Maritime Transport Amendment Bill

  • enacted
6 New Part 4B inserted

After Part 4A, insert:

Part 4B Drug and alcohol management plans and testing

40X Health and Safety at Work Act 2015 not limited by this Part

This Part does not limit the Health and Safety at Work Act 2015.

40Y Interpretation

In this Part, unless the context otherwise requires,

bodily sample means any of the following:

(a)

biological fluid:

(b)

biological tissue (whether living or not):

(c)

breath

DAMP means a drug and alcohol management plan developed under section 40Z

DAMP operator means a person

(a)

who operates a ship other than a pleasure craft; and

(b)

who holds a maritime document for operating that ship; and

(c)

who has established a prescribed safety system; and

(d)

the operation of whose ship requires the carrying out of 1 or more safety-sensitive activities

Director testing means drug or alcohol testing carried out by the Director under section 40ZC

drug or alcohol test means

(a)

a test of a person’s bodily sample to determine the presence, but not the level, of alcohol or a testable drug (or both) in the sample; or

(b)

a test of a person’s bodily sample to determine the presence and the level of alcohol or a testable drug (or both) in the sample

negative result, in relation to a drug or alcohol test, means that the test reveals

(a)

that alcohol or a testable drug (or both) is not present in the bodily sample; or

(b)

if the DAMP specifies a level of alcohol or a testable drug in relation to a test, that alcohol or a testable drug (or both) is not present in the body at the specified level

prescribed safety system means a safety management system that is

(a)

required by the maritime rules for the purposes of section 17(4)(a); and

(b)

prescribed by the maritime rules for the purposes of this Part

random testing means drug or alcohol testing of a safety-sensitive worker by a DAMP operator under section 40ZB, where the worker

(a)

is selected for testing in a way that is non-discriminatory; and

(b)

is not given advance notification of the testing

response plan means that part of a DAMP that is concerned with actions taken by the DAMP operator in relation to a safety-sensitive worker who refuses to consent to a drug or alcohol test or whose test returns a result other than a negative result, and includes reasonable arrangements and processes developed by the DAMP operator for

(a)

prohibiting the worker from performing a safety-sensitive activity; and

(b)

permitting the worker to resume performing safety-sensitive activities, if the worker can do so safely

safety-sensitive activity

(a)

means an activity that could significantly affect the health or safety of any person on board a ship, including the person performing the activity; and

(b)

includes an activity prescribed by or under the maritime rules

safety-sensitive worker

(a)

means an individual who carries out work in any capacity for a DAMP operator in a role that involves the worker performing a safety-sensitive activity; and

(b)

includes the DAMP operator, if the DAMP operator is an individual

testable drug, in relation to a DAMP developed by a DAMP operator, means a drug of any kind that

(a)

could impair a safety-sensitive worker’s performance of a safety-sensitive activity; and

(b)

is specified in the DAMP as a drug for which testing must be carried out under this Part.

40Z DAMP operator must develop DAMP

(1)

A DAMP operator must develop a DAMP for the purpose of managing risks to the health and safety of persons on board the operator’s ship arising from drug or alcohol use by safety-sensitive workers of the DAMP operator.

(2)

A DAMP operator must ensure that a DAMP

(a)

is incorporated into the prescribed safety system established by the operator; and

(b)

applies to all safety-sensitive activities; and

(c)

provides for random testing of safety-sensitive workers, including by

(i)

specifying the testable drugs to be tested for under the DAMP; and

(ii)

setting out procedures and other matters (including any permissible levels of alcohol or a testable drug) in relation to the testing; and

(d)

includes a response plan; and

(e)

complies with any further requirements in or under the maritime rules, including requirements for

(i)

the content of the DAMP; and

(ii)

procedures for developing the DAMP; and

(iii)

record-keeping.

40ZA Relationship between DAMP and DAMP operator’s maritime document

(1)

It is a condition of the maritime document held by a DAMP operator for operating a ship that the DAMP operator must comply with all requirements under this Part in relation to that ship.

(2)

For the purpose of section 17(1), a DAMP prepared by a DAMP operator is a document that must be held in connection with the maritime document that is held by the DAMP operator for operating a ship.

40ZB Random testing by DAMP operator

(1)

A DAMP operator must ensure that random testing of safety-sensitive workers is carried out.

(2)

Random testing may be carried out only if the worker consents to be tested.

(3)

The DAMP operator must ensure that a person who carries out random testing is competent to carry out the testing, including by having any necessary experience or qualifications.

(4)

The person who carries out the testing must

(a)

request the worker’s consent before testing the worker; and

(b)

explain to the worker the consequences of refusing consent; and

(c)

carry out tests in accordance with the DAMP and any requirements in the maritime rules.

40ZC Director testing

(1)

The Director may carry out drug or alcohol testing of 1 or more safety-sensitive workers of a DAMP operator.

(2)

Director testing

(a)

must be carried out without giving advance notification to the DAMP operator or to the workers selected for testing; and

(b)

may be carried out at any reasonable time and in any reasonable circumstances the Director considers appropriate; and

(c)

may be carried out only if the worker consents to be tested; and

(d)

must be carried out by a person who is competent to carry out the testing, including by having any necessary experience or qualifications.

(3)

When carrying out Director testing, the Director must

(a)

carry a document that states

(i)

the name and contact details of the person carrying out the test; and

(ii)

an explanation of the statutory power to carry out the test; and

(iii)

any other matter prescribed by the maritime rules; and

(b)

show the document to the worker on first approaching the worker and at any later time on request; and

(c)

ask for the worker’s name; and

(d)

ask for the worker’s consent before testing the worker; and

(e)

give the worker a written statement that contains the information and other matters set out in subsection (4); and

(f)

carry out a test or tests only in relation to

(i)

alcohol and the testable drugs specified in the DAMP; and

(ii)

the permissible levels (if any) for alcohol or testable drugs specified in the DAMP.

(4)

The statement required under subsection (3)(e) must contain the following:

(a)

the matters set out in the document referred to in subsection (3)(a):

(b)

the purpose of the test:

(c)

a general description of how the test will be carried out, including how the bodily sample will be taken and how it will be analysed:

(d)

an explanation of the consequences of refusing to consent or of the worker’s test returning a result other than a negative result:

(e)

advice that the worker will be informed of the result of the test (and approximately when this will happen):

(f)

advice about the worker’s right to appeal under section 424 against the decision to test the worker:

(g)

advice about the worker’s right to request a second test under section 40ZE and any charge for carrying out a second test.

(5)

As soon as practicable after the Director becomes aware of the result of a test, the Director must give the test result to the worker tested and the DAMP operator.

(6)

A safety-sensitive worker who has been tested or selected for testing under this section may appeal against the decision to test that worker to the District Court under section 424.

40ZD What happens if worker refuses consent or test result is not negative

(1)

A safety-sensitive worker who has been selected for random testing or Director testing may refuse to consent to the testing.

(2)

If a worker refuses to consent to random testing or is tested and returns a result other than a negative result, or if the Director notifies the DAMP operator under subsection (3), the DAMP operator must

(a)

prohibit the worker from performing safety-sensitive activities until the worker is able to safely perform those activities; and

(b)

implement the response plan.

(3)

If a worker refuses to consent to Director testing or is tested and returns a result other than a negative result, the Director must notify the worker’s DAMP operator of that fact as soon as practicable.

40ZE Worker may request second Director test

(1)

A worker who has undergone Director testing may, immediately after the test is carried out, ask the Director to carry out a second test for the same substance by the same method.

(2)

The Director must carry out a second test requested under this section.

40ZF Test results to be used in civil proceedings and certain prosecutions

Test results obtained by a DAMP operator from carrying out random testing are not admissible in any criminal proceedings other than the prosecution of an offence against any of the following:

(a)

this Act:

(b)

the Health and Safety at Work Act 2015:

(d)

the Hazardous Substances and New Organisms Act 1996.

Part 4B Drug and alcohol testing by Director

40X Health and Safety at Work Act 2015 not limited by this Part

This Part does not limit the Health and Safety at Work Act 2015.

40Y Interpretation

In this Part, unless the context otherwise requires,

bodily sample means any of the following:

(a)

biological fluid:

(b)

biological tissue (whether living or not):

(c)

breath

Director testing means drug or alcohol testing carried out by the Director under section 40Z

drug or alcohol test means

(a)

a test of a person’s bodily sample to determine the presence, but not the level, of alcohol or a testable drug (or both) in the sample; or

(b)

a test of a person’s bodily sample to determine the presence and the level of alcohol or a testable drug (or both) in the sample

negative result, in relation to a drug or alcohol test, means that the test reveals

(a)

that alcohol or a testable drug (or both) is not present in the bodily sample; or

(b)

if the Director, in carrying out Director testing, applies the permissible level of alcohol or a testable drug prescribed by the maritime rules, that alcohol or a testable drug is not present in the body at that specified level; or

(c)

if the Director, in carrying out Director testing, applies the permissible level of alcohol or a testable drug specified in the operator’s safety system, that alcohol or a testable drug is not present in the body at that specified level

operator means an operator who

(a)

operates a ship other than a pleasure craft; and

(b)

holds a maritime document for operating that ship; and

(c)

is required by maritime rules to establish and follow a management system for the purposes of section 17(4)(a)

safety-sensitive activity

(a)

means an activity that could significantly affect the health or safety of any person on board a ship, including the person performing the activity; and

(b)

includes an activity prescribed by the maritime rules

safety-sensitive worker

(a)

means an individual who carries out work in any capacity for an operator in a role that involves the worker performing a safety-sensitive activity; and

(b)

includes the operator, if the operator is an individual

safety system means the management system referred to in paragraph (c) of the definition of operator in this section

testable drug

(a)

means a drug that could impair a safety-sensitive worker’s performance of a safety-sensitive activity; and

(b)

includes a drug prescribed by the maritime rules; and

(c)

may include, for the purposes of section 40Z(4)(a), a drug specified in the operator’s safety system as a drug for which testing may be carried out.

40Z Director testing

(1)

The Director may carry out drug or alcohol testing of 1 or more safety-sensitive workers of an operator.

(2)

Director testing

(a)

must be carried out in relation to alcohol and testable drugs; and

(b)

may be carried out without giving advance notification to the operator or to the workers selected for testing; and

(c)

may be carried out at any reasonable time and in any reasonable circumstances the Director considers appropriate; and

(d)

may be carried out only if the worker consents to be tested; and

(e)

must be carried out by a person who is competent to carry out the testing, including by having any necessary experience or qualifications.

(3)

Subject to this section, Director testing must be carried out in accordance with the maritime rules.

(4)

If the operator’s safety system includes a scheme for carrying out drug and alcohol testing of safety-sensitive workers, Director testing may, at the Director’s discretion, be carried out in relation to the testable drugs and the permissible levels of alcohol and testable drugs

(a)

specified in the safety system; or

(b)

prescribed by the maritime rules.

(5)

When carrying out Director testing, the Director must

(a)

carry a document that states

(i)

the name and contact details of the person carrying out the test; and

(ii)

an explanation of the statutory power to carry out the test; and

(iii)

any other matter prescribed by the maritime rules; and

(b)

show the document to the worker on first approaching the worker and at any later time on request; and

(c)

take reasonable steps to establish the identity of a worker who is to be tested; and

(d)

ask for the worker’s consent before testing the worker; and

(e)

give the worker a written statement that contains the information and other matters set out in subsection (6).

(6)

The statement required under subsection (5)(e) must contain the following:

(a)

the matters set out in the document referred to in subsection (5)(b):

(b)

the purpose of the test:

(c)

a general description of how the test will be carried out, including how the bodily sample will be taken and how it will be analysed:

(d)

an explanation of the consequences of refusing to consent or of the worker’s test returning a result other than a negative result:

(e)

advice that the worker will be informed of the result of the test (and approximately when this will happen):

(f)

advice about the worker’s right to appeal to the District Court under section 424 against the decision to test the worker:

(g)

advice about the worker’s right to request a second test under section 40ZA and any charge for carrying out a second test.

(7)

As soon as practicable after the Director becomes aware of the result of a test, the Director must give the test result to the worker tested and the operator.

(8)

A safety-sensitive worker who has been tested or selected for testing under this section may appeal against the decision to test that worker to the District Court under section 424.

40ZA Worker may request second Director test

(1)

A worker who has undergone Director testing may, immediately after the test is carried out, ask the Director to carry out a second test for the same substance by the same method.

(2)

The Director must carry out a second test requested under this section.

(3)

If a second test is carried out under subsection (2),

(a)

that second test and its results replace the first test and its results for the purposes of this Part; but

(b)

subsections (1) and (2) do not apply so as to require a further test.

40ZB What happens if worker refuses consent or test result is not negative

(1)

A safety-sensitive worker who has been selected for Director testing may refuse to consent to the testing.

(2)

If a worker refuses to consent to Director testing or is tested and returns a result other than a negative result, the Director must notify the operator for whom the worker carries out work of that fact as soon as practicable.

(3)

If the Director notifies the operator under subsection (2), the operator must prohibit the worker from performing safety-sensitive activities until the operator reasonably believes that the worker is able to safely perform those activities.

(4)

Subsection (3)

(a)

applies regardless of any scheme for carrying out drug and alcohol testing of safety-sensitive workers in the operator’s safety system; but

(b)

does not in any other way limit the operation of that scheme.

40ZC Use of test results in criminal proceedings

Test results obtained from Director testing are not admissible in any criminal proceedings other than the prosecution of an offence against any of the following:

(a)

this Act:

(b)

the Health and Safety at Work Act 2015:

(c)

the Hazardous Substances and New Organisms Act 1996.