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Contents (2008 - 376)
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Crimes (Administration of Sentences) Regulation 2008
Repealed version for 11 April 2014 to 31 August 2014 (accessed 6 April 2020 at 16:24)
Chapter 9 Part 9.2 Division 3
Division 3 Testing of members of correctional staff
270   Testing correctional staff
(1)  A member of correctional staff may be tested under Division 5 of Part 11 of the Act whether or not there is any suspicion that the staff member has recently consumed alcohol or used a prohibited drug.
(2)  The result of any such test may be used for the purposes of any disciplinary procedure.
271   General rules for the provision or taking of certain samples
(1)  In this clause, a reference to a non-invasive sample includes a reference to a sample of breath taken by breath test or breath analysis.
(2)  An authorised person who requires a member of correctional staff to provide, or enable to be taken, a non-invasive sample from the staff member under Division 5 of Part 11 of the Act must specify the type of non-invasive sample to be provided or taken.
(3)  The non-invasive sample so provided or taken must be of the type of non-invasive sample required by the authorised person.
(4)  The staff member may not elect which type of non-invasive sample is provided, or enabled to be taken.
(5)  A non-invasive sample provided by or taken from a member of correctional staff under Division 5 of Part 11 of the Act:
(a)  must be provided or taken in circumstances affording reasonable privacy to the staff member, except as permitted (expressly or impliedly) by any other provision of the Act or this Regulation, and
(b)  must not be provided or taken in the presence or view of a person whose presence is not necessary for the purposes of the provision or taking of the non-invasive sample or required or permitted by another provision of the Act or this Regulation, and
(c)  must not involve the removal of more clothing than is necessary for providing or taking the non-invasive sample, and
(d)  must not involve more visual inspection than is necessary for providing or taking the non-invasive sample.
(6)  All non-invasive samples provided by or taken from a member of correctional staff under Division 5 of Part 11 of the Act are to be provided or taken in a manner consistent with appropriate medical or other relevant professional standards, with due regard to the dignity and self-respect of the staff member and in as seemly a manner as is consistent with the effective provision or taking of the non-invasive sample.
(7)  An authorised person is authorised to take a sample of hair of a member of correctional staff by removing the root of the hair only if:
(a)  the authorised person takes only so much hair as the person believes is necessary for analysis of the sample to be carried out for the purposes of Division 5 of Part 11 of the Act, and
(b)  strands of hair are taken using the least painful technique known and available to the authorised person.
272   Breath testing and breath analysis of members of correctional staff
(1)  As soon as practicable after a member of correctional staff has undergone a breath test under Division 5 of Part 11 of the Act, the authorised person who conducted the breath test must deliver to the staff member a statement in writing signed by the authorised person specifying:
(a)  the concentration of alcohol determined by the breath test to be present in the staff member’s breath and expressed in grams of alcohol per 210 litres of breath (or its equivalent in grams of alcohol per 100 millilitres of blood), and
(b)  the day on which and time of the day at which the breath test was completed.
(2)  An authorised person may require a member of correctional staff to submit to a breath analysis in accordance with the directions of the authorised person, if:
(a)  it appears to the authorised person as a result of a breath test under Division 5 of Part 11 of the Act that the prescribed concentration of alcohol may be present in the staff member’s breath, or
(b)  the staff member refuses or fails to undergo a breath test under Division 5 of Part 11 of the Act in accordance with the directions of the authorised person when requested to do so by the authorised person.
(3)  As soon as practicable after a member of correctional staff has submitted to a breath analysis the authorised person operating the breath analysing instrument must deliver to the staff member a statement in writing signed by the authorised person specifying:
(a)  the concentration of alcohol determined by the analysis to be present in the staff member’s breath and expressed in grams of alcohol per 210 litres of breath (or its equivalent in grams of alcohol per 100 millilitres of blood), and
(b)  the day on which and time of the day at which the breath analysis was completed.
(4)  A member of correctional staff who is required to undergo a breath test or submit to a breath analysis may request the authorised person making the requisition to arrange for the taking (in the presence of an authorised person) of a sample of the staff member’s blood for analysis, at the staff member’s own expense, by:
(a)  a medical practitioner nominated by the staff member, or
(b)  a medical practitioner nominated by the authorised person at the staff member’s request, or
(c)  a pathology specimen collector at a collection centre nominated by the staff member, or
(d)  a pathology specimen collector at a collection centre nominated by the authorised person at the staff member’s request.
(5)  The making of any such request or the taking of a sample of a member of correctional staff’s blood does not absolve the staff member from the obligation imposed on the staff member to undergo a breath test or submit to a breath analysis in accordance with this clause.
(6)  In this clause, collection centre means a pathology collection centre that is operated by, or in connection with, a pathology laboratory that is accredited by the National Association of Testing Authorities.
273   Restrictions on requiring breath test, breath analysis or non-invasive sample
An authorised person must not require a member of correctional staff to undergo a test under Division 5 of Part 11 of the Act:
(a)  if the staff member has been admitted to a hospital for medical treatment, unless the medical practitioner who attends the staff member at the hospital (or, if no medical practitioner is present to attend the staff member, a registered nurse who is accredited by a hospital as competent to perform the sampling procedures) has been notified of the intention to make the requisition and the medical practitioner or registered nurse does not object on the ground that compliance would be prejudicial to the proper care or treatment of the staff member, or
(b)  if it appears to the authorised person that it would (because of injuries sustained by the staff member) be dangerous to the staff member’s medical condition if the staff member complied with the requisition, or
(c)  in the case of a requirement for a test for the purpose of testing for the presence or concentration of alcohol, at any time after the expiration of 3 hours from the latest of the time the staff member last presented for duty, the staff member was last involved in an incident referred to in section 236F (3) of the Act (if such an incident occurred) or the staff member last ceased to be on duty, or
(d)  in the case of a requirement for a test for the purpose of testing for the presence of a prohibited drug, at any time after the expiration of 24 hours from the latest of the time the staff member last presented for duty, the staff member was last involved in an incident referred to in section 236F (3) of the Act (if such an incident occurred) or the staff member last ceased to be on duty, or
(e)  at the staff member’s home.
274   Action to be taken with respect to blood samples
(1)  A medical practitioner or registered nurse by whom a sample of a member of correctional staff’s blood is taken under Division 5 of Part 11 of the Act must:
(a)  if the staff member requests a part of the sample or if the staff member is not capable of requesting a part of the sample, divide the sample into 2 approximately equal portions, and
(b)  place the sample or each portion of the sample into a separate container, and
(c)  fasten and seal each container, and
(d)  mark or label each container for future identification.
(2)  Of the sealed containers:
(a)  one container must, as soon as reasonably practicable thereafter, be transported to an approved laboratory for analysis by an analyst in accordance with subclause (4), and must be stored at that laboratory on behalf of the Commissioner, and
(b)  the other container must:
(i)  if the staff member has requested a part of the sample, be given to the staff member, or
(ii)  if the staff member is not capable of requesting a part of the sample as referred to in subclause (1), as soon as reasonably practicable thereafter, be transported to the approved laboratory to which the container referred to in paragraph (a) was sent and must be stored at that laboratory on behalf of the Commissioner.
(3)  If a staff member was not capable of requesting a part of the sample as referred to in subclause (1), the staff member may, within 12 months after the taking of the sample, apply to the laboratory referred to in subclause (2) for the container referred to in subclause (2) (b) (ii) to be sent, for analysis (at the staff member’s own expense) of the portion of the sample in that container, to a medical practitioner or laboratory nominated by the staff member.
(4)  The authorised person may arrange for the analyst to:
(a)  determine whether the sample contains alcohol, and if so, the concentration of alcohol, or
(b)  determine whether the sample contains a prohibited drug, or
(c)  determine whether the sample contains alcohol, and if so, the concentration of alcohol and determine whether the sample also contains a prohibited drug.
275   Action to be taken with respect to non-invasive samples
(1)  A person who is provided with a non-invasive sample under Division 5 of Part 11 of the Act from a member of correctional staff or who takes a non-invasive sample from a member of correctional staff must:
(a)  if the staff member requests a part of the sample or if the staff member is not capable of requesting a part of the sample, divide the sample into 2 approximately equal portions or, if the sample cannot be so divided, immediately require and immediately be provided with or take, a further sample of the same type of biological material, and
(b)  place each portion (or if 2 samples of the same type of biological material were provided or taken, each sample) into a container, and
(c)  fasten and seal each container, and
(d)  mark or label each container for future identification.
(2)  Of the sealed containers:
(a)  one container must, as soon as reasonably practicable thereafter, be transported to an approved laboratory for analysis by an analyst in accordance with subclause (4), and must be stored at that laboratory on behalf of the Commissioner, and
(b)  the other container must:
(i)  if the staff member has requested a part of the sample, be given to the staff member, or
(ii)  if the staff member is not capable of requesting a part of the sample, as soon as reasonably practicable thereafter, be transported to the approved laboratory to which the container referred to in paragraph (a) was sent and must be stored at that laboratory on behalf of the Commissioner.
(3)  If a staff member was not capable of requesting a part of the sample as referred to in subclause (1), the staff member may, within 12 months after the taking of the sample, apply to the laboratory referred to in subclause (2) for the container referred to in subclause (2) (b) (ii) to be sent, for analysis (at the staff member’s own expense) of the sample, or the portion of the sample, in that container, to a medical practitioner or laboratory nominated by the staff member.
(4)  The authorised person may arrange for the analyst:
(a)  if the non-invasive sample was provided or taken under section 236G of the Act, to determine whether the sample indicates that the staff member’s blood, by whom the sample was provided or from whom the sample was taken, contained alcohol, and if so, the concentration of alcohol in the staff member’s blood or determine whether the sample contains a prohibited drug, or
(b)  if the non-invasive sample was provided or taken under section 236F of the Act, to determine whether the sample contains a prohibited drug.
(5)  In the case of samples of urine, any sealed containers referred to in subclause (2) must be handled in accordance with the procedure set out in AS/NZS 4308 or any other procedure approved by the Commissioner in that regard.
276   Analysis of samples
(1)  An analyst to whom a portion of a sample of blood or a non-invasive sample is submitted for analysis under clause 274 or 275 may carry out an analysis in accordance with the arrangement made by the authorised person under clause 274 (4) or clause 275 (4), as the case may be.
(2)  The analysis must be carried out, and a report provided, in accordance with:
(a)  AS/NZS 4308, except as provided by paragraph (b), or
(b)  such other procedure as may be directed by the Commissioner.