Part 1 Preliminary
1 Name of Regulation
This Regulation is the Rail Safety (Adoption of National Law) Regulation 2018.
2 Commencement
This Regulation commences on the day on which it is published on the NSW legislation website.Note—This Regulation repeals and replaces the Rail Safety (Adoption of National Law) Regulation 2012, which would otherwise be repealed on 1 September 2018 by section 10(2) of the Subordinate Legislation Act 1989.
3 Definitions
(1) In this Regulation—analyst means a person employed by the owner or operator of an approved laboratory as an analyst.approved laboratory means—(a) in relation to blood—the laboratory at the NSW Forensic & Analytical Science Service at Lidcombe, New South Wales, and(b) in relation to urine samples—a laboratory that has been accredited by the National Association of Testing Authorities, Australia for the purposes of AS/NZS 4308:2008, and(c) in relation to oral fluid samples—the laboratory at—(i) the NSW Forensic & Analytical Science Service at Lidcombe, New South Wales, or(ii) Racing Analytical Services Ltd at Flemington, Victoria.approved oral fluid analysing instrument means—(a) an approved oral fluid analysing instrument within the meaning of Schedule 3 to the Road Transport Act 2013, or(b) the device known as Thermo TSQ Quantum Ultra, or(c) the device known as Thermo TSQ Quantum Access, or(d) the device known as Thermo TSQ Orbitrap Discovery, or(e) the device known as AB Sciex QTrap 5500, or(f) the device known as Shimadzu High Performance Liquid Chromatography Mass Spectrometer LCMS-8060.approved oral fluid testing device means—(a) an approved oral fluid testing device within the meaning of Schedule 3 to the Road Transport Act 2013, or(b) the device known as Medvet Oral7.AS/NZS 4308:2008 means Australian/New Zealand Standard AS/NZS 4308:2008Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine.has the same meaning as in Schedule 3 to the Road Transport Act 2013.breath analysing instrument has the same meaning as in the Road Transport Act 2013.breath analysis has the same meaning as in Schedule 3 to the Road Transport Act 2013.drug screening test means a test carried out by an approved oral fluid testing device for the purpose of ascertaining whether any drugs are present in a person’s oral fluid.hospital means any of the following—(a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown,(b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997,(c) a private health facility within the meaning of the Private Health Facilities Act 2007.oral fluid analysis means a test carried out by an approved oral fluid analysing instrument for the purpose of ascertaining, by analysis of a person’s oral fluid, the presence of drugs in that person’s oral fluid.preliminary breath test means a test for the purpose of indicating the concentration of alcohol in a person’s breath or blood, carried out on that person’s breath by means of a device, not being a breath analysing instrument, of a type that complies with the requirements of AS 3547:2019, Breath alcohol testing devices, as reissued in January 2021, or of a type approved by the Governor by order published in the Gazette for the purposes of the Road Transport Act 2013.sample, in relation to urine, includes, if the sample is divided into portions, a portion of the sample.the Act means the Rail Safety (Adoption of National Law) Act 2012.Note—The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.(2) A reference in this Regulation to a police officer authorised by the Commissioner of Police to carry out a breath analysis is a reference to a police officer so authorised under the Road Transport Act 2013.(3) For the purposes of this Regulation, a power to require a person to provide a sample of blood, oral fluid or urine includes a power to require a person to provide samples of any one or more of blood, oral fluid or urine.(4) Notes included in this Regulation do not form part of this Regulation.cl 3: Am 2022 (503), sec 3(1); 2022 (691), sec 3.
Part 2 Drug and alcohol testing
Division 1 Provisions relating to drug and alcohol offences
4 No duplicity where more than one drug alleged
(1) If a person is charged with an offence under section 128(1)(b) of the Rail Safety National Law (NSW)—(a) the document commencing proceedings may allege that more than one drug was present in the blood or oral fluid of the person and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the document, and(b) the offence is proved if the court is satisfied beyond reasonable doubt that there was present in the blood or oral fluid of the defendant—(i) a prescribed drug described in the document commencing proceedings, or(ii) a combination of prescribed drugs any one or more of which was or were described in the document.(2) If a person is charged with an offence under section 128(1)(c) of the Rail Safety National Law (NSW)—(a) the document commencing proceedings may allege that the person was under the influence of more than one drug and the proceedings are not liable to be dismissed on the ground of uncertainty or duplicity if each of those drugs is described in the document, and(b) the offence is proved if the court is satisfied beyond reasonable doubt that the defendant was so much under the influence of—(i) a drug described in the document commencing proceedings, oras to be incapable of effectively discharging a function or duty of a rail safety worker.(ii) a combination of drugs any one or more of which was or were described in the document,(3) In subclause (2), drug includes alcohol.
5 Measurement of alcohol concentrations
(1) For the purposes of the Rail Safety National Law (NSW) and this Part, the concentration of alcohol present in a person’s breath or blood may be expressed as follows—(a) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the breath—the amount of alcohol in grams in 210 litres of breath,(b) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the blood—the amount of alcohol in grams in 100 millilitres of blood,(c) in the case of a sample of blood—the amount of alcohol in grams in 100 millilitres of blood.(2) An amount of alcohol in grams present in breath when measured by reference to 210 litres of breath is, for the purposes of the Rail Safety National Law (NSW) and this Part, taken to be equivalent to the same amount of alcohol in grams present in blood when measured by reference to 100 millilitres of blood.
6 Test results may not be used for offence where worker had not commenced work
The results of any breath test, breath analysis, drug screening test, oral fluid analysis or blood or urine test conducted on a rail safety worker who was about to carry out work are not admissible in any proceedings for an offence under section 128 of the Rail Safety National Law (NSW).
Division 2 Testing for alcohol or other drugs
7 Random and targeted testing of rail safety workers
The selection of a rail safety worker for testing for the presence of a drug or alcohol under the Rail Safety National Law (NSW) or this Part may be conducted on a random or targeted basis.
8 Restrictions on requiring breath test, sobriety assessment, breath analysis or sample
An authorised person must not require a rail safety worker to undergo a breath test, submit to a sobriety assessment, breath analysis or drug screening test or provide a sample of blood, oral fluid or urine—(a) if it appears to the authorised person that it would (because of injuries sustained by the worker) be dangerous to the worker’s medical condition if the worker complied with the requisition, or(b) at any time after the expiration of 3 hours from the time the worker carried out the rail safety work (or was due to commence the rail safety work) to which the requisition relates, or(c) in the case of a person other than a worker who has been involved in an accident or irregular incident while carrying out rail safety work, after the person has ceased to be on duty on a particular day, or(d) at the worker’s home.
9 Supervisee may perform functions of authorised sample taker or authorised person
(1) Any duty of an authorised sample taker or an authorised person under this Part may be performed by a person acting at the direction or under the supervision of the authorised sample taker or an authorised person.(2) A duty performed by any such person is taken to have been performed by the authorised sample taker or authorised person.
10 Sobriety assessment if breath testing device not available
(1) An authorised person may require a rail safety worker to submit to a sobriety assessment in accordance with the directions of the authorised person if—(a) the authorised person is entitled under the Rail Safety National Law (NSW) and this Regulation to require the worker to undergo a breath test, and(b) the device required to carry out the breath test is not readily available.(2) A requirement that a rail safety worker submit to a sobriety assessment is not open to challenge in any proceedings merely on the basis that the device was readily available.
11 Breath analysis of rail safety workers following breath testing
(1) An authorised person may require a rail safety worker to submit to a breath analysis in accordance with the directions of the authorised person only if—(a) it appears to the authorised person, as a result of a preliminary breath test or sobriety assessment under this Regulation, that the prescribed concentration of alcohol may be present in a rail safety worker’s breath or blood, or(b) a rail safety worker who is required by an authorised person to undergo a preliminary breath test, or to submit to a sobriety assessment under this Regulation, refuses or fails to do so in accordance with the directions of the authorised person.(2) If a police officer is entitled to require a rail safety worker to submit to a breath analysis, the officer may—(a) arrest the worker without a warrant, and(b) take the worker with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the worker for the purposes of the breath analysis.(3) If an authorised person (other than a police officer) is entitled to require a rail safety worker to submit to a breath analysis, the authorised person may direct the worker to attend the nearest police station, or such other place as the authorised person may require, and there submit to a breath analysis.(4) A breath analysis must be carried out by—(a) an authorised person (other than a police officer), orat or near a police station or such other place as the authorised person or police officer considers desirable.(b) a police officer authorised by the Commissioner of Police to carry out a breath analysis,(5) As soon as practicable after a rail safety worker has submitted to a breath analysis the authorised person or police officer operating the breath analysing instrument must deliver to the worker a statement in writing signed by the authorised person or police officer specifying—(a) the concentration of alcohol determined by the analysis to be present in the worker’s breath or blood and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood, and(b) the day on which and time of the day at which the breath analysis was completed.(6) A rail safety worker who is required to submit to a breath analysis may request the authorised person or police officer making the requisition to arrange for the taking by an authorised sample taker (in the presence of an authorised person or a police officer) of a sample of the worker’s blood for analysis, at the worker’s own expense.(7) The making of any such request or the taking of a sample of a rail safety worker’s blood does not relieve the worker from the obligation imposed on the worker to submit to a breath analysis in accordance with this clause.
12 Oral fluid analysis following drug screening test or request
(1) An authorised person may require a rail safety worker to provide an oral fluid sample in accordance with the directions of the authorised person for the purposes of an oral fluid analysis if—(a) it appears to the authorised person from one or more drug screening tests carried out by the authorised person under the Rail Safety National Law (NSW) that the device by which the test was carried out indicates that there may be one or more drugs present in the person’s oral fluid, or(b) the person refused to submit to a drug screening test required under that Law or fails to submit to that test in accordance with the directions of the authorised person.(2) An authorised person may require a person to provide a blood sample in accordance with the directions of an authorised sample taker if the person—(a) has attempted to provide an oral fluid sample as directed under this clause, but(b) has been unable to comply with that direction (for example, because no oral fluid was able to be produced).(3) If a police officer is entitled to require a rail safety worker to provide an oral fluid sample for an oral fluid analysis, the officer may—(a) arrest the worker without a warrant, and(b) take the worker with such force as may be necessary to a police station or such other place as the officer considers desirable and there detain the worker for the purposes of providing the oral fluid sample for the oral fluid analysis.(4) If an authorised person (other than a police officer) is entitled to require a rail safety worker to provide an oral fluid sample for an oral fluid analysis, the authorised person may direct the worker to attend the nearest police station, or such other place as the authorised person may require, and there provide an oral fluid sample for an oral fluid analysis.
13 Samples taken at hospitals from rail safety workers involved in accidents in carrying out rail safety work
(1) If a rail safety worker attends or is admitted to a hospital for examination or treatment because the worker has been involved in an accident while carrying out rail safety work, an authorised person may require the worker to provide as soon as practicable a sample of the worker’s blood or urine in accordance with the directions of a medical practitioner who attends the worker at the hospital.(2) A rail safety worker is not required to provide a sample of blood or urine unless the medical practitioner who attends the worker at the hospital (or, if no medical practitioner is present to attend the person, a registered nurse) has been notified of the intention to make the requisition and the medical practitioner or nurse does not object on the ground that compliance would be prejudicial to the proper care or treatment of the worker.(3) If there is no medical practitioner present to attend the person at the hospital, the blood or urine sample is to be taken by a registered nurse.(4) Any such medical practitioner or nurse must take the sample if informed by the authorised person that the sample is required to be taken by the practitioner or nurse under this Regulation.(5) A requirement under subclause (1) need not be made directly to the rail safety worker concerned but may be made through a medical practitioner or any such nurse who attends the worker at the hospital.(6) Nothing in clause 29 enables evidence to be given of or in relation to the presence of a drug, or the presence of a particular concentration of a drug, in the blood or urine of a person charged with an offence under section 128 of the Rail Safety National Law (NSW) (as determined by an analysis of a sample obtained under this clause) unless the court is satisfied that the analysis was not arranged in contravention of this Regulation.
14 Additional circumstances when blood or urine samples may be taken
(1) An authorised person may require a rail safety worker to provide a sample of the worker’s blood or urine if—(a) the authorised person is entitled under the Rail Safety National Law (NSW) and this Regulation to require the worker to submit to a breath analysis, and(b) a breath analysing instrument is not readily available.(2) An authorised person who has a reasonable belief that, by the way in which a rail safety worker was acting, the worker might be under the influence of alcohol or a drug, may require the worker to provide a sample of the worker’s blood or urine if—(a) the worker has undergone a preliminary breath test in accordance with this Regulation, and(b) the result of the test does not permit the worker to be required to submit to a breath analysis, and(c) the authorised person has required the worker to submit to a sobriety assessment and—(i) the worker refuses to submit to the assessment, or(ii) after the assessment is made, the authorised person has a reasonable belief that the worker is under the influence of alcohol or a drug.(3) A requirement that a rail safety worker provide a sample is not open to challenge in any proceedings merely on the basis that a breath analysing instrument was readily available.
15 Taking of blood samples or urine
(1) This clause applies if an authorised person is entitled under the Rail Safety National Law (NSW) or this Regulation to require a rail safety worker to provide a sample of the worker’s blood or urine.(2) The authorised person may require the worker to provide the sample of urine in accordance with the directions of the authorised person.(3) The authorised person may require the rail safety worker to provide the sample of blood at a hospital in accordance with the directions of an authorised sample taker.(4) An authorised sample taker must take a sample of blood if informed by the authorised person that the sample is required to be taken under the Rail Safety National Law (NSW) and this Regulation.(5) If a police officer is entitled to require a rail safety worker to provide a sample of blood, the officer may—(a) arrest the worker without a warrant, and(b) take the worker with such force as may be necessary to a hospital and there detain the worker for the purpose of obtaining the sample.(6) If an authorised person is entitled to require a rail safety worker to provide a sample of blood, the authorised person may direct the worker to attend the nearest hospital for the purpose of obtaining the sample.
16 Action to be taken with respect to blood samples
(1) An authorised sample taker or other person by whom a sample of a rail safety worker’s blood is taken under this Regulation must—(a) place the sample into a container, and(b) fasten and seal the container, and(c) mark or label the container for future identification, and(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood, and(e) as soon as reasonably practicable after the sample is taken, hand the sample to the authorised person who was present at the time the sample was taken.(2) The authorised person to whom a sample of blood is handed under subclause (1) must—(a) immediately on being handed the sample, place the sample in a security box of a type approved by the Commissioner of Police and lock the box, and(b) as soon as reasonably practicable thereafter, arrange for the sample to be submitted to an approved laboratory for analysis by an analyst to determine the concentration of alcohol or drugs in the blood.(3) The blood sample must be kept in the security box until it is submitted to an approved laboratory for analysis.(4) The person from whom the sample was taken may, within 12 months after the taking of the sample, apply to the laboratory referred to in subclause (2) for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by that person.(5) A medical practitioner, registered nurse or other sample taker of another jurisdiction who, under the Rail Safety National Law of that jurisdiction, takes a sample of blood in consequence of an occurrence in this jurisdiction may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of alcohol or drugs in the blood.
17 Taking and dealing with oral fluid samples
(1) A police officer who is provided with a sample of a rail safety worker’s oral fluid under this Regulation or the Rail Safety National Law (NSW) must—(a) place the sample into a container, and(b) fasten and seal the container, and(c) mark or label the container for future identification, and(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s oral fluid, and(e) immediately place the sample in a security box of a type approved by the Commissioner of Police and lock the box.(2) An authorised person (other than a police officer) who is provided with a sample of a rail safety worker’s oral fluid under this Regulation or the Rail Safety National Law (NSW) must—(a) collect the sample in accordance with AS/NZS 4760:2019, section 2, and(b) give the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s oral fluid.(3) The police officer or other authorised person may carry out an oral fluid test on a portion of the sample before dealing with the remaining portion of the sample under subclause (1) or (2). In such a case, a reference in this clause and clause 29 to the sample that is submitted to an approved laboratory is taken to be a reference to the remaining portion of that sample.(4) A sample of a rail safety worker’s oral fluid provided under this Regulation or the Rail Safety National Law (NSW)—(a) in any case—must, as soon as practicable after being provided, be submitted to an approved laboratory for analysis by an analyst to determine the concentration of drugs in the oral fluid, and(b) in the case of a sample provided to a police officer—must be kept in the security box until it is submitted to an approved laboratory, and(c) in the case of a sample provided to an authorised person who is not a police officer—must be transported in accordance with AS/NZS 4760:2019, section 2.(5) A person from whom a sample is taken may, within 6 months after the taking of the sample, apply to the laboratory at which the sample is being, or was, analysed for a portion of the sample to be sent for analysis, at the person’s own expense, to a medical practitioner or laboratory nominated by the person.(6) A medical practitioner, authorised person or other sample taker of another jurisdiction who, under the Rail Safety National Law of that jurisdiction, takes a sample of oral fluid in consequence of an occurrence in this jurisdiction may arrange for a portion of the sample to be submitted for an analysis by an analyst to determine the concentration of drugs in the oral fluid.(7) In this clause—AS/NZS 4760:2019 means Australian/New Zealand Standard 4760:2019, Procedure for specimen collection and the detection and quantification of drugs in oral fluid, as reissued in September 2020.cl 17: Am 2022 (503), sec 3(2)–(4).
18 Action to be taken with respect to urine samples
(1) If an authorised person requires a rail safety worker to provide a sample of urine, the sample must be collected in accordance with section 2 of AS/NZS 4308:2008.(2) The authorised person who required the worker to provide a sample must arrange for the sample to be submitted for urine screening testing.(3) Urine screening testing may be carried out—(a) at the place where the sample was taken, using an on-site urine screening device, or(b) by an analyst at an approved laboratory, in accordance with section 4 of AS/NZS 4308:2008.(4) A sample that is submitted for urine screening testing or confirmatory testing at an approved laboratory is to be transported in accordance with section 2 of AS/NZS 4308:2008.(5) If urine screening testing of the sample indicates that the urine contains a drug or drugs—(a) in the case of a urine screening test conducted in accordance with subclause (3)(a)—the authorised person who required the worker to provide the sample must arrange for the sample to be submitted to an analyst at an approved laboratory for confirmatory testing in accordance with clause 19, or(b) in the case of a urine screening test conducted in accordance with subclause (3)(b)—the analyst or another analyst at an approved laboratory is to conduct confirmatory testing in accordance with clause 19.(6) If confirmatory testing determines that a urine sample contains a drug or drugs, the person from whom the sample was taken may, within 3 months after the taking of the sample, apply to the laboratory at which the sample is being kept for a portion of the sample to be sent for analysis, at the person’s own expense, to an approved laboratory nominated by the person.(7) Samples are to be stored in accordance with section 3 of AS/NZS 4308:2008.(8) In this clause—on-site urine screening device means a device that determines the presence or absence of drugs in urine using an immunoassay technique that meets the screening test cut-off levels listed in Table 1 of AS/NZS 4308:2008.
19 Analysis of samples
(1) An analyst to whom a sample of blood is submitted for analysis under this Division may carry out an analysis of the sample, or of a portion of the sample, to determine the concentration of alcohol in the blood or to determine whether the blood contains alcohol or another drug or drugs, as the case requires.(2) An analyst to whom a sample of oral fluid is submitted for analysis under this Division may carry out an analysis of the sample, or of a portion of the sample, to determine whether the oral fluid contains a drug or drugs.(3) An analyst to whom a sample of urine is submitted for analysis under this Division may carry out confirmatory testing on the sample, or a portion of the sample, to determine whether the urine contains a drug or drugs. The confirmatory testing must be carried out, and a report provided, in accordance with section 5 of AS/NZS 4308:2008.(4) Confirmatory testing under subclause (3) may be carried out only if urine screening testing determines that the urine contains a drug or drugs.(5) An analysis under this clause may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample to be analysed and the breaking of any seal securing the sample) may be done, by a person acting at the direction or under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst.(6) Without limiting any other provision of this clause, the Regulator may, generally or in a particular case or class of cases, direct that an analysis is to be carried out in order to determine whether there is present in a sample a drug specified in Schedule 1 to the Drug Misuse and Trafficking Act 1985.
20 Authorised sample takers and authorised persons—protection from liability
(1) No civil or criminal liability is incurred by an authorised sample taker (or by any person acting at the direction or under the supervision of the authorised sample taker) in respect of anything properly and necessarily done by the authorised sample taker in the course of taking a sample of blood or urine from a person if the authorised sample taker—(a) believed on reasonable grounds that the authorised sample taker was required under this Regulation to take the sample of blood or urine from the person, or(b) was informed by an authorised person that the person was a person from whom the authorised sample taker was required under this Regulation to take the sample of blood or urine.(2) No civil or criminal liability is incurred by an authorised person in respect of anything properly and necessarily done by the authorised person in the course of administering a breath test or breath analysis, conducting a sobriety assessment, administering a drug screening test or a urine screening test or taking a sample of oral fluid or urine in the exercise of the functions of an authorised person under the Rail Safety National Law (NSW) or this Regulation.
Division 3 Offences relating to testing for alcohol or other drugs
21 Additional offences relating to testing
(1) Any rail safety worker who, when required under this Regulation to do so, refuses or fails to submit to a sobriety assessment in accordance with this Regulation is guilty of an offence.Maximum penalty—10 penalty units.(2) A rail safety worker who, when required under the Rail Safety National Law (NSW) or this Regulation to provide a sample of blood, oral fluid or urine, fails to provide a sample of his or her own blood, oral fluid or urine, is guilty of an offence.Maximum penalty—10 penalty units.(3) It is a defence to a prosecution for an offence under subclause (1) if the defendant satisfies the court that the defendant was unable on medical grounds to comply with the requirement concerned.
22 Interfering with results of test
A rail safety worker who does anything, or causes anything to be done, to introduce, or alter the concentration of, alcohol or any drug in the worker’s or another worker’s breath, blood, oral fluid or urine before the worker or another worker submits to a breath analysis or provides a sample of blood, oral fluid or urine under the Rail Safety National Law (NSW) or this Regulation is guilty of an offence if the worker does so for the purpose of preventing or restricting the use of the results of the analysis in any proceedings against the worker or other worker.Maximum penalty—25 penalty units or imprisonment for 9 months, or both.
23 Taking of samples
(1) An authorised sample taker who, when required under the Rail Safety National Law (NSW) or this Regulation to take a sample of blood from a rail safety worker—(a) refuses or fails to take the sample, oris guilty of an offence.(b) does not comply with the requirements of clause 16 with respect to any sample taken,Maximum penalty—10 penalty units.(2) It is a defence to a prosecution for an offence under subclause (1) if the authorised sample taker satisfies the court that—(a) the authorised sample taker believed on reasonable grounds that the taking of the sample from the rail safety worker would be prejudicial to the proper care and treatment of the worker, or(b) the authorised sample taker was, because of the behaviour of the rail safety worker, unable to take the sample, or(c) there was other reasonable cause for the authorised sample taker not to take the sample.(3) Any person who, when taking a sample of blood, oral fluid or urine from a rail safety worker under the Rail Safety National Law (NSW) or this Regulation, does not comply with the requirements of clause 16, 17 or 18 with respect to any sample taken is guilty of an offence.Maximum penalty—10 penalty units.(4)–(6) (Repealed)cl 23: Am 2020 (89), cl 3(1).
24 (Repealed)
cl 24: Rep 2020 (89), cl 3(2).
Division 4 Admission of evidence in proceedings
25 Evidence of concentration of alcohol in breath or blood determined by breath analysis
(1) This clause applies to any proceedings for an offence against section 128(1)(a) of the Rail Safety National Law (NSW).(2) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the breath or blood of the person charged, as determined by a breath analysing instrument operated by—(a) an authorised person (other than a police officer), or(b) a police officer authorised by the Commissioner of Police to carry out a breath analysis.(3) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the blood of the person charged, as determined by an analysis of the person’s blood under this Part.(4) The concentration of alcohol determined by a breath analysing device or by analysis of the person’s blood is taken to be the concentration of alcohol in the breath or blood of the person at the time the person carried out the rail safety work to which the breath analysis or blood sample relates if—(a) in the case of evidence concerning breath analysis—the breath analysis was made within 3 hours after that time, or(b) in the case of evidence concerning a blood sample—the sample of blood was taken within 3 hours after that time.
26 Evidence of presence of drugs in proceedings for offence of having drug in blood or oral fluid
(1) This clause applies to any proceedings for an offence against section 128(1)(b) of the Rail Safety National Law (NSW).(2) Evidence may be given in proceedings to which this clause applies of the presence of a prescribed drug in the blood or oral fluid of the person charged, as determined by an analysis of the person’s blood or oral fluid under this Part.(3) The prescribed drug the presence of which is determined by analysis of the person’s blood or oral fluid is taken to be present at the time the person carried out the rail safety work to which the sample relates if the sample was taken within 3 hours after that time, unless the defendant proves the absence of the prescribed drug at the time the person carried out the rail safety work.
27 Evidence of presence of drugs in proceedings for offence of being under influence of alcohol or drug
(1) This clause applies to any proceedings for an offence against section 128(1)(c) of the Rail Safety National Law (NSW).(2) Evidence may be given in proceedings to which this clause applies of the presence of a drug, or the presence of a particular concentration of a drug, in the blood, oral fluid or urine of the person charged, as determined by an analysis of the person’s blood, oral fluid or urine under this Part.(3) The drug the presence of which is determined or the particular concentration of the drug the presence of which is determined (as the case may be) by analysis of the person’s blood, oral fluid or urine is taken to have been present in the blood, oral fluid or urine of that person at the time the person carried out the rail safety work to which the sample relates if the sample was taken within 3 hours after that time, unless the defendant proves the absence of the drug, or the presence of the drug in a different concentration, at the time the person carried out the rail safety work.(4) In this clause, drug includes alcohol.
Division 5 Certificate evidence
28 Certificate evidence about breath analysing instruments
(1) This clause applies to proceedings for an offence against section 128(1)(a) or (c) of the Rail Safety National Law (NSW).(2) A certificate purporting to be signed by an authorised person and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—(a) the authorised person is duly authorised as an authorised person or, if the authorised person is a police officer, the police officer is authorised by the Commissioner of Police to carry out a breath analysis,(b) the person named in the certificate submitted to a breath analysis,(c) the apparatus used by the authorised person to make the breath analysis was a breath analysing instrument within the meaning of the Road Transport Act 2013,(d) the analysis was made on the day and completed at the time stated in the certificate,(e) a concentration of alcohol (determined by that breath analysing instrument and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood) was present in the breath or blood of that person on the day and at the time stated in the certificate,(f) a statement in writing required by clause 11(5) was delivered in accordance with that subclause.(3) In proceedings for an offence against section 128(1)(a) or (c) of the Rail Safety National Law (NSW), a certificate purporting to be signed by the Commissioner of Police that the police officer named in the certificate is authorised by the Commissioner of Police to carry out a breath analysis is prima facie evidence of the particulars certified in and by the certificate.(4) In any proceedings for an offence against section 128(1)(a) or (c) of the Rail Safety National Law (NSW), evidence of the condition of a breath analysing instrument or the manner in which it was operated is not to be required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced.
29 Certificate evidence about the taking and analysis of samples
(1) This clause applies to proceedings for an offence against section 128(1)(a), (b) or (c) of the Rail Safety National Law (NSW).(2) A certificate purporting to be signed by an authorised sample taker and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—(a) that the certifier was an authorised sample taker who attended a specified person at a hospital,(b) that the certifier took a sample of the person’s blood or urine in accordance with the Rail Safety National Law (NSW) and this Regulation on the day and at the time stated in the certificate,(c) that the certifier dealt with the sample in accordance with clause 16 or 18,(d) that the certifier used equipment of a specified description in so taking and dealing with the sample,(e) that the container was sealed, and marked or labelled, in a specified manner.(3) A certificate purporting to be signed by an authorised person and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—(a) that the authorised person took a sample of the oral fluid or urine of the person named in the certificate in accordance with the Rail Safety National Law (NSW) and this Regulation, on the day and at the time stated in the certificate,(b) that the person dealt with the sample in accordance with clause 17 or 18.(4) A certificate purporting to be signed by an authorised person and certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate—(a) that the authorised person received a sample of a specified person’s blood, oral fluid or urine taken in accordance with this Regulation and submitted to an approved laboratory for analysis (or testing and analysis),(b) that the authorised person arranged for the sample to be submitted for analysis (or testing and analysis) by an analyst to determine the concentration of alcohol in the sample or the presence or concentration of a drug in the sample (as the case requires),(c) that the container was sealed, and marked or labelled, in a specified manner.(5) A certificate purporting to be signed by an analyst and certifying any one or more of the following matters is admissible in proceedings to which this clause applies—(a) that a sample of a specified person’s blood, oral fluid or urine was received, on a specified day, in a container submitted for analysis (or testing and analysis) under this Regulation,(b) that the container, as received, was sealed, and marked or labelled, in a specified manner,(c) that, on receipt of the container, the seal was unbroken,(d) in the case of an analysis of a blood sample carried out to determine the concentration of alcohol in the blood of the specified person—(i) that an analysis of the sample was carried out to determine the concentration of alcohol in the sample, and(ii) that the concentration of alcohol determined pursuant to the analysis and expressed in grams of alcohol in 100 millilitres of blood was present in that sample,(e) in the case of an analysis of a blood or urine sample carried out to determine the presence or concentration of a prescribed drug or other drug in the blood or urine of the specified person—(i) that an analysis of the sample was carried out to determine whether any prescribed drug or other drug (as the case requires) was present in the sample, and(ii) that a specified prescribed drug or other drug (as the case requires) ascertained pursuant to the analysis was present in that sample in a specified concentration,(f) in the case of an oral fluid analysis carried out on the oral fluid of the specified person—(i) that an oral fluid analysis of the sample was carried out to determine the presence of any prescribed drugs and other drugs in the sample, and(ii) that a specified prescribed drug or other drug was determined pursuant to the oral fluid analysis to be present in that sample,(g) that the analyst was, at the time of the analysis, employed by the owner or operator of an approved laboratory as an analyst.(6) A certificate referred to in subclause (5) is prima facie evidence—(a) of the particulars certified in and by the certificate, and(b) that the sample was a sample of the blood, oral fluid or urine of that specified person, and(c) that the sample had not been tampered with before it was received.(7) A certificate purporting to be signed by an interstate sample taker or interstate analyst in accordance with a law of another jurisdiction that substantially corresponds to the relevant provisions of this Regulation concerning sample taking or analysis is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by this certificate.(8) In this clause—interstate analyst means a person (however described) who analyses, or who supervised or directed the analysis of, a blood, urine or oral fluid sample in another jurisdiction.interstate sample taker means a person (however described) who takes, or who supervised or directed the taking of, a blood, urine or oral fluid sample in another jurisdiction.
30 Certificate evidence may specify minimum concentrations
(1) This clause applies to a certificate under this Division if—(a) evidence is given by the certificate in proceedings in which evidence is permitted to be given of the results of an analysis undertaken for the purposes of the Rail Safety National Law (NSW) or this Regulation of a sample of a person’s blood, oral fluid or urine, and(b) the certificate is to the effect that alcohol or a specified drug was found by the analysis to be present in the sample in a concentration not less than a specified concentration.(2) A certificate to which this clause applies is to be treated as though it stated that the concentration of alcohol or of the other drug concerned was determined by the analysis to be present in the specified minimum concentration.(3) Evidence given by a certificate to which this clause applies is not open to challenge on the basis that the analysis, merely because it purports to determine a concentration in terms of a minimum, does not meet the requirements of the Rail Safety National Law (NSW) or this Regulation.
Part 3 Miscellaneous
31 Train communications systems
(1) A rolling stock operator must ensure that each train for which the person is responsible is, at all times when the train is on the NSW rail network, fitted with a radio communications system that complies with this clause and a back up means of communication to be used if the radio communications system fails.Maximum penalty—100 penalty units.(2) A rail infrastructure manager must ensure that a rolling stock operator of rolling stock operated on any part of the NSW rail network vested in or owned, managed or controlled by the rail infrastructure manager complies with subclause (1).Maximum penalty—100 penalty units.(3) A radio communications system for a train must—(a) enable the driver of the train to verbally communicate with any network control officer responsible for the area in which the train is operating, and(b) be working at all times when the train is being operated, and(c) be capable of receiving and transmitting emergency calls, and(d) be fitted with an emergency button that enables an emergency call from the train to be given priority over all other calls and that enables direct communication between the train and the network control officer responsible for the area in which the train is operating, and(e) be capable of transmitting an emergency communication in a form that will allow any network control officer responsible for the area in which the train is operating to transmit the communication to other trains in that area.(4) A rail transport operator is taken to comply with subclause (2) if the radio communications system fails but the back up means of communication is operational.(5) In this clause—NSW rail network means the railway lines vested in or owned by or managed or controlled by a rail infrastructure owner, within the meaning of the Transport Administration Act 1988, (including passing loops and turnouts from those lines and loops and associated rail infrastructure facilities that are so vested or owned or managed or controlled).
32 Exemptions
(1) The Regulator may, by notice in writing to one or more rail transport operators, exempt from the operation of clause 31 a particular train or class of trains.(2) A notice under this clause takes effect from the day specified in the notice, or if no day is specified, from the day it is given to the rail transport operator concerned.
33 Repeal and savings
(1) The Rail Safety (Adoption of National Law) Regulation 2012 is repealed.(2) Any act, matter or thing that, immediately before the repeal of the Rail Safety (Adoption of National Law) Regulation 2012, had effect under that Regulation is taken to have effect under this Regulation.
Schedule 1 Amendment of Rail Safety (Adoption of National Law) Act 2012 No 82
Schedule 1 New South Wales changes and additions to Rail Safety National Law
Insert after paragraph (b) of the definition of emergency services in Schedule 1[1]—(b1) the Ambulance Service of NSW; or