Correctional Services (Drug and Alcohol Testing) Variation Regulations 2020 (SA)
South Australia
Correctional Services (Drug and Alcohol Testing) Variation Regulations 2020
under the Correctional Services Act 1982
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Variation provisions
Part 2—Variation of Correctional Services Regulations 2016
4 Insertion of Part 7A
Part 7A—Drug and alcohol testing
Division 1—Preliminary
38A Interpretation
38B Apparatus for conduct of drug screening tests
38C CE may give approvals and authorisations for purposes of this Part
Division 2—Testing for drugs
38D General requirements
38E Oral fluid sample processes
38F Urine sample processes
38G Blood sample processes
38H Analysis of biological sample
Division 3—Alcohol testing
38I Breath analyses—general
38J Concentration of alcohol in breath taken to indicate concentration of alcohol in blood
38K Conduct of breath analysis
38L Procedures for voluntary blood test
38M Request for approved blood test kit
Division 4—Evidence etc
38N Evidence etc
Division 5—Other matters
38O Test subject may arrange for analysis of biological sample
38P Destruction of biological samples
Part 1—Preliminary
1—Short title
These regulations may be cited as the Correctional Services (Drug and Alcohol Testing) Variation Regulations 2020.
2—Commencement
These regulations come into operation on the day on which section 8 of the Correctional Services (Miscellaneous) Amendment Act 2018 comes into operation.
3—Variation provisions
In these regulations, a provision under a heading referring to the variation of specified regulations varies the regulations so specified.
Part 2—Variation of Correctional Services Regulations 2016
4—Insertion of Part 7A
After Part 7 insert:
Part 7A—Drug and alcohol testing
Division 1—Preliminary
38A—Interpretation
(1)In this Part, unless the contrary intention appears—
approved blood test kit means a kit of a kind declared under the Road Traffic Act 1961 to be an approved blood test kit;
approved forensic laboratory means a laboratory approved by the CE as a forensic laboratory for the purposes of this Part;
approved scientist means—
(a)a person appointed by the CE as an approved scientist for the purposes of this Part; or
(b)a person holding a position of a class approved by the CE for the purposes of this Part;
authorised officer means—
(a)a person appointed by the CE as an authorised officer for the purposes of this Part; or
(b)a person holding a position of a class approved by the CE for the purposes of this Part;
blood test information sheet means an information sheet in an approved form that sets out, for the benefit of sample collectors, the procedures prescribed under regulation 38L;
medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
prescribed concentration of alcohol means a concentration of 0.02 grams or more of alcohol in 100 millilitres of blood;
prescribed drug means—
(a)cocaine;
(b)delta‑9‑tetrahydrocannabinol;
(c)diacetylmorphine;
(d)methylamphetamine;
(e)3, 4‑methylenedioxymethamphetamine (MDMA);
registered nurse means a person registered under the Health Practitioner Regulation National Law—
(a)to practise in the nursing and midwifery profession as a nurse (other than as a student); and
(b)in the registered nurses division of that profession;
responsible person, in relation to an approved forensic laboratory, means a person approved by the CE as a responsible person for the forensic laboratory for the purposes of this Part;
sample collector means—
(a)in the case of a sample of blood—a medical practitioner or registered nurse; and
(b)in the case of a sample of oral fluid or urine—an authorised officer;
test subject means a person required to undergo drug and alcohol testing under Part 7A of the Act;
urine screening test means a test of a kind approved by the CE under regulation 38C for the conduct of urine screening tests.
(2)For the purposes of this Part, a reference to a document being in an approved form means in a form approved by the CE under regulation 38C.
38B—Apparatus for conduct of drug screening tests
For the purposes of the definition of drug screening test in section 81S(1) of the Act, an apparatus a kind authorised by the CE is approved for the conduct of drug screening tests.
38C—CE may give approvals and authorisations for purposes of this Part
The CE may give such approvals or authorisations as are necessary or contemplated for the purposes of this Part, including (for example) approving or authorising certificates, other forms and tests for the conduct of urine screening.
Division 2—Testing for drugs
38D—General requirements
(1)If a test subject (other than a person to whom section 81U(1) or 81V(1) of the Act applies) has been required to submit to testing for the presence of drugs under Part 7A of the Act—
(a)any drug screening test may not be commenced more than 8 hours following a critical incident; and
(b)any biological sample that is required to be taken from the test subject must not be taken more than 8 hours following a critical incident.
(2)The performance of a drug screening test commences when a direction is first given to the test subject to provide a sample of oral fluid to be used for the drug screening test.
(3)The following applies to the taking of a biological sample from a test subject by an authorised officer for the purposes of testing for drugs:
(a)if the authorised officer considers that a sample of oral fluid can be taken—the authorised officer must take a sample of oral fluid;
(b)if the authorised officer considers that a sample of oral fluid cannot be taken but that a sample of urine can—the authorised officer must take a sample of urine;
(c)if the authorised officer considers that neither a sample of oral fluid nor a sample of urine can be taken—the authorised officer must arrange for a medical practitioner or registered nurse to take a sample of blood.
38E—Oral fluid sample processes
(1)The following are the procedures in accordance with which a sample of a test subject's oral fluid must be taken and dealt with for the purposes of testing for drugs:
(a)the authorised officer must provide the test subject with the means by which the test subject can provide the sample of oral fluid;
(b)when the authorised officer is satisfied that the test subject has provided a satisfactory sample of the test subject's oral fluid, the officer must place the sample, in approximately equal proportions, in 2 containers suitable for the purpose;
(c)each container must contain a sufficient quantity of oral fluid to enable an analysis to be made of the presence of a prescribed drug in the oral fluid;
(d)the authorised officer must then mark each container in a manner approved by the CE and seal each container;
(e)it is the duty of the authorised officer to take such measures as are reasonably practicable in the circumstances to ensure that the sample is not adulterated and does not deteriorate so as to prevent a proper analysis of the presence of a prescribed drug in the oral fluid;
(f)the authorised officer must then complete a certificate in the approved form by inserting the particulars required by the form, which must then be signed by the officer and the test subject;
(g)the original of the signed certificate must then be sent to or retained on behalf of the CE;
(h)a copy of the signed certificate must be delivered to the test subject together with a written notice advising that a container containing part of the oral fluid sample taken from the test subject and marked with the identification number specified in the notice will be available for collection by or on behalf of the test subject at a specified place.
(2)A test subject must comply with all reasonable directions of an authorised officer in connection with the taking of an oral fluid sample and the signing of a certificate under this regulation.
38F—Urine sample processes
(1)The following are the procedures in accordance with which a sample of a test subject's urine must be taken and dealt with for the purposes of testing for drugs:
(a)the authorised officer must provide the test subject with a urine collection container and allow the test subject to provide the sample in private;
(b)the test subject must provide a sufficient sample of the test subject's urine in the container and then deliver the container to the authorised officer immediately;
(c)the authorised officer—
(i)must, within 4 minutes of receiving the sample, test the temperature, and conduct a visual examination, of the sample; and
(ii)may conduct any other test designed to determine whether or not the sample is a sample of the test subject's urine and is otherwise suitable for analysis;
(d)if the authorised officer has reasonable cause to suspect that the sample—
(i)is not a sample of the test subject's urine or has been diluted or tampered with in any way; or
(ii)is not suitable for analysis for some other reason,
the officer must require another sample to be provided in accordance with this regulation;
(e)if the test subject provides 2 samples that, in the opinion of the authorised officer, are not samples of the test subject's urine or are otherwise unsuitable for analysis, the test subject will be taken to have failed to comply with section 81T, 81U or 81V of the Act (as the case requires);
(f)when the authorised officer is satisfied that the test subject has provided a satisfactory sample of the test subject's urine, the officer may subject the sample to a urine screening test to determine whether the sample should be submitted for analysis;
(g)if the authorised officer does not subject the sample to a urine screening test, or a urine screening test indicates that a prescribed drug may be present in the sample, the officer must, in the presence of the test subject place the sample, in approximately equal proportions, in 2 containers suitable for the purpose;
(h)each container referred to in paragraph (g) must contain a sufficient quantity of urine to enable an analysis to be made of the presence of a prescribed drug in the urine;
(i)the authorised officer must then mark each container in a manner approved by the CE and seal each container;
(j)it is the duty of the authorised officer to take such measures as are reasonably practicable in the circumstances to ensure that the urine is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of any prescribed drug present in the urine of the test subject;
(k)the authorised officer must then complete a certificate in the approved form by inserting the particulars required by the form, which must then be signed by the officer and the test subject;
(l)the original of the signed certificate must then be sent to or retained on behalf of the CE;
(m)a copy of the signed certificate must be delivered to the test subject together with 1 of the sealed containers containing part of the urine sample.
(2)A test subject must comply with all reasonable directions of an authorised officer in connection with the taking of a urine sample and the signing of a certificate under this regulation.
38G—Blood sample processes
(1)The following are the procedures in accordance with which a sample of a test subject's blood must be taken and dealt with for the purposes of testing for drugs:
(a)the sample must be taken by a medical practitioner or registered nurse;
(b)the sample collector must place the sample, in approximately equal proportions, in 2 containers suitable for the purpose;
(c)each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of any prescribed drug present in the blood and the sample of blood taken by the sample collector must be such as to furnish 2 such quantities of blood;
(d)the sample collector must then mark each container in a manner approved by the CE and seal each container;
(e)it is the duty of the sample collector 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 any prescribed drug present in the blood of the test subject;
(f)the sample collector must then complete a certificate in the approved form by inserting the particulars required by the form, which must then be signed by the sample collector and the test subject;
(g)the original of the signed certificate must then be sent to or retained on behalf of the CE;
(h)a copy of the signed certificate must be delivered to the test subject together with 1 of the sealed containers containing part of the blood sample;
(i)a copy of the signed certificate must be delivered by the sample collector together with the other sealed container containing part of the blood sample to an authorised officer.
(2)A test subject must comply with all reasonable directions of a sample collector in connection with the taking of a blood sample and the signing of a certificate under this regulation.
38H—Analysis of biological sample
(1)If an authorised officer—
(a)takes a urine or oral fluid sample and completes a certificate in relation to the sample; or
(b)is given a blood sample and a certificate in relation to the sample,
in accordance with this Division, the authorised officer must cause the sample and certificate to be delivered to an approved forensic laboratory as soon as is reasonably practicable after the relevant taking or giving of the sample or certificate.
(2)A responsible person for the approved forensic laboratory must, as soon as possible following the delivery of a sample under subregulation (1), ensure that the sample is analysed by or under the supervision of an approved scientist to determine the presence of any prescribed drug in the sample.
(3)The approved scientist must then complete and sign a certificate certifying as to the following matters:
(a)the date of receipt at the approved forensic laboratory of the sample container and the certificate accompanying the sample container;
(b)the details of the mark on the sample container and the manner in which it was sealed;
(c)the name and professional qualifications of the approved scientist;
(d)the presence of any prescribed drug found to be present in the sample;
(e)any factors relating to the sample or the analysis that might, in the opinion of the approved scientist, adversely affect the accuracy or validity of the analysis;
(f)any other information relating to the sample or analysis (or both) that the approved scientist thinks fit to include.
(4)The approved scientist's certificate must be sent by post to the test subject at the address shown as the test subject's address on the certificate accompanying the sample container.
(5)A copy of the approved scientist's certificate must be sent to the CE.
(6)A biological sample delivered to an approved forensic laboratory under this regulation must be held by a responsible person for the approved forensic laboratory for a period of not less than 6 months following the delivery.
Division 3—Alcohol testing
38I—Breath analyses—general
(1)An authorised officer may carry out breath testing of a test subject under this Division.
(2)Breath analysis to which a test subject has been required to submit under Part 7A of the Act may not be commenced more than 8 hours following a critical incident.
(3)The performance of breath analysis commences when a direction is first given to the test subject to exhale into the breath analysing instrument to be used for the test.
(4)A test subject required under the Act to submit to breath analysis must not refuse or fail to comply with all reasonable directions of the person operating the breath analysing instrument in relation to the requirement and, in particular, must not refuse or fail to exhale into the instrument by which the breath analysis is conducted in accordance with the directions of the person operating the instrument.
38J—Concentration of alcohol in breath taken to indicate concentration of alcohol in blood
If a test subject submits to a breath analysis and the breath analysing instrument produces a reading in terms of a number of grams of alcohol in 210 litres of the person's breath, the reading will, for the purposes of this Part, be taken to be that number of grams of alcohol in 100 millilitres of the person's blood.
38K—Conduct of breath analysis
(1)If a test subject submits to a breath analysis, the initial breath analysis must be conducted as follows:
(a)the test subject must provide an initial sample of breath for analysis;
(b)the sample must be provided in accordance with the directions of the authorised officer conducting the analysis and must consist of not less than 1 litre of breath;
(c)if the sample provided under paragraph (a) indicates that at least the prescribed concentration of alcohol may be present in the blood of the test subject, the test subject may be required to submit to further breath analysis under this regulation.
(2)Despite subregulation (1)—
(a)if, on analysing the sample of breath, the breath analysing instrument indicates an error in the analysis of the sample—
(i)that sample must be disregarded; and
(ii)the test subject may be required to provide a further sample of breath for analysis using a different instrument (and that sample must be provided in accordance with subregulation (1)(b)); or
(b)if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the test subject—
(i)that sample must be disregarded; and
(ii)the test subject may be required to provide a further sample of breath for analysis (and that sample must be provided in accordance with subregulation (1)(b)).
(3)If a test subject is required to submit to further breath analysis under this regulation, the breath analysis must be conducted in the following manner:
(a)the test subject must provide 2 separate samples of breath for analysis;
(b)each sample must be provided in accordance with the directions of the authorised officer conducting the analysis and must consist of not less than 1 litre of breath;
(c)there must be an interval of not less than 2 minutes and not more than 10 minutes between the provision of the samples.
(4)Despite subregulation (3)—
(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 test subject 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 (3)(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 test subject—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the test subject may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (3)(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 test subject may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (3)(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 test subject may be required to provide 2 further samples of breath for analysis (and such samples must be provided in accordance with subregulation (3)(b) and (c)).
(5)If a test subject submits to a breath analysis, the result of the breath analysis will, for the purposes of Part 7A 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 test subject in accordance with this regulation, that indicates the lowest concentration of alcohol in the test subject's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
38L—Procedures for voluntary blood test
The following are the procedures in accordance with which a sample of a test subject's blood must be taken and dealt with for the purposes of testing for the presence of alcohol:
(a)the test subject must cause the sample to be taken by a medical practitioner or registered nurse of the test subject's choice and must deliver to the sample collector—
(i)the blood test kit supplied to the test subject under regulation 38N(4)(b) for use for that purpose; and
(ii)the blood test information sheet supplied to the test subject under regulation 38M;
(b)the sample must be taken by the sample collector as soon as is reasonably practicable but, in any event, within 4 hours of the test subject having submitted to the breath analysis indicating, for the purposes of the Act, the presence of alcohol in the test subject's blood;
(c)the sample collector must place the sample, in approximately equal proportions, in 2 containers (being the containers provided as part of the blood test kit);
(d)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 sample collector must be such as to furnish 2 such quantities of blood;
(e)the sample collector must seal each container by application of the adhesive seal bearing an identifying number provided as part of the blood test kit;
(f)it is the duty of the sample collector 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 test subject;
(g)the sample collector must then complete a certificate in the approved form by inserting the particulars required by the form;
(h)the certificate must be signed by the sample collector certifying as to the matters set out in the form;
(i)the certificate must also bear the signature of the test subject, attested to by the signature of the sample collector;
(j)the original of the signed certificate must then be delivered to the test subject together with 1 of the sealed containers containing part of the blood sample;
(k)a copy of the signed certificate must be delivered by the sample collector together with the other sealed container containing part of the blood sample to an authorised officer who must, in turn, deliver that copy of the certificate and the blood sample container to responsible person for the approved forensic laboratory;
(l)the blood sample container and copy of the certificate referred to in paragraph (k) must not be delivered into the possession of the test subject;
(m)on receipt of the blood sample container and certificate at an approved forensic laboratory, the blood in the container must be analysed as soon as is reasonably practicable by or under the supervision of an approved scientist to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood;
(n)the approved scientist must then complete and sign a certificate certifying as to the following matters:
(i)the date of receipt at the approved forensic laboratory 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 approved scientist;
(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 approved scientist, adversely affect the accuracy or validity of the analysis;
(vi)any other information relating to the blood sample or analysis or both that the approved scientist thinks fit to include;
(o)the approved scientist's certificate must be sent by post to the test subject at the address shown as the test subject's address on the certificate accompanying the blood sample container;
(p)a copy of the approved scientist's certificate must be sent to or retained on behalf of the CE.
38M—Request for approved blood test kit
(1)For the purposes of regulation 38N(4)(b), a request for an approved blood test kit must be made in accordance with the following provisions:
(a)the request may, in the first instance, be made orally to the authorised officer conducting the breath analysis;
(b)on such a request having been made by the test subject, the authorised officer or any other officer or employee of the Department present must complete a written request in an approved form by inserting the particulars required by the form;
(c)the test subject making the request must then sign the request form in the presence of the authorised officer or other officer or employee of the Department and the test subject's signature must be attested to by the signature of the authorised officer or other officer or employee;
(d)the original of the signed request form may be retained by the test subject making the request;
(e)a copy of the signed request form must be delivered to the authorised officer or other officer or employee of the Department.
(2)The copy of the request form delivered to the authorised officer or other officer or employee of the Department must be delivered to the CE or retained on the CE's behalf for 12 months from the day on which the request form was signed by the test subject making the request.
(3)If a test subject requests an approved blood test kit, the authorised officer or any other officer or employee of the Department must provide the test subject with a blood test information sheet.
Division 4—Evidence etc
38N—Evidence etc
(1)If the requirements and procedures in relation to breath analysing instruments and breath analysis under this Part, including subregulations (3) and (4), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the test subject at the time of the analysis.
(2)No evidence can be adduced in rebuttal of the presumption created by subregulation (1) except—
(a)evidence of the concentration of alcohol in the blood of the test subject as indicated by analysis of a sample of blood taken and dealt with in accordance with the procedures set out in this Part; and
(b)evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave a false reading of the concentration of alcohol present in the blood of the test subject.
(3)As soon as is practicable after a test subject has submitted to an analysis of breath by means of a breath analysing instrument, the authorised officer who conducted the analysis must deliver to the test subject a statement in writing specifying—
(a)the reading produced by the breath analysing instrument; and
(b)the date and time of the analysis.
(4)If a test subject has submitted to an analysis of breath by means of a breath analysing instrument and any concentration of alcohol is indicated as being present in the blood of that test subject by the breath analysing instrument, the authorised officer who conducted the analysis must immediately—
(a)give the person the oral advice determined by the CE and deliver to the person the written notice determined by the CE as to the operation of this Act in relation to the results of the breath analysis and as to the procedures set out in this Part for the taking and analysis of a sample of the person's blood; and
(b)at the request of the person made in accordance with regulation 38M, deliver an approved blood test kit to the person.
(5)A certificate purporting to be signed by an authorised officer in relation to a breath analysing instrument and to certify that—
(a)the apparatus used by the authorised officer was a breath analysing instrument within the meaning of Part 7A of the Act; and
(b)the breath analysing instrument was in proper order and was properly operated; and
(c)the provisions of Part 7A of the Act and this Part with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with is, in the absence of proof to the contrary, proof of the matters so certified.
(6)A certificate purporting to be signed by an approved scientist, certifying as to the concentration of alcohol, or any prescribed drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
(7)A certificate purporting to be signed by an authorised officer and to certify that—
(a)a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b)the breath analysing instrument produced a reading specified in the certificate; and
(c)a statement in writing required by subregulation (3) was delivered in accordance with that subregulation,
is, in the absence of proof to the contrary, proof of the matters so certified.
(8)A certificate purporting to be signed by an authorised officer and to certify—
(a)that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)that the relevant oral advice and the relevant written notice were given and delivered to the person in accordance with subregulation (4)(a); and
(c)that—
(i)the person did not make a request for an approved blood test kit in accordance with this Part; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subregulation (4)(b),
is, in the absence of proof to the contrary, proof that the requirements of subregulation (4) were complied with in relation to the person.
(9)A certificate purporting to be signed by an authorised officer and to certify that an apparatus referred to in the certificate is or was of a kind approved by regulation 38B for the conduct of drug screening tests is, in the absence of proof to the contrary, proof of the matter so certified.
(10)A certificate purporting to be signed by an authorised officer and to certify that a person named in the certificate submitted to a drug screening test on a specified day and at a specified time and that the drug screening test indicated that a prescribed drug may then have been present in the oral fluid of the person is, in the absence of proof to the contrary, proof of the matters so certified.
(11)A certificate purporting to be signed by an authorised officer and to certify that an apparatus used to conduct a drug screening test was in proper order and that the drug screening test was properly conducted is, in the absence of proof to the contrary, proof of the matters so certified.
(12)A certificate purporting to be signed by an authorised officer and to certify that a person named in the certificate was required under Part 7A of the Act and this Part to submit to breath analysis and refused or failed to comply with all reasonable directions of an authorised officer in relation to the requirement is, in the absence of proof to the contrary, proof of the matter so certified.
(13)A certificate purporting to be signed by the CE and to certify that—
(a)a person named in the certificate is an authorised officer; or
(b)a person named in the certificate is an approved scientist; or
(c)a person named in the certificate is a responsible person for an approved forensic laboratory,
is, in the absence of proof to the contrary, proof of the matter so certified.
(14)In disciplinary proceedings referred to in section 81X of the Act, and in the absence of proof to the contrary, any of the following certificates is evidence of the matters certified in the certificate:
(a)a certificate purporting to be signed by a sample collector certifying that an identified urine or oral fluid sample was taken or collected—
(i)from a named person; and
(ii)at a specified date and time; and
(iii)in accordance with this Part;
(b)a certificate purporting to be signed by a medical practitioner or registered nurse certifying that an identified blood sample was taken or collected—
(i)from a named person; and
(ii)at a specified date and time; and
(iii)in accordance with this Part;
(c)a certificate purporting to be signed by an authorised officer certifying—
(i)that the apparatus used to conduct an oral fluid analysis was in proper order; and
(ii)that the oral fluid analysis was properly conducted;
(d)a certificate purporting to be signed by an approved scientist certifying—
(i)that an identified blood, urine or oral fluid sample taken from a named person was analysed for alcohol or prescribed drugs in accordance with this Part; and
(ii)the results obtained from that analysis.
(15)If a certificate of an approved scientist relating to a blood, urine or oral fluid sample taken in accordance with this Part is received as evidence in disciplinary proceedings and states that a prescribed drug has been found to be present in the blood, urine or oral fluid sample to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the prescribed drug stated in the certificate was present in the sample when the sample was taken.
Division 5—Other matters
38O—Test subject may arrange for analysis of biological sample
(1)A test subject from whom a biological sample was taken for the purposes of Part 7A of the Act may cause the sample as contained in the sample container delivered to that test subject to be analysed to determine the presence of any alcohol or prescribed drug present in the sample.
(2)The cost of analysis under subregulation (1) will be borne by the test subject.
38P—Destruction of biological samples
The CE must ensure that a biological sample taken for the purposes of Part 7A of the Act (and any other forensic material taken incidentally in the course of drug and alcohol testing) is destroyed—
(a)if disciplinary proceedings based on evidence of the results of analysis of the biological sample are not commenced—as soon as is reasonably practicable after the decision has been made not to commence proceedings; or
(b)if disciplinary proceedings are commenced—as soon as is reasonably practicable after the proceedings (including any proceedings on review or appeal) are finally determined or discontinued.
Note—
As required by section 10AA(2) of the Subordinate Legislation Act 1978, the Minister has certified that, in the Minister's opinion, it is necessary or appropriate that these regulations come into operation as set out in these regulations.
Made by the Governor
with the advice and consent of the Executive Council
on 9 April 2020
No 40 of 2020
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