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Australian Border Force Bill 2015

Part 5 Alcohol and drug tests

   

33   Simplified outline of this Part

•      Immigration and Border Protection workers may be required to undergo an alcohol screening test, an alcohol breath test, an alcohol blood test or a prohibited drug test.

34   Alcohol screening test—suspicion that Immigration and Border Protection worker under the influence of alcohol

             (1)  An authorised person may require an Immigration and Border Protection worker to undergo an alcohol screening test if:

                     (a)  the worker is in the course of performing his or her duties as an Immigration and Border Protection worker; and

                     (b)  the authorised person reasonably suspects that the worker is under the influence of alcohol.

Compliance with requirement

             (2)  The worker must comply with a requirement given to him or her under subsection (1).

Note 1:       See subsection 13(4) and sections 15, 28 and 29 of the Public Service Act 1999 for the consequences of an APS employee in the Department not complying with subsection (2) of this section.

Note 2:       See section 57 of this Act for the termination of a person’s engagement as a consultant or contractor, or for the arranging of a person to cease to perform services for the Department, if the person does not comply with subsection (2) of this section.

Return to duties

             (3)  If the result of the alcohol screening test shows that alcohol is not present in the worker’s breath, he or she may return to his or her duties immediately.

Relationship with section 35

             (4)  This section does not limit section 35.

35   Alcohol screening, breath or blood test or prohibited drug test—general

             (1)  An authorised person may give an Immigration and Border Protection worker who is in the course of performing his or her duties as an Immigration and Border Protection worker a written direction requiring the worker to do one or more of the following:

                     (a)  undergo an alcohol screening test;

                     (b)  undergo an alcohol breath test;

                     (c)  provide a body sample of a kind specified in the direction for a prohibited drug test.

Blood sample if alcohol breath test indicates presence of alcohol

             (2)  If:

                     (a)  the worker undergoes an alcohol breath test in accordance with a direction under subsection (1); and

                     (b)  the alcohol breath test indicates the presence of alcohol;

the worker may provide a sample of his or her blood for the purpose of an alcohol blood test.

Compliance with direction

             (3)  An Immigration and Border Protection worker must comply with a direction given to him or her under this section.

Note 1:       See subsection 13(4) and sections 15, 28 and 29 of the Public Service Act 1999 for the consequences of an APS employee in the Department not complying with subsection (3) of this section.

Note 2:       See section 57 of this Act for the termination of a person’s engagement as a consultant or contractor, or for the arranging of a person to cease to perform services for the Department, if the person does not comply with subsection (3) of this section.

36   Alcohol screening, breath or blood test or prohibited drug test—certain incidents

             (1)  An authorised person may give an Immigration and Border Protection worker a written direction requiring the worker to do one or more of the following if subsection (2) or (3) applies:

                     (a)  undergo an alcohol screening test;

                     (b)  undergo an alcohol breath test;

                     (c)  provide a body sample of a kind specified in the direction for a prohibited drug test.

Person killed or seriously injured in an incident involving a motor vehicle or vessel or while detained

             (2)  This subsection applies if:

                     (a)  one of the following applies:

                              (i)  a person is killed or seriously injured as a result of an incident involving a motor vehicle or vessel;

                             (ii)  an incident occurs in which a person is killed or seriously injured while the person is held in custody in relation to an arrest under the Customs Act 1901 , the Migration Act 1958 or the Maritime Powers Act 2013 or otherwise detained under any of those Acts;

                            (iii)  an incident occurs in which a person is killed or seriously injured while the person is an unauthorised maritime arrival and is being taken to a regional processing country under section 198AD of the Migration Act 1958 ; and

                     (b)  the worker is directly involved in the incident in the course of performing his or her duties as an Immigration and Border Protection worker.

Person killed or seriously injured by a firearm discharging or physical force

             (3)  This subsection applies if:

                     (a)  all of the following apply:

                              (i)  the worker is an officer authorised to carry arms within the meaning of section 189A of the Customs Act 1901 ;

                             (ii)  an incident occurs in which a person is killed or seriously injured as a result of the discharge of a firearm by the worker;

                            (iii)  the incident occurs in the course of the worker performing his or her duties as an Immigration and Border Protection worker; or

                     (b)  both of the following apply:

                              (i)  an incident occurs in which a person is killed or seriously injured as a result of the application of physical force by the worker;

                             (ii)  the incident occurs in the course of the worker performing his or her duties as an Immigration and Border Protection worker.

Direction to be given as soon as practicable after the incident

             (4)  A direction under subsection (1) must be given as soon as practicable after the incident concerned and may be given whether or not the worker is still performing his or her duties as an Immigration and Border Protection worker.

Provision of blood or body sample while in hospital

             (5)  If:

                     (a)  an Immigration and Border Protection worker is involved in an incident referred to in subsection (2) or (3); and

                     (b)  the worker attends or is admitted to a hospital for examination or treatment because of the incident;

an authorised person may give the worker a written direction requiring the worker to do either or both of the following:

                     (c)  provide a sample of his or her blood for the purpose of an alcohol blood test;

                     (d)  provide a body sample of a kind specified in the direction for a prohibited drug test.

Compliance with direction

             (6)  An Immigration and Border Protection worker must comply with a direction given to him or her under this section.

Note 1:       See subsection 13(4) and sections 15, 28 and 29 of the Public Service Act 1999 for the consequences of an APS employee in the Department not complying with subsection (6) of this section.

Note 2:       See section 57 of this Act for the termination of a person’s engagement as a consultant or contractor, or for the arranging of a person to cease to perform services for the Department, if the person does not comply with subsection (6) of this section.

37   Performing duties on board a vessel

                   If:

                     (a)  an Immigration and Border Protection worker is on board a vessel throughout a period (the onboard period ); and

                     (b)  the vessel is under the command of an officer of Customs (within the meaning of the Customs Act 1901 ); and

                     (c)  at any time during the onboard period, the worker performs duties as an Immigration and Border Protection worker;

the worker is taken, for the purposes of this Part, to be in the course of performing his or her duties as an Immigration and Border Protection worker throughout the onboard period.

38   Conduct of tests and provision of samples to be in accordance with the rules

Conduct of tests

             (1)  An alcohol screening test, alcohol breath test, alcohol blood test or prohibited drug test under section 34, 35 or 36 is to be conducted in accordance with the rules.

Provision of samples

             (2)  A sample of blood for the purpose of an alcohol blood test under section 35 or 36, or a body sample for the purpose of a prohibited drug test under that section, is to be provided in accordance with the rules.

39   Rules for purposes of this Part

                   For the purposes of sections 34, 35 and 36, the rules may make provision for and in relation to the following:

                     (a)  the authorisation of persons:

                              (i)  to conduct alcohol screening tests, alcohol breath tests, alcohol blood tests or prohibited drug tests for the purpose of those sections; and

                             (ii)  to operate equipment for that purpose;

                     (b)  the provision of samples of blood for the purpose of alcohol blood tests under those sections;

                     (c)  the provision of body samples for the purpose of prohibited drug tests under those sections;

                     (d)  the conduct of alcohol screening tests, alcohol breath tests, alcohol blood tests or prohibited drug tests under those sections;

                     (e)  the devices used in conducting alcohol screening tests, alcohol breath tests, alcohol blood tests or prohibited drug tests under those sections, including the calibration, inspection and testing of those devices;

                      (f)  in the case of alcohol blood tests and prohibited drug tests—the accreditation of persons to conduct analyses in connection with such tests;

                     (g)  the procedure for the handling, analysis, storage and destruction of:

                              (i)  samples of blood taken in connection with alcohol blood tests under those sections; or

                             (ii)  body samples taken in connection with prohibited drug tests under those sections;

                     (h)  the giving of the test results in certificates or other documents and the evidentiary effect of such certificates or other documents;

                      (i)  the confidentiality and disclosure of the test results;

                      (j)  the keeping and destruction of records in relation to alcohol screening tests, alcohol breath tests, alcohol blood tests or prohibited drug tests under those sections.

40   Admissibility of test results etc. in legal proceedings

                   The following:

                     (a)  a certificate or other document recording the results of a test conducted under section 34, 35 or 36 in relation to an Immigration and Border Protection worker;

                     (b)  any other information, answer to a question or document relevant to conducting such a test;

are not admissible in evidence against the worker in any proceedings other than the following:

                     (c)  proceedings in relation to a decision of the Secretary to terminate the employment or engagement of the worker;

                     (d)  proceedings under the Safety, Rehabilitation and Compensation Act 1988 ;

                     (e)  proceedings in tort against the Commonwealth that are instituted by the worker.