Proposed amendments
Hon Julie Anne Genter, in Committee, to move the following amendments:
Clause 4
Delete clause 4 (page 4, lines 3 to 7).
Clause 5
In clause 5, replace new section 36(1)(ea)(i) to (vi) (page 4, lines 12 to 20) with:
(i)
the prescribing of safety-sensitive activities; and
(ii)
a scheme for carrying out drug and alcohol testing of safety-sensitive workers, including the prescribing of—
(B)
permissible levels of alcohol or testable drugs for testing purposes; and
(C)
testing processes and procedures; and
(iii)
the prescribing of matters to be stated in a document under section 40Z(5)(a)(iii); and
(iv)
record keeping by operators and the Director:
Clause 6
In clause 6, replace new Part 4B (page 4, line 23 to page 9, line 21) with:
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:
(b)
biological tissue (whether living or not):
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
(b)
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):
(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:
(b)
the Health and Safety at Work Act 2015:
(c)
the Hazardous Substances and New Organisms Act 1996.
Clause 7
Delete clause 7 (page 9, lines 22 to 24).
New clause 7A
Before clause 8 (page 9, before line 28), insert:
7A New section 2A inserted (Transitional, savings, and related provisions)
After section 2, insert:
2A Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.
Clause 28
Replace clause 28 (page 15, line 28 to page 16, line 13) with:
28 New Schedule 1AA inserted
Insert the Schedule 1AA set out in Schedule 1 of this Act as the first schedule to appear after the last section of the principal Act.
Clause 34
Delete clause 34 (page 18, line 34 to page 19, line 14).
Schedule 1
In the Schedule 1 heading, replace “s 7”
(page 20, line 3) with “s 28”
.
In Schedule 1, new Schedule 1AA, replace clauses 1 to 6 (page 20, line 9 to page 21, line 29) with:
1 Interpretation
In this Part, commencement date means the date on which Part 2 of the Maritime Transport Amendment Act 2017 comes into force under section 2(1) of that Act.
2 Amendments apply to pollution damage occurring after commencement
The amendments made by Part 2 of the Maritime Transport Amendment Act 2017 apply in relation to pollution damage only if that damage is caused by or results from an escape or a discharge of oil from a ship that occurs on or after the commencement date.
3 References to Maritime Transport (Fund Convention) Levies Order 1996
Every reference in any enactment or document to the Maritime Transport (Fund Convention) Levies Order 1996 must, unless the context otherwise requires, be read as a reference to the Maritime Transport (International Oil Pollution Compensation Levies) Order 1996.