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Transport (Alcohol and Drug Controls) Bill
Circulation Print
EXPLANATORY MEMORANDUM
Clause 1 states that the main purpose of the Act is to prohibit the carrying
out of safety work while impaired by a drug; to make it a
condition of rail safety accreditation to take reasonable steps to
ensure that workers do not carry out safety work after consuming
alcohol or while impaired by drugs; and to create a new offence
to fail to comply with that new condition of accreditation.
Clause 2 is the commencement provision.
Clause 3 states that in this Act the Transport Act 1983 is called the
Principal Act.
Clause 4 amends the heading to Division 2 of Part 6 of the Transport Act
1983 to insert a reference to "other drugs".
Clause 5 amends section 92 of the Transport Act 1983 to insert a
reference to "drug".
Clause 6 inserts the definitions of "drug" and "substance" in section 93(1)
of the Transport Act 1983 and inserts a new sub-section (1AA)
which allows the Minister to declare any substance to be a drug
for the purposes of Division 2 of Part 6 by notice in the
Government Gazette.
Clause 7 inserts three new sub-sections in section 93 of the Transport
Act 1983.
Sub-section (1) inserts a new section 93(5A) which provides for
a presumption that a worker has performed safety work with a
certain drug present in the blood if the presence of that drug is
found in the body of a safety worker within three hours of the
worker having performed safety work.
Sub-section (2) inserts two new sub-sections. Sub-section (6A)
provides that where a drug is found to be present in a worker's
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body it is not to be presumed that a drug was consumed after the
carrying out of safety work unless the worker proves the
contrary. Sub-section (6B) provides that a worker is not to be
taken to be impaired unless the behaviour or appearance of the
worker is such that there is a reasonable suspicion that the
worker is unable to perform safety work properly.
Clause 8 Clause 8(1) inserts three new offences in the Transport Act
1983.
Clause 8(1)(a) amends section 94(1) of the Principal Act to insert
a new section 94(1)(ab) to make it an offence for a worker to
carry out safety work while impaired by a drug.
Clause 8(1)(b) inserts a new offence in section 94(1)(ba) to
refuse to undergo an assessment for drug impairment under
section 96A.
Clause 8(1)(c) inserts a new offence in section 94(1)(ca) to
refuse to comply with a requirement under section 96B to
provide a blood or urine sample for testing.
Clause 8(2) inserts a new section 94(2A) which establishes the
elements of proof in proceedings for an offence of performing
safety work while impaired by a drug.
Clause 9 provides that a person required to undergo a drug assessment
under section 96A may be required to undergo a breath analysis
test.
Clause 10 inserts three new sections, sections 96A, 96B and 96C, which set
out procedures for identifying drug impairment for safety
workers.
Section 96A provides that an authorised officer may, in certain
circumstances, require a safety worker who is about to
commence safety work or is performing safety work to undergo
an assessment of drug impairment. Section 96A also provides
that where there is an accident or irregular incident involving a
safety worker, an authorised officer or a member of the police
may require the safety worker to undergo an assessment of drug
impairment. Where there is an irregular incident a member of the
police force may only require a drug assessment if the member of
the police force has contacted the relevant rail operator, who
agrees that it is appropriate for the assessment to be performed.
A drug assessment must be carried out by a person authorised by
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the Secretary of the Department of Infrastructure or by a member
of the police force who is authorised by the Chief Commissioner
of Police in accordance with procedures specified in the
Government Gazette. Provision is made for the assessment of
drug impairment to be video-recorded unless the prosecution
satisfies the court that a video-recording has not been made
because of exceptional circumstances. If the person is
subsequently charged, a copy of the video-recording must be
served on the defendant. The video-recording can only be used
for the purpose of establishing that the assessment of drug
impairment was carried out in accordance with the specified
procedures. A number of evidentiary provisions are included
with respect to a drug assessment.
New section 96B provides for a person who has undergone an
assessment of drug impairment and who, in the opinion of the
authorised officer or member of the police, may be impaired by a
drug or drugs, to be required to provide a sample of blood and/or
urine to a registered medical practitioner or approved health
professional. The section also provides that it is an offence for a
person to hinder or obstruct the taking of a blood or urine
sample. The new section further provides that no legal action lies
against a registered medical practitioner or approved health
professional for taking a blood or urine sample providing there
was a reasonable belief that the sample was required to be
furnished. If the person is subsequently charged, a copy of the
written report on the assessment of drug impairment must be
served with the summons, or within 7 days after charging if a
summons is not issued.
New section 96C provides for the destruction of video-
recordings and any related material and information when they
are no longer required for prosecution purposes.
Clause 11 amends section 97(5) of the Transport Act 1983 to insert a new
paragraph (ab) to permit the evidence and results of a blood test
to be used in a prosecution of an accredited body for failure to
comply with the condition of accreditation.
Clause 12 amends section 98 of the Transport Act 1983 to provide
evidentiary provisions in relation to the testing of blood for the
presence of drugs.
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Clause 13 inserts new section 98A of the Transport Act 1983 to provide
evidentiary provisions in relation to the testing of urine for the
presence of drugs similar to those provided in the amendments
being made by clause 12.
Clause 14 substitutes new sub-sections (1) and (2) in section 100A of the
Transport Act 1983 to enable the Secretary of the Department
of Infrastructure to appoint persons to be authorised to conduct
drug and alcohol tests and to designate in which parts of the tram
or train system such persons can exercise those powers.
Clause 15 amends section 101(1) of the Transport Act 1983 to allow
revocation of an authority to conduct drug assessments issued by
the Secretary of the Department of Infrastructure or the Chief
Commissioner of Police (as the case requires).
Clause 16 amends section 102 of the Transport Act 1983 to allow
regulations to be made under the Act with reference to the
methods and conditions to be used for collection of urine
samples, the methods to be used by analysts in determining the
presence of a substance in a blood or urine sample and the
methods of taking, transmission, safe-keeping, delivering and
analysis of urine samples used in drug testing.
Clause 17 inserts a new section 102A in the Transport Act 1983 to provide
for the disallowance of Orders declaring substances to be drugs
and notices specifying drug impairment assessment procedures.
Clause 18 amends one definition and inserts a number of new definitions in
section 104(1) of the Transport Act 1983.
Paragraph (a) inserts the definitions of "drug", "prescribed
concentration of alcohol", "safety work", "substance" and
"worker". These are the same definitions as are already
contained in section 93 and being inserted by clause 6.
Paragraph (b) amends the definition of "railway" by adding "an
aerial cable operated system" as an exemption from the meaning
of the definition.
Clause 19 amends section 117 of the Transport Act 1983 to add a new
sub-section (4A) which makes it a condition of rail safety
accreditation that a person who has been accredited to ensure that
a worker who is about to carry out safety work or carries out
safety work for that person does not have more than the
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prescribed amount of alcohol in his or her blood and is not
impaired by a drug.
Clause 20 inserts new sub-sections (2) and (3) in section 118 of the
Transport Act 1983. Section 118(2) makes it an offence to
breach the new condition of accreditation in proposed
section 117(4A). Section 118(3) allows evidence that a worker
has been found guilty of an offence of performing safety work
while impaired by a drug, or with more than the prescribed
amount of alcohol in his or her blood, to be admissible in a
proceeding for a breach of the condition of accreditation imposed
by proposed section 117(4A).
Clause 21 inserts a new section 255D into the Transport Act 1983 to
declare that it is the intention of section 96B(5) (as inserted by
clause 10) to alter or vary section 85 of the Constitution Act
1975 so as to prevent legal action being taken against a registered
medical practitioner or an approved health professional as a
result of the taking of a sample of blood or being furnished with
a sample of urine.
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