Victorian Numbered Acts Victorian Numbered ActsAfter section 86C of the Rail Safety (Local Operations) Act 2006 insert —
(1) This section applies if a transport safety officer authorised for the purposes of this section or a police officer requires a rail safety worker to submit to a drug screening test under section 86A(1).
(2) The transport safety officer or police officer may, for the purposes of carrying out a drug screening test, require the rail safety worker to place a prescribed device, or the collection unit of a prescribed device, into the worker's mouth and carry out the physical actions that are necessary to ensure that, in the opinion of the officer, a sufficient sample of oral fluid has been captured by the device or unit.
(3) A device prescribed for the purposes of carrying out drug screening tests may be comprised of a collection unit and a testing unit and one or more other parts.
(4) The transport safety officer or police officer who carries out a drug screening test may give any reasonable direction as to the physical actions that are necessary for the test to be carried out.
(5) The rail safety worker must remain at the place at which the drug screening test is being carried out until the sample of oral fluid collected in accordance with subsection (2) has been tested by a prescribed device.
(6) The rail safety worker is not obliged to undergo a drug screening test under this section if more than 3 hours have passed since the worker—
(a) last carried out or attempted to carry out rail safety work; or
(b) was involved in a prescribed notifiable occurrence.
(7) The Safety Director or the National Rail Safety Regulator may only authorise a transport safety officer for the purposes of this section if satisfied that the transport safety officer has the appropriate training to carry out a drug screening test.
(1) This section applies if a rail safety worker is—
(a) required—
(i) to submit to an assessment of drug impairment under section 86B; or
(ii) to submit to a drug screening test under section 86A; and
(b) in the opinion of the transport safety officer or police officer who carries out that assessment or test—
(i) the assessment or test indicates that the worker's oral fluid contains a prescribed drug; or
(ii) the worker has refused or failed to carry out the assessment or test in the manner described in section 86C or 86CA(2) (as the case requires).
(2) A transport safety officer or police officer authorised for the purposes of this section may require the rail safety worker to provide a sample of oral fluid for testing by a prescribed device.
(3) If a transport safety officer or police officer authorised for the purposes of this section considers it necessary, the officer may require the rail safety worker to provide a sample of oral fluid for analysis by a properly qualified analyst.
(4) If the transport safety officer or police officer considers it necessary for the purposes of subsection (2) or (3), the officer may require the rail safety worker—
(a) to accompany any transport safety officer or police officer to a place or vehicle where a sample is to be provided; and
(b) to remain there until the earlier of the following—
(i) the worker has provided the sample and any further sample required to be provided under subsection (5) and the sample has been tested by a prescribed device;
(ii) 3 hours after the worker last carried out or attempted to carry out the rail safety work or was involved in a prescribed notifiable occurrence.
(5) The transport safety officer or police officer who required a sample of oral fluid to be provided under subsection (2) may require the rail safety worker who provided it to provide one or more further samples if it appears to the officer that the prescribed device is incapable of testing for the presence of a prescribed drug in the sample or samples because—
(a) the amount of sample provided was insufficient; or
(b) of a power failure or malfunctioning of the device.
(6) If the transport safety officer or police officer requires a sample of oral fluid to be provided under subsection (3), the officer may require the rail safety worker who provided it to provide one or more further samples if it appears to the officer that the amount of sample provided was insufficient for the purposes of testing for the presence of a prescribed drug.
(7) Only the following persons may carry out the procedure for the provision of a sample of oral fluid under this section—
(a) a transport safety officer authorised in writing by the Safety Director or the National Rail Safety Regulator for the purposes of this section;
(b) a police officer authorised in writing by the Chief Commissioner of Police for the purposes of this section.
(8) The Safety Director, the National Rail Safety Regulator or the Chief Commissioner of Police may, as the case requires, authorise a transport safety officer or police officer for the purposes of this section if satisfied that the officer has the appropriate training to carry out the prescribed procedure for the provision of a sample.
(9) A device prescribed for the purposes of the collection of a sample of oral fluid may be comprised of a collection unit and a testing unit and one or more other parts.
(1) A rail safety worker required to provide a sample of oral fluid under section 86CB must do so by placing the prescribed device, or the collection unit of the device, into the worker's mouth and carrying out the physical actions that are necessary to ensure that, in the opinion of the transport safety officer or police officer to whom the sample is being provided, a sufficient sample of oral fluid has been captured by the device or unit.
(2) A transport safety officer or police officer who requires a rail safety worker to provide a sample of oral fluid under section 86CB may give any reasonable direction as to the physical actions that are necessary for the sample to be provided.
(3) A rail safety worker is not obliged to provide a sample of oral fluid under section 86CB if more than 3 hours have passed since the worker—
(a) last carried out or attempted to carry out rail safety work; or
(b) was involved in a prescribed notifiable occurrence.
(4) The provision of a sample of oral fluid under this section must be carried out in accordance with the prescribed procedure.
(5) A rail safety worker must not be convicted or found guilty of refusing to provide under section 86CB a sample of oral fluid if the worker satisfies the court that there was some reason of a substantial character for the refusal, other than a desire to avoid providing information which might be used against the worker.
(6) A device prescribed for the purposes of the collection of a sample of oral fluid may be comprised of a collection unit and a testing unit and one or more other parts.
If a test of a sample of oral fluid provided under section 86CB by a rail safety worker indicates, in the opinion of the transport safety officer or police officer who carried out the procedure in the course of which the sample was provided, that the oral fluid contains a prescribed drug, the officer may—
(a) if the officer who carried out the procedure was not the transport safety officer or police officer who required the sample to be provided, deliver a part of the sample to the officer who required the sample to be provided; and
(b) deliver another part of the sample to the worker.
(1) This section applies if a rail safety worker is required under section 86CB to provide a sample of oral fluid.
(2) The rail safety worker may request the transport safety officer or police officer who required the sample to arrange for the taking in the presence of a transport safety officer or police officer of a sample of the worker's blood for analysis at the worker's own expense by a registered medical practitioner or an approved health professional nominated by the officer.
(3) Nothing in this section relieves a rail safety worker from any penalty under section 77(1)(da) for refusing to provide a sample of oral fluid.
(1) This section applies if a transport safety officer or police officer requires a rail safety worker to provide a sample of oral fluid under section 86CB for analysis and in the opinion of the officer—
(a) the worker is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability; or
(b) the prescribed device is incapable of testing for the presence in the sample of a prescribed drug for any reason whatsoever.
(2) The transport safety officer or police officer may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the officer who required the sample to take from the worker a sample of blood for analysis.
(3) For the purpose of subsection (2), a transport safety officer or police officer may require the rail safety worker—
(a) to accompany any transport safety officer or police officer to a place where the sample of the worker's blood is to be taken; and
(b) to remain there until the earlier of the following—
(i) the sample is taken;
(ii) 3 hours after the worker last carried out or attempted to carry out rail safety work or was involved in a prescribed notifiable occurrence.
(4) A rail safety worker who allows the taking of a sample of the rail safety worker's blood in accordance with section 86CB must not be convicted or found guilty of refusing to provide a sample of oral fluid in accordance with this section.
(5) A rail safety worker must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood of any other rail safety worker in accordance with this section.
Penalty: $10 000.
(6) No action lies against a registered medical practitioner or an approved health professional in respect of anything properly and necessarily done by the practitioner or approved health professional in the course of taking any sample of blood that the practitioner or approved health professional believed on reasonable grounds was required to be taken from any rail safety worker under this section.
(1) Evidence derived from a sample of oral fluid provided following a requirement made under section 86CB or 86CF is not rendered inadmissible by a failure to comply with a request under section 86CE if reasonable efforts were made to comply with the request.
(2) In any proceeding under this Act, the following are admissible in evidence and, in the absence of evidence to the contrary, are proof of the authority of the transport safety officer or police officer (as the case requires)—
(a) the statement of a transport safety officer that on a particular date that officer was authorised for the purposes of section 86CA;
(b) a certificate purporting to be signed by the Safety Director or the National Rail Safety Regulator that a transport safety officer named in it was authorised for the purposes of section 86CA;
(c) the statement of a transport safety officer or police officer that on a particular date the officer was authorised for the purposes of section 86CB(8);
(d) a certificate purporting to be signed by the Safety Director, the National Rail Safety Regulator or the Chief Commissioner of Police that a transport safety officer or police officer named in it is authorised for the purposes of section 86CB(8).".