Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017

Authorised by the Chief Parliamentary Counsel Authorised Version i Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 TABLE OF PROVISIONS Regulation Page Part 1—Preliminary 1 1 Objective 1 2 Authorising provision 1 3 Commencement 1 4 Definitions 2 Part 2—Drug and alcohol controls 3 5 Preliminary breath test devices 3 6 Procedure for breath analysis 3 7 Procedure for taking blood sample 3 8 Procedure after taking blood samples 4 9 Certificate under section 85(8) 5 10 Particulars of report of assessment of drug impairment 6 11 Certificate under section 86I(5) 8 12 Certificate under section 86I(6) 8 13 Certificate under section 86I(7) 9 14 Certificate under section 86I(8) 10 15 Devices prescribed for the purposes of oral fluid analysis and drug screening tests 10 16 Procedure for carrying out oral fluid analysis or drug screening tests 11 17 Procedure after taking oral fluid sample 11 18 Certificate under section 86J(5) 12 19 Certificate under section 86J(6) 12 20 Certificate under section 86J(7) 13 21 Duty to provide indicative positive results to Safety Director 13 ═════════════ Endnotes 15 -- 1 of 16 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2017 S.R. No. 78/2017 Rail Safety (Local Operations) Act 2006 Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 The Governor in Council makes the following Regulations: Dated: 18 July 2017 Responsible Minister: JACINTA ALLAN Minister for Public Transport ANDREW ROBINSON Clerk of the Executive Council Part 1—Preliminary 1 Objective The objective of these Regulations is to promote safe rail operations in Victoria by prescribing requirements for drug and alcohol controls for rail safety workers. 2 Authorising provision These Regulations are made under section 109 of the Rail Safety (Local Operations) Act 2006. 3 Commencement These Regulations come into operation on 21 July 2017. -- 2 of 16 -- Part 1—Preliminary Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 2 Authorised by the Chief Parliamentary Counsel 4 Definitions In these Regulations, the Act means the Rail Safety (Local Operations) Act 2006. -- 3 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 3 Authorised by the Chief Parliamentary Counsel Part 2—Drug and alcohol controls 5 Preliminary breath test devices The devices prescribed for the purposes of section 84 of the Act are the breath testing devices known as— (a) the lion alcolmeter SD-400 Touch; and (b) the Lion Alcolmeter also known as the lion alcolmeter S-D2; and (c) the lion alcolmeter SD-400PA; and (d) the Alcolizer LE; and (e) AlcoQuant 6020. 6 Procedure for breath analysis It is a requirement for the proper operation of a breath analysing instrument that a person authorised under section 85(7) of the Act to operate a breath analysing instrument— (a) does not require a person to provide a breath sample for analysis until the authorised person is satisfied that the person has not consumed any alcohol for a period of at least 15 minutes before the analysis; and (b) provides a fresh mouthpiece for use by each person required to provide a breath sample; and (c) uses only a mouthpiece which, until required for taking the breath sample, has been kept in a sealed container. 7 Procedure for taking blood sample If a blood sample is taken by a registered medical practitioner or an approved health professional for the purposes of the Act, the site of the puncture -- 4 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 4 Authorised by the Chief Parliamentary Counsel must be cleansed with a swab taken from a container which— (a) appears to be sealed against contamination; and (b) bears a label stating that the container holds an aqueous solution of chlorohexidine and cetrimide and no methylated spirits, alcohol, tincture of iodine or other substance containing alcohol. 8 Procedure after taking blood samples (1) A registered medical practitioner or an approved health professional who takes a blood sample must ensure that— (a) the sample of blood is placed in 3 dry containers, each containing approximately the same amount of blood; and (b) each container is vacuum sealed or sealed with a septum seal; and (c) each container in which the sample is placed bears a label stating— (i) that the container holds a specific anti-coagulant and preservative such as potassium oxalate and sodium fluoride; and (ii) the name of the chemist, laboratory or pharmaceutical organisation that prepared the container; and (d) each container has attached to it a label bearing the signature of the registered medical practitioner or approved health professional, the date and the time the blood sample was taken, and the name of the person from whom the sample was taken or, if the name of the person is not known, sufficient information to enable -- 5 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 5 Authorised by the Chief Parliamentary Counsel the sample to be identified with the person from whom it was taken. (2) If a blood sample is taken under section 85 of the Act, the registered medical practitioner or approved health professional must give one of the containers to a police officer and another to the person from whom the sample was taken. (3) If a blood sample is taken under section 86H of the Act and has, in accordance with this regulation, been placed in containers which have been sealed and labelled, the registered medical practitioner or approved health professional must ensure that— (a) one container is placed in a locked receptacle provided for the purpose at the place at which the sample was taken; and (b) one container is placed and sealed in a container labelled "screening sample"; and (c) one container is delivered to the person from whom the blood sample was taken or placed with that person's personal property at the place at which the sample was taken. 9 Certificate under section 85(8) A certificate given under section 85(8) of the Act must contain the following particulars— (a) the serial number of the breath analysing instrument; (b) the sample number; (c) the location of the test; (d) the name and date of birth of the person whose breath is analysed; (e) the surname of the operator; -- 6 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 6 Authorised by the Chief Parliamentary Counsel (f) the results of the self tests conducted by the breath analysing instrument before and after the person's breath is analysed; (g) the results of zero tests conducted by the breath analysing instrument before and after the person's breath is analysed; (h) the date and time the person's breath was analysed. 10 Particulars of report of assessment of drug impairment For the purposes of section 86D(7) of the Act, a report of assessment of drug impairment must contain the following particulars— (a) particulars of the identity of the person on whom the assessment was carried out, including, if known, the person's name, address, date of birth and gender; (b) the date and time at which the person underwent the assessment; (c) the place at which the person underwent the assessment; (d) the time (if any) reported to the transport safety officer or police officer (as the case requires) carrying out the assessment as the latest time the person carried out rail safety work; (e) whether the person underwent a preliminary breath test in accordance with section 83 of the Act or furnished a sample of breath for analysis by a breath analysing instrument and, if so, the result of the test or analysis, if known; -- 7 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 7 Authorised by the Chief Parliamentary Counsel (f) the record of interview of the person carried out by the transport safety officer or the police officer carrying out the assessment; (g) particulars of any medical treatment sought by or for the person; (h) any statements made by the person concerning a drug or drugs; (i) any observations made by the transport safety officer or police officer carrying out the assessment of the person in relation to— (i) any apparent injury or illness of the person; and (ii) whether the person smelt of intoxicating liquor; and (iii) the person's speech; and (iv) the person's eyes; and (v) the person's breathing; and (vi) the person's skin; and (vii) the person's movement; and (viii) the person's balance; and (ix) the state of the person's clothing; and (x) the person's actions; and (xi) the person's demeanour; and (xii) any physical signs of drug use by the person; and (xiii) the person's ability to comprehend instructions; and (xiv) the person's ability to divide attention; and -- 8 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 8 Authorised by the Chief Parliamentary Counsel (xv) whether the person, during the assessment, exhibited signs that indicated that the person was impaired by a drug or drugs; (j) whether the assessment, in the opinion of the transport safety officer or police officer carrying it out, indicates that the person may be impaired by a drug or drugs; (k) the name, identification number and signature of the transport safety officer, or the name, rank, station and signature of the police officer (as the case requires) carrying out the assessment. 11 Certificate under section 86I(5) A certificate for the purposes of section 86I(5) of the Act must contain the following particulars— (a) a statement by the registered medical practitioner or approved health professional that the requirements of these Regulations for the taking of blood samples have been complied with; (b) the name of the person from whom the blood sample was taken; (c) the time and date the blood sample was taken; (d) the name and signature of the registered medical practitioner or approved health professional who took the blood sample. 12 Certificate under section 86I(6) A certificate for the purposes of section 86I(6) of the Act must contain, in addition to a statement as to the concentration of alcohol found in the sample of blood, the following particulars— -- 9 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 9 Authorised by the Chief Parliamentary Counsel (a) a statement by the approved analyst that the analyst is an approved analyst within the meaning of section 86I(1) of the Act; (b) a statement as to the method of analysis used; (c) the name and signature of the approved analyst; (d) the date the analysis was conducted; (e) a description of the contents of the identification label referred to in regulation 8(1)(d) attached to the container in which the blood sample is placed. 13 Certificate under section 86I(7) A certificate under section 86I(7) of the Act must contain the following particulars— (a) a statement by the approved analyst that the analyst is an approved analyst within the meaning of section 86I(1) of the Act; (b) a statement as to the method of analysis used; (c) a statement that a substance that is, or is capable of being, a drug for the purposes of the Act was present in the sample of blood analysed; (d) the name of the substance found to be present in the sample of blood analysed; (e) the name and signature of the approved analyst; (f) the date on which the analysis was conducted; -- 10 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 10 Authorised by the Chief Parliamentary Counsel (g) a description of the identification label referred to in regulation 8(1)(d) attached to the container in which the blood sample is placed. 14 Certificate under section 86I(8) A certificate under section 86I(8) of the Act must contain the following particulars— (a) a statement by the approved expert that the expert is an approved expert within the meaning of section 86I(1) of the Act; (b) a statement as to the usual effect of a specified substance or substances on behaviour when consumed or used (including the effect on a person's ability to carry out rail safety work properly); (c) the name and signature of the approved expert. 15 Devices prescribed for the purposes of oral fluid analysis and drug screening tests For the purposes of the definitions of drug screening test and oral fluid analysis in section 70 of the Act, the following devices are prescribed— (a) the oral fluid testing device known as the SECURETEC DRUGWIPE TWIN or the SECURETEC DRUGWIPE II TWIN; (b) the oral fluid testing device known as the SECURETEC DRUGWIPE II TWIN COMBO; (c) the oral fluid testing device known as the Cozart RapiScan; (d) the oral fluid screening device known as the Medvet Oral7; -- 11 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 11 Authorised by the Chief Parliamentary Counsel (e) the oral fluid screening device known as the Ultrasal-2 Saliva Collection Device; (f) the oral fluid analysis device known as the Thermo TSQ Quantum Ultra; (g) the oral fluid analysis device known as the Thermo TSQ Quantum Access; (h) the oral fluid analysis device known as the Thermo LTQ Orbitrap Discovery; (i) the oral fluid analysis device known as the Sciex QTrap 4500 or 5500. 16 Procedure for carrying out oral fluid analysis or drug screening tests For the purposes of a drug screening test or oral fluid analysis under section 86A of the Act, a transport safety officer or a police officer who conducts the test or analysis must— (a) provide a fresh oral fluid collection unit for use by a person required to submit to the drug screening test or oral fluid analysis; and (b) use only an oral fluid collection unit that has been kept in a sealed container until it is given to that person; and (c) test or analyse any oral fluid sample produced by that person by using the device, or the oral fluid testing unit that is part of the device through which the sample was provided. 17 Procedure after taking oral fluid sample A transport safety officer or a police officer who is provided a sample of oral fluid by a person under a requirement under section 86A of the Act must ensure that the sample or, if the sample is broken into parts, each part of the sample has attached to it a label bearing— -- 12 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 12 Authorised by the Chief Parliamentary Counsel (a) the name and signature of the police officer to whom the oral fluid sample was provided; and (b) the date and time the sample was provided; and (c) the name of the person who provided the sample or, if the name of the person is not known, sufficient information to enable the sample to be identified with the person who provided the sample. 18 Certificate under section 86J(5) A certificate for the purposes of section 86J(5) of the Act must contain the following particulars— (a) a statement by the registered medical practitioner or approved health professional that the requirements of these Regulations for the taking of blood samples have been complied with; (b) the name of the person from whom the oral fluid sample was taken; (c) the time and date the oral fluid sample was taken; (d) the name and signature of the registered medical practitioner or approved health professional who took the oral fluid sample. 19 Certificate under section 86J(6) A certificate under section 86J(6) of the Act must, in addition to a statement as to the presence of a drug in that sample of oral fluid, contain the following particulars— (a) a statement by the approved analyst that the analyst is an approved analyst within the meaning of section 86J(1) of the Act; -- 13 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 13 Authorised by the Chief Parliamentary Counsel (b) a statement as to the method of analysis used; (c) the name and signature of the approved analyst; (d) the date on which the analysis was conducted; (e) a description of the contents of the identification label referred to in regulation 17 that was attached to the part of the oral fluid received for analysis. 20 Certificate under section 86J(7) A certificate under section 86J(7) of the Act must contain the following particulars— (a) a statement by the approved expert that the analyst is an approved expert within the meaning of section 86J(1) of the Act; (b) a statement as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a person's ability to carry out rail safety work properly); (c) the name and signature of the approved expert. 21 Duty to provide indicative positive results to Safety Director (1) A rail transport operator must, within 48 hours after becoming aware, notify the Safety Director if a rail safety worker carrying out rail safety work for the rail transport operator has undergone a preliminary breath test, drug screening test or an assessment of drug impairment and the test statement indicates or shows a positive result. Penalty: 10 penalty units. -- 14 of 16 -- Part 2—Drug and alcohol controls Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 14 Authorised by the Chief Parliamentary Counsel (2) A notification under subregulation (1) must contain a statement of action specifying the response and proposed action to be taken by the rail transport operator against the rail safety worker as a consequence of the positive test result. (3) A notification under subregulation (1) must be in writing and must be in an approved form. (4) In this regulation, positive result means— (a) if the rail safety worker has undergone a preliminary breath test, the test indicates that the rail safety worker's breath contains alcohol; or (b) if the rail safety worker has undergone a drug screening test, the test shows that the rail safety worker may have a prescribed drug present in his or her oral fluid or blood; or (c) if the rail safety worker has undergone an assessment of drug impairment, the assessment indicates that the rail safety worker may be impaired by a drug. ═════════════ -- 15 of 16 -- Endnotes Rail Safety (Local Operations) (Drug and Alcohol Controls) Regulations 2017 S.R. No. 78/2017 15 Authorised by the Chief Parliamentary Counsel Endnotes Penalty Units These Regulations provide for penalties by reference to penalty units within the meaning of section 110 of the Sentencing Act 1991. The amount of the penalty is to be calculated, in accordance with section 7 of the Monetary Units Act 2004, by multiplying the number of penalty units applicable by the value of a penalty unit. The value of a penalty unit for the financial year commencing 1 July 2017 is $158.57. The amount of the calculated penalty may be rounded to the nearest dollar. The value of a penalty unit for future financial years is to be fixed by the Treasurer under section 5 of the Monetary Units Act 2004. The value of a penalty unit for a financial year must be published in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year. -- 16 of 16 --