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Bridging course for existing drug and alcohol testing officers in NSW

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Learning outcomes

On successful completion of the briefing program you should be able to: Outline the legislative requirements for drug and alcohol testing, including the offences under the Rail Safety National Law (NSW) Understand the changes to drug and alcohol testing practices, including reporting responsibilities, under the Rail Safety National Law (NSW) Explain your organisation’s required procedures for random, targeted (eg “for cause/on suspicion”) and post-incident testing Outline notification and record keeping requirements for drug and alcohol testing

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Summary of bridging course content

Session to cover:

1. Role of the ONRSR2. Overview of legislative requirements3. Rights, roles and responsibilities4. Random testing5. “For cause/on suspicion” testing6. Post-incident testing7. Managing notification responsibilities, record keeping and other

testing issues

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What is the main role of the ONRSR?

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Overview of legislative requirements

1. Key requirements of accredited rail transport operator DAMPs2. When is testing required?3. Requirements for authorised persons4. Who is to be tested?5. Rail safety work is ……6. Offences for rail safety workers

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Key requirementsof accredited rail transport operator DAMPs

The Rail Safety National Law in NSW comprises: Rail Safety National Law (NSW) No 82a (RSNL (NSW)) Rail Safety National Law National Regulations 2012 (the National

Regulations) Rail Safety (Adoption of National Law) Regulation 2012 (the NSW Regulation)

Under clause 28 of the National Regulations, the DAMP must include the following: a drug and alcohol policy, systems and procedures for provision of information and education to rail

safety workers on the DAMP, systems and procedures to ensure confidentiality of personal information

obtained from rail safety workers in relation to testing, counselling, treatment or rehabilitation.

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Key requirements of accredited rail transport operator DAMPs (cont)…

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Key requirements of accredited rail transport operator DAMPs (cont) …

In addition, the drug and alcohol testing regime of a rail transport operator accredited in NSW must include the following:

random breath or urine testing of not less than 25% of rail safety workers in each year, selected using risk management principles (does not apply to heritage operators)

drug and alcohol testing of rail safety workers involved in a prescribed incident within three hours of the incident, unless there is a reasonable excuse for not doing so

written notification to the Regulator of positive test results, refusal or failure to be tested, and interference with blood or urine samples or with the concentration of alcohol or any other drug in a rail safety worker’s breath, blood or urine before submitting to testing

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Exercise 1: Key requirements of your rail transport operator’s DAMP

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When is testing required?

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Requirements for authorised persons….

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Who is to be tested?

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Rail safety work is….S 8 of the RSNL (NSW) provides the full definition of rail safety work:driving or despatching rolling stock;signalling;coupling or uncoupling rolling stock;maintaining, repairing, modifying, monitoring, inspecting or testing rolling stock or rail infrastructure;installation of components in relation to rolling stock;work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure;installation or maintenance of a telecommunications system relating to rail infrastructure, or of electricity supply to rail infrastructure, rolling stock or a telecommunications system;work involving certification as to the safety of rail infrastructure or rolling stock;work involving the decommissioning of rail infrastructure or rolling stock;work involving the development, management or monitoring of safe working systems for railways;work involving the management or monitoring of passenger safety on, in or at any railway.

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Offences for rail safety workers under the Rail Safety National Law (NSW)

Carrying out, or attempting to carry out, rail safety work while: the prescribed concentration of alcohol (ie any concentration of alcohol) is present in the worker’s

breath or blood – section 128(1)(a) of the RSNL (NSW) NB In NSW, a breath test may measure the amount of alcohol in a person’s breath or blood, expressed as the amount of alcohol in grams in 210 litres of breath or 100 millilitres of blood) – clause 5 of the NSW Regulation;

a prescribed drug is present in the worker’s oral fluid or blood - section 128(1)(b) of the RSNL (NSW); so much under the influence of alcohol or a drug as to be incapable of effectively discharging a function

or duty of a rail safety worker - section 128(1)(c) of the RSNL (NSW); Refusal or failure to be tested - sections 126(3) and 127(3) of RSNL (NSW) and clause

21(1) of the NSW Regulation; Failure to provide a sample of his or her own blood, oral fluid or urine – clause 21(2) of the NSW

Regulation; Interfering with test results – clause 22 of the NSW Regulations; Hindering or obstructing a medical practitioner or nurse - clause 23(4) of the NSW Regulation;

and Interfering or tampering with, or destroying blood or urine samples – clause 24 of the NSW

Regulation.

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Exercise 2: What are the legislative requirements for testing?

Read Information Sheet #4 – “What the legislation says about drug and alcohol testing”.

Read Information Sheet # 5 – “What are the main offences and penalties relating to alcohol or drugs?”

Refer to your operator’s DAMP. Answer the following questions:

What are the implications for an authorised person’s testing practice?

Rights, roles and responsibilities

The obligations of accredited rail transport operators Rail safety workers’ rights and obligations Authorised persons’ powers, roles and responsibilities Legal requirements – authorised persons and third party

testing service providers Duty of confidentiality on authorised persons

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Rights, roles and responsibilities:The obligations of accredited rail transport

operators

Testing requirements for rail transport operators to conduct random testing: The rail transport operator’s DAMP must provide for the random breath or

urine testing of not less than 25% of rail safety workers in each year. Risk management principles must be used to select rail safety workers and

to determine the type of test (breath or urine) to be conducted. Heritage operators are not required to conduct random testing, but may be

targeted by the ONRSR’s random testing program. Operators may conduct oral fluid testing, but this will not form part of the

25% of random testing required by clause 28(2)(a)(i) of the National Regulations.

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The obligations of accredited rail transport operators continued...

Testing requirements for rail transport operators to conduct targeted (eg “for cause/on suspicion”) testing:

The rail transport operator’s DAMP must provide for targeted (eg “for cause/on suspicion”) testing of rail safety workers.

The rail transport operator’s DAMP must provide for the testing of rail safety workers where an authorised person has a reasonable belief that the worker might be under the influence of alcohol or a drug.

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The obligations of accredited rail transport operators continued...

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Rail safety workers’ rights and obligations

All rail safety workers who are about to carry out, are carrying out, are attempting to carry out, are still on railway premises after carrying out rail safety work, or are involved in a prescribed notifiable occurrence, or are involved in an accident or irregular incident while carrying out rail safety work, may be required to submit to testing. “About to carry out rail safety work” means the rail safety worker has left

home or a temporary residence for work but has not yet commenced work (ie pre-sign-on).

“Attempting to carry out rail safety work” means that a rail safety worker is available to carry out rail safety work after signing on for duty.

Under clause 6 of the NSW Regulation, results of testing for a rail safety worker who was about to carry out rail safety work are not admissible as an offence under section 128 of the Rail Safety National Law (NSW).

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Rail safety workers’ rights and obligations(continued)

Refusing or failing to undergo testing is an offence. (NB It is a defence to a prosecution for an offence under clause 21(1) of the NSW Regulation, if the worker was required to submit to a sobriety assessment and was unable to comply on medical grounds.)

Rail safety workers have the right: to request an authorised person to produce their identity card, to know the consequences of failure or refusal to undergo testing, and to be advised of outcomes of testing.

Rail safety workers should be informed of: the desirability of disclosing their use of prescription drugs; the availability of counselling, treatment and rehabilitation.

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Authorised person’s powers, roles and responsibilities

Authorised persons are appointed by rail transport operators under delegation from the Regulator, and are issued with an ID card by the Regulator.

Authorised persons may direct rail safety workers to: undergo a breath test and/or provide a sample of urine submit to a sobriety assessment submit to a breath analysis at the nearest police station or such other place as the

authorised person may require provide blood or urine samples at a hospital undergo testing by a third party testing service provider, eg. provide urine samples to a

collecting agency or blood/urine samples to a medical practitioner/registered nurse at a hospital

Authorised persons are protected from liability for “anything properly and necessarily done” in the course of administering a breath test or breath analysis, conducting a sobriety assessment or taking a sample of urine in the exercise of the functions of an authorised person under the RSNL (NSW) (clause 20(2) of the NSW Regulation.

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Authorised person powers, roles and responsibilities continued…

o Authorised persons (other than police officers) must not arrest or detain rail safety workers.

o Authorised persons must not require a rail safety worker to undergo a breath test, assessment, breath analysis or provide a sample of blood or urine (clause 8 of the NSW Regulation): * if it appears to the authorised person (because of injuries sustained by the worker) that it would be dangerous to the worker’s medical condition,

* 3 hours after the worker carried out the rail safety work (or was due to commence

the rail safety work) to which the requisition relates,

* after a worker, who has not been involved in an accident or irregular incident, has ceased to be on duty on a particular day, or

* at the worker’s home, or

* if the worker is admitted to a hospital after an accident and the testing is against the advice of a medical practitioner or nurse (clause 13(2) of the NSW Regulation).

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Exercise 3: What are the rights and obligations of those involved in testing?

Read Information Sheet #6– “What are the rights and obligations of those involved with drug and alcohol testing?”

Refer to your operator’s DAMP

Answer the following questions:What are the implications for an authorised person’s testing

practice?

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Legal requirements – authorised persons and third party testing service providers: who can do what?

Breath test: authorised person or police officer Breath analysis: authorised person or police officer Urine sample can be collected by: authorised person or collecting agency

under direction of an authorised person or police officer Blood/urine sample taken at a hospital: medical practitioner or suitably

qualified registered nurse informed to do so by an authorised person or police officer

Urine screening: on-site drug screening device (with an immunoassay technique that meets the screening test cut-off levels listed in Table 1 of AS/NZS 4308:2008) operated by an authorised person or collecting agency, or screening by an analyst at an approved laboratory

Blood/urine analysis: analyst at an approved laboratoryNote:Approved laboratory for blood samples – the laboratory at the NSW Forensic and

Analytical Science Service at Lidcombe Western Sydney Local Health District.Approved laboratory for urine samples – a laboratory accredited by NATA for the purposes

of AS/NZS 4308:2008.On-site urine screening procedures are not required to comply with AS/NZS 4308:2008.

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Legal requirements –authorised persons and third party testing service providers - hospitals

It is the responsibility of the authorised person to ensure that urine samples taken at a hospital are dealt with in accordance with AS/NZS 4308:2008. (It is no longer the responsibility of medical practitioners and nurses.)

In relation to blood samples, upon the medical practitioner or registered nurse handing the sample to the authorised person, the authorised person must immediately place the sample in an approved security box and

lock the box, and arrange for the sample to be submitted to an approved

laboratory for analysis.

Duty of Confidentiality on Authorised Persons (RSNL s244)

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Under section 244 of the Rail Safety National Law (NSW), it is an offence to disclose without lawful authority any information or document obtained while exercising any power or function under the RSNL.

Maximum penalty:(a) In the case of an individual - $10 000(b) In the case of a body corporate - $50 000

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Exercise 4: Duty of Confidentiality on Authorised Persons (RSNL s244)

Scenario:

Tanya is a person authorised to conduct drug and alcohol testing under RSNL. She conducts drug and alcohol tests on a rail safety worker Dan, the driver of a train involved in a spectacular derailment in which miraculously no one is killed or injured. Dan tests positive for alcohol. He is fully cooperative but during the testing breaks down sobbing. He tells Tanya he was drinking heavily the night before the accident. He was depressed because his wife has left him and his teenage son has been charged with a drug-related offence.

There is intense media interest in the incident. Dan is subsequently charged. Tanya gives evidence of the test results at the hearing. Dan is convicted and fined.

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Exercise 4: Duty of Confidentiality on Authorised Persons (RSNL s244) continued…

Read Information Sheet #7 Duty of Confidentiality on Authorised Persons (under RSNL s244)

Read the following following scenarios and decide whether the following scenarios are lawful or prohibited.

Part 1

Before the court hearing:

Tanya’s husband says, “I heard the driver was drunk – is that right?”

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Exercise 4: Duty of Confidentiality on Authorised Persons (RSNL s244) continued…

Part 2

Before the court hearing:

ONRSR investigators ask for the test results.

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Exercise 4: Duty of Confidentiality on Authorised Persons (RSNL s244) continued…

Part 3

Dan is convicted. The same night the conviction is reported on the TV news. Tanya’s husband says “That’s the bloke you tested – Gee – he got off lightly – people could’ve been killed.” Tanya then tells her husband about Dan’s wife and son.

Random testing

NSW-specific requirements

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Random testing

NSW operators: must conduct random breath or urine testing of not less than 25% of rail safety workers in each year (does not apply to heritage operators) use risk management principles to determine how rail safety

workers will be selected for testing and the type of testing (breath or urine) to be conducted

may conduct oral fluid testing, but this will not form part of the 25% of random testing required by clause 28(2)(a)(i) of the National Regulations

“For cause/on suspicion” testing

Under clause 14(2) of the NSW Regulation, an authorised person who has a reasonable belief that, by the way in which a rail safety worker was acting, the worker might be under the influence of alcohol or a drug, may require the worker to provide a sample of the worker’s blood or urine: if the worker does not return a positive breath test, and either refuses to submit to a sobriety assessment, or after the

assessment is made, the authorised person has a reasonable belief that the worker is under the influence of alcohol or a drug.

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“For cause/on suspicion” testing

There needs to be more than a hunch or hearsay before a rail safety worker can be required to undergo “for cause/on suspicion” testing.

The most common ways of forming a reasonable belief or a suspicion is through observations and recognising possible indicators of being under the influence, and from disclosures or allegations made.

In recording testing results, the focus should be on recording how or why an authorised person formed a reasonable belief that a rail safety worker was under the influence of alcohol or a drug.

Post-incident testing

Definition of “prescribed incidents”

NSW-specific requirements

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Post-incident testing requirements Unless a rail transport operator (including heritage operators)

provides a “reasonable excuse” for not testing, testing must take place within 3 hours after a prescribed incident: a collision between rolling stock a collision between rolling stock and a person a collision between rolling stock and a road vehicle or plant equipment the derailment of rolling stock a breach of the rail infrastructure manager’s network rules or any other incident that the Regulator may declare in writing to a rail transport

operator to be a type of prescribed incident in respect of the operator’s railway operations.

Both drug and alcohol testing is required after a prescribed incident in NSW.

Authorised persons may also test rail safety workers involved in a prescribed notifiable occurrence, or an accident or irregular incident in NSW.

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Exercise 5: Review of rail transport operator testing procedures

Reflect on the testing requirements for each type of testing: random, ‘for cause/on suspicion’ and post-incident.

Refer to your operator’s DAMP.

Answer the following questions:What changes may be required in your rail transport

operator’s testing procedures?What are the implications for an authorised person’s testing

practice?

Managing notification responsibilities, record keeping and other testing issues

Notification to the ONRSR

Drug and alcohol testing monthly return

ONRSR contact details

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Notification to the ONRSR

Rail transport operators are required to notify the ONRSR of positive test results as a Category B notifiable occurrence on the OCCURRENCE NOTIFICATION FORM – within 72 hours after becoming aware of the results.

Rail transport operators in NSW are also required to notify the ONRSR on the NOTIFICATION FORM - Drug and Alcohol Testing in NSW - within 72 hours of:

- positive test results;- refusal or failure to undertake a test; and- any breaches of the NSW Regulation in relation to interfering with test results, or interfering

or tampering with or destroying samples The authorised person should confirm that the rail safety worker was:

carrying out, or about to carry out, or attempting to carry out, rail safety work at the time of the test, or

still on railway premises after carrying out rail safety work, or involved in a prescribed notifiable occurrence, or in an accident or irregular incident while carrying out rail safety work.

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Drug and alcohol testing monthly return

Rail transport operators (including heritage operators) are required to notify the ONRSR on a monthly basis of the total number of drug and alcohol tests undertaken.

ONRSR FORM –Periodic Information Monthly Return is used.

Data is collected on the total number of drug and alcohol tests undertaken for a range of different worker categories.

ONRSR contact details

Level 1, 75 Hindmarsh SquareAdelaide SA 5000

PO Box 3461, Rundle MallAdelaide SA 5000

P: (08) 8406 1500F: (08) 8406 1501

E: contact@onrsr.com.au

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