Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016 (Western Australia)

These regulations create a statutory framework for alcohol and drug testing of custodial officers employed under the Young Offenders Act 1994, setting out who can be tested, when tests can be required, what specimens and testing methods may be used, the administrative approvals needed, and the consequences of adverse results or non‑compliance. The regulations distinguish three bases for testing: random testing (reg 9), targeted testing on the basis of credible information or suspicion (reg 10), and mandated testing directed in writing by the chief executive officer for particular circumstances (reg 11). They prescribe processes for preliminary testing and confirmation for alcohol (Pt 2, regs 15-20), and for presumptive and confirmatory drug testing, including opportunities to explain presumptive positives and access to confirmatory analysis (Pt 3, regs 21-26). The chief executive officer (CEO) is given a broad suite of administrative powers: to approve persons who may require or conduct tests (regs 6-8), to approve collection procedures and equipment (reg 14), and to declare targeted drugs and masking agents (regs 12-13). The regulations also govern operational responses to critical incidents and other testing contexts, including requirements that an officer remain on duty until tested or be recalled to duty for testing (Pt 4, regs 27-31). They create obligations to identify oneself before testing (regs 16, 22), prescribe forms and chain‑of‑custody steps (Schedule 1 Forms 1 and 2), and set out administrative consequences and disciplinary pathways for confirmed adverse outcomes or breaches such as refusal, tampering or avoidance (Pt 6 and Pt 7, regs 34-42). Independent testing on a retained portion of the sample is available to officers but is explicitly at the officer’s expense (reg 36).

The instrument contains several express purpose statements or procedural signals. For example, mandated testing may be directed when an approved person believes a test is appropriate for the custodial officer’s health and safety, or “is prudent to protect the custodial officer’s credibility in any future court proceeding” (reg 11(2)(d)). The regulations also require testing to be conducted in a manner that respects dignity and privacy “to the extent possible without compromising the integrity of the testing process” (reg 4(3)). Those statements are internal to the instrument and frame how its powers are to be used; they are not, by themselves, operational rules for enforcement or remedies.

CrestWestern Australia

Young Offenders Act 1994

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Western Australia

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Contents

Part 1 — Preliminary

Citation 1
Commencement 1
Terms used 1
Application of these regulations 4
Publication of approved persons 5
Approved persons 5
Approved sample collectors 5
Approved analysts 6
When testing may be carried out: random 6
When testing may be carried out: targeted 6
When testing may be carried out: mandated 7
Chief executive officer may declare drugs or substances to be targeted drugs 8
Chief executive officer may declare substances to be masking agents 8
Chief executive officer may approve collection procedures for alcohol and drug testing 8

Part 2 — Testing for alcohol

Requirement to submit sample of breath for preliminary analysis 10
Requirement to confirm identity 10
Requirement to submit further sample of breath 11
Breath analysis form to be completed 11
Requirement to submit sample of blood or urine under certain circumstances 12
Incapacity to provide sample 12

Part 3 — Testing for drugs

Requirement to submit sample for drug testing 13
Requirement to confirm identity 13
Incapacity to provide sample 14
Opportunity to explain a presumptive positive test result for drugs 14
Requirement to submit further sample for drug testing 15
Drug analyst to report result to chief executive officer 15

Part 4 — Recall to, and remaining on, duty

Division 1 — Critical incident

Remain on duty: alcohol and drug testing 16
Recall to duty: drug testing 16
Recall to duty: alcohol testing 16

Division 2 — Other testing

Remain on duty: alcohol and drug testing 17
Recall to duty: drug testing 17

Part 5 — Self reporting

Involuntary or accidental alcohol consumption 18
Involuntary or accidental drug ingestion 18

Part 6 — Adverse test results

Adverse testing outcome: alcohol 19
Adverse testing outcome: drugs 20
Independent testing 20
Consequences of an adverse testing outcome: alcohol 20
Consequences of an adverse testing outcome: drugs 21

Part 7 — Other offences

Refusal 23
Avoidance 23
Tampering 24
Sanction for offences 24

Schedule 1 — Forms

Notes

Compilation table 28

Defined terms

Young Offenders Act 1994

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Part 1 — Preliminary

1. Citation

	These regulations are the *Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016*.

2. Commencement

These regulations come into operation as follows —

(a) regulations 1 and 2 — on the day on which these regulations are published in the Gazette;

(b) the rest of the regulations — on the day after that day.

3. Terms used

In these regulations —

analyst includes —

(a) a person certified by the Chief Executive Officer of the Chemistry Centre (WA) as being competent to determine the concentration of alcohol in bodily substances; and

(b) a person approved by the chief executive officer under regulation 8;

approved person means a person approved by the chief executive officer under regulation 6;

approved sample collector means a person approved to collect samples of breath, oral fluid and urine under regulation 7;

authorised person, in relation to breath testing and analysis, means a person authorised by the chief executive officer to operate breath analysing equipment;

breath analysing equipment means apparatus of a type approved by the chief executive officer for the purpose of ascertaining a person’s blood alcohol content by analysis of a sample of the person’s breath;

confirmed adverse test result for alcohol means —

(a) for a custodial officer whose duty involves the use of a firearm, or driving a motor vehicle — analysis of a sample of breath carried out using breath analysing equipment showing presence of alcohol in that person’s blood, following a presumptive positive test result for alcohol;

(b) for any other custodial officer — analysis of a sample of breath carried out using breath analysing equipment showing the concentration of alcohol in that person’s blood to be 0.02 g of alcohol per 100 ml of blood or more, following a presumptive positive test result for alcohol;

confirmed adverse test result for drugs means analysis of a sample of oral fluid, urine or blood carried out by a drugs analyst showing evidence of the presence, or of ingestion, of a drug, following a presumptive positive test result for drugs;

critical incident means —

(a) the death, or serious injury, of a person, when the death or injury is connected to, or arising from, the application of force by a custodial officer; or

(b) the death, or serious injury, of a person when the death or injury is connected to, or arising from, the exercise of authority by a custodial officer; or

(c) the death, or serious injury, of a person when the death or injury is connected to, or arising from, the driving of a motor vehicle by a custodial officer; or

(d) the death, or serious injury, of a person when the person is in the custody of a custodial officer; or

(e) the discharge of a firearm by a custodial officer, whether or not injury is caused,

when that custodial officer is acting in their capacity as a custodial officer;

drug includes a substance declared to be a targeted drug;

drugs analyst means —

(a) a person certified by the Chief Executive Officer of the Chemistry Centre (WA) as being competent to ascertain whether, and to what extent, drugs are present in bodily substances; or

(b) a person with accreditation from the National Association of Testing Authorities in a field that, in the opinion of the chief executive officer, makes that person competent to ascertain whether, and to what extent, drugs are present in bodily substances;

masking agent includes a substance declared to fall within this definition under regulation 13;

nurse means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession;

nurse practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession whose registration under that Law is endorsed as nurse practitioner;

phlebotomist means the holder of a current certificate of competency in phlebotomy, issued by an Australian public hospital or teaching facility;

presumptive positive test result for alcohol means the result of a preliminary test of a sample of breath that shows that the concentration of alcohol in a person’s blood is likely to be 0.02 g of alcohol per 100 ml of blood or more;

presumptive positive test result for drugs means a preliminary analysis of a sample of oral fluid, urine or blood that shows an indication of the presence, or of ingestion, of a drug;

selected custodial officer means a custodial officer who is required to undergo an alcohol or drug test, or both, under these regulations;

targeted drug includes —

(a) a drug to which the Misuse of Drugs Act 1981 applies; and

(b) a Schedule 2 poison as defined in the Medicines and Poisons Act 2014 section 3; and

(ca) a Schedule 4 poison as defined in the Medicines and Poisons Act 2014 section 3; and

(d) a drug or substance declared to fall within this definition under regulation 12.

[Regulation 3 amended: Gazette 17 Jan 2017 p. 408; 13 Nov 2018 p. 4435.]

4. Application of these regulations

(1) Subject to subregulation (2), the processes of alcohol or drug testing set out in these regulations are to be carried out on a custodial officer.

(2) The processes of alcohol or drug testing set out in these regulations cannot be carried out on a custodial officer unless that custodial officer is on duty or is recalled to duty for that purpose.

(3) The processes of alcohol or drug testing set out in these regulations should be carried out in a manner that respects a custodial officer’s dignity and privacy to the extent possible without compromising the integrity of the testing process.

5. Publication of approved persons

(1) The chief executive officer is to publish the name and relevant details of each person who has been specified by the chief executive officer to be —

(a) an approved person under regulation 6; or

(b) an approved sample collector under regulation 7; or

(2) Publication of the details in subregulation (1) is to be by way of a Departmental intranet website, and is to be for the information of custodial officers and other staff of the Department.

(3) A failure to correctly publish the name or relevant details of a person under subregulation (1) does not affect the status of a person who has been approved, nor does it invalidate any sample collection, testing process or outcome involving that person.

6. Approved persons

(1) The chief executive officer may specify that a particular person is to be an approved person for the purposes of all, or some, of these regulations if the chief executive officer is satisfied that it is necessary for that person to be appointed as an approved person.

(2) The chief executive officer is an approved person as holder of that office.

(3) A person specified as an approved person under subregulation (1) may be a person who is not a member of staff of the Department.

7. Approved sample collectors

(1) The chief executive officer may specify that a person who has undergone training to collect samples of breath, oral fluid or urine in accordance with standards approved under regulation 14(1), is to be an approved sample collector for the purposes of conducting an alcohol or drug test under these regulations.

(2) A person specified as an approved sample collector under subregulation (1) may be a person who is not a member of staff of the Department.

8. Approved analysts

(1) The chief executive officer may specify that a person who is accredited under the National Association of Testing Authorities (NATA) requirements for Chemical Testing and Forensic Science is to be approved as an analyst that is competent to determine the concentration of alcohol in bodily substances under these regulations.

(2) A person specified as an approved analyst under subregulation (1) may be a person who is not a member of staff of the Department.

9. When testing may be carried out: random

(1) An approved person may require a selected custodial officer or a number of selected custodial officers working within, or visiting, a common work area to submit to an alcohol test or a drug test or both.

(2) An approved person may require all custodial officers working within a common work area, and any visiting custodial officer at the work area at that time, to submit to an alcohol test or a drug test or both.

10. When testing may be carried out: targeted

(1) Targeted testing for alcohol or drugs under these regulations may be carried out if there is credible information, intelligence or suspicion that a selected custodial officer may be affected or impaired by alcohol or drugs, while on duty.

(2) Targeted testing for drugs under these regulations may be carried out if there is credible information, intelligence or suspicion that a selected custodial officer may have taken or ingested drugs at any time.

(3) The chief executive officer or an approved person may require a particular selected custodial officer or a particular group of selected custodial officers working within a common work area to submit to an alcohol test or a drug test or both.

11. When testing may be carried out: mandated

(1) The chief executive officer may direct in writing that certain circumstances give rise to compulsory alcohol and drug testing of particular custodial officers.

(2) Circumstances under subregulation (1) may include, but are not limited to —

(a) when a custodial officer is involved in a critical incident; or

(b) where a custodial officer is a participant in a high risk business area within the Department (for example, a drug detection, special operations or emergency response unit); or

(d) where an approved person believes that a test is appropriate for the custodial officer’s health and safety, or is prudent to protect the custodial officer’s credibility in any future court proceeding; or

(e) when a custodial officer has returned a confirmed adverse test result for alcohol or drugs under these regulations.

(3) Mandated testing may be required —

(a) at the time of the circumstance giving rise to its requirement; or

(b) as an on‑going requirement resulting from the circumstance giving rise to its requirement.

12. Chief executive officer may declare drugs or substances to be targeted drugs

(1) The chief executive officer may declare a drug or substance to be a targeted drug for the purposes of these regulations.

(2) A declaration under subregulation (1) is not effective unless notice of that declaration is published on the publicly accessible Departmental website by the chief executive officer, and a declaration may be amended or revoked by the chief executive officer in a similar manner.

13. Chief executive officer may declare substances to be masking agents

(1) The chief executive officer may declare a substance to be a masking agent for the purposes of these regulations.

14. Chief executive officer may approve collection procedures for alcohol and drug testing

(1) The chief executive officer may approve —

(a) standards or parts of standards; and

(b) collection protocols,

as the manner in which testing processes and procedures are to be carried out.

(2) The chief executive officer may approve items of equipment together with other devices or apparatus for the purpose of testing for targeted drugs.

(3) Notwithstanding the approval of standards, protocols and equipment under this regulation, a minor variation in the manner of collection or analysis of a sample that does not affect the outcome of the testing process may be disregarded when assessing whether the particular testing process was carried out in an approved manner.

Part 2 — Testing for alcohol

15. Requirement to submit sample of breath for preliminary analysis

(1) When requested to provide a sample of breath by an approved person, a selected custodial officer must provide a sample, to an authorised person for a preliminary test, in accordance with the directions of that approved person.

(2) Where it appears to the approved person that the physical condition of the selected custodial officer is such as to render them incapable of providing a sample of breath for a preliminary test, then the approved person may proceed to the provisions of regulation 17 as if a preliminary test had returned a presumptive positive test result for alcohol.

16. Requirement to confirm identity

(1) A selected custodial officer must confirm their identity at the time of providing a sample for alcohol testing by showing —

(a) an original driver’s licence; or

(b) an original passport; or

(d) such other photo‑based identification as may be approved by the chief executive officer for the purpose of this regulation.

(2) It is not sufficient confirmation of identity under subregulation (1) if the selected custodial officer is purported to be identified —

(a) by another custodial officer; or

(b) by use of a copied document; or

17. Requirement to submit further sample of breath

(1) Where —

(a) a selected custodial officer has provided a sample of their breath for a preliminary test and the preliminary test returns a presumptive positive test result for alcohol; or

(b) the selected custodial officer having been so required —

(i) refuses or fails to provide, or appears to be incapable of providing, a sample of their breath for a preliminary test; or

(ii) refuses or fails to provide, or appears to be incapable of providing, a sample of their breath in sufficient quantity to enable a preliminary test to be carried out,

the approved person may require that selected custodial officer to provide a further sample of their breath for analysis by an authorised person, under the provisions of subregulation (2) or a sample of blood or urine under regulation 19.

(2) A selected custodial officer who is required to supply a sample of breath for analysis must comply with that requirement by providing the sample of breath into breath analysing equipment, for analysis by an authorised person, in accordance with the directions of the approved person.

(3) A selected custodial officer is not required under subregulation (1) to provide a sample of breath for analysis if, because of their physical condition, the selected custodial officer is incapable of providing the specimen of breath or a specimen of breath in sufficient quantity for analysis.

18. Breath analysis form to be completed

Where a breath analysis is carried out by an authorised person and it returns a confirmed adverse test result for alcohol, the authorised person is to fill out a breath analysis form approved by the chief executive officer.

19. Requirement to submit sample of blood or urine under certain circumstances

(1) Where an approved person might require a selected custodial officer to provide a sample of breath for analysis by an authorised person but is precluded from so doing by regulation 17(3), the approved person may require the selected custodial officer to provide a sample of blood or urine for analysis.

(2) On taking a sample of blood or urine, the medical practitioner, nurse, nurse practitioner or phlebotomist is to complete the details required by Schedule 1 Form 2.

(3) Where an analyst carries out an analysis of a sample of blood or urine following a presumptive positive test result for alcohol, the analyst is to provide a written result of that analysis to the chief executive officer, whether or not that analysis resulted in a confirmed adverse test result for alcohol.

20. Incapacity to provide sample

(1) If a selected custodial officer is unable to provide a sample due to injury or illness, an approved person may request a medical practitioner, nurse, nurse practitioner or phlebotomist to take a sample of blood or urine, or both, from that custodial officer.

(2) A request under subregulation (1) must be a written request made by the approved person completing Schedule 1 Form 1 and handing that completed form to the relevant medical practitioner, nurse, nurse practitioner or phlebotomist.

Part 3 — Testing for drugs

21. Requirement to submit sample for drug testing

(1) When requested to do so, a selected custodial officer must provide a sample for drug testing to an approved sample collector (subject to subregulation (4)) in accordance with the directions of an approved person.

(2) An approved person may request a sample of any one or more of the following —

(a) blood;

(b) urine;

(3) An approved person is not required to state what drug the sample will be tested for.

(4) If a sample of blood is required, that sample must be taken by a medical practitioner, nurse, nurse practitioner or phlebotomist.

(5) On taking a sample of blood or urine, the medical practitioner, nurse, nurse practitioner or phlebotomist is to complete the details required by Schedule 1 Form 2.

(6) On taking a sample of urine or oral fluid, the approved sample collector is to complete the details required by Schedule 1 Form 2.

22. Requirement to confirm identity

(1) A selected custodial officer must confirm their identity at the time of providing a sample for drug testing by showing —

(a) an original driver’s licence; or

(b) an original passport; or

(d) such other photo‑based identification as may be approved by the chief executive officer for the purpose of this regulation.

(2) It is not sufficient confirmation of identity under subregulation (1) if the selected custodial officer is purported to be identified —

(a) by another custodial officer; or

(b) by use of a copied document; or

23. Incapacity to provide sample

24. Opportunity to explain a presumptive positive test result for drugs

(1) Where a selected custodial officer has provided a sample for drug testing and the test returns a presumptive positive test result for drugs, that selected custodial officer is to be given an opportunity to explain the result prior to a further analysis.

(2) If an explanation is not provided under subregulation (1), an approved person may draw such adverse inferences from the absence of explanation as the circumstances justify.

(3) An explanation given under this regulation is not admissible in evidence against the selected custodial officer in any criminal proceedings, but may be used as the basis for a disciplinary offence under regulation 40(5), if the explanation is later found to be false or misleading in a material particular.

25. Requirement to submit further sample for drug testing

(1) Where —

(a) a selected custodial officer has provided a sample for drug testing and the test returns a presumptive positive test result for drugs; or

(b) the selected custodial officer having been so required refuses or fails to provide, or appears to be incapable of providing, the sample for a drug test,

the approved person may require that selected custodial officer to provide a further sample for analysis by a drugs analyst.

(2) A selected custodial officer who is required to supply a sample for drug analysis must comply with that requirement by providing the sample for analysis by a drug analyst, in accordance with the directions of the approved person.

26. Drug analyst to report result to chief executive officer

Where a drug analyst carries out an analysis of a sample following a presumptive positive test result for drugs, the analyst is to provide a written result of that analysis to the chief executive officer, whether or not that analysis resulted in a confirmed adverse test result for drugs.

Part 4 — Recall to, and remaining on, duty

Division 1 — Critical incident

27. Remain on duty: alcohol and drug testing

When a custodial officer is involved in a critical incident and their shift is about to finish, an approved person may require that custodial officer to remain on duty until that custodial officer has undergone alcohol testing and drug testing.

28. Recall to duty: drug testing

(1) When a custodial officer is off‑duty but that custodial officer has been involved in a critical incident during the previous shift and has not been the subject of a drug test, that custodial officer may be recalled to duty by an approved person for the purposes of drug testing.

(2) When a custodial officer has been involved in a critical incident while off‑duty and has not been the subject of a drug test, that custodial officer may be recalled to duty by an approved person for the purposes of drug testing.

(3) A selected custodial officer cannot be tested under this regulation at their place of residence.

(4) This regulation applies in addition to regulation 29.

29. Recall to duty: alcohol testing

(1) When a custodial officer is off‑duty but that custodial officer has been involved in a critical incident during the previous shift and has not been the subject of an alcohol test, that custodial officer may be recalled to duty by an approved person for the purposes of alcohol testing.

(2) If a custodial officer is involved in a critical incident while off‑duty and has not been the subject of an alcohol test following that incident, that custodial officer may be recalled to duty by an approved person for the purposes of alcohol testing.

Division 2 — Other testing

30. Remain on duty: alcohol and drug testing

When a custodial officer is on duty, or is about to finish their shift, and that custodial officer —

(a) is the subject of credible information, intelligence or suspicion indicating that the custodial officer is affected or impaired by alcohol or that drug use by the custodial officer has taken place while that custodial officer was on duty; or

(b) has been selected to undergo random, mandated or targeted testing for drugs or alcohol, or both,

an approved person may require that custodial officer to remain on duty until that custodial officer has undergone alcohol or drug testing, or both.

31. Recall to duty: drug testing

(1) When a custodial officer is off‑duty but that custodial officer is the subject of credible information, intelligence or suspicion suggesting that drug use by the custodial officer has recently taken place or is taking place, that custodial officer may be recalled to duty by an approved person for the purposes of drug testing.

(2) A selected custodial officer cannot be tested under this regulation at their place of residence.

Part 5 — Self reporting

32. Involuntary or accidental alcohol consumption

(1) When a custodial officer is on duty and is concerned that they have accidentally or involuntarily consumed alcohol, that custodial officer may report that possible consumption to a supervisor or the officer in charge and request a preliminary test.

(2) If a self‑requested preliminary test under this regulation returns a presumptive positive test result for alcohol, that custodial officer will be required to submit a further sample of their breath for analysis by an authorised person in accordance with regulation 17.

33. Involuntary or accidental drug ingestion

(1) When a custodial officer is on duty and is concerned that they have accidentally or involuntarily ingested or taken a targeted drug, that custodial officer may report that possible ingestion to a supervisor or the officer in charge and request a drug test to determine if that drug (if known) or a drug (if unknown) has been ingested or taken.

(2) If a self‑requested drug test under this regulation returns a presumptive positive test result for drugs, an analysis of the sample will be conducted by a drug analyst to confirm that outcome.

Part 6 — Adverse test results

34. Adverse testing outcome: alcohol

(1) A selected custodial officer returns a positive result to an alcohol test if that custodial officer’s preliminary test returns a presumptive positive test result for alcohol and that custodial officer subsequently returns a confirmed adverse test result for alcohol.

(2) A selected custodial officer is taken to return a presumptive positive test result for alcohol if the selected custodial officer gives 2 or more invalid samples for a preliminary test without a written medical explanation for the invalidity of the samples.

(3) If a selected custodial officer is taken to return a presumptive positive test result for alcohol under subregulation (2), an approved person may request that the custodial officer provide a further sample of breath or the approved person may request a medical practitioner, nurse, nurse practitioner or phlebotomist to take a sample of blood or urine, or both, from that custodial officer.

(4) A request for blood or urine under subregulation (3) must be a written request made by the approved person completing Schedule 1 Form 1 and handing that completed form to the relevant medical practitioner, nurse, nurse practitioner or phlebotomist.

(5) If a selected custodial officer is required to provide a further sample of breath for analysis by breath analysing equipment under subregulation (3), a positive result to that analysis is a confirmed adverse test result for alcohol for the purposes of these regulations.

(6) A confirmed adverse test result for alcohol is to be recorded by the approved person by completing a form in accordance with regulation 18.

35. Adverse testing outcome: drugs

(1) A selected custodial officer returns a positive result to a drug test if —

(a) the preliminary analysis of the custodial officer’s sample returns a presumptive positive test result for drugs and that custodial officer subsequently returns a confirmed adverse test result for drugs; or

(b) in the case of a test for testosterone, the preliminary analysis of the custodial officer’s sample returns a presumptive positive test result for drugs and that custodial officer subsequently returns a confirmed adverse test result for drugs indicating that the amount of testosterone present in the custodial officer’s sample is 4 or more times the amount of epitestosterone present in that sample.

(2) A selected custodial officer is taken to return a presumptive positive test result for drugs if the selected custodial officer gives 2 or more invalid samples without a written medical explanation for the invalidity of the samples.

36. Independent testing

(1) A selected custodial officer who returns a confirmed adverse test result for alcohol (based on a sample other than breath) or a presumptive positive test result for drugs may request, and is to be given on request, a portion of the sample that gave rise to that result.

(2) Independent testing is conducted at the expense of the custodial officer.

37. Consequences of an adverse testing outcome: alcohol

(1) If testing of a selected custodial officer returns a confirmed adverse test result for alcohol the chief executive officer may take one or more of the following actions in relation to that custodial officer —

(a) refer the custodial officer to the Department’s employee welfare unit for review;

(b) impose managerial interventions in relation to that custodial officer;

(c) initiate removal action against a custodial officer under the Young Offenders Act 1994 Part 3 Division 3 or disciplinary action against a custodial officer under the Public Sector Management Act 1994 Part 5 (where applicable).

(2) Subregulation (1) does not apply to a positive result to an alcohol test conducted under regulation 29 following a recall to duty, unless it is determined that the conduct of the custodial officer was inappropriate in the circumstances.

38. Consequences of an adverse testing outcome: drugs

(1) Subject to subregulation (2), if testing of a selected custodial officer returns a confirmed adverse test result for drugs the chief executive officer may take one or more of the following actions in relation to that custodial officer —

(a) refer the custodial officer to the Department’s employee welfare unit for review;

(b) impose managerial interventions in relation to that custodial officer;

(2) If testing of a custodial officer returns a confirmed adverse test result for drugs and the drug found or ingested is —

(a) a drug set out in the Misuse of Drugs Act 1981 Schedule I or II; or

(b) a Schedule 8 poison or a Schedule 9 poison as those terms are defined in Medicines and Poisons Act 2014 section 3; or

(d) a masking agent,

the chief executive officer may accept the resignation of the custodial officer, or may take removal action against that custodial officer under the Young Offenders Act 1994 Part 3 Division 3.

(3) Subregulation (2) does not apply if the adverse test result for drugs is to —

(a) a masking agent; or

(b) a Schedule 8 poison as defined in the Medicines and Poisons Act 2014 section 3,

that has been prescribed to that custodial officer by a medical practitioner.

[Regulation 38 amended: Gazette 17 Jan 2017 p. 408‑9.]

Part 7 — Other offences

39. Refusal

(1) A custodial officer must comply with a requirement under these regulations to undertake a test for alcohol consumption.

(2) A custodial officer must comply with a requirement under these regulations to undertake a drug test.

(3) A custodial officer must provide a sample of breath for analysis by breath analysing equipment when required to do so under these regulations.

(4) A custodial officer must provide a sample of blood, urine or oral fluid when required to do so under these regulations.

40. Avoidance

(1) If a custodial officer is subject to a requirement under these regulations to —

(a) undertake a test for alcohol consumption; or

(b) undertake a drug test; or

then, unless prevented by urgent medical circumstances, that custodial officer must comply with the requirement prior to ceasing duty.

(2) If a custodial officer is subject to a requirement under these regulations to provide a sample of breath for analysis by breath analysing equipment, that custodial officer must not provide 2 or more invalid samples unless there is a written medical explanation for the invalidity of those samples.

(3) If a custodial officer is subject to a requirement under these regulations to provide a sample of blood, urine or oral fluid, that custodial officer must not provide 2 or more invalid samples unless there is a written medical explanation for the invalidity of those samples.

(4) A custodial officer must not unnecessarily delay a testing or sampling process that is required to be undertaken under these regulations following a critical incident.

(5) A custodial officer must not give an explanation under regulation 24 that they know to be false or misleading in a material particular.

41. Tampering

(1) A custodial officer must not tamper, or interfere with, a testing process carried out under these regulations.

(2) A custodial officer must not, without a lawful reason, be in possession of a masking agent immediately before or during a testing process carried out under these regulations.

(3) A custodial officer must not take a masking agent before a testing process carried out under these regulations.

42. Sanction for offences

A custodial officer who does not comply with a provision of this Part commits a breach of their duty and that breach —

(a) may raise a doubt as to a custodial officer’s suitability to continue as a custodial officer under Part 3 Division 3 of the Act; or

(b) may result in disciplinary action against that custodial officer under the Public Sector Management Act 1994 Part 5 (where applicable).

Schedule 1 — Forms

[r. 19, 20, 21, 23 and 34]

Form 1

WESTERN AUSTRALIA

Young Offenders Act 1994

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Request to take sample of blood, urine or oral fluid

To ...........................................................................................................................

[Name of medical practitioner, nurse, nurse practitioner, phlebotomist]

at ...................................................................................................................

...................................................................................................................

[Name of hospital/medical centre/place]

Under the Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016, I request you, a

...................................................................................................................

[Insert description, e.g. medical practitioner, nurse, nurse practitioner, phlebotomist]

to take —

(a) a blood sample;

(b) a urine sample;

[delete as applicable]

from —

...................................................................................................................

[Name of selected custodial officer]

in accordance with the regulations and any standards or collection protocols approved under those regulations.

..................................................................

[Place where request is made]

..................................................................

[Date of request]

..................................................................

[Signature]

Form 2

WESTERN AUSTRALIA

Young Offenders Act 1994

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Collection of sample of blood, urine or oral fluid

Under the Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016, I, a qualified

...................................................................................................................

[Insert description, e.g. medical practitioner, nurse, nurse practitioner,

phlebotomist, approved sample collector]

took —

(a) a blood sample;

(b) a urine sample;

[delete as applicable]

from ...................................................................................................................

[Name and number of selected custodial officer]

at ...................................................................................................................

...................................................................................................................

[Place where sample was taken]

in accordance with the regulations and the standards and collection protocols approved under those regulations.

The sample was taken at ........................................................................................

[Insert time, day, month and year]

The sample, or a portion of that sample, is contained and sealed in the sample

container(s) numbered ........................................................................................

[Number on sample container(s)]

The equipment used for the purpose of collecting the sample of blood/urine/oral fluid [delete as applicable] was contained in a packaged serially

numbered .............................. handed to me by .....................................................

[Number on equipment kit] [Name of person handing over the package]

and that package was sealed and intact prior to being opened by me.

In collecting the sample of blood/urine/oral fluid [delete as applicable] I complied with the directions contained within the sealed sample collection package provided.

................................................................

[Signature and qualification]

Witnessed by ................................................................

[Approved person’s signature]

dline

Notes

1 This is a compilation of the Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Citation	Gazettal	Commencement
Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016	18 Mar 2016 p. 799‑831	r. 1 and 2: 18 Mar 2016 (see r. 2(a)); Regulations other than r. 1 and 2: 19 Mar 2016 (see r. 2(b))
Corrective Services Regulations Amendment (Poisons) Regulations 2016 Pt. 3	17 Jan 2017 p. 407‑9	30 Jan 2017 (see r. 2(b) and Gazette 17 Jan 2017 p. 403)
Corrective Services Regulations Amendment Regulations 2018 Pt. 4	13 Nov 2018 p. 4433‑5	1 Dec 2018 (see r. 2(b))

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

analyst 3

approved person 3

approved sample collector 3

authorised person 3

breath analysing equipment 3

confirmed adverse test result for alcohol 3

confirmed adverse test result for drugs 3

critical incident 3

drug 3

drugs analyst 3

masking agent 3

nurse 3

nurse practitioner 3

phlebotomist 3

presumptive positive test result for alcohol 3

presumptive positive test result for drugs 3

selected custodial officer 3

targeted drug 3

Western Australia

Young Offenders Act 1994

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Western Australia

Young Offenders (Custodial Officers Drug and Alcohol Testing) Regulations 2016

Contents

Part 1 — Preliminary

Citation 1
Commencement 1
Terms used 1
Application of these regulations 4
Publication of approved persons 5
Approved persons 5
Approved sample collectors 5
Approved analysts 6
When testing may be carried out: random 6
When testing may be carried out: targeted 6
When testing may be carried out: mandated 7
Chief executive officer may declare drugs or substances to be targeted drugs 8
Chief executive officer may declare substances to be masking agents 8
Chief executive officer may approve collection procedures for alcohol and drug testing 8

Part 2 — Testing for alcohol

Requirement to submit sample of breath for preliminary analysis 10
Requirement to confirm identity 10
Requirement to submit further sample of breath 11
Breath analysis form to be completed 11
Requirement to submit sample of blood or urine under certain circumstances 12
Incapacity to provide sample 12

Part 3 — Testing for drugs

Requirement to submit sample for drug testing 13
Requirement to confirm identity 13
Incapacity to provide sample 14
Opportunity to explain a presumptive positive test result for drugs 14
Requirement to submit further sample for drug testing 15
Drug analyst to report result to chief executive officer 15

The document defines a set of core operational concepts that determine who, when and how testing happens. “Selected custodial officer” is the person who is required to submit to testing under the regulations (reg 3). Testing categories are random (reg 9), targeted (reg 10) and mandated (reg 11). A presumptive positive test result is the outcome of a preliminary or screening analysis indicating likely presence (alcohol or drugs) and triggers confirmatory processes (reg 3 definitions; regs 15-17; 24-26). Confirmed adverse test results are defined differently for alcohol and drugs: for alcohol, the threshold is bifurcated , any presence of alcohol for custodial officers whose duties involve firearms or driving; and a threshold of 0.02 g per 100 ml of blood or more for other custodial officers (reg 3, definition of “confirmed adverse test result for alcohol”); for drugs, confirmation is a drugs analyst’s detection of presence or ingestion following a presumptive positive (reg 3, “confirmed adverse test result for drugs”).

Chain of custody and roles are a major theme. The CEO approves “approved persons”, “approved sample collectors” and “approved analysts” (regs 6-8). “Authorised persons” operate breath analysing equipment approved by the CEO; “drugs analysts” are either certified by the Chemistry Centre (WA) or accredited by NATA in relevant fields (defns in reg 3; reg 8(1)). The CEO also controls the standards and protocols for collection (reg 14), and may approve equipment for testing (reg 14(2)). Declaration mechanisms exist: the CEO may declare a drug a “targeted drug” (reg 12) and may declare a substance a “masking agent” (reg 13); both declarations become effective only when published on the Departmental website (regs 12(2), 13(2)).

Specimen types and the sequence of testing are specified. For alcohol, preliminary breath tests are mandatory when requested and a presumptive positive triggers a further breath sample analysed by breath analysing equipment, unless the officer is physically incapable in which case blood or urine may be taken (regs 15-19). For drugs, an approved person may request blood, urine or oral fluid; blood draws must be conducted by a medical practitioner, nurse, nurse practitioner or phlebotomist (reg 21). Two invalid samples without medical justification count as a presumptive positive for both alcohol and drugs (regs 34(2) and 35(2)). Officers have a right to an opportunity to explain a presumptive positive drugs result before further analysis, but any explanation is inadmissible in criminal proceedings while remaining available for disciplinary use if false (reg 24).

Operational control over testing timing is set out. In critical incidents (defined in reg 3), officers may be required to remain on duty until tested (reg 27) or recalled to duty for testing (regs 28-29). Outside critical incidents, officers who are the subject of credible information, intelligence or suspicion can be required to remain on duty or be recalled (regs 30-31). The regulations prohibit testing at an officer’s place of residence when recalling them to duty (regs 28(3), 31(2)).

Consequences and remedial pathways are administrative: referral to employee welfare, managerial interventions, or initiation of removal or disciplinary action (regs 37-38). Certain drugs or classes (Misuse of Drugs Act Schedules I & II, specified drugs, Schedule 8 or 9 poisons in Medicines and Poisons Act terms, or masking agents) permit the CEO to accept resignation or initiate removal (reg 38(2)), subject to carve‑outs for prescribed medicines (reg 38(3)).

The instrument also embeds procedural recordkeeping: identity must be confirmed with original photo‑based identification (regs 16, 22); Schedule 1 Forms 1 and 2 are used to request and record blood/urine/oral fluid sampling (Schedule 1); and authorised persons must complete a breath analysis form when breath analysis confirms an adverse alcohol result (reg 18).

Primary subjects are custodial officers serving under the Young Offenders Act 1994. The regulations operate on officers who are on duty or who are recalled to duty; they cannot lawfully be applied to an officer who is off duty and has not been recalled (reg 4(2)). The definition of “selected custodial officer” encompasses any custodial officer required to undergo testing under the regulations (reg 3). The scope of testing when conducted randomly can also extend to “visiting” custodial officers present in a common work area (reg 9(2)), so inter‑agency or visiting officers may be caught when physically present in an area where testing is underway.

The CEO is a central decision‑maker: the CEO approves and publishes lists of approved persons, sample collectors and analysts (regs 5-8), declares targeted drugs and masking agents (regs 12-13), and approves collection procedures and equipment (reg 14). The CEO also has discretion to direct mandated testing in writing for specified circumstances (reg 11) and to impose post‑test consequences including managerial interventions, welfare referrals, and steps under removal or disciplinary processes (regs 37-38).

Approved persons and authorised persons are also affected in their duties and authorities. “Approved persons” may be non‑staff (reg 6(3)), they may require officers to submit to tests, and they determine when testing should proceed. “Approved sample collectors” (reg 7) must have undergone specified training; they may be non‑staff. “Authorised persons” are those authorised to operate breath analysing equipment (defn in reg 3). Analysts may be internal or external but must meet Chemistry Centre certification or NATA accreditation (defns and reg 8).

Medical practitioners, nurses, nurse practitioners and phlebotomists are pulled into the operational chain where blood or urine samples are required or when officers are physically unable to provide breath samples (regs 19-20, 21(4), 23). They are to complete Schedule 1 Form 2 when collecting samples (regs 19(2), 21(5), Schedule 1).

Custodial officers face obligations to provide samples, identify themselves with original photo‑based ID (regs 16, 22), remain on duty or be recalled for testing (Pt 4), and comply with prohibitions on avoidance and tampering (Pt 7). They are also the parties who pay for independent confirmatory testing if they request a retained portion of the sample for private analysis (reg 36(2)).

Finally, the Department (employer) carries operational burdens: maintain approved lists, publish required declarations on its public site for targeted drugs and masking agents (regs 12(2), 13(2)), ensure appropriate equipment and standards are approved and followed (reg 14), and resource medical and testing logistics when officers must be tested or recalled (Pt 2-4).

Duties imposed on custodial officers are explicit and operational. Officers must comply with requests to undertake alcohol and drug tests when required by an approved person (regs 15, 21, 39). They must provide breath samples for preliminary analysis and further breath samples into approved breath analysing equipment where a presumptive positive obtains (regs 15, 17). They must provide blood, urine or oral fluid samples when required (reg 21(1), 39(3)-(4)). If physically unable to provide breath samples, officers may be required to provide blood or urine (regs 17(3), 19(1), 20(1), 23(1)).

Identity confirmation is a duty: officers must show original photo‑based identification before providing a sample (regs 16(1), 22(1)), and identification by another officer, photocopies or non‑photo documents is not sufficient (regs 16(2), 22(2)). Officers must not give two or more invalid samples without a written medical explanation (regs 34(2), 35(2), 40(2)-(3)). Officers must not tamper with testing processes, possess masking agents immediately before or during testing without lawful reason, or take masking agents before testing (reg 41).

Obligations in operational contexts include remaining on duty until tested when required (regs 27, 30) and, when off duty, responding to recall for testing in critical incident or other suspicion contexts (regs 28-29, 31). The regulations forbid testing at a custodial officer’s place of residence when recalled under regs 28 or 31 (regs 28(3), 31(2)), which limits the locus of testing to workplaces or other suitable facilities.

Rights and procedural protections are limited but present. Officers are entitled to an opportunity to explain a presumptive positive drugs result before further analysis is carried out (reg 24(1)); however, an explanation cannot be used in criminal proceedings (reg 24(3)), though it may form the basis for disciplinary action if later proven false (reg 24(3)). Officers who obtain a confirmed adverse test result for alcohol based on a non‑breath sample, or who have a presumptive positive drugs test, may request a portion of the original sample for independent testing (reg 36(1)), but that independent testing is at the officer’s cost (reg 36(2)).

There are procedural duties on the employer/approved persons and medical staff. The CEO must publish the names and details of approved persons, sample collectors and analysts on a Departmental intranet for staff information (reg 5(1)-(2)). Declarations of targeted drugs and masking agents only take effect following publication on the publicly accessible Departmental website (regs 12(2), 13(2)). Approved persons must keep records such as completing a breath analysis form for confirmed adverse breath results (reg 18) and using Schedule 1 Forms 1 and 2 to request and record medical collection of samples (regs 19(2), 20(2), 21(5) and Schedule 1).

Consequences following adverse outcomes are discretionary and administratively framed. The CEO may refer the officer to employee welfare, impose managerial interventions, or initiate removal or disciplinary action under the Young Offenders Act 1994 or the Public Sector Management Act 1994 (regs 37-38). For certain categories of drugs (e.g., Misuse of Drugs Act Schedules I or II, Schedule 8 or 9 poisons, specified drugs, or masking agents), the CEO may accept resignation or initiate removal action (reg 38(2)), subject to exceptions for legitimately prescribed medicines (reg 38(3)).

The regulations do not create criminal penalties; they treat non‑compliance primarily as a breach of employment duties that can trigger administrative and disciplinary processes. Part 7 sets out obligations (reg 39), avoidance rules (reg 40), and tampering prohibitions (reg 41). Regulation 42 specifies the sanctioning framework: a custodial officer who does not comply commits a breach of duty and that breach may "raise a doubt as to a custodial officer’s suitability to continue as a custodial officer under Part 3 Division 3 of the Act" or "may result in disciplinary action against that custodial officer under the Public Sector Management Act 1994 Part 5 (where applicable)" (reg 42). In other words, consequences are employment and discipline‑oriented rather than criminal fines or imprisonment as a direct consequence of the regulations themselves.

For confirmed adverse testing outcomes, the CEO may take a range of measures. For alcohol, the CEO "may" refer to employee welfare, impose managerial interventions or initiate removal/disciplinary action (reg 37(1)). For drugs, parallel options exist, but for certain drug classes the CEO is explicitly authorised to accept resignation or commence removal action under the Young Offenders Act (reg 38(1)-(2)). The use of the permissive "may" signals administrative discretion rather than mandatory outcomes.

The regulations build in evidentiary and procedural mechanics that affect enforcement. Preliminary tests produce presumptive positives, which then require confirmatory analysis by approved breath analysing equipment (alcohol) or by a drugs analyst (drugs) before a confirmed adverse test result is recorded (regs 15-19; 24-26; 34-35). Two invalid samples without medical explanation count as a presumptive positive (regs 34(2), 35(2)), which can trigger confirmatory procedures. The authorised person must complete forms (reg 18 and Schedule 1) when confirmations occur, establishing administrative records that feed into disciplinary processes.

There are limits on enforcement reach in certain contexts. An officer cannot be tested when off duty unless recalled to duty for testing, and where recall occurs testing at an officer’s place of residence is expressly prohibited for the recall rules in regs 28 and 31 (regs 28(3), 31(2)). Independent recourse exists for officers to obtain a portion of the sample for private testing, but this is at the officer’s expense (reg 36(1)-(2)), which shifts the cost of contesting a result to the officer. Finally, certain procedural protections intersect with criminal process: explanations given under reg 24 are not admissible in criminal proceedings but can be used in disciplinary proceedings if false (reg 24(3)).

Enforcement therefore operates primarily through administrative personnel systems and removal/disciplinary mechanisms available under the Young Offenders Act 1994 and the Public Sector Management Act 1994, rather than through new criminal sanctions created by the regulations themselves.

The regulations are expressly structured to interact with several existing legislative regimes, importing classifications and enforcement pathways from those statutes. Targeted drugs include drugs to which the Misuse of Drugs Act 1981 applies and Schedules 2, 3 and 4 poisons as defined in the Medicines and Poisons Act 2014 (reg 3, definition of “targeted drug”). The regulations also allow the CEO to declare additional drugs or substances to be targeted (reg 12(1)), subject to publication requirements (reg 12(2)). For consequences, regulation 38 cross‑references the Misuse of Drugs Act 1981 (Schedule I or II and "specified drug" concepts), and the Medicines and Poisons Act 2014 Schedule 8/9 definitions are drawn into the consequence rules for drugs (reg 38(2)).

Employment and disciplinary consequences are operationalised through existing administrative statutes: the CEO may initiate removal action under the Young Offenders Act 1994 Part 3 Division 3 or disciplinary action under the Public Sector Management Act 1994 Part 5 (regs 37-38 and reg 42). This makes the testing regime a compliance input into established public sector employment processes rather than a free‑standing employment termination mechanism within the regulations themselves.

Accreditation and professional standards are tied to recognised authorities. Analysts are either certified by the Chief Executive Officer of the Chemistry Centre (WA) or accredited under NATA requirements for Chemical Testing and Forensic Science, and the nursing/medical definitions refer to registration under the Health Practitioner Regulation National Law (WA) (reg 3 definitions; reg 8(1)). This links laboratory competence and medical practitioner roles to statutory or nationally recognised accreditation and registration regimes.

Procedural interaction with criminal law is signalled in reg 24(3): an explanation given by an officer in respect of a presumptive positive drugs test is not admissible in criminal proceedings, but may be used as the basis for disciplinary action if false. That carve‑out preserves prosecutorial and evidential standards while allowing administrative processes to use admissions or explanations for internal discipline.

Publication and administrative transparency intersect with departmental information regimes. The CEO must publish the names and relevant details of approved persons, sample collectors and analysts on the Departmental intranet for staff information (reg 5). Declarations of targeted drugs and masking agents only take legal effect when published on the Departmental website (regs 12(2), 13(2)), so the regulations prescribe how and where interlocking declarations and approvals must be published to be operative.

Finally, the regulations reference and use Schedule 1 Forms 1 and 2 for requesting and recording medical sample collection; those forms are instruments of administrative procedure and interact with the legal duties imposed by the regulations (regs 19(2), 20(2), 21(5), Schedule 1). In practice, the regulations operate within a lattice of criminal law classification statutes (Misuse of Drugs Act 1981; Medicines and Poisons Act 2014), health professional registration law (Health Practitioner Regulation National Law (WA)), laboratory accreditation (NATA), and public sector employment law (Young Offenders Act 1994; Public Sector Management Act 1994).

The regulations were made and first published in the Western Australian Gazette on 18 March 2016 for the citation and commencement provisions, with the substantive provisions commencing the following day on 19 March 2016 (Compilation table; regs 1-2). The compilation table included in the text documents two later amendments referenced in the Gazette:

Corrective Services Regulations Amendment (Poisons) Regulations 2016, Part 3, gazetted 17 January 2017 (p. 407-409) and commencing 30 January 2017 (compilation table and Gazette citation). The regulation text notes that regulation 3 was amended (see the [Regulation 3 amended] note following the definitions), with marginal citations indicating Gazette entries including 17 Jan 2017 at p. 408.
Corrective Services Regulations Amendment Regulations 2018, Part 4, gazetted 13 November 2018 (p. 4433-4435) and commencing 1 December 2018 (compilation table). The compilation table records the 2018 amendment and the reg 3 amendment list also cites 13 Nov 2018 p. 4435.

The published compilation table identifies the initial instrument title and the two amending instruments with gazettal and commencement data. The text of the instrument also records an editorial note that regulation 3 was amended on those dates. The Schedule, prescribed forms and substantive operational language in the instrument reflect those amendments as compiled.

The compilation notes and schedule do not list any other later amendments, and no subsequent amendment dates are included in the supplied instrument. For practitioners relying on the instrument, the compilation table is the gateway to any later changes; one should check the consolidated Western Australian legislation database or the Gazette for later amending instruments after 2018. The regulations themselves also state that declarations of targeted drugs or masking agents are effective only after publication on the Departmental website (regs 12(2), 13(2)), which means operational scope can change by administrative declaration without an amending regulation provided publication requirements are satisfied.

The text provided contains no references to judicial decisions, case law or litigation applying or interpreting these regulations. There are no cases named or cited in the instrument itself. The compilation notes similarly record only the legislative instruments and amendments, not any court outcomes.

Practically, the absence of litigation or reported decisions in the instrument means there is, within the supplied source, no statutory case law interpreting key terms or procedures such as what constitutes “credible information, intelligence or suspicion” for targeted testing (reg 10), how the CEO’s discretion on mandated testing (reg 11) should be exercised, or how removal or disciplinary actions tied to these regulations interact with procedural fairness in employment law. It also means there is no embedded judicial guidance on contested issues such as the admissibility of test results in criminal proceedings (beyond the limited carve‑out in reg 24(3) for custodial officers’ explanations), evidentiary chain‑of‑custody challenges, or the reasonableness of recalls to duty where officers are off duty.

In the absence of reported litigation within the instrument, practitioners should treat operational uncertainty areas as ones where administrative law principles, public sector employment case law and health and evidentiary standards (e.g., admissibility of forensic laboratory results under other regimes) will be relevant if disputes arise. Employers and officers can expect that challenges about procedural fairness (natural justice), improper exercise of discretion by the CEO or approved persons, or disputes about the accuracy or validity of testing may be litigated in administrative or employment tribunals. Because the instrument links consequences to removal and disciplinary regimes under the Young Offenders Act 1994 and the Public Sector Management Act 1994, litigation or appeals may occur in those statutory contexts rather than under the regulations directly.

Because the instrument does not itself report litigation, it is prudent for practitioners to search contemporary case law databases and the Western Australian reports for any tribunal or court decisions that have since engaged these regulations, and to document procedural steps carefully to insulate departmental action against administrative law challenge.

The regulations contain several operational details that commonly produce downstream risk if not anticipated and managed.

CEO discretion and non‑public approvals. The CEO has broad powers to approve persons, standards, equipment, and to declare drugs/masking agents (regs 6-8, 12-14). Lists of approved persons, sample collectors and analysts are published only on a Departmental intranet for staff information (reg 5(1)-(2)), whereas declarations of targeted drugs and masking agents must be published on the Departmental website to be effective (regs 12(2), 13(2)). The practical effect is that some approvals are internal and may not be transparent externally, while declarations that alter the legal scope of targeted drugs/masking agents require public publication. Departments should track publication steps carefully because a CEO declaration does not become effective until it is placed on the public website (regs 12(2), 13(2)).
Low BAC threshold and duty‑related threshold. The definition of a confirmed adverse alcohol test differentiates officers whose duty involves firearms or driving from others: for the former, any presence of alcohol on confirmed analysis suffices; for others, the threshold is 0.02 g per 100 ml (reg 3 definition). This low threshold is operationally significant and may capture trace exposure or incidental consumption; departments must be clear about which roles are treated as involving firearms or driving.
Two invalid samples treated as presumptive positives. Officers who produce two or more invalid samples without a written medical explanation are taken to have returned a presumptive positive (regs 34(2), 35(2)). This makes the handling of invalid samples,and the record of any medical explanations,critical. Departments should adopt standard medical documentation and review processes to avoid automatic escalation.
Independent testing is at officer’s expense. Officers can obtain a portion of the sample for independent testing after certain results (reg 36(1)), but they bear the cost (reg 36(2)). This shifts the financial burden of contesting laboratory results onto individual officers, which may affect access to independent confirmation, particularly in contested dismissal or disciplinary cases.
Explanations inadmissible in criminal proceedings but usable for discipline. An officer’s explanation for a presumptive positive drugs test is not admissible in criminal proceedings, but the same explanation may be used for disciplinary proceedings if false (reg 24(3)). Officers who explain a presumptive positive may be protected from immediate criminal exposure from that explanation, yet exposing themselves to disciplinary risk if the explanation is deceptive or later disproved.
Recall to duty but no testing at residence. Recall powers exist for critical incidents and other suspicion scenarios (regs 28-29, 31), but the regulations expressly prohibit testing at an officer’s residence for recalls under those provisions (regs 28(3), 31(2)). Departments must plan where testing can legitimately occur and avoid attempts to test at private homes, which could expose them to legal challenge or claims of overreach.
Medical and lab resource burden. Blood and urine sampling must be taken by qualified medical staff and recorded on Schedule 1 Form 2 (regs 19(2), 21(4)-(5)), which carries operational costs and logistics. Where officers are recalled or required to remain on duty until testing is complete, staff resourcing and roster impacts follow (regs 27, 30).
Masking agents and possession prohibitions. The regulations prohibit possession of a masking agent immediately before or during testing without lawful reason, and prohibit taking a masking agent before testing (reg 41(2)-(3)). However, the CEO also has power to declare what counts as a masking agent (reg 13). There is an explicit exception for prescribed masking agents (reg 38(3)), so records of prescriptions and medical explanations should be maintained to avoid wrongful removal actions.
Records and identity verification. Strict identity requirements (original driver’s licence, passport, departmental photo ID; regs 16(1), 22(1)) mean that testing may be invalid if identification steps are not followed or if copied documents are used. This is consequential for evidentiary chains feeding disciplinary processes.
No criminal penalties set out. The regime relies on employment and disciplinary mechanisms rather than criminal sanctions (reg 42). Where criminality may exist (e.g., illegal drug possession under Misuse of Drugs Act), prosecutions would proceed under those separate statutes, not under these regulations; departments must coordinate with prosecuting authorities where both administrative and criminal processes are possible.

For departments (employers, CEO and approved persons)

Approvals, publishing and documentation. Approve and record approved persons, sample collectors and analysts and publish their names and details on the Departmental intranet as required by reg 5. Ensure that any CEO declarations of targeted drugs or masking agents are published on the publicly accessible Departmental website before operational reliance (regs 12(2), 13(2)). Maintain versioned standards and collection protocols as approved under reg 14 and keep copies accessible to authorised persons and sample collectors.
Training and accreditation. Ensure approved sample collectors are trained in accordance with the standards approved under reg 14(1) (reg 7). Confirm analysts hold the specified Chemistry Centre certification or NATA accreditation (reg 8(1)). Authorised persons operating breath analysing equipment should be nominated and trained to use CEO‑approved breath analysers (defn; regs 15-18).
Equipment and chain of custody. Procure breath analysing equipment approved by the CEO and approved items for targeted drug testing under reg 14(2). Implement chain‑of‑custody procedures using Schedule 1 Form 2 for blood/urine/oral fluid collection as required by regs 19(2) and 21(5). Seal and serialise sample packages, record kit numbers and sample container numbers as required by Schedule 1 Form 2, and ensure witness signatures by approved persons.
Operational procedures for testing events. Have written procedures for random (reg 9), targeted (reg 10) and mandated testing (reg 11). Establish protocols for recall to duty and stay‑on‑duty requirements during testing (regs 27-31), and pre‑identify facilities where testing may occur (not at residences for recalls, regs 28(3), 31(2)). Allocate rosters to accommodate potential remains on duty and ensure medical practitioner availability for blood draws.
Medical and forensic interface. Maintain a roster or agreement with medical practitioners, registered nurses, nurse practitioners and phlebotomists to take blood or urine when required (regs 19(2), 21(4), 23(1)). Require completion of Schedule 1 Form 2 when samples are collected. Use accredited labs and ensure drugs analysts are appropriately accredited and provide written results to the CEO following reg 26.
Privacy and dignity. Build procedures to respect dignity and privacy in line with reg 4(3) while preserving testing integrity. For instance, use private facilities for collections where practicable, but document any limitations where integrity overrides privacy.
Handling adverse results and disciplinary integration. Map testing outcomes to personnel processes. Confirmed adverse results should trigger internal welfare referrals and consideration of managerial interventions as first options (reg 37(1)-(2)); in cases involving certain drug classes or masking agents, prepare removal action procedures under the Young Offenders Act 1994 Part 3 Division 3 and liaise with legal advisors (reg 38(2)). Ensure that any disciplinary action complies with the Public Sector Management Act 1994 Part 5 where applicable and that natural justice procedures are observed.
Recordkeeping and audit. Keep comprehensive records of identification checks (regs 16, 22), preliminary and confirmatory results, Form 1 requests and Form 2 collection records, and decisions on mandated testing and CEO declarations. Maintain an auditable trail for any decisions that rely on “credible information, intelligence or suspicion” under reg 10.

For custodial officers

Know your obligations. Be ready to present original photo‑based identification when requested for testing (regs 16, 22). Understand that refusal to comply with testing requirements, providing invalid samples without medical justification, tampering, or possessing/taking masking agents inappropriately, can lead to disciplinary action and removal processes (regs 39-42).
Self‑reporting. If concerned about involuntary or accidental consumption or ingestion, self‑report and request preliminary testing under regs 32-33. Be aware that a self‑requested preliminary positive will lead to confirmatory steps (regs 32(2), 33(2)).
Medical documentation for invalid samples. Secure written medical explanations if you genuinely cannot provide valid samples; two invalid samples without a written medical explanation are treated as a presumptive positive (regs 34(2), 35(2)). Keep copies of medical documentation.
Independent testing. If a presumptive positive or confirmed adverse result arises and you wish to have independent testing of a retained portion of the sample, request the portion in accordance with reg 36(1). Be prepared to pay for private analysis (reg 36(2)). Retain records of sample container numbers and chain‑of‑custody documentation from Schedule 1 Form 2 to support independent analysis.
Medical prescriptions and masking agents. If taking medication that could be classified as a masking agent or a Schedule 8 poison, keep documentation from the prescribing medical practitioner to rely on the exception in reg 38(3) if needed.
Engage legal/industrial representation early. Because the consequences are employment‑oriented (reg 42), and independent testing is at your cost (reg 36(2)), involve union or legal advisers promptly when a presumptive positive is reported, particularly where removal or disciplinary action may follow.

Practical checklists and templates

Department checklist: CEO declarations published on website; intranet list of approved persons/sample collectors/analysts current; approved standards and equipment recorded; trained sample collectors rostered; medical partners available for blood/urine draws; forms 1 and 2 templates pre-filled where possible; chain‑of‑custody kits serialised.
Officer checklist: carry original photo ID; keep copies of any prescription medicines and supporting medical records; know whom to notify on self‑report; request retained sample portion immediately if a confirmatory process is initiated; keep notes of the testing event (time, persons present, container numbers).

Compliance with the regulations requires coordination across HR, legal, forensic, medical and operational units. Departments should adopt written procedures that mirror the regulations, ensure staff training, maintain publication records for declarations and approvals, and embed document management practices that preserve forms and medical explanations necessary to rebut presumptive positives or to demonstrate procedural fairness.

Deep Dive

What it does

Current sections