Rail Safety National Law Application Act 2024 (WA)

Western Australia Rail Safety National Law Application Act 2024 Western Australia Rail Safety National Law Application Act 2024 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 4. Act binds Crown 1 Part 2 — Rail Safety National Law Division 1 — Application of Rail Safety National Law 5. Application of National Law as law of the State 1 6. Commencement of National Law as law of the State 1 7. Tabling amending Acts 1 8. Disallowance of amending Acts 1 9. Commencement of provisions of amending Acts 1 10. Amending Acts enacted after 20 June 2023 but before commencement day 1 11. Tabling of amending Act taken to be publication for Standing Orders 1 Division 2 — Application of Rail Safety National Regulations 12. Application of National Regulations as subsidiary legislation 1 13. National Regulations made under amending Act provision 1 14. National Regulations made under or for purposes of amending Act 1 15. Publication of National Regulations 1 16. Tabling and disallowance of National Regulations 1 17. Interpretation Act 1984 s. 41 and 42 do not apply to Rail Safety National Regulations (WA) 1 Division 3 — Miscellaneous 18. Meaning of generic terms in Rail Safety National Law (WA) for purposes of this jurisdiction 1 19. No double jeopardy 1 20. Exclusion of legislation of this jurisdiction 1 Part 3 — Local provisions for alcohol and drug testing Division 1 — Preliminary 21. Terms used 1 22. Using breath sample to work out blood alcohol content 1 Division 2 — Alcohol testing 23. Power to require rail safety worker to submit to preliminary breath test or breath analysis 1 24. When preliminary breath test or breath analysis may be required 1 25. When rail safety worker is not obliged to comply with requirement 1 26. When authorised person must not require rail safety worker to submit to breath test 1 27. Conduct of breath analysis 1 28. Further breath analysis 1 29. Breath analysis indicates prescribed BAC 1 Division 3 — Drug testing 30. Power to require rail safety worker to submit to drug test 1 31. When drug screening test or oral fluid analysis may be required 1 32. When rail safety worker not obliged to comply with requirement to submit to drug test 1 33. When authorised person must not make drug testing requirement 1 34. Conduct of drug screening test or oral fluid analysis 1 Division 4 — Blood tests 35. Power to require rail safety worker to submit to blood test 1 36. When blood test may be required after preliminary breath test or breath analysis 1 37. When blood test may be required after drug test or notifiable occurrence or as alternative to drug test 1 38. Blood test may be required if breath test, breath analysis or drug test fails to explain conduct, condition or appearance 1 39. When rail safety worker is not obliged to comply with requirement to submit to blood test 1 40. Authorisation to take blood sample: injured rail safety worker treated at hospital after notifiable occurrence 1 41. Authorisation to take blood sample: rail safety worker deceased after notifiable occurrence 1 Division 5 — Evidence 42. Term used: relevant time 1 43. Use of test or analysis result in court proceedings 1 44. No evidence of breath or blood alcohol content obtained from particular breath tests 1 45. Evidence by certificate 1 Division 6 — Other matters 46. Delegation by Commissioner of Police 1 47. Local regulations 1 Part 4 — Repeals and transitional provisions Division 1 — Repeals 48. Written laws repealed 1 Division 2 — Transitional provisions 49. Terms used 1 50. Application of Interpretation Act 1984 1 51. References to the Law and this Law 1 52. Existing applications for accreditation or registration 1 53. Existing right of review 1 54. Existing right of appeal 1 55. Undecided review or appeal 1 56. Transitional regulations 1 Part 5 — Consequential amendments 57. Government Railways Act 1904 amended 1 2A. Relationship of this Act to Rail Safety National Law (WA) 1 58. Various references to "Rail Safety National Law (WA) Act 2015" amended 1 Notes Compilation table 1 Defined terms Western Australia Rail Safety National Law Application Act 2024 An Act — * to apply the Rail Safety National Law (with modifications) as a law of the State; and * to repeal the Rail Safety National Law (WA) Act 2015, the Rail Safety National Law (WA) (Alcohol and Drug Testing) Regulations 2015 and the Rail Safety National Law (WA) Regulations 2015; and * to make consequential amendments to various other Acts; and * for related purposes. Part 1 — Preliminary 1. Short title This is the Rail Safety National Law Application Act 2024. 2. Commencement This Act comes into operation as follows — (a) Part 1 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. 3. Terms used (1) In this Act — amending Act means a South Australian Act that receives the Royal Assent after 20 June 2023 and — (a) amends the Schedule to the Rail Safety National Law (South Australia) Act 2012 (South Australia); or (b) amends the Rail Safety National Regulations; commencement day means the day on which section 5 comes into operation; Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892; local regulations means regulations made under section 47; Rail Safety National Law (WA) means the provisions applying in the State because of section 5; Rail Safety National Regulations has the meaning given in section 12(1); Rail Safety National Regulations (WA) means the provisions applying as subsidiary legislation for the purposes of the Rail Safety National Law (WA) because of section 12. (2) A reference in this Act to regulations made under a South Australian Act is a reference to regulations to the extent the regulations are made or amended by a provision of the South Australian Act. (3) If a term used in this Act is given a meaning in the Rail Safety National Law (WA), it has the same meaning in this Act. 4. Act binds Crown This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. Part 2 — Rail Safety National Law Division 1 — Application of Rail Safety National Law 5. Application of National Law as law of the State (1) In this section — Rail Safety National Law means the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 (South Australia) as in force on 20 June 2023, as amended by — (a) the Rail Safety National Law (South Australia) (Fees) Amendment Act 2023 (South Australia); and (b) each provision that — (i) is in an amending Act that has effect for the purposes of this Part under section 8; and (ii) has come into operation for the purposes of this Part under section 9. (2) The Rail Safety National Law — (a) applies as a law of the State; and (b) as so applying, may be referred to as the Rail Safety National Law (WA); and (c) so applies as if it were an Act. 6. Commencement of National Law as law of the State For the purposes of the Rail Safety National Law (WA) section 2, the Law as it applies in the State because of section 5 comes into operation on the commencement day. 7. Tabling amending Acts An amending Act must be laid before each House of Parliament within 18 sitting days of the House after the day on which the Act receives the Royal Assent. 8. Disallowance of amending Acts (1) In this section — disallowance period, in relation to a disallowance resolution of which notice is given in a House of Parliament, means the period of 30 sitting days of the House after the day on which the notice is given; disallowance resolution means a resolution that an amending Act be disallowed; notice period, in relation to an amending Act laid before a House of Parliament under section 7, means the period of 14 sitting days of the House after the day on which the amending Act is laid before it. (2) An amending Act has effect for the purposes of this Part if the amending Act is laid before each House of Parliament under section 7 and either — (a) no notice of a disallowance resolution is given in either House within the notice period; or (b) at least 1 notice of a disallowance resolution is given in a House within the notice period and, for each such notice, 1 of the following applies — (i) the notice is withdrawn or discharged within the disallowance period; (ii) the disallowance resolution is lost in the House or not agreed to within the disallowance period. (3) For the purposes of this section and section 7 — (a) the period specified in section 7, a notice period or a disallowance period continues to run even though a House of Parliament is prorogued or dissolved or expires; and (b) notice of a disallowance resolution given in a House of Parliament, or a motion that an amending Act be disallowed in the House, does not lapse even though the House is prorogued or dissolved or expires. 9. Commencement of provisions of amending Acts (1) If an amending Act has effect for the purposes of this Part under section 8, the Governor must declare that fact by proclamation as soon as practicable. (2) If a provision of the amending Act has come into operation in South Australia before the proclamation is published — (a) the proclamation must fix a day on which the provision comes into operation for the purposes of this Part, which must be after the day on which the proclamation is published; and (b) the provision comes into operation for the purposes of this Part on that day. (3) If a provision of the amending Act has not come into operation in South Australia before the proclamation is published, the provision comes into operation for the purposes of this Part when the provision comes into operation in South Australia. 10. Amending Acts enacted after 20 June 2023 but before commencement day If an amending Act receives the Royal Assent after 20 June 2023, but before the commencement day, sections 7 to 9 apply to the amending Act as if it received the Royal Assent on the commencement day. 11. Tabling of amending Act taken to be publication for Standing Orders (1) In this section — parliamentary committee means a committee established by either or both of the Houses of Parliament. (2) If a Standing Order of a House of Parliament provides that on the publication of an instrument under a written law the instrument is referred to a parliamentary committee for consideration, the laying of an amending Act before the House under section 7 is taken to be publication of the amending Act for the purposes of the Standing Order. (3) This section does not apply if the Standing Orders of the House provide specifically for an amending Act to be considered by a parliamentary committee. Division 2 — Application of Rail Safety National Regulations 12. Application of National Regulations as subsidiary legislation (1) In this section — Rail Safety National Regulations means regulations made under — (a) section 264 of the Schedule to the Rail Safety National Law (South Australia) Act 2012 (South Australia); or (b) a South Australian Act for the purposes of the Rail Safety National Law set out in the Schedule to the Rail Safety National Law (South Australia) Act 2012 (South Australia). (2) The Rail Safety National Regulations, as in force from time to time — (a) apply as subsidiary legislation for the purposes of the Rail Safety National Law (WA), subject to sections 13, 14 and 16; and (b) as so applying — (i) may be referred to as the Rail Safety National Regulations (WA); and (ii) are the national regulations for the purposes of the Rail Safety National Law (WA), despite the definition of national regulations in section 4(1) of that Law. 13. National Regulations made under amending Act provision Rail Safety National Regulations made under a provision of an amending Act have effect for the purposes of their application under section 12 if — (a) the amending Act has effect for the purposes of this Part under section 8; and (b) the provision has come into operation for the purposes of this Part under section 9. 14. National Regulations made under or for purposes of amending Act (1) This section applies to a provision of the Rail Safety National Regulations (the subsidiary provision) if the provision is made — (a) on or after the commencement day; and (b) under or for the purposes of a provision of the Schedule to the Rail Safety National Law (South Australia) Act 2012 (South Australia) that is amended, or inserted into that Schedule, by a provision of an amending Act (the amending Act provision). (2) The subsidiary provision does not have effect for the purposes of its application under section 12 until the later of — (a) the day on which the amending Act provision comes into operation for the purposes of this Part under section 9; or (b) the day on which the subsidiary provision comes into operation in South Australia. (3) However, if the amending Act does not have effect for the purposes of this Part under section 8, the subsidiary provision does not apply as subsidiary legislation under section 12. 15. Publication of National Regulations (1) This section applies to Rail Safety National Regulations made under section 264 of the Schedule to the Rail Safety National Law (South Australia) Act 2012 (South Australia) after 20 June 2023. (2) The Rail Safety National Regulations must be published on the WA legislation website no later than 18 days after the day on which the regulations are made. (3) If Rail Safety National Regulations are made on or after 20 June 2023 but before the commencement day, subsection (2) applies as if the regulations were made on the commencement day. 16. Tabling and disallowance of National Regulations (1) Rail Safety National Regulations published under section 15 must be laid before each House of Parliament within 6 sitting days of the House after the day on which the regulations are published. (2) Rail Safety National Regulations cease to have effect as subsidiary legislation for the purposes of their application under section 12 if — (a) the regulations are not published under section 15; or (b) the regulations are not laid before each House of Parliament under subsection (1); or (c) the regulations are laid before each House of Parliament under subsection (1) and — (i) notice of a resolution to disallow the regulations is given in a House of Parliament within 14 sitting days after the day on which the regulations are laid before the House under subsection (1); and (ii) the resolution to disallow the regulations is agreed to by the House. (3) Rail Safety National Regulations that cease to have effect under subsection (2) cease to have effect at the end of the day on which the circumstance in subsection (2)(a), (b) or (c) occurs. (4) If a resolution is agreed to under subsection (2)(c), notice of the resolution must be published in the Gazette or on the WA legislation website within 21 days after the day on which the resolution is agreed. (5) If Rail Safety National Regulations (the disallowed regulations) cease to have effect under subsection (2), other Rail Safety National Regulations that were amended or repealed by the disallowed regulations revive, for the purposes of their application under section 12, on the day after the day on which the disallowed regulations cease to have effect. (6) For the purposes of this section — (a) the period specified in subsection (1) or (2)(c)(i) continues to run even though a House of Parliament is prorogued or dissolves or expires; and (b) notice of a resolution to disallow Rail Safety National Regulations given in a House of Parliament does not lapse even though the House is prorogued or dissolved or expires. 17. Interpretation Act 1984 s. 41 and 42 do not apply to Rail Safety National Regulations (WA) The Interpretation Act 1984 sections 41 and 42 do not apply to the Rail Safety National Regulations (WA). Division 3 — Miscellaneous 18. Meaning of generic terms in Rail Safety National Law (WA) for purposes of this jurisdiction (1) In the Rail Safety National Law (WA) — court means the following — (a) for the purposes of Part 5 Division 6 — the State Administrative Tribunal constituted by at least 1 judicial member; (b) for the purposes of Part 7 — the State Administrative Tribunal, however constituted; (c) for the purposes of Part 10 Division 6 — the Magistrates Court; emergency services means each of the following — (a) the Police Force of Western Australia; (b) the department of the Public Service principally assisting in the administration of the Fire and Emergency Services Act 1998; (c) another body or organisation prescribed by local regulations to be an emergency service; Gazette means the Government Gazette of Western Australia; Health Practitioner Regulation National Law means the Health Practitioner Regulation National Law (Western Australia); magistrate has the meaning given in the Magistrates Court Act 2004 section 3; Minister means the Minister administering this Act; police officer has the meaning given in the Interpretation Act 1984 section 5; public sector auditor means the Auditor‑General as defined in the Public Finance and Audit Act 1987 (South Australia) section 4; road vehicle means a motor vehicle as defined in the Road Traffic (Administration) Act 2008 section 4; shared path means an area that — (a) is open to or used by the public; and (b) is developed for, or has as 1 of its main uses, use by both pedestrians and riders of bicycles; the jurisdiction or this jurisdiction means Western Australia. (2) For the purposes of the Rail Safety National Law (WA) and any other Act or law — (a) the Office of the National Rail Safety Regulator is not an agency as defined in the Public Sector Management Act 1994 section 3(1); and (b) an employee of the Office of the National Rail Safety Regulator is not a public service officer as defined in the Public Sector Management Act 1994 section 3(1). 19. No double jeopardy A person is not liable to be punished for an offence against the Rail Safety National Law (WA) if — (a) the act or omission that constitutes the offence also constitutes an offence against a law of another participating jurisdiction; and (b) the person has been punished for the offence under the law of the other jurisdiction. 20. Exclusion of legislation of this jurisdiction (1) The Interpretation Act 1984 does not apply to the Rail Safety National Law (WA). Note for this subsection: See the Rail Safety National Law (WA) section 5. (2) The following Acts of this jurisdiction do not apply to the Rail Safety National Law (WA) or to the instruments made under the Law (except as applied under the Law) — (a) the Auditor General Act 2006; (b) the Financial Management Act 2006; (c) the Freedom of Information Act 1992; (d) the Parliamentary Commissioner Act 1971; (e) the Public Sector Management Act 1994; (f) the State Records Act 2000. (3) An Act mentioned in subsection (2) applies to a public sector body as defined in the Public Sector Management Act 1994 section 3(1), and an employee of the body, performing a function under the Rail Safety National Law (WA). Part 3 — Local provisions for alcohol and drug testing Division 1 — Preliminary 21. Terms used (1) In this Part — analyst means an analyst or drugs analyst, as those terms are defined in the Road Traffic Act 1974 section 65, as the case requires; blood alcohol content means the concentration of alcohol in a person's blood, expressed in grams of alcohol per 100 ml of blood; breath analysis means the analysis of a person's breath using a breath analysis instrument to determine the person's blood alcohol content; breath analysis instrument means — (a) breath analysing equipment as defined in the Road Traffic Act 1974 section 65; or (b) an instrument that — (i) analyses a sample of a person's breath to determine the person's blood alcohol content; and (ii) is prescribed by local regulations for the purposes of this definition; drug screening device means a device that — (a) provides an indication of the presence of a prescribed drug in a sample of a person's oral fluid; and (b) is prescribed by local regulations for the purposes of this definition; drug screening test — (a) means a test of a sample of a person's oral fluid using a drug screening device; and (b) includes a preliminary oral fluid test as defined in the Road Traffic Act 1974 section 65; drug test means a drug screening test, oral fluid analysis or urine test; hospital has the meaning given in the Health Services Act 2016 section 6; medical practitioner means a person registered under the Health Practitioner Regulation National Law (Western Australia) in the medical profession; oral fluid analysis means the analysis of a sample of a person's oral fluid to determine whether a prescribed drug is present, whether the sample is analysed — (a) by an authorised person using an oral fluid analysis device; or (b) by an analyst in a laboratory; oral fluid analysis device means a device that — (a) analyses a sample of a person's oral fluid to determine whether a prescribed drug is present; and (b) is prescribed by local regulations for the purposes of this definition; preliminary breath test means — (a) a preliminary test as defined in the Road Traffic Act 1974 section 65; or (b) a test of a sample of a person's breath using a preliminary testing device; preliminary testing device means a device that — (a) provides an indication of any of the following — (i) a person's blood alcohol content; (ii) whether a person's blood alcohol content is of or above a particular level; (iii) whether or not alcohol is present in the person's blood; or (b) is prescribed by local regulations for the purposes of this definition; prescribed BAC, in relation to a rail safety worker, means the prescribed concentration of alcohol in the worker's blood; Note for this definition: See the Rail Safety National Law (WA) section 128(5) for the meaning of prescribed concentration of alcohol. registered nurse means a person — (a) registered under the Health Practitioner Regulation National Law (Western Australia) in the nursing profession; and (b) whose name is entered as a registered nurse on Division 1 of the Register of Nurses kept under that Law; sample taker means — (a) a medical practitioner; or (b) a registered nurse; or (c) an appropriately qualified person prescribed by local regulations for the purposes of this definition; urine test, in relation to a rail safety worker, means a test of the worker's urine to determine whether a prescribed drug is present. (2) For the purposes of this Part and the Rail Safety National Law (WA) Part 3 Division 9, anything done by a person acting under the supervision or direction of an analyst, medical practitioner or sample taker is taken to have been done by the analyst, medical practitioner or sample taker. 22. Using breath sample to work out blood alcohol content (1) This section applies for the purposes of this Part and the Rail Safety National Law (WA) section 128. (2) A concentration of alcohol in a person's breath of a number of grams per 210 litres of breath is taken to be a concentration in the person's blood of that number of grams of alcohol per 100 ml of blood. (3) A breath analysis instrument is taken to be an instrument that determines a person's blood alcohol content by analysing a sample of the person's breath, whether the instrument gives the blood alcohol content directly or allows it to be worked out under subsection (2). (4) A device used to conduct a preliminary breath test is taken to be a device that indicates a person's blood alcohol content, or indicates whether or not the person has the prescribed BAC, whether the device gives the indication directly or allows it to be worked out under subsection (2). Division 2 — Alcohol testing 23. Power to require rail safety worker to submit to preliminary breath test or breath analysis An authorised person's power under the Rail Safety National Law (WA) section 126(1) to require a rail safety worker to submit to testing is subject to this Division. 24. When preliminary breath test or breath analysis may be required (1) An authorised person may require a rail safety worker to submit to a preliminary breath test or breath analysis (or both) under the Rail Safety National Law (WA) section 126(1) — (a) on a random basis, without suspecting the worker has the prescribed BAC; or (b) on a non‑random basis, if — (i) a notifiable occurrence involving the worker happens; or (ii) the authorised person suspects, on reasonable grounds, that the worker has the prescribed BAC. (2) This section is subject to sections 25 to 27. 25. When rail safety worker is not obliged to comply with requirement (1) A rail safety worker who is on railway premises after carrying out rail safety work is not obliged to comply with a requirement made under the Rail Safety National Law (WA) section 126(1) if — (a) the worker is not involved in a notifiable occurrence; and (b) more than 12 hours have passed since the worker finished carrying out the work. (2) A rail safety worker who is involved in a notifiable occurrence is not obliged to comply with a requirement made under the Rail Safety National Law (WA) section 126(1) if — (a) more than 12 hours have passed since the worker was involved in the occurrence; or (b) the worker — (i) has finished a shift during which the worker carried out rail safety work; and (ii) has left the place where the worker finished the shift; and (iii) was unaware of the occurrence when the worker finished the shift. 26. When authorised person must not require rail safety worker to submit to breath test An authorised person must not require a rail safety worker to submit to a preliminary breath test or breath analysis under the Rail Safety National Law (WA) section 126(1) if the authorised person suspects, on reasonable grounds, that — (a) complying with the requirement would be detrimental to the worker's health; or (b) the worker is incapable of providing a sample of breath that is sufficient to comply with the requirement — (i) because of an injury or disability; or (ii) for another reason. 27. Conduct of breath analysis (1) An authorised person must not conduct a breath analysis for the purposes of a requirement made under the Rail Safety National Law (WA) section 126(1) unless the authorised person is — (a) a police officer certified by the Commissioner of Police under subsection (2); or (b) authorised by the Regulator to operate a breath analysis instrument. (2) The Commissioner of Police may certify that a police officer is competent to operate a breath analysis instrument. (3) An authorised person conducting a breath analysis for the purposes of a requirement made under the Rail Safety National Law (WA) section 126(1) must use a breath analysis instrument. 28. Further breath analysis (1) An authorised person may require a rail safety worker to submit to 1 or more breath analyses under the Rail Safety National Law (WA) section 126(1), whether or not the worker has provided a sample that is sufficient to comply with an earlier requirement to submit to a preliminary breath test or breath analysis. (2) A requirement referred to in subsection (1) — (a) may be made only if it is reasonable in the circumstances; and (b) is subject to sections 25 to 27. 29. Breath analysis indicates prescribed BAC (1) This section applies if a breath analysis indicates a rail safety worker has the prescribed BAC. (2) The authorised person who operated the breath analysis instrument used for the breath analysis must immediately give the rail safety worker a written statement, or a statement printed by the instrument, stating — (a) the day and time the breath sample was taken; and (b) the day and time the sample was analysed; and (c) the result of the analysis. Division 3 — Drug testing 30. Power to require rail safety worker to submit to drug test An authorised person's power under the Rail Safety National Law (WA) section 127(1) to require a rail safety worker to submit to a drug test is subject to this Division. 31. When drug screening test or oral fluid analysis may be required (1) An authorised person may require a rail safety worker to submit to a drug screening test or oral fluid analysis under the Rail Safety National Law (WA) section 127(1) — (a) on a random basis, without suspecting a prescribed drug is present in the worker's body; or (b) on a non‑random basis, if — (i) a notifiable occurrence involving the worker happens; or (ii) the authorised person suspects, on reasonable grounds, that a prescribed drug is present in the worker's body. (2) A rail safety worker complies with a requirement to submit to a drug screening test or oral fluid analysis if the worker, in accordance with the instructions of an authorised person, provides a sample of the worker's oral fluid that is sufficient for the drug screening device or oral fluid analysis device used to conduct the test or analysis to operate. (3) This section is subject to sections 32 and 33. 32. When rail safety worker not obliged to comply with requirement to submit to drug test (1) A rail safety worker who is on railway premises after carrying out rail safety work is not obliged to comply with a requirement to submit to a drug test made under the Rail Safety National Law (WA) section 127(1) if — (a) the worker is not involved in a notifiable occurrence; and (b) more than 12 hours have passed since the worker carried out the work. (2) A rail safety worker who is involved in a notifiable occurrence is not obliged to comply with a requirement to submit to a drug test made under the Rail Safety National Law (WA) section 127(1) if — (a) more than 12 hours have passed since the worker was involved in the occurrence; or (b) the worker — (i) has finished a shift during which the worker carried out rail safety work; and (ii) has left the place where the worker finished the shift; and (iii) was unaware of the occurrence when the worker completed the shift. 33. When authorised person must not make drug testing requirement An authorised person must not require a rail safety worker to submit to a drug test under the Rail Safety National Law (WA) section 127(1) if the authorised person suspects, on reasonable grounds, that — (a) complying with the requirement would be detrimental to the worker's health; or (b) the worker is incapable of providing a sample of oral fluid or urine that is sufficient to comply with the requirement — (i) because of an injury or disability; or (ii) for another reason. 34. Conduct of drug screening test or oral fluid analysis (1) An authorised person must not conduct an oral fluid analysis for the purposes of a requirement made under the Rail Safety National Law (WA) section 127(1) unless the authorised person is — (a) a police officer certified by the Commissioner of Police under subsection (2); or (b) authorised by the Regulator to operate an oral fluid analysis device. (2) The Commissioner of Police may certify that a police officer is competent to operate an oral fluid analysis device. (3) An authorised person must use — (a) if the person is conducting a drug screening test for the purposes of a requirement made under the Rail Safety National Law (WA) section 127(1) — a drug screening device; or (b) if the person is conducting an oral fluid analysis for the purposes of a requirement made under the Rail Safety National Law (WA) section 127(1) — an oral fluid analysis device; or (c) if the person is collecting a sample of oral fluid to be analysed by an analyst in a laboratory for the purposes of a requirement made under the Rail Safety National Law (WA) section 127(1) — a prescribed device for collecting an oral fluid sample. Division 4 — Blood tests 35. Power to require rail safety worker to submit to blood test An authorised person's power under the Rail Safety National Law (WA) section 127(1) to require a rail safety worker to submit to a blood test is subject to this Division. 36. When blood test may be required after preliminary breath test or breath analysis (1) An authorised person may require a rail safety worker to submit to a blood test under the Rail Safety National Law (WA) section 127(1) if — (a) an authorised person requires the worker to submit to a preliminary breath test or breath analysis referred to in section 24 or a further breath analysis referred to in section 28; and (b) the worker refuses, or fails, to provide a sufficient sample of breath for the test or analysis. (2) However, the auth