provisions. A conviction for an offence under sections 75B(1) (presence of alcohol), 75BA(1) (presence of alcohol in prescribed concentration), 75BB(1) (refusal to provide sample), 75C(1) (presence of drugs), 75CA(1) (presence of prescribed drug), 75CD(1) (refusal to provide sample), 75D(1) (being under influence of alcohol), 75DA(1) (being under influence of alcohol and drugs), 75DB(1) (being under influence of drugs), 75DC(1) (refusal to comply with drug test), or 75DD(1) (refusal to provide blood sample) triggers a mandatory order to repay the testing fees. This list is extensive and covers both alcohol and drug offences, and includes refusals. The fee amount is not stated in these regulations but is set by cross‑reference; it may be substantial enough to be a deterrent in itself, independent of any fine imposed under the Act.

Duty of prescribed sample taker (regulation 14). The taker must perform venepuncture using only the designated vacutainer kit, inspect the package for seal integrity and expiry date, cleanse with a sterile non‑alcoholic antiseptic, discharge each sample into a separate container, tighten covers, and invert each container at least 20 times. This is a strict procedural duty. Deviation may render the sample inadmissible, although regulation 11(2) allows a sample taken in a proper manner other than in accordance with the regulations to still be used. This creates a nuanced situation: a minor deviation (e.g., inverting only 19 times) does not automatically invalidate the sample if the sample was otherwise properly taken, but it opens an avenue for challenge.

Duty of technologist (regulation 13). A technologist of an approved body must prepare the sampling equipment, complete a certificate in the form approved by the CEO, and seal the equipment in a serially numbered package, signing over the sealed portion. This is meant to guarantee the integrity of the equipment before it reaches the sample taker. The technologist does not need to be present when the sample is taken; their duty ends with preparation.

Duty of inspector or police officer. They must give a request in the approved form to the prescribed sample taker for a blood sample under sections 75EN(4), 75EO(3), 75FF(3), and 75FJ(3) (regulation 16). They must also be present during the blood sample taking and complete and sign two copies of the form approved for the purposes of regulation 15(b). They are not required to be present for oral fluid testing or breath analysis, but may conduct those tests themselves. For breath analysis (regulation 6), they operate the Dräger Alcotest 9510 per road‑traffic procedures and must ensure a printed statement is produced as the result.

Right of the person being tested. The regulations create rights by implication. For breath analysis, the person has a right to have the equipment operated correctly per the road‑traffic procedure. For oral fluid tests, the person has a right to have the test conducted per the procedure in regulation 5 of the Road Traffic (Drug Driving) Regulations 2007 or the manufacturer’s instructions. For blood samples, the person has a right to a sterile non‑alcoholic antiseptic cleanse (regulation 14(c)), which is important because alcohol‑based wipes could contaminate a blood sample for alcohol testing. The person also has a right to have the sample split into two containers (regulation 14(d)): one for the prosecution’s analysis and one potentially for independent testing. The sealing and certification procedures protect the person’s right to challenge the continuity of the sample. However, the regulations do not give the person a right to refuse to provide a sample (the Act creates offences for refusal), nor do they require that the person be informed of their rights before testing - that is left to the Act or common law.

Right of the chief executive officer. The CEO has a right to be reimbursed for testing fees if a conviction is obtained (regulations 18(4), 19(3)). This is a mandatory court order, not discretionary. The CEO also has the power to approve the forms used for certificates and requests (regulations 13, 15, 16). The forms are not published, which means the CEO controls the evidentiary gateway.

Rights of the accused in court. Because the regulations are procedural, any failure to follow them can be raised as a defect in the prosecution’s case. The person can challenge the admissibility of breath analysis results if the Dräger Alcotest 9510 was not operated per the road‑traffic procedures. They can challenge drug impairment assessments if the indicia list was applied unreasonably. They can challenge blood sample chain of custody if certifications are missing or improper. The saving clause in regulation 11(2) limits this: a blood sample taken in a proper manner other than strictly per the regulations is still admissible. But “proper manner” is not defined, leaving room for judicial interpretation.

The regulations themselves do not create penalties. Criminal penalties for the specified alcohol and drug offences are in the Western Australian Marine Act 1982 Part 3B. The regulations only provide the evidentiary infrastructure for those offences. However, they do create an automatic financial consequence upon conviction: the mandatory fee‑repayment order.

Regulation 18(4) applies if a person is convicted of any of the listed alcohol or drug offences and the CEO has paid a fee under subregulation (1) (prescribed sample taker attendance) or (2) (blood analysis). In that event, the court must order the person to repay the CEO the amount of the fee. The same applies for oral fluid analysis fees under regulation 19(3) for drug offences. The word “must” leaves no discretion. This operates as a kind of mandatory cost order that adds to the sentence. The amount is not specified in these regulations; it depends on the fees set in the Road Traffic (Blood Sampling and Analysis) Regulations 1975 and the Road Traffic (Drug Driving) Regulations 2007. Those fees can be amended without amending these marine regulations, which means the cost burden on convicted persons can change silently.

The fee‑repayment amount is recoverable as if it were a penalty imposed under the Act. That means the usual enforcement mechanisms for fines (e.g., fines enforcement registry, suspension of licences, imprisonment for non‑payment) could apply. Notably, the regulation does not require the court to find that the test was actually used in the prosecution; it only requires that the fee was paid and the person was convicted. So if the CEO paid for a blood sample analysis but the prosecution relied on other evidence (e.g., a breath analysis), the fee‑repayment order still applies if the conviction is for one of the listed offences. This could lead to a double‑counting effect if the offender already pays a fine.

Enforcement of the testing procedures is indirect. If an inspector or police officer fails to follow the regulations, the evidence may be excluded or given less weight. But there is no penalty for the officer or sample taker for non‑compliance. The risk of suppressed evidence is the primary enforcement mechanism. For persons who refuse to provide a sample, those are separate offences under the Act, with penalties set there. The regulations do not address how refusals are proven; they only cover the procedure when a sample is provided.

The chief executive officer is the payor of fees, which means the state bears the initial cash flow cost. If the person is acquitted, the CEO cannot recover the fee from that person; it becomes a public expense. This creates a perverse incentive: the CEO may prefer that prosecutions succeed in order to recoup costs, but that incentive is unlikely to be strong enough to influence charging decisions. The mandatory court order removes any discretion to waive the fee even if the convicted person is impecunious.

The regulations are expressly dependent on and interlock with a web of Western Australian road‑traffic legislation. The following interactions are explicit:

• Road Traffic (Breath Analysis) Regulations 1975: The operation of the Dräger Alcotest 9510 must follow Schedule 2 of those regulations (regulation 5). Any amendment to that schedule will automatically change the marine procedure.

• Road Traffic (Drug Driving) Regulations 2007: The preliminary oral fluid test procedure is regulation 5 of those regulations (regulation 7(1)); the oral fluid collection and testing steps are Schedule 2 of those regulations (regulation 8(1)). The fee for oral fluid analysis is regulation 11(1) of those regulations (regulation 19(1)). Again, amendments flow through automatically.

• Road Traffic Act 1974 section 69(1a): The definition of sampling equipment (regulation 10) picks up equipment provided under that provision for road traffic blood sampling. The road traffic regulations also set fees for blood sampling and analysis (regulation 18(1) and (2)).

• Road Traffic (Blood Sampling and Analysis) Regulations 1975: Regulation 4 identifies approved bodies; regulation 5 lists the items in sampling equipment; regulation 15 sets fees.

Other legislative interactions are indirect. The Western Australian Marine Act 1982 Part 3B (sections 75A to 75IM) creates the substantive drug and alcohol offences and the powers to test. These regulations fill in the procedural details. They do not amend the Act.

The regulations also interact with common law principles of evidence. The strict procedural requirements for blood sample collection and analysis (certification, sealing, mixing) are designed to ensure the sample is reliable and untainted. If the procedure is not followed, the evidence may be excluded under the Evidence Act 1906 (WA) or common law discretion. The saving clause in regulation 11(2) is a notable departure: it says the division applies only if a blood sample is taken under the two‑sample method of s 75IE(2)(b)(ii), and does not apply if the sample is taken in a proper manner other than per the regulations. This means that a blood sample taken by a doctor using standard medical equipment (not the prescribed sampling equipment) could still be admissible if it was taken “in a proper manner”. That phrase is undefined and will be litigated.

For fee recovery, interaction with the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) is likely. The regulation says the fee amount may be recovered as if it were a penalty imposed under the Act, which means existing enforcement mechanisms apply.

The regulations do not interact with Commonwealth marine safety legislation, such as the Navigation Act 2012 (Cth) or the Marine Safety (Domestic Commercial Vessel) National Law Act 2012, but a person may be subject to both state and Commonwealth alcohol/drug testing regimes. Double testing is possible, and the regulations do not preclude that.

Based on the compilation table provided in the source, the regulations are in their original form. The citation is SL 2024/63, published 1 May 2024, commenced 2 May 2024. There is no amendment history. The note “This is a compilation of the Western Australian Marine (Alcohol and Drug Testing) Regulations 2024” suggests the publisher tracks amendments, but none have occurred. The regulations are therefore less than a year old at the time of analysis. Any practitioner dealing with a marine alcohol or drug testing matter must check whether subsequent amendments have been made, but from this source none exist.

The source material - the regulations themselves - does not include any litigation history. No cases are cited in the regulations. Because the regulations are new (commenced 2 May 2024), it is unlikely that any appellate court has yet interpreted them. However, the adoption of road‑traffic procedures means that case law on those procedures under the Road Traffic Act is relevant. For example, any challenge to the Dräger Alcotest 9510 operation under road‑traffic regulations would likely apply equally to marine use. Similarly, case law on the admissibility of blood samples taken under road‑traffic procedures that deviate from the strict method would be persuasive. The drug impairment assessment indicia (regulation 9) are similar to those used for road‑side impairment testing; case law on the reliability and weight of such observations would apply.

There is no indication of any marine‑specific litigation yet. The regulations have not been judicially considered. This means that procedural challenges are likely in early prosecutions. Defence lawyers will scrutinise the cross‑references to road‑traffic regulations, the approved forms, the certification process, and the chain of custody. The fallback to manufacturer’s instructions (regulations 7(2), 8(2)) is a potential source of conflict: what happens if the manufacturer’s instructions conflict with the road‑traffic procedure? The regulation says may have regard to, but does not prioritise. This ambiguity will be a ground for argument.

Incorporation of road‑traffic regulations without text. The regulations do not reproduce the road‑traffic procedures; they incorporate them by reference. A person subject to testing cannot easily know what the procedure is without obtaining the road‑traffic regulations. This is a transparency problem. If the road‑traffic regulations are amended, the marine regulations change automatically without any further legislative action or notice to marine stakeholders.

Manufacturer’s instructions fallback. For oral fluid testing, if the road‑traffic procedure does not fully describe the steps, an inspector or police officer may have regard to manufacturer’s instructions. This introduces a private, non‑legislative source of procedure. The manufacturer’s instructions are not published in the Gazette and may change without notice. This creates significant uncertainty for the person being tested: they cannot know whether the correct procedure was followed unless they have access to the device’s packaging. It also gives the officer discretion to pick which instructions to follow, potentially leading to inconsistent application.

No requirement to inform the person of the right to a split sample. The blood sample method (regulation 14) requires that each sample or each part of the sample be discharged into a separate container. The person presumably has a right to have one of those containers tested independently, but the regulations do not state that the person must be told of that right or given the container. The Act may contain such a right, but a person who does not know to ask for the second container may never have it preserved. If the sample is taken and sealed, the person loses the chance for independent testing.

Strict mixing requirement. The prescribed sample taker must invert each container at least 20 times to mix the contents (regulation 14(f)). Failure to invert exactly 20 times is not fatal, but could be argued as non‑compliance. The number “20” is arbitrary; 19 inversions might not be “thoroughly” mixed, but the regulation says “at least 20 times”. A lower number might still be argued as non‑compliance, but the saving clause in regulation 11(2) may protect it. This is a trap for the unwary sample taker.

Mandatory fee repayment regardless of financial circumstances. Upon conviction, the court must order repayment of the testing fee. The amount can be substantial - road‑traffic blood sampling fees are not trivial. The court has no power to waive or reduce it. This can add a significant financial burden on top of any fine, especially if the person is already impecunious. The fee may also be recovered as if it were a penalty, which means it can attract enforcement costs.

Expiry date on sampling equipment. If the package’s indicated expiry date has passed, the prescribed sample taker must not use it (regulation 14(b)(ii)). But there is no provision for what happens if no in‑date equipment is available. The person could still be compelled to provide a blood sample? The Act may allow alternative methods, but the regulation implies the testing cannot proceed if expired equipment is the only option. This could create a loophole: a person who delays long enough for equipment to expire might avoid a blood test, but the regulations do not address that scenario.

For marine operators and persons subject to testing, compliance is largely about knowing your rights and ensuring that the authorities follow the procedures. There are no positive obligations in the regulations for individuals to do anything except submit to testing when lawfully required (with refusal being an offence). But proactive steps can protect one’s position.

Before testing. Understand that any breath analysis must be performed on a Dräger Alcotest 9510 operated per the road‑traffic procedure. If the device is different, you have grounds to object. For oral fluid tests, request to see the manufacturer’s instructions if the procedure seems unclear. If you are required to provide a blood sample, ensure the prescribed sample taker is a pathology collector or phlebotomist (regulation 4). Check that the sampling equipment package is sealed, intact, and within its expiry date. You have the right to observe these checks (regulation 14(a) requires the sample taker to examine the package in the presence of the person producing it - presumably an inspector or police officer; you should ensure you are present and able to see the examination). Ask that a second container be provided for independent analysis if you wish.

During blood sample collection. The prescribed sample taker must use only the vacutainer kit provided, clean the site with a sterile non‑alcoholic antiseptic (not alcohol), and invert each container at least 20 times. If you see the use of an alcohol‑based wipe, object and note it for later challenge. Ensure the sample taker and an inspector or police officer complete the required certificates (regulation 15). Request copies of those certificates for your records (they are not required by the regulations to be given to you, but you can ask; if refused, note the refusal).

Post‑testing. If you are charged, obtain the forms approved by the CEO for the relevant certificate and request. The regulations do not publish these forms, but you can make a request under the Freedom of Information Act 1992 (WA) to obtain copies. Compare the forms actually used against the regulatory requirements. Check that the technologist’s certificate for the sampling equipment was properly completed and signed (regulation 13). Check that the seal was intact. Check that the blood sample analysis was performed by dichromate concentration change or gas chromatography (regulation 17). If the analyst used a different method, challenge the result.

Regarding fees. If you are convicted, be aware that the court must order you to repay the testing fee. Ask for evidence of the amount paid by the CEO. The fee is set by road‑traffic regulations; ensure it is not inflated. If you believe the fee was not actually paid or was for a different purpose, argue that the order cannot be made because the condition (payment by CEO for your test) is not satisfied.

For employers and operators. Develop a policy that informs workers of their rights under these regulations. Ensure that workers know they can request a non‑alcoholic antiseptic cleanse and the second sample container. Have a procedure to document the testing event: note the time, the inspector’s name, the device used, any deviations from the prescribed procedure. This record can be used to challenge evidence if necessary. Also consider the cost impact: if a worker is convicted, they must repay the fee, but if they are acquitted, the state bears the cost. There is no direct financial hit to the employer, but there may be indirect costs from lost work time and legal representation. Employers should not discourage workers from challenging flawed tests, as that would be against public policy.