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

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

Contents 1 Short title 3 Interpretation 3A Approval of apparatus 4 Conduct of breath analysis 5 Oral advice on refusal or failure to comply with requirement or direction of authorised person 6 Prescribed period for keeping blood samples and oral fluid samples 7 Information to be included on analyst's certificate 8 Procedures for voluntary blood test 9 Oral advice and written notice on recording of positive breath analysis reading 10 Request for approved blood test kit 11 Destruction of oral fluid and blood samples Schedule 1—Oral advice and written notices Part 1—Oral advice on refusal or failure to comply with preliminary breath test or breath analysis direction: section 12 of Act 1 Oral advice on refusal or failure to comply with preliminary breath test or breath analysis direction: section 12 of Act Part 2—Oral advice on refusal or failure to comply with drug screening test, oral fluid analysis or blood test direction: section 13 of Act 2 Oral advice on refusal or failure to comply with drug screening test or oral fluid analysis direction: section 13 of Act 3 Oral advice on refusal or failure to comply with blood test direction in connection with drug testing: section 13 of Act 4 Oral advice on refusal or failure to comply with blood test direction in connection with alcohol testing: section 13 of Act Part 3—Prescribed oral advice for purposes of section 20(5)(a) of Act Part 4—Prescribed written notice for purposes of section 20(5)(a) of Act Schedule 2—Transitional provisions 2 Transitional provisions Legislative history

1—Short title These regulations may be cited as the Rail Safety National Law (South Australia) (Drug and Alcohol Testing) Regulations 2012. 3—Interpretation In these regulations— Act means the Rail Safety National Law (South Australia) Act 2012. 3A—Approval of apparatus (1) For the purposes of Part 4 of the Act and Part 3 Division 9 of the Rail Safety National Law, apparatus of the following kind is approved for the purposes of conducting alcotests: AlcoQuant 6020. (2) For the purposes of Part 4 of the Act and Part 3 Division 9 of the Rail Safety National Law, apparatus of the following kind is approved for the purposes of conducting drug screening tests: Medvet Oral7 Point of Collection Device. 4—Conduct of breath analysis (1) For the purposes of section 12 of the Act, if a rail safety worker submits to testing by means of a breath analysis, the testing must be conducted in the following manner: (a) the worker must provide 2 separate samples of breath for analysis; and (b) each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than 1 litre of breath; and (c) there must be an interval of not less than 2 minutes and not more than 10 minutes between the provision of the samples. (2) Despite subregulation (1)— (a) if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample— (i) that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and (ii) the rail safety worker may be required to provide 2 further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or (b) if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the rail safety worker— (i) that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and (ii) the worker may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or (c) if, on analysing 2 samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample— (i) those samples must be disregarded; and (ii) the rail safety worker may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or (d) if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample— (i) the first sample is to be disregarded; and (ii) the rail safety worker may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)). (3) If a rail safety worker submits to a breath analysis, the result of the breath analysis will, for the purposes of the Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the worker in accordance with this regulation, that indicates the lower concentration of alcohol in the worker's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded). 5—Oral advice on refusal or failure to comply with requirement or direction of authorised person (1) A rail safety worker who refuses or fails to comply with a reasonable direction of an authorised person in relation to a requirement to submit to a preliminary breath test or breath analysis must be given the oral advice set out in Schedule 1 Part 1 of these regulations as to the operation of section 12(4) and (6) of the Act. (2) A rail safety worker who refuses or fails to comply with a reasonable direction of an authorised person in relation to a requirement to submit to a drug screening test or oral fluid analysis must be given the oral advice set out in Schedule 1 Part 2 clause 2 of these regulations as to the operation of section 13(5) and (7) of the Act. (3) A rail safety worker who refuses or fails to comply with a requirement or reasonable direction of an authorised person relating to a blood test required in connection with drug testing must be given the oral advice set out in Schedule 1 Part 2 clause 3 of these regulations as to the operation of section 13(5) and (8)(a) of the Act. (4) A rail safety worker who refuses or fails to comply with a requirement or reasonable direction of an authorised person relating to a blood test required in connection with alcohol testing must be given the oral advice set out in Schedule 1 Part 2 clause 4 of these regulations as to the operation of section 13(5) and (8)(b) of the Act. 6—Prescribed period for keeping blood samples and oral fluid samples For the purposes of sections 17(e)(ii) and 18(e)(ii) of the Act, the period prescribed for which a container containing a sample of a person's blood or oral fluid (as the case may be) must be kept available for collection by or on behalf of that person is 12 months from the day on which the sample was taken from the person. 7—Information to be included on analyst's certificate For the purposes of section 18(f)(iv) of the Act, the required information in relation to any prescribed drug or other drug found to be present in the sample is information identifying the drug or drugs. 8—Procedures for voluntary blood test (1) The following are the prescribed procedures in accordance with which a sample of a person's blood must be taken and dealt with for the purposes of section 20(2) of the Act: (a) the person must cause the sample to be taken by a medical practitioner or registered nurse of the person's choice and must deliver the blood test kit supplied to the person under section 20(5)(b) of the Act to the medical practitioner or registered nurse for use for that purpose; (b) the medical practitioner or registered nurse by whom the sample of the person's blood is taken must place the sample, in approximately equal proportions, in 2 containers (being the containers provided as part of the blood test kit); (c) each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner or registered nurse must be such as to furnish 2 such quantities of blood; (d) the medical practitioner or registered nurse must seal each container by application of the adhesive seal (bearing an identifying number) provided as part of the blood test kit; (e) it is the duty of the medical practitioner or registered nurse to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken; (f) the medical practitioner or registered nurse must then complete a certificate in the form set out in Schedule 1 Form 6 of the Road Traffic (Miscellaneous) Regulations 2014 (being a form provided as part of the blood test kit) by inserting the particulars required by the form; (g) the certificate must be signed by the medical practitioner or registered nurse certifying as to the matters set out in the form; (h) the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner or registered nurse; (i) the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with 1 of the sealed containers containing part of the blood sample; (j) a copy of the signed certificate must be delivered by the medical practitioner or registered nurse together with the other sealed container containing part of the blood sample to a police officer or an approved delivery person; (ja) a police officer to whom a copy of the signed certificate and the other sealed container is delivered under paragraph (j) must deliver the copy and container to Forensic Science SA or to an approved delivery person; (jb) an approved delivery person to whom a copy of the signed certificate and the other sealed container is delivered under this subregulation must deliver the copy and container to Forensic Science SA; (k) the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken; (l) on receipt of the blood sample container and certificate at Forensic Science SA, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood; (m) the analyst must then complete and sign a certificate certifying as to the following matters: (i) the date of receipt at Forensic Science SA of the blood sample container and the certificate accompanying the blood sample container; (ii) the identifying number appearing on the adhesive seal used to seal the blood sample container; (iii) the name and professional qualifications of the analyst; (iv) the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood; (v) any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis; (vi) any other information relating to the blood sample or analysis or both that the analyst thinks fit to include; (n) the analyst's certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person's address on the certificate accompanying the blood sample container; (o) a copy of the analyst's certificate must be sent to or retained on behalf of the Regulator; (p) a copy of the analyst's certificate must also be sent to the Commissioner of Police; (q) the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood. (2) A reference in a certificate completed for the purposes of subregulation (1)(f) to the Road Traffic Act 1961 or the Rail Safety Act 2007, or a provision of either those Acts, will be taken to be a reference to the Rail Safety National Law (South Australia) Act 2012 or the corresponding provision of that Act. (3) In subregulation (1)— approved delivery person means a person approved by the Commissioner of Police as a courier for the purposes of Schedule 1 of the Road Traffic Act 1961. 9—Oral advice and written notice on recording of positive breath analysis reading (1) The oral advice required to be given for the purposes of section 20(5)(a) of the Act must be as set out in Schedule 1 Part 3 of these regulations. (2) The written notice required to be delivered for the purposes of section 20(5)(a) of the Act must be as set out in Schedule 1 Part 4 of these regulations. Note— See also Schedule 2 clause 2. 10—Request for approved blood test kit (1) For the purposes of section 20(5)(b) of the Act, a request for an approved blood test kit must be made in accordance with the following: (a) the request may, in the first instance, be made orally to the person operating the breath analysing instrument (the operator); (b) on such a request having been made by the person, the operator or any other authorised person present at the scene must complete a written request in the form approved by the Regulator; (c) the person making the request must then sign the request form in the presence of the operator or other authorised person and the person's signature must be attested to by the signature of the operator or other authorised person; (d) the original of the signed request form may be retained by the person making the request; (e) a copy of the signed request form must be delivered to the operator or other authorised person. (2) The copy of the request form delivered to the operator or other authorised person must be delivered to the Regulator or retained on the Regulator's behalf for 12 months from the day on which the request form was signed by the person making the request. 11—Destruction of oral fluid and blood samples The Commissioner of Police must ensure that the sample of oral fluid or blood (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis or blood test) is destroyed— (a) if proceedings for an offence against the Act based on evidence of the results of analysis of the sample are not commenced within the period allowed; or (b) if such proceedings are commenced within the period allowed—when the proceedings (including any proceedings on review or appeal) are finally determined or discontinued.