Customs (Drug and Alcohol Testing) Regulation 2013

Link to law: https://www.comlaw.gov.au/Details/F2013L00191

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Customs (Drug and Alcohol Testing) Regulation 2013
 
Select Legislative Instrument No. 2, 2013
I, Quentin Bryce, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Customs Administration Act 1985.
Dated              14 February 2013
Quentin Bryce
Governor‑General
By Her Excellency’s Command
Jason Clare
Minister for Home Affairs
 
  
  
  
Contents
Part 1—Preliminary                                                                                                             1
1............ Name of regulation.............................................................................. 1
2............ Commencement................................................................................... 1
3............ Authority............................................................................................. 1
4............ Definitions.......................................................................................... 1
Part 2—Drug testing                                                                                                            2
Division 1—General provisions                                                                              2
5............ Persons authorised to conduct tests..................................................... 2
6............ Devices approved for tests.................................................................. 3
7............ Conduct of tests—general................................................................... 3
8............ Record keeping................................................................................... 4
9............ Disclosure of information................................................................... 4
Division 2—Alcohol breath tests                                                                            6
10.......... Procedures to be followed................................................................... 6
11.......... Approval of courses............................................................................ 7
Division 3—Blood tests and prohibited drug tests of body samples other than urine    8
12.......... Application of Division 3.................................................................... 8
13.......... Definitions for Division 3................................................................... 8
14.......... Taking of body samples...................................................................... 8
15.......... Analysis of body samples................................................................... 9
16.......... Certificates.......................................................................................... 9
17.......... Disputed results................................................................................ 10
Division 4—Prohibited drug tests using urine samples                             11
18.......... Procedures to be followed................................................................. 11
19.......... Approval of courses.......................................................................... 11
 
Part 1—Preliminary
  
1  Name of regulation
                   This regulation is the Customs (Drug and Alcohol Testing) Regulation 2013.
2  Commencement
                   This regulation commences on the day after it is registered.
3  Authority
                   This Regulation is made under the Customs Administration Act 1985.
4  Definitions
                   In this regulation:
Act means the Customs Administration Act 1985.
approved device means a device approved under section 6.
authorised person means a person authorised under subsection 5(1).
medical practitioner has the same meaning as in subsection 3(1) of the Health Insurance Act 1973.
registered nurse has the same meaning as in subsection 3(1) of the Health Insurance Act 1973.
Part 2—Drug testing
Division 1—General provisions
5  Persons authorised to conduct tests
             (1)  For paragraph 16F(a) of the Act, the CEO may, in writing, authorise a person referred to in an item of the table for the purpose referred to in the item.
Person authorised to conduct tests

Item
Purpose
Person

1
Conducting an alcohol screening test
Any of the following:
(a) an officer of Customs who has successfully completed a training course in conducting alcohol screening tests approved under section 11;
(b) a police officer of a State or Territory;
(c) a company

2
Conducting an alcohol breath test
Any of the following:
(a) an officer of Customs who has successfully completed a training course in conducting alcohol screening tests approved under section 11;
(b) a police officer of a State or Territory;
(c) a company

3
Conducting an alcohol blood test
Any of the following:
(a) a medical practitioner;
(b) a registered nurse

4
Conducting a prohibited drug test that requires the collection of a blood sample
Any of the following:
(a) a medical practitioner;
(b) a registered nurse

5
Conducting a prohibited drug test that does not require the collection of a blood sample
Any of the following:
(a) a medical practitioner;
(b) a registered nurse;
(c) an officer of Customs who has successfully completed a training course in supervising the provision of urine samples approved under section 19;
(d) a police officer of a State or Territory;
(c) a company

             (2)  If the CEO authorises a person under subsection (1):
                     (a)  the CEO must give the person a certificate stating that he or she is an authorised person; and
                     (b)  the person must, if requested to do so, show his or her certificate to a Customs worker who is directed by the person to undergo a test for section 16B, 16C or 16D of the Act.
6  Devices approved for tests
                   For paragraph 16F(e) of the Act, the CEO may, in writing, approve a device as a device permitted to be used for a test for section 16B, 16C or 16D of the Act.
7  Conduct of tests—general
             (1)  A breath test, blood test or prohibited drug test conducted for section 16B, 16C or 16D of the Act must be conducted:
                     (a)  in a respectful manner; and
                     (b)  in circumstances affording reasonable privacy to the Customs worker directed to undergo the test.
             (2)  The test must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the test and must not involve:
                     (a)  removal of more clothing than is necessary for the conduct of the test; and
                     (b)  more visual inspection than is necessary for the conduct of the test.
             (3)  If practicable, the test must be conducted by a person of the same sex as the Customs worker directed to undergo the test.
             (4)  If a prohibited drug test requires a Customs worker to provide a sample of hair, the sample must be provided by cutting a strand of hair or removing a strand of hair by its root.
8  Record keeping
             (1)  This section applies to a record, including a body sample, that is relevant to a breath test, blood test or prohibited drug test conducted for section 16B, 16C or 16D of the Act.
             (2)  A body sample that indicates the presence of alcohol or prohibited drugs when tested must be:
                     (a)  kept in a secure location; and
                     (b)  destroyed no later than 2 years from the day the test was conducted.
             (3)  Any other record that indicates the presence of alcohol or prohibited drugs when tested must be:
                     (a)  kept in a secure location; and
                     (b)  destroyed as soon as practicable after the Customs worker to whom the record relates ceases, for any reason, to be a Customs worker.
             (4)  Despite subsections (2) and (3), information obtained from the analysis of a sample may be retained if:
                     (a)  it is used for compiling a statistical database; and
                     (b)  it does not include information that may be used to identify the Customs worker who provided the sample.
             (5)  Despite subsections (2) and (3), information obtained from the analysis of a sample may be retained if it is to be provided to an Agency as part of security vetting of the Customs worker to whom the record relates.
             (6)  A record that does not indicate the presence of alcohol or prohibited drugs when tested must be destroyed no later than 28 days after the day the test was conducted.
9  Disclosure of information
                   A person other than the Customs worker who provided a body sample may disclose information revealed by a breath test, blood test or prohibited drug test only:
                     (a)  if the information is already lawfully publicly known; or
                     (b)  in accordance with this Part; or
                     (c)  for the investigation of any offence or offences generally; or
                     (d)  to enable a conduct issue to be dealt with under the Public Service Act 1999 and to enable any action to be taken by the CEO in relation to the issue; or
                     (e)  for a decision whether to institute proceedings for an offence; or
                      (f)  for proceedings for an offence; or
                     (g)  for the Customs worker’s medical treatment; or
                     (h)  if the Customs worker consents in writing to the disclosure.
Division 2—Alcohol breath tests
10  Procedures to be followed
             (1)  An alcohol breath test for section 16C or 16D of the Act must be conducted using an approved device for the test.
             (2)  A Customs worker who is directed to undergo an alcohol breath test may ask the authorised person conducting the test to arrange for the Customs worker to also undergo an alcohol blood test.
             (3)  However, neither a request for an alcohol blood test to be conducted nor the conduct of an alcohol blood test absolves the Customs worker from the obligation to undergo an alcohol breath test.
             (4)  If the Customs worker asks that an alcohol blood test be conducted, the authorised person conducting the alcohol breath test must take all reasonable steps to contact a person authorised to conduct an alcohol blood test.
             (5)  A certificate that makes statements about a matter specified in subsection (6), and that is expressed to be given for this section, must be signed by the authorised person who conducted the test.
             (6)  The following matters are specified:
                     (a)  the type and serial number of the approved device used to conduct the alcohol breath test;
                     (b)  the sample number of the test;
                     (c)  the full name and date of birth of the Customs worker tested;
                     (d)  the full name of the authorised person who conducted the test;
                     (e)  whether the authorised person conducted a self‑test on the approved device before and after the analysis;
                      (f)  if the authorised person conducted a self‑test:
                              (i)  the time and result of the self‑test; and
                             (ii)  whether the self‑test was conducted on override mode;
                     (g)  the date on which, and the time at which, the alcohol breath test was conducted;
                     (h)  the result of the alcohol breath test as shown by the approved device.
11  Approval of courses
                   The CEO may, in writing, approve a training course in conducting alcohol screening tests and alcohol breath tests.
Division 3—Blood tests and prohibited drug tests of body samples other than urine
12  Application of Division 3
                   This Division applies to:
                     (a)  alcohol blood tests; and
                     (b)  prohibited drug tests of body samples other than urine.
13  Definitions for Division 3
                   In this Division:
analyst means a person at an accredited pathology laboratory who performs the quantification of a body sample taken by an authorised person.
unanalysed sample means a body sample submitted to an accredited pathology laboratory under paragraph 14(2)(a) for the purpose of making a sample available for independent testing.
14  Taking of body samples
             (1)  An authorised person taking a body sample for the purposes of an alcohol blood test or prohibited drug test must:
                     (a)  place approximately equal quantities of the sample into 2 containers; and
                     (b)  label each container for future identification; and
                     (c)  ensure that each container is sealed.
             (2)  If the authorised person is satisfied that the Customs worker from whom the sample was taken is incapable of understanding the procedures that have been applied to him or her, the authorised person must arrange for both sealed containers to be sent to an accredited pathology laboratory.
             (3)  If the authorised person is satisfied that the Customs worker from whom the sample was taken is capable of understanding the procedures that have been applied to him or her, the authorised person must:
                     (a)  give one sealed container to the Customs worker; and
                     (b)  arrange for the other sealed container to be sent to an accredited pathology laboratory.
15  Analysis of body samples
             (1)  An analyst at an accredited pathology laboratory must conduct an analysis of a portion of the body sample to determine:
                     (a)  the concentration of alcohol in the blood; or
                     (b)  whether the body sample contains a prohibited drug.
             (2)  If the first analysis of a portion of the sample indicates the presence of alcohol or a prohibited drug in the sample, an analysis of another portion of the sample must be conducted.
             (3)  If 2 containers were submitted to the accredited pathology laboratory under subsection 14(2), the sample for the second analysis must be taken from the same container from which the earlier sample was taken.
16  Certificates
             (1)  As soon as practicable after an analysis is conducted, the analyst who conducted the analysis of the body sample for an alcohol blood test or prohibited drug test must give a certificate to:
                     (a)  the Customs worker who provided the sample; and
                     (b)  the authorised person who directed that the Customs worker undergo the test.
             (2)  The certificate must state the following information:
                     (a)  the full name of the Customs worker;
                     (b)  the date when the sample was taken;
                     (c)  the date when the sample was received in the accredited pathology laboratory for analysis;
                     (d)  the accredited pathology laboratory identification number of the sample;
                     (e)  the date when the analysis was conducted;
                      (f)  the results of the analysis;
                     (g)  the name of the analyst who conducted the analysis;
                     (h)  any observations made during the course of the analysis which may have affected test results.
             (3)  If 2 containers were submitted to the accredited pathology laboratory under subsection 14(2), the certificate must also inform the Customs worker that he or she may:
                     (a)  collect the unanalysed sample from the laboratory within 6 months after the sample was taken; and
                     (b)  have the sample independently tested by another accredited pathology laboratory.
             (4)  The certificate must be signed by the analyst who conducted the analysis.
17  Disputed results
             (1)  If the results of an analysis are disputed by the Customs worker who provided the sample, and 2 containers were submitted to the accredited pathology laboratory under subsection 14(2):
                     (a)  the unanalysed sample must be made available for independent testing; and
                     (b)  all records of the original test must be made available for re‑examination.
             (2)  Because of possible degradation of the body sample over time, re‑testing need only detect the presence of alcohol or a prohibited drug.
Division 4—Prohibited drug tests using urine samples
18  Procedures to be followed
                   The provision, and the analysis, of a urine sample for the purposes of a prohibited drug test must be in accordance with the Australian/New Zealand Standard AS/NZS 4308—2001 “Procedures for the collection, detection and quantitation of drugs of abuse in urine”, as at 29 March 2001.
19  Approval of courses
                   The CEO may, in writing, approve a training course in supervising the provision of urine samples.