Victorian Numbered Acts Victorian Numbered ActsFor Part 6 of the Principal Act substitute —
In this Part—
"assessment of drug impairment" means an assessment under sections 86B and 86C;
"breath analysing instrument "means a breath analysing instrument within the meaning of the Road Safety Act 1986 ;
"breath analysis" means an analysis of breath by a breath analysing instrument;
"drug screening test" means a test by means of a device prescribed for the purpose of conducting drug screening tests;
"oral fluid analysis" means an analysis of oral fluid by means of a device prescribed for the purpose of conducting oral fluid analyses;
"police officer" means a member of the police force.
(1) For the purposes of this Part, if it is established that at any time within 3 hours after an alleged offence against section 76(1)(a) or (c) or 77(1)(a), a certain concentration of alcohol was present in the blood or breath of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that not less than that concentration of alcohol was present in the worker's blood or breath (as the case requires) at the time at which the offence is alleged to have been committed.
(2) For the purposes of this Part, if it is established that at any time within 3 hours after an alleged offence against section 76(1)(b), a certain drug was present in the oral fluid or blood of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that that drug was present in the worker's oral fluid or blood at the time at which the offence is alleged to have been committed.
(3) For the purposes of this Part, if it is established that at any time within 3 hours after an alleged offence against section 76(1)(c) or 77(1)(b), a certain drug was present in the body of the rail safety worker charged with the offence it must be presumed, until the contrary is proved, that the drug was present in the worker's body at the time at which the offence is alleged to have been committed.
(4) For the purposes of an alleged offence against section 77(1)(f) or (g) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the rail safety worker charged or found by an analyst to be present in the sample of blood taken from the worker charged (as the case requires) was not due solely to the consumption of alcohol after having carried out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.
(5) For the purposes of an alleged offence against section 76(1)(b) or (c) or 77(1)(b) it must be presumed that a drug found by an analyst to be present in the sample of blood or oral fluid taken from the rail safety worker charged was not due solely to the consumption or use of that drug after carrying out rail safety work unless the contrary is proved by the worker charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.
For the purposes of sections 86B to 86D, a rail safety worker is not to be taken to be impaired unless his or her behaviour or appearance is such as to give rise to a reasonable suspicion that he or she is unable to carry out rail safety work properly.
For the purposes of this Part, a rail safety worker is to be regarded as being about to carry out rail safety work if the worker has arrived at his or her place of work but has not yet begun work.
If a rail safety worker who is found guilty or convicted of an offence against any one of the paragraphs of section 76(1) or 77(1) or against those sections has at any time been found guilty or convicted of—
(a) an offence against the same or any other of those paragraphs or against either of those sections; or
(b) an offence against any corresponding law—
the finding of guilt, or conviction of, the offence against that paragraph or section is to be taken to be a conviction for a subsequent offence.
Despite anything else in this Part or Division 4B of Part VII of the Transport (Compliance and Miscellaneous) Act 1983 , the powers of a transport safety officer under this Part or Division 4B of Part VII of the Transport (Compliance and Miscellaneous) Act 1983 or a police officer in relation to entering a place are not exercisable in respect of any part of a place that is used only for residential purposes except—
(a) with the consent of the person with control or management of the place; or
(b) under the authority conferred by a search warrant; or
(c) for the sole purpose of gaining access to suspected railway premises, but only—
(i) if the transport safety officer or police officer reasonably believes that no reasonable alternative access is available; and
(ii) at a reasonable time, having regard to the times at which the transport safety officer or police officer believes rail safety work is being carried out at the place to which access is sought.
(1) A rail safety worker must not carry out, or attempt to carry out, rail safety work—
(a) while there is present in his or her blood the prescribed concentration of alcohol; or
(b) while a prescribed drug is present in his or her oral fluid or blood; or
(c) while 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.
Penalty: $10 000.
(2) For the purposes of subsection (1)(c), a person is incapable of effectively discharging a function or duty of a rail safety worker if, owing to the influence of alcohol or a drug, the use of any mental or physical faculty of that person is lost or appreciably impaired (but this subsection does not restrict in any way the operation of subsection (1)(c)).
(3) Subject to subsection (4), it is a defence to a charge of an offence against subsection (1)(b) if the defendant proves that he or she did not knowingly consume the prescribed drug present in his or her oral fluid or blood.
(4) Subsection (3) does not apply if the defendant consumed the prescribed drug believing that he or she was consuming a substance unlawfully but was mistaken as to, unaware of, or indifferent to, the identity of the prescribed drug.
(1) A rail safety worker is guilty of an offence if he or she—
(a) carries out rail safety work while more than the prescribed concentration of alcohol is present in his or her breath; or
(b) carries out rail safety work while impaired by a drug; or
(c) refuses or fails to comply with a direction under section 85(10); or
(d) refuses to undergo an assessment of drug impairment in accordance with sections 86B and 86C when required under that section to do so or refuses to comply with any other requirement made under section 86B(1); or
(e) refuses to comply with a requirement made under section 86D(2); or
(f) within 3 hours after having carried out rail safety work furnishes a sample of breath for analysis by a breath analysing instrument under a direction under section 85 and—
(i) the result of the analysis as recorded or shown by the breath analysing instrument indicates that more than the prescribed concentration of alcohol is present in his or her breath; and
(ii) the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after having carried out the rail safety work; or
(g) has had a sample of blood taken from him or her in accordance with section 86H within 3 hours after having carried out rail safety work and—
(i) the sample has been analysed within 12 months after it was taken by a properly qualified analyst within the meaning of section 86I and the analyst has found that at the time of analysis more than the prescribed concentration of alcohol was present in that sample; and
(ii) the concentration of alcohol found by the analyst to be present in that sample was not due solely to the consumption of alcohol after having carried out the rail safety work.
(2) A rail safety worker who is guilty of an offence under subsection (1) is liable to a fine not exceeding $10 000.
(3) It is a defence to a charge under subsection (1)(f) for the person charged to prove that the breath analysing instrument used was not on that occasion in proper working order or properly operated.
(4) It is a defence to a charge under subsection (1)(g) for the person charged to prove that the result of the analysis was not a correct result.
A rail safety worker may be convicted or found guilty of an offence under section 83(3), 77(1)(d) or 86A(3) even if—
(a) in the case of an offence under section 83(3) constituted by a failure to submit to a preliminary breath test or breath analysis—
(i) a breath analysing instrument was not available at the place where the requirement was made at the time it was made; or
(ii) a person authorised to operate a breath analysing instrument was not present at the place where the requirement was made at the time it was made;
(b) in the case of an offence under section 86A(3) constituted by a failure to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these)—
(i) the transport safety officer or police officer requiring a sample of blood had not nominated a registered medical practitioner or approved health professional to take the sample; or
(ii) the transport safety officer or police officer requiring a sample of oral fluid had not nominated a registered medical practitioner or approved health professional to whom the sample was to be furnished for analysis; or
(iii) a registered medical practitioner or approved health professional was not present at the place where the requirement was made at the time it was made;
(c) in the case of an offence under section 77(1)(d)—
(i) a requirement to undergo an assessment of drug impairment was not made at a place where such an assessment could have been carried out; or
(ii) a person authorised to carry out an assessment of drug impairment was not present at the place where the requirement was made at the time it was made;
(d) in the case of an offence under section 86A(3)—
(i) a requirement to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these) was not made at a place where such a test or analysis could have been carried out; or
(ii) a person authorised to carry out the drug screening test, oral fluid analysis or blood test was not present at the place where the requirement was made at the time it was made.
(1) In any proceedings for an offence under section 77(1)(f) or (g) evidence as to the effect of the consumption of alcohol on the accused is admissible for the purpose of rebutting the presumption created by section 71(4) but is otherwise inadmissible.
(2) In any proceedings for an offence against section 76(1)(b) or (c) or 77(1)(b) evidence as to the effect of the consumption or use of a drug on the accused is admissible for the purpose rebutting the presumption created by section 71(5) but is otherwise inadmissible.
In proceedings for an offence under section 77(1)(b), proof that—
(a) the rail safety worker was carrying out rail safety work; and
(b) one or more drugs were present in the rail safety worker's body at the time at which he or she carried out rail safety work; and
(c) the behaviour of the rail safety worker on an assessment of drug impairment carried out on the worker was consistent with the behaviour usually associated with a person who has consumed or used that drug or those drugs; and
(d) the behaviour usually associated with a person who has consumed or used that drug or those drugs would result in the person being unable to carry out rail safety work properly—
is, in the absence of evidence to the contrary, proof that the rail safety worker carried out rail safety work while impaired by a drug.
On convicting a rail safety worker, or finding a rail safety worker guilty, of an offence under or section 76(1) or 77(1), a court must cause to be entered in the records of the court—
(a) in the case of an offence under section 76(1)(a), the level of concentration of alcohol found to be present in that person's blood; and
(b) in the case of an offence under section 77(1)(a), the level of concentration of alcohol found to be present in that person's breath; and
(c) in the case of an offence under section 77(1)(f), the level of concentration of alcohol found to be recorded or shown by the breath analysing instrument; and
(d) in the case of an offence under section 77(1)(g), the level of concentration of alcohol found to be present in the sample of blood.
A rail safety worker may be required to undertake a test for the presence of alcohol or a drug in accordance with this Division.
(1) Subject to this section, a transport safety officer or police officer may at any time require a rail safety worker who—
(a) is about to carry out rail safety work; or
(b) is carrying out rail safety work; or
(c) is attempting to carry out rail safety work; or
(d) is still on railway premises after carrying out rail safety work; or
(e) without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence; or
(f) is required to undergo an assessment of drug impairment—
to submit to testing by means of a preliminary breath test or breath analysis (or both).
(2) For the purposes of making a requirement that a rail safety worker submit to a preliminary breath test or breath analysis, a transport safety officer or police officer may—
(a) require the worker to provide the worker's name and residential address; and
(b) give any other reasonable direction to the worker.
Example
A transport safety officer or police officer may (for example) direct the rail safety worker to accompany the transport safety officer or police officer and attend at a place specified by the transport safety officer or police officer for the purposes of carrying out the preliminary breath test or breath analysis.
(3) A rail safety worker must immediately comply with a direction given by a transport safety officer or police officer for the purpose of requiring the worker to submit to a preliminary breath test or breath analysis.
Penalty: $10 000.
(1) This section applies if a rail safety worker is required by a transport safety officer or police officer to submit to testing by means of a preliminary breath test under section 83(1).
(2) The rail safety worker must undergo a preliminary breath test by exhaling continuously into a prescribed device to the satisfaction of the transport safety officer or police officer.
(3) However, the rail safety worker is not obliged to submit to testing by means of a preliminary breath test under section 83 if more than 3 hours have passed since the rail safety worker last carried out rail safety work.
(4) A rail safety worker who, in the course of a period of duty is unexpectedly required to carry out rail safety work, may request a transport safety officer to conduct on him or her a preliminary breath test by a prescribed device.
(5) A transport safety officer must comply with a request made under subsection (4).
Penalty: $10 000.
(6) The result of a preliminary breath test
conducted under section 83 and this section is not admissible against the rail
safety worker tested in a proceeding for an offence against section 76(1) or
section 77(1).
s. 89
(7) However, the result of a preliminary breath test that was conducted under section 83 and this section is admissible against the rail safety worker tested in a disciplinary proceeding unless the test was conducted at the request of the rail safety worker under subsection (4).
(8) A police officer who conducts a preliminary breath test under this section must ensure that the operation of a railway is disrupted no more than is reasonably necessary as a result of the testing.
(1) This section applies if a rail safety worker is required by a transport safety officer or police officer to submit to testing by means of a breath analysis under section 83(1).
(2) For the purposes of section 83(1), a requirement of the transport safety officer or police officer under that section may be that the rail safety worker submit to testing by doing one or both of the following—
(a) furnishing a sample of breath for analysis by a breath analysing instrument;
(b) furnishing one or more further samples if it appears to the transport safety officer or police officer that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air—
(i) because the amount of sample furnished was insufficient; or
(ii) because of a power failure or malfunctioning of the instrument; or
(iii) for any other reason whatsoever.
(3) In addition, for the purposes of section 83(1)(a) to (e), the transport safety officer or police officer may require the rail safety worker to—
(a) accompany the transport safety officer or police officer to a police station or other place where the sample of breath may be furnished; and
(b) remain there until he or she has furnished the sample of breath and been given the certificate referred to in subsection (8) or until 3 hours after the carrying out of the rail safety work, whichever is the sooner.
(4) In addition, for the purposes of section 83(1)(f), the transport safety officer or police officer may require the rail safety worker to remain at the place at which the rail safety worker is required to remain for the purposes of the drug assessment until—
(a) the person has furnished the sample of breath and been given the certificate referred to in subsection (8) and the drug assessment has been carried out; or
(b) 3 hours after the carrying out of rail safety work—
whichever is the sooner.
(5) If the rail safety worker is required to furnish a sample of breath for analysis, the rail safety worker must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.
(6) However, a rail safety worker is not obliged to furnish a sample of breath under this section if more than 3 hours have passed since the rail safety worker last carried out rail safety work.
(7) A breath analysing instrument referred to in this section must be operated by a person authorised to do so by the Chief Commissioner of Police.
(8) As soon as practicable after a sample of a rail safety worker's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the rail safety worker whose breath has been analysed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.
(9) A rail safety worker must not be convicted or found guilty of refusing to furnish under this section a sample of breath for analysis if he or she 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 him or her.
(10) The person who required a sample of breath under section 83(1) from a rail safety worker may require the rail safety worker to allow a registered medical practitioner or an approved health professional nominated by the person requiring the sample to take from him or her a sample of blood for analysis if it appears to him or her that—
(a) the rail safety worker is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or
(b) the breath analysing instrument is incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by the rail safety worker for any reason whatsoever—
and for that purpose may further require that rail safety worker to accompany a transport safety officer or police officer to a place where the sample is to be taken and to remain there until the sample has been taken or until 3 hours after the carrying out of the rail safety work, whichever is sooner.
(11) The registered medical practitioner or approved health professional who takes a sample of blood under subsection (10) must deliver a part of the sample to the person who required it to be taken and another part to the rail safety worker from whom it was taken.
(12) A rail safety worker who allows the taking of a sample of his or her blood in accordance with subsection (10) must not be convicted or found guilty of refusing to furnish under section 83(1) a sample of breath for analysis.
(13) A person 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 person in accordance with
subsection (10).
s. 89
Penalty: $10 000.
(14) 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 which the practitioner or approved health professional believed on reasonable grounds was allowed to be taken under subsection (10).
(1) Evidence derived from a sample of breath furnished following a requirement made under section 83(1) is not rendered inadmissible by a failure to comply with a request under section 86E if reasonable efforts were made to comply with the request.
(2) If the question whether a breath analysing instrument was incapable of measuring in grams per 210 litres of exhaled air the concentration of alcohol present in any sample of breath furnished by a rail safety worker is relevant on a hearing for an offence against section 76(1) or 77(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this subsection, a document—
(a) purporting to be a print-out produced by that instrument in respect of that sample; and
(b) purporting to be signed by the person who operated the instrument—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(3) A document referred to in subsection (2) does not cease to be admissible in evidence or, in the absence of evidence to the contrary, to be proof of the facts and matters contained in it only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety (Local Operations) Act 2006 and the reference to the Road Safety Act 1986 in that document and in each other document produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety (Local Operations) Act 2006 .
(1) Subject to this section, a transport safety officer or police officer may at any time require a rail safety worker who—
(a) is about to carry out rail safety work; or
(b) is carrying out rail safety work; or
(c) is attempting to carry out rail safety work; or
(d) is still on railway premises after carrying out rail safety work; or
(e) without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence—
to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these).
(2) For the purposes of making a requirement that a rail safety worker submit to a drug screening test, oral fluid analysis or blood test, a transport safety officer or police officer may—
(a) require the worker to provide the worker's name and residential address; and
(b) give any other reasonable direction to the worker.
Example
A transport safety officer or police officer may (for example) direct the rail safety worker to accompany the transport safety officer or police officer and attend at a place specified by the transport safety officer or police officer for the purposes of carrying out the drug screening test, oral fluid analysis or blood test.
(3) A rail safety worker must immediately comply with a direction given by a transport safety officer or police officer for the purpose of requiring the worker to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these).
Penalty: $10 000.
(4) For the purposes of subsection (1), a requirement to submit to a drug screening test, oral fluid analysis or blood test (or any combination of these) includes a requirement under section 86D.
(1) Subject to this section, a transport safety officer or police officer may at any time direct a rail safety worker who—
(a) is about to carry out rail safety work; or
(b) is carrying out rail safety work; or
(c) is attempting to carry out rail safety work; or
(d) is still on railway premises after carrying out rail safety work; or
(e) without limiting a preceding paragraph—is involved in a prescribed notifiable occurrence—
to submit to an assessment of drug impairment.
(2) Subject to this section a transport safety officer or police officer may require—
(a) a rail safety worker whom he or she believes on reasonable grounds has within the last 3 preceding hours carried out rail safety work on a railway when a notifiable occurrence or prescribed notifiable occurrence occurred involving the rail safety worker; or
(b) a rail safety worker whom he or she has directed under section 83(3) to submit to a preliminary breath test; or
(c) a rail safety worker required under section 83(3) to furnish a sample of breath—
to undergo an assessment of drug impairment.
(3) A transport safety officer or police officer may only give a direction under subsection (1) or (2) if the transport safety officer or police officer is of the opinion that the rail safety worker's behaviour or appearance indicates that the rail safety worker may be impaired for a reason other than alcohol alone.
(4) A transport safety officer or police officer may direct a rail safety worker given a direction under subsection (1) or (2) to accompany the transport safety officer or police officer to a place where the assessment is to be carried out and to remain there until the assessment has been carried out or until 3 hours after the carrying out of the rail safety work, whichever is sooner.
(5) A rail safety worker is not obliged to undergo an assessment of drug impairment if more than 3 hours have passed since the rail safety worker last carried out rail safety work.
(1) An assessment of drug impairment must be carried out by—
(a) a transport safety officer authorised to do so by the Safety Director after consultation with Chief Commissioner of Police; or
(b) a police officer authorised to do so by the Chief Commissioner of Police.
(2) An assessment of drug impairment must be carried out in accordance with the procedure specified in a notice under subsection (3).
(3) The Safety Director may, by notice published in the Government Gazette, specify the procedure to be followed in assessing drug impairment.
(4) The carrying out of an assessment of drug impairment on a rail safety worker must be video-recorded if the rail safety worker was involved in a notifiable occurrence or prescribed notifiable occurrence unless the prosecution satisfies the court that a video-recording has not been made because of exceptional circumstances.
(5) If the rail safety worker on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 77(1)(b), and the carrying out of the assessment of drug impairment is video-recorded, a copy of the video-recording must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.
(6) Subject to subsection (7), the video-recording of the carrying out of an assessment of drug impairment on a rail safety worker is only admissible in a proceeding against that rail safety worker for an offence against this Act for the purpose of establishing that the assessment of drug impairment was carried out in accordance with the procedure specified in a notice under subsection (3).
(7) Evidence obtained as a result of an assessment of drug impairment carried out on a rail safety worker is inadmissible as part of the prosecution case in proceedings against that rail safety worker for any offence if the video-recording of the assessment and any related material and information should have been but has not been destroyed as required by section 86G.
(8) In any proceeding under this Act—
(a) the statement of a transport safety officer that on a particular date he or she was authorised by the Safety Director under subsection (1)(a) to carry out an assessment of drug impairment; or
(b) the statement of a police officer that on a particular date he or she was authorised by the Chief Commissioner of Police under subsection (1)(b) to carry out an assessment of drug impairment; or
(c) a certificate purporting to be signed by the Safety Director that a transport safety officer named in it is authorised by the Safety Director under subsection (1) to carry out an assessment of drug impairment; or
(d) a certificate purporting to be signed by the Chief Commissioner of Police that a police officer named in it is authorised by the Chief Commissioner of Police under subsection (1) to carry out an assessment of drug impairment—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that transport safety officer or police officer (as the case requires).
(1) This section applies if a rail safety worker—
(a) is required by a transport safety officer or police officer to submit to an oral fluid analysis or blood test (or a combination of these) under section 86A(1); or
(b) undergoes an assessment of drug impairment when required under sections 86B and 86C to do so and the assessment, in the opinion of the transport safety officer or police officer carrying it out, indicates that the rail safety worker may be impaired by a drug or drugs.
(2) A transport safety officer or police officer may require the rail safety worker to do either or both of the following—
(a) allow a registered medical practitioner or an approved health professional nominated by the transport safety officer or police officer to take from the rail safety worker a sample of that rail safety worker's blood for analysis;
(b) furnish to a registered medical
practitioner or an approved health professional nominated by the transport
safety officer or police officer a sample of that rail safety worker's oral
fluid for analysis—
s. 89
and for that purpose may further require the rail safety worker to accompany the transport safety officer or police officer to a place where the sample is to be taken or furnished and to remain there until the sample has been taken or furnished or until 3 hours after the carrying out of the rail safety work, whichever is sooner.
(3) A transport safety officer or police officer must not require a rail safety worker to allow a sample of his or her blood to be taken for analysis under subsection (2)(a) if that rail safety worker has already had a sample of blood taken from him or her under section 86E after carrying out rail safety work.
(4) The registered medical practitioner or approved health professional who takes a sample of blood or is furnished with a sample of oral fluid under this section must deliver a part of the sample to the transport safety officer or police officer who required it to be taken or furnished and another part to the rail safety worker from whom it was taken or by whom it was furnished.
(5) A person must not hinder or obstruct a registered medical practitioner or an approved health professional attempting to take a sample of the blood, or be furnished with a sample of oral fluid, of any other person 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, or being furnished with any sample of oral fluid, which the practitioner or approved health professional believed on reasonable grounds was required to be taken from, or be furnished by, any person under this section.
(7) If the person on whom an assessment of drug impairment was carried out is subsequently charged with an offence under section 77(1)(b), a copy of a written report on that assessment prepared by the transport safety officer or police officer who carried it out and containing the prescribed particulars must be served with the summons or, if a summons is not issued, within 7 days after the filing of the charge-sheet charging the offence.
(1) This section applies if—
(a) a rail safety worker is required under section 83(1) to submit to testing by means of a breath analysis; and
(b) the rail safety worker does so by furnishing a sample of breath for analysis in accordance with section 85.
(2) The rail safety worker may, immediately after being given the certificate referred to in section 85(8), request the transport safety officer or police officer making the requirement to arrange for the taking in the presence of a transport safety officer or police officer of a sample of the rail safety worker's blood for analysis at the rail safety worker's own expense by a registered medical practitioner or an approved health professional nominated by the officer.
(3) A part of a sample of blood taken under subsection (2) must be delivered to the person who required the sample of breath under this section.
(4) Nothing in subsection (2) relieves a rail safety worker from any penalty under section 83(3).
A sample of oral fluid or blood taken under this Part (and any other forensic material taken incidentally during a drug screening test, oral fluid analysis or blood test) must not be used for a purpose other than that contemplated by this Part, in connection with the control or management of any work or activity associated with railway operations, or for the purpose of disciplinary proceedings against a rail safety worker.
(1) In this section, "relevant offence" means—
(a) an offence under section 77(1)(b) or (e) or section 86A(3); or
(b) any other offence arising out of the same circumstances; or
(c) any other offence in respect of which the evidence obtained as a result of the assessment of drug impairment has probative value.
(2) If a rail safety worker submits to an oral fluid analysis or blood test (or a combination of these) under section 86A(1) or an assessment of drug impairment has been carried out on the rail safety worker under sections 86B and 86C and—
(a) the rail safety worker has not been charged with a relevant offence at the end of the period of 12 months after the submission to oral fluid analysis or blood test or the assessment of drug impairment (as the case requires; or
(b) the rail safety worker has been so charged but the charge is not proceeded with, the prosecution for the offence is discontinued or the rail safety worker is not found guilty of the offence, whether on appeal or otherwise, before the end of that period—
the Safety Director or Chief Commissioner of Police (as the case requires) must, subject to subsection (4), destroy, or cause to be destroyed, at the time specified in subsection (3) any video-recording made of the assessment and any related material and information.
(3) A video-recording and any related material and information referred to in subsection (2) must be destroyed—
(a) in a case to which subsection (2)(a) applies, immediately after that period of 12 months; or
(b) in a case to which subsection (2)(b) applies—
(i) within 1 month after the conclusion of the proceeding and the end of any appeal period; or
(ii) if the proceeding has been adjourned under section 75 of the Sentencing Act 1991 , within 1 month after dismissal under that section.
(4) A transport safety officer or police officer may, before the end of a period referred to in subsection (3)(b), apply without notice to the Magistrates' Court for an order extending that period and, if the Court makes such an order, the reference to the period in subsection (3) is a reference to that period as so extended.
(5) If the Magistrates' Court makes an order under subsection (4), it must give reasons for its decision and cause a copy of the order to be served on the person on whom the assessment of drug impairment was carried out.
(6) If a video-recording or related material and information is required to be destroyed in accordance with this section, the Safety Director or Chief Commissioner of Police (as the case requires) must, if the rail safety worker on whom the assessment was carried out so requests, within 14 days after receiving the request, notify that rail safety worker in writing whether the destruction has occurred.
(7) A person who knowingly—
(a) fails to destroy; or
(b) uses, or causes or permits to be used—
a video-recording or related material and information required by this section to be destroyed is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.
(8) A person who at any time uses, or causes or permits to be used, or otherwise disseminates information derived from any video-recording or related material and information required by this section to be destroyed except in good faith for the purposes of a relevant offence is guilty of an offence punishable by a fine of not more than 120 penalty units or to imprisonment for a term of not more than 12 months.
(1) In this section—
"doctor" means a registered medical practitioner and includes a police surgeon.
(2) If a rail safety worker enters or is brought to a place for examination or treatment in consequence of a notifiable occurrence (whether within Victoria or not), the rail safety worker must allow a doctor or approved health professional to take from the rail safety worker at that place a sample of his or her blood for analysis.
Penalty: $10 000.
(3) Subsection (2) does not apply if—
(a) in the opinion of the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker the taking of a blood sample from the rail safety worker would be prejudicial to his or her proper care and treatment; or
(b) a transport safety officer or police officer has notified the doctor first responsible for the examination or treatment of the rail safety worker, in writing, that the rail safety worker has undergone a preliminary breath test which did not indicate that the prescribed concentration of alcohol was exceeded; or
(c) the doctor or approved health professional first responsible for the examination or treatment of the rail safety worker believed on reasonable grounds that the rail safety worker was not a rail safety worker; or
(d) a police officer or a doctor has notified the doctor first responsible for the examination or treatment of the rail safety worker, in writing, that a sample of the rail safety worker's blood was taken by a doctor before the person entered or was brought to the place for examination or treatment.
(4) A rail safety worker to whom subsection (2) applies and who is unconscious or otherwise unable to communicate must be taken to allow the taking of a sample of his or her blood by a doctor or approved health professional at a place which he or she enters or to which he or she is brought for examination or treatment.
(5) If a sample of a rail safety worker's blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceeding except—
(a) for the purposes of section 86I; or
(b) for a proceeding for an offence against section 48(2); or
(c) for the purposes of the Transport Accident Act 1986 —
but may be given—
(d) to the Transport Accident Commission and, for the purposes of a review under the Transport Accident Act 1986 , to the Tribunal; and
(e) to the Department for the purposes of accident research.
(6) A person must not hinder or obstruct a doctor or approved health professional attempting to take a sample of the blood of any other person in accordance with this section.
Penalty: $10 000 .
(7) No action lies against a doctor or approved health professional in respect of anything properly and necessarily done by the doctor or approved health professional in the course of taking any sample of blood which the doctor or approved health professional believes on reasonable grounds was required or allowed to be taken from a rail safety worker under this section.
(1) In this section—
approved analyst means a person who by virtue of subsection (2) is to be taken to be a properly qualified analyst for the purposes of this section;
"approved expert" means a person who by virtue of subsection (3) is to be taken to be a properly qualified expert for the purposes of this section;
"properly qualified analyst" means—
(a) an approved analyst; or
(b) a person who is considered by the court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (6) or (7), as the case requires;
"properly qualified expert" means—
(a) an approved expert; or
(b) a person who is considered by the court to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under subsection (8).
(2) A person who is an approved analyst within the meaning of section 57 of the Road Safety Act 1986 is to be taken to be a properly qualified analyst for the purposes of this section.
(3) A person who is an approved expert within the meaning of section 57 of the Road Safety Act 1986 is to be taken to be a properly qualified expert for the purposes of this section.
(4) If—
(a) the question whether a rail safety worker was or was not at any time under the influence of alcohol or any other drug; or
(b) the presence of alcohol or any other drug, or the concentration of alcohol in the blood of a rail safety worker at any time; or
(c) a finding on the analysis of a blood sample of a rail safety worker—
is relevant on a hearing for an offence against section 76 or 77, or in any inquest or investigation held by a coroner then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the taking, within 3 hours after the rail safety worker carried out rail safety work, of a sample of blood from the rail safety worker by a registered medical practitioner or an approved health professional, of the analysis of that sample of blood by a properly qualified analyst within 12 months after it was taken, of the presence of alcohol and, if alcohol is present, of the concentration of alcohol expressed in grams per 100 millilitres of blood found by that analyst to be present in that sample of blood at the time of analysis and, if a drug is present, evidence may be given by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a person's ability to carry out rail safety work properly).
(5) A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(6) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the concentration of alcohol expressed in grams per 100 millilitres of blood found in any sample of blood analysed by the analyst is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(7) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of blood analysed by the analyst of a substance that is, or is capable of being, a prescribed drug for the purposes of this Part is admissible in evidence in any proceedings referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(8) A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any proceedings referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(9) A certificate given under this section must not be tendered in evidence in a proceeding referred to in subsection (4) without the consent of the accused unless a copy of the certificate is proved to have been served on the accused more than 10 days before the day on which the certificate is tendered in evidence.
(10) A copy of a certificate given under this section may be served on the accused by—
(a) delivering it to the accused personally; or
(b) leaving it for the accused at his or her last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.
(11) An affidavit or statutory declaration by a person who has served a copy of the certificate on the accused is admissible in evidence in a proceeding referred to in subsection (4) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.
(12) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.
(13) The court must not grant leave under subsection (12) unless it is satisfied—
(a) that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and
(b) that—
(i) there is a reasonable possibility that the blood referred to in a certificate given by an analyst under subsection (6) was not that of the accused; or
(ii) there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that the blood alcohol concentration found on analysis was higher than it would have been had the blood not been contaminated in that way; or
(iii) there is a reasonable possibility that the blood referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the blood not been contaminated in that way; or
(iv) there is a reasonable possibility that the sample was not taken in accordance with the Code of Practice for Taking Blood Samples from Road Accident Victims; or
(v) for some other reason the giving of evidence by the person who gave the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken would materially assist the court to ascertain relevant facts.
(14) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any other person employed, or engaged to provide services at, the place at which the sample of blood was taken, to attend the court on the hearing of an application for leave under subsection (12).
(15) If a registered medical practitioner or an approved health professional is requested to make an examination or to collect a sample of blood for the purposes of this section and if the rail safety worker to be examined or from whom a sample of blood is to be collected has expressed consent to that examination or collection, no action lies against the registered medical practitioner or approved health professional who acts in accordance with that consent even if it subsequently appears that the rail safety worker was in fact incapable by reason of his or her mental condition from effectively giving consent to the examination or collection.
(16) Except as provided in sections 86D and 86H, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the rail safety worker from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.
(17) The mere failure or refusal of a rail safety worker to express consent must not be used in evidence against the rail safety worker or referred to in any way against the rail safety worker's interests in any proceeding.
(18) A certificate purporting to be signed by a person—
(a) who took a blood sample; or
(b) who analysed a blood sample—
in accordance with the provisions of an Act of another State or a Territory that substantially corresponds to section 86H of this Act and in accordance with any regulations made under the corresponding Act is admissible in evidence in a proceeding referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(19) Subsections (7), (10), (11) and (12) apply in respect of a certificate referred to in subsection (18) as if the certificate was given under this section.
(1) In this section—
approved analyst means a person who by virtue of subsection (2) is to be taken to be a properly qualified analyst for the purposes of this section;
"approved expert" means a person who by virtue of subsection (3) is to be taken to be a properly qualified expert for the purposes of this section;
"properly qualified analyst" means—
(a) an approved analyst; or
(b) a person who is considered by the court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (6);
"properly qualified expert" means—
(a) an approved expert; or
(b) a person who is considered by the court to have scientific qualifications, training and experience that qualifies him or her to express an opinion as to the facts and matters contained in a certificate under subsection (7).
(2) A person who is an approved analyst within the meaning of section 57A of the Road Safety Act 1986 is to be taken to be a properly qualified analyst for the purposes of this section.
(3) A person who is an approved expert within the meaning of section 57A of the Road Safety Act 1986 is to be taken to be a properly qualified expert for the purposes of this section.
(4) If a question as to the presence of a drug in the body of a rail safety worker at any time is relevant in a hearing for an offence against section 76 or 77 then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given—
(a) of the furnishing by that rail safety worker, within 3 hours after that rail safety worker carried out rail safety work, of a sample of oral fluid to a registered medical practitioner or an approved health professional;
(b) of the analysis of that sample of oral fluid by a properly qualified analyst within 12 months after it was taken;
(c) of the presence of a drug in that sample of oral fluid at the time of analysis;
(d) by a properly qualified expert of the usual effect of that drug on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly).
(5) A certificate containing the prescribed particulars purporting to be signed by a registered medical practitioner or an approved health professional is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(6) A certificate containing the prescribed particulars purporting to be signed by an approved analyst as to the presence in any sample of oral fluid analysed by the analyst of a substance that is, or is capable of being, a prescribed drug for the purposes of this Part is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(7) A certificate containing the prescribed particulars purporting to be signed by an approved expert as to the usual effect of a specified substance or substances on behaviour when consumed or used (including its effect on a rail safety worker's ability to carry out rail safety work properly) is admissible in evidence in any hearing referred to in subsection (4) and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it.
(8) A certificate given under this section must not be tendered in evidence at a hearing referred to in subsection (4) without the consent of the accused unless a copy of the certificate is proved to have been personally served on the accused more than 10 days before the day on which the certificate is tendered in evidence.
(9) An affidavit or statutory declaration by the person who has personally served a copy of the certificate on the accused is admissible in evidence at a hearing referred to in subsection (4) and, as to the service of the copy, is proof, in the absence of evidence to the contrary, of the facts and matters deposed to in the affidavit or stated in the statutory declaration.
(10) An accused who has been served with a copy of a certificate given under this section may, with the leave of the court and not otherwise, require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was furnished, to attend at all subsequent proceedings for cross-examination and that person must attend accordingly.
(11) The court must not grant leave under subsection (10) unless it is satisfied—
(a) that the informant has been given at least 7 days' notice of the hearing of the application for leave and has been given an opportunity to make a submission to the court; and
(b) that—
(i) there is a reasonable possibility that the oral fluid referred to in a certificate given by an analyst under subsection (6) was not that of the accused; or
(ii) there is a reasonable possibility that the oral fluid referred to in a certificate given by a registered medical practitioner or an approved health professional had become contaminated in such a way that a drug found on analysis would not have been found had the oral fluid not been contaminated in that way; or
(iii) for some other reason the giving of evidence by the person who gave the certificate would materially assist the court to ascertain relevant facts.
(12) An accused who has been served with a copy of a certificate given under this section may not require the person who has given the certificate or any person employed, or engaged to provide services at, the place at which the sample of oral fluid was furnished, to attend the court on the hearing of an application for leave under subsection (10).
(1) If—
(a) the question whether a rail safety worker was or was not at any time under the influence of alcohol; or
(b) the presence, or the concentration, of alcohol in the breath of a rail safety worker at any time; or
(c) a result of a breath analysis of a rail safety worker—
is relevant on a hearing for an offence against section 76 or 77 then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 85 and the concentration of alcohol so indicated is, subject to compliance with section 85(6), evidence of the concentration of alcohol present in the breath of that person at the time his or her breath is analysed by the instrument.
(2) A document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in a proceeding referred to in subsection (1) and, subject to subsection (8), is conclusive proof of—
(a) the facts and matters contained in it; and
(b) the fact that the instrument used was a breath analysing instrument; and
(c) the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 85; and
(d) the fact that all relevant regulations relating to the operation of the instrument were complied with; and
(e) the fact that the instrument was in proper working order and properly operated; and
(f) the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the breath analysing instrument and given to the accused person as soon as practicable after the sample of breath was analysed—
unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.
(3) A certificate referred to in subsection (2) does not cease to be admissible in evidence or to be conclusive proof of the facts and matters referred to in that subsection only because of the fact that it refers to the Road Safety Act 1986 and not to the Rail Safety (Local Operations) Act 2006 and the reference to the Road Safety Act 1986 in that certificate and in each other certificate produced by the breath analysing instrument in respect of the sample of breath must be construed for all purposes as a reference to the Rail Safety (Local Operations) Act 2006 .
(4) A notice under subsection (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing.
(5) The accused person may not, except with the leave of the court, introduce expert evidence at the hearing if the nature of that evidence was not indicated in a notice under subsection (2).
(6) If an accused person gives notice to the
informant in accordance with subsection (2) that he or she requires the person
giving a certificate to be called as a witness and the court is satisfied that
that person—
s. 89
(a) is dead; or
(b) is unfit by reason of his or her bodily or mental condition to testify as a witness; or
(c) has ceased to be a police officer or is out of Victoria and it is not reasonably practicable to secure his or her attendance; or
(d) cannot with reasonable diligence be found—
the court must order that subsection (2) has effect as if the notice had not been given.
(7) A certificate referred to in subsection (2) remains admissible in evidence even if the accused person gives a notice under that subsection but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that subsection.
(8) Nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in subsection (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.
(9) In any proceeding under this Act—
(a) the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 85(6) to operate breath analysing instruments; or
(b) a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner of Police under section 85(6) to operate breath analysing instruments—
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.
(10) Evidence by a person authorised to operate a breath analysing instrument under section 85—
(a) that an apparatus used by him or her on any occasion under that section was a breath analysing instrument;
(b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;
(c) that, in relation to the breath analysing instrument, all regulations with respect to breath analysing instruments were complied with—
is, in the absence of evidence to the contrary, proof of those facts.
(11) The statement on oath of a person authorised to operate a breath analysing instrument under section 85 when called as a witness that any apparatus used by him or her on any occasion under section 85 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions—
(a) "Alcotest 7110" and "3530791"; or
(b) "Alcotest 9510AUS" and "8320869"—
whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument.
(1) An authority given under or for the purposes of—
(a) section 85 or 86C(1)(b) by the Chief Commissioner of Police; or
(b) section 86C(1)(a) by the Safety Director—
may be revoked at any time in the manner in which it was given and on revocation ceases to have any effect.
(2) If it is provided by or under this Part that the Minister or the Chief Commissioner of Police or any other person may approve of any type or kind of apparatus or equipment—
(a) the approval must be given by notice published in the Government Gazette; and
(b) any withdrawal of approval must be made by notice published in the Government Gazette.
__________________".