The Western Australian resources sector still has a long way to go when it comes to adequately addressing synthetic drug use amongst mine site employees, writes Steven Meacher.
The relationship between synthetic cannabis abuse by employees in mining in Western Australia and injuries sustained is an important occupational health and safety (OHS) issue. This is because synthetic cannabis is a hazard; it adversely affects a person’s ability to work safely and the law creates obligations on mining employers to adequately address hazards. Yet its use by employees continues.
Findings from a large-scale survey showed that 12% of respondents working in mining reported using illicit drugs within the last 12 months. Research demonstrated that employees are using synthetic cannabis preferentially over other types of drugs to successfully evade drug detection. Synthetic cannabis use arguably then remains a poorly controlled hazard.
Two legislative frameworks seek to control synthetic cannabis use and thus eliminate this hazard. Firstly, a ‘list and ban’ approach in general legislation prohibits a person from misusing scheduled substances. Secondly, mining-specific health and safety provisions impose a general duty of care on employers to provide and maintain a workplace in which employees are not exposed to hazards and to manage hazards so far as is practicable. This duty extends to requiring that employees must not be on a mine whilst adversely affected by intoxicating drugs.
To assess, plan and implement hazard controls, employers in Western Australian mining adopt an OHS ‘safety management system’ strategy. This strategy is comprised of pragmatic aspects including biological drug testing by urine testing. The argument for this strategy is that this enables employers to adequately address illicit drug use. Although as reasoned below, this strategy does not address the issue of synthetic cannabis use.
This article addresses the central question:
Do the legal provisions governing illicit drug use in the Western Australian mining industry adequately address the hazard of synthetic cannabis use by employees?
To answer this question, a number of
sub-questions must be answered:
- What is synthetic cannabis and why is it an issue?
- How does the law govern synthetic cannabis? Do current approaches work?
- Employers in Western Australian mining use biological drug testing by urine testing to pragmatically address synthetic cannabis use. Why? Is there a preferable alternative?
Synthetic cannabis
Synthetic cannabis first became available in Europe in 2003. Named ‘K2’ or ‘Dream’, it was sold initially as incense, along with the warning ‘not for human consumption’. Synthetic cannabis was specifically manufactured to mimic the overall psychoactive effects of cannabis; an established class of drug already prohibited and controlled by legislation, but different enough that it did not trigger any prohibitive legislative provisions. Synthetic cannabis is a herbal mixture containing neither cannabis nor tobacco, sprayed with either a single or multiple ‘synthetic cannabinoid receptor antagonist(s)’ (‘SCRAs’). Synthetic cannabis differs from cannabis as it does not contain ‘delta9-tetrahydrocannabinol’ (‘THC’). THC is the active ingredient in cannabis. Current legislative provisions regulate the distribution, sale and usage of THC and other cannabinoid substances.
In 2008, laboratory tests showed that whilst not declared as ingredients, SCRAs were found in many samples of products. It was hypothesised, and later shown through chemical testing, that it was through SCRAs that any ‘high’ for the consumer was achieved.
Synthetic cannabis has unique characteristics setting it apart from other classes of established drugs. There is not a singular chemical or substance that is identifiable, such as that found in established drugs like cannabis. Chemicals used to create SCRAs are manipulated and adapted to create new SCRAs. This means new SCRAs can be created that are definitively different, yet give similar effects to previous SCRAs. The science behind creating SCRAs is far from understood, with both chemical analysis and toxicology information being limited. A detailed pharmacology of all SCRAs is absent, with only a relatively small number of SCRAs having been fully examined. At present, there are greater than 600 different known SCRAs worldwide, of which only approximately 100 of these (17 per cent) are currently tested for by biological drug testing within ‘Chemcentre’ Australia’s leading chemical analysis laboratory based in WA.
When SCRAs are inhaled, they enter the blood stream and make their way to the brain and reach receptors. One type of receptor, known as ‘cannabinoid receptors’, allows cannabinoids to bind to them. When SCRAs bind, a range of behavioural effects occurs. Emerging evidence suggests that SCRAs are responsible for adverse effects on users; tolerance may develop and withdrawal symptoms have been reported. Feelings of euphoria, relaxation, anxiety and/or paranoia, along with a reduced motor response time, lack of attention to task, lack of ability to recall information and a lack of short-term memory formation have been reported.
Why synthetic cannabis is a hazard
A hazard is a source or situation that potentially poses a threat of injury or ill health to a person. A risk is the possibility that harm by death, injury or illness may occur when exposed to a hazard. A substance, if used by an employee that causes a reduced motor response time; lack of attention to tasks; lack of ability to recall information; and a lack of short-term memory, is a behavioural hazard that must be adequately addressed. Put simply, an employee adversely affected by synthetic cannabis may cause injury or harm to their health or to others in the workplace.
The role in which the employee is working bears little relevance to identifying the hazard. For example, the potential hazard to an administrative employee entering data in an office on a mine would be the same as that to an employee who is an operator, hauling dirt or driving a large truck on a mine haul road. It is the risk that differs greatly if an incident were to occur, due to drug-affected behaviour, because if a lapse of concentration occurred, there are potentially drastically different outcomes.
Some employees on mines in WA are using synthetic cannabis. ‘Chemcentre’ issued a report in 2011 emphasising that of 90 tested samples of urine received from miners working in Western Australia – 10 per cent of all urine samples analysed – contained synthetic cannabis. Evidence reflects that a motivating reason for the use of synthetic cannabis was to enable employees to evade the biological drug testing strategy adopted by employers. Biological testing at this time occurred using urine drug screening. In one study, 30 per cent of respondents endorsed synthetic cannabis as the means to achieve intoxication and avoid drug usage detection in drug urinalysis testing. Synthetic cannabis use continues despite the lack of understanding surrounding its long-term effects and the understanding that drug use is linked to an increased risk of injuries and death in the workplace.
[hr]“In one study, 30 percent of respondents endorsed synthetic cannabis as the means to achieve intoxication and avoid drug usage detection in drug urinalysis testing.”[hr]
Legislative Framework
General legislative provisions
Synthetic cannabis presents a challenge for lawmakers as it can be created, adapted, or re-invented with ease. Furthermore, each new individual SCRA does not readily fit into already established classes of drugs banned by legislation. When synthetic cannabis first emerged, countries such as Germany and the United Kingdom sought to identify, then ban, individual SCRAs as they were discovered.
In January 2009, Germany prohibited several SCRAs used within synthetic cannabis. SCRAs identified as ‘CP 47,497-C8’ and ‘JWH-018’ were present in products that were tested in December 2008. The German government then prohibited JWH-018. When later versions of products were resampled four weeks after implementing prohibition, the products contained CP 47,497-C8, but JWH-018 was not detected. A SCRA identified as ‘C-homolog JWH-073’ replaced it. This SCRA was, at the time, unknown and not prohibited by legal provisions, yet still capable of delivering a similar psychoactive effect.
In 2009, the Advisory Council on the Misuse of Drugs (‘ACMD’) released a report containing recommendations for the UK to better manage the predicted rise of SCRAs. The Advisory Council recommended that the specific control of substances by listing each individual SCRA within legislative provisions, offered the simplest legislative approach, yet noted that a list of SCRAs would be far from exhaustive and would also be reactive. The ACMD argued that a ‘list and ban’ approach within legislative provisions adequately addressed the governing of a substance when:
- a large number of examples of the substance group are already known;
- synthesis of further substances that are chemically similar might be anticipated; and
- the target group or class of drug can be encompassed with a simple definition.
Due to SCRAs characteristics, they do not fit well into this approach. Only a relatively small number of SCRAs (approximately 600 worldwide) of an expanding group of potentially unlimited variations of drugs are known. Synthesis of further similar substances of the same class cannot be anticipated, as similar SCRAs can be created from a wide base of compounds. The world’s leading laboratories are developing new standards of testing in reaction to new and emerging classes of SCRAs. The target group of synthetic cannabis cannot be encompassed with a simple definition, as each individual SCRA is often chemically different.
Classifying synthetic cannabis is a challenge. In 2011, 45 SCRAs belonging to five different chemical classes were reported by the ‘European Monitoring Centre for Drugs and Drug Addiction’ (‘EMCDDA’). The amount of SCRAs and classes enlarged as countries sought to prohibit and ban newly identified SCRAs. By 2012, a further five classes were reported to EMCDDA. At present, over ten classes comprising over 600 individual SCRAs are known.
WA has currently banned eight classes of synthetic cannabis., This legislation is reactive. It presents as an ever-expanding list of individual SCRAs and classes of drug that are added to the schedule as new ones are identified. Within the Poisons Act 1964, the Minister has the power to identify and list substances deemed in need of regulation. The Poisons Act, enabled by the Therapeutic Goods Act 1989, allows WA to fall under the Commonwealth uniform approach to drug prohibition. The Poisons Act states, ‘[a]ll substances listed in Schedule 1 of the Poisons Standard 2013 (‘SUSMP’) are to be included’. This has an inclusive effect, making the SUSMP a cross-referenced part of its schedule, meaning that amendments to the SUSMP are automatically included in legislation. In June 2011, the Poisons Act listed and banned seven SCRAs and the SUSMP then scheduled 21 SCRAs.
The Misuse of Drugs Act 1981 (‘MDA’) contains provisions aligned with the Poisons Act. The MDA prohibits usage by imposing penalties for misuse of any and all illicit drugs listed within either the Poisons Act or SUSMP schedules. In an attempt to cover the field, amendments were made to the Poisons Act, MDA and SUSMP in 2012 that resulted in the scheduling of eight classes of SCRAs. In essence, it is currently illegal to sell, supply or possess any substances containing these specific SCRAs or SCRAs that fall into any of the listed classes in WA. Conversely it is not illegal to sell, supply or possess substances that contain any of the other approximately 500 or more known SCRAs available worldwide.
[hr]“…of 90 tested samples of urine received from miners working in Western Australia, 10 percent of all urine samples analysed contained synthetic cannabis.”[hr]
An argument that the ‘list and ban’ approach does not adequately address synthetic cannabis exists on two grounds. Firstly, no other drug has a potentially endless list of compounds that can be replaced or altered to be sufficiently different to a known, named and legislated-against compound, and achieve the same effects on a user.
Australia continues to ‘list and ban’ despite knowledge that this approach for synthetic cannabis is flawed and presents a risk for triggering the development and introduction of new SCRAs onto the domestic market. Secondly, the approach is reactive. Whilst arguably adequate when the banning body knows the specific chemical substance of a drug, if a substance is unknown or is adaptable then purely reactive legislation does not achieve the government’s intention to prohibit its use.
Making SCRAs illegal in isolation, name-by-name and compound-by-compound does not work. For these reasons, regulating only identified classes of synthetic cannabis and fully examined individual SCRAs does not adequately address synthetic cannabis, as many SCRAs are currently unregulated.
OHS legislative provisions
The mining-specific OHS legal regime in WA is layered with a principal Act, Regulations, Codes of Practice and Guidance Notes. OHS law, traditionally the responsibility of the States, is heading towards a harmonised approach, on a consensual basis utilising state-based legislation adopting the Model Act. Enactment of the Model Act by WA has not yet occurred. The WA Government’s intention is that it will cover mining in the future by adopting the Model Work Health and Safety (Mines) Act and Regulations.
Mines Safety and Inspections Act 1994
OHS in WA mining is currently governed principally by the Mines Safety and Inspections Act 1994 (‘MSIA’). MSIA aims to:
- promote and improve the health, safety and welfare of persons at mines; and
- assist in identifying and reducing hazards relating to working in mining.
To meet these aims, the MSIA imposes a general duty of care on employers. This duty is to provide and maintain a workplace in which employees are not exposed to hazards, as well as ensure that these hazards are managed so far as is practicable. ‘Practicable’ means ‘reasonably practicable’, which is expressed as:
having regard, where the context permits, to the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and the state of knowledge about the injury or harm to health referred to; and the risk of that injury or harm to health occurring.
Employers are required to assess the means of removing or mitigating potential injury or harm to health of employees, including consideration of the availability, suitability and cost of the removal or mitigation. ‘Reasonably practicable’ qualifies the general duty to be a test and is often referred to as the standard of conduct expected of an employer. This serves to act as a measure as to how far an employer should go when addressing a hazard.
Regulations
Regulations explicitly create the obligation that a person must not be in or on any mine while that person is adversely affected by intoxicating drugs. They further require that a person must not, without the knowledge and permission of the manager of the mine, possess or consume any intoxicating drug. Language is prohibitive and creates obligations for both employer and employee. The assessment of whether an employee is adversely affected by illicit drugs is at ‘the opinion’ of the employer. In this instance, Regulations create uncertainty for employers. ‘Adversely affected’ is not defined within legislation, yet is central to an assessment of an employee’s ability to complete their work and the employers’ assessment for whether that person is affected by intoxicating drugs. No objective measure is postulated. Regulations are silent on how to meet the obligation, how to actually detect if a person has consumed drugs, or indeed, how to manage that person once a decision is made that the person is adversely affected.
Interestingly, Regulations offer guidance and practical solutions on other hazards requiring control; for example, instructing an employer to provide wet weather gear in preparation for employees working in exposed areas. Regulations offer detailed guidance in convenient instances, but not in others. By offering solutions for obvious hazards, such as wet weather, the Regulations ‘pick the low hanging fruit’ of hazards, but give no useful direction on multifaceted hazards, such as synthetic cannabis use. Regulations make reference to Australian Standards when directing employers how to address hazards. Yet Regulations do not specify an Australian Standard for drug testing, notwithstanding two existing. Australian standards also do not specify which drugs an employee should be tested for.
Future Regulations
If the draft Model Work Health and Safety (Mines) Regulations is adopted, it appears to offer the same uncertainty as current Regulations. It directs that employers ‘must develop and implement strategies’ to protect persons at the mine from any risk to their health or safety arising from the use of drugs by any person. Again no guidance is offered, nor reference made to Australian Standards. The employer must remove from the mine any person whom that employer ‘reasonably believes’ is adversely affected by drugs. The test of reasonable belief is objective. While a reasonable belief threshold is set ‘at quite a low level’, there must be some tangible support that takes the existence of the situation beyond mere ‘belief’ by the employer. Again this approach will cause uncertainty as no guidance is given as to what type of test or evidentiary support is required.
Codes of Practice
To meet statutory requirements, employers may follow a Code of Practice (‘Code’) issued by the Minister. Codes, once approved, act as a guide for both employers and Courts as to the minimum standard to be adhered to when assessing if an employer went as far as is reasonably practicable in their general duty. A Code concerning employee drug use is absent. However, legislation allows for the introduction of a Code. The introduction of a Code concerning employee drug use may give greater direction to employers on how to best manage the hazard of synthetic cannabis and is recommended.
Guidelines
Guidelines issued serve to enable employers to meet their obligations. When employers in mining seek to address hazards, they are directed to adopt a ‘safety management system’ approach. A safety system cannot be a paper system; it must be implemented practically and carried through with diligence. Guidelines direct that the safety system be delivered through a hierarchy of control. A hierarchy of control is a range of options that can be applied to a hazard to best control it. The control option adopted changes depending on the hazard. In managing synthetic cannabis use by employees, elimination is both the most effective control option and pragmatically the only sustainable measure of control. The Guidelines outline that the general approach to control is to identify the hazard, assess the risk and then address the risk. Guidance on how to actually do this is given in an abstract manner. No practical solutions or strategy is proposed within, but Australian Standards are referred to, as are other guidelines, Codes and Guidance Notes for ideas on how best to manage hazards in general.
A Guidance Note for other industries in WA offers the opinion that testing for intoxication is contentious, has obvious limitations and is complex, and acknowledges that drug testing does not reflect intoxication. The Guidelines discuss how employers in high-risk industries, such as construction, have justified using biological drug testing to ensure that they meet their general duty. Whilst not going so far as to expressly direct employers to do this, it implies that to not implement drug testing would be to possibly not meet the general duty. This works to affirm government approval for this approach. The argument presented by government for biological drug testing over alternate strategies, such as fit for work testing, is strengthened as the Guidance Note offers little to persuade employers that a fit for work approach is appropriate, but in fact writes off the science underpinning it.
OHS approach to hazard control
Taken together, the Act, Regulation, Codes and Guidance form an overall requirement to adopt an ‘impairment-based’ OHS approach to minimising the hazard of drug use. OHS in mining is organised within a safety system framework. The appropriate system depends on employer resources. The safety system is responsive to legislation and aligned to Guidelines and Australian Standards. Three Australian Standards in combination underpin the strategy for the OHS Safety System adopted in mining. Underneath these standards, other practical standards exist that provide information on how an employer should conduct their activities to meet their legislative obligations. Relevant examples are the standards for the collection and analysis of urine or oral swabs for drug testing. In essence, employers are given obligations from legislation. Following consultation with employees they are required to develop a fair and reasonable approach to managing a hazard. Subsequently, Courts will not interfere with the right of an employer unless he is seeking from the employees something that is unjust or unreasonable. Actual requirement is not expressed in legislation on how to test for intoxication, nor is clear direction given that impairment should be tested by a biological drug test, but it is implied. Due to lack of clarity and failure to clearly address the hazard within legislation, employers in hazardous working environments have interpreted, then justified that the pragmatic approach of biological drug testing by urine testing implemented in a fair and reasonable manner, meets the employers general duty. This position has been supported, and strengthened by Common law.
[hr]“No threshold levels exist on impairment by prescribed drugs, yet they are equally as capable of causing intoxication.”[hr]
Biological drug testing in WA
Biological drug testing (BDT) aims to identify if employees are intoxicated. What is ‘reasonable’ concerning the extent employers go to towards ascertaining if illicit drugs have intoxicated an employee, has recently changed. Previously, Courts confirmed that an employer in mining had the right to conduct BDT by urine testing utilising Australian Standards 4308:2001 over the union preferred approach of oral fluid testing. However in 2012, Courts confirmed that BDT by oral fluid sampling was reasonable.
Endeavour directed that oral fluid testing is the method to be used due to the probable fact that saliva tests positive if drugs are smoked within four hours prior to testing. Urine tests cannot do this. On appeal, the Court affirmed that an employer’s proposal to introduce urine drug testing over oral fluid testing was ‘unjust’ and ‘unreasonable’. Yet in WA, BDT by urine testing is currently used within mining. Whilst HWE Mining presents an argument that mining is required to adopt urine testing due to strong factual matrix similarities, stronger logical reasoning is offered by Endeavour. If BDT remains in WA mining in the future, it is recommended that a switch to oral fluid sampling occur based on this reasoning.
BDT in WA mining is in two stages. The first standard test occurs on site, testing for established drugs such as cocaine. If a non-negative test result is obtained, this sample is sent for a second, conclusive ‘Gas Chromatography Mass Spectrometry’ (GCMS) test. GCMS testing for synthetic cannabis occurs within a laboratory to higher standards. GCMS is more expensive than standard testing and more accurate. The standard tests do not ‘cover the field’ of drugs. Synthetic cannabis is not tested for in standard tests. This leads to the conclusion that it is possible many synthetic cannabis users can go undetected.
Evidence supporting BDT as the appropriate way to adequately address the hazard of synthetic cannabis use is lacking, as BDT:
- does not show if an employee is intoxicated by any drug;
- does not adequately test for all types of synthetic cannabis; and
- testing is easily combated by employee evasion.
BDT does not establish if an employee is intoxicated, only that a person has been exposed to a particular substance at some point in time. It cannot confirm if a substance is causing, has caused, or will cause an intoxicating effect. BDT cannot tell how much of a drug was taken, nor if the drug was taken within the workplace. The reality is that even with established drugs, such as cocaine, research quantifying what level of drug is in the system of a person to be intoxicated is absent. Due to this, the ‘cut off point’ of what is an acceptable level for an employee to have in their system, whilst on a mine, is drawn from an Australian Standard. Cut off points vary depending on the drug tested. Each drug has a level at which a decision is made to differentiate if the sample is treated as either negative or positive. If a person tested is equal to, or above the cut off point, then that employee is considered to be intoxicated. Yet the Australian Standards states that presence of drugs in oral fluid or urine bears no relation to impairment or intoxication.
BDT does not have a significant impact on injury rates and has poor sensitivity to detect employees. Therefore to accept that drug testing forms an effective solution to addressing drug use, requires an intuitive leap.
BDT fails to detect many SCRAs. Therefore the presence of many types of synthetic cannabis would not occur even by GCMS testing.
Some employees are using synthetic cannabis to pass the test, meaning the testing methods are failing to evolve to effectively combat new evasion techniques. Fake urine, substitute urine, detoxing agents and the use of differing synthetic cannabis not currently legislated against, are all relatively inexpensive, readily available and offer easy ways to attempt to evade testing.
BDT by urine test is controversial and has been a source of tension between unions and employers due to reasoning as discussed above as well as:
- privacy concerns; and
- BDT focuses on illicit, rather than prescribed substances.
A tension surrounding privacy exists; intrusion of an employee’s privacy is only justified on health and safety grounds. The employers’ obligation to ensure safety is opposed by the employees’ expectation of privacy in their private life. In essence, if an employee decided to take drugs in their own time then this is not for review by their employer. No threshold levels exist on impairment by prescribed drugs, yet they are equally as capable of causing intoxication.
Why do employees drug test?
If drug testing does not show if illicit drugs adversely affect an employee, then drug testing likely serves two purposes. Firstly, it creates a panoptical effect amongst employees, meaning that within the sub-culture of mining employees, it is thought that illicit drug use may become viewed as a root cause of any adverse incident, to be ruled out by a test. If a positive test demonstrates the presence of illicit drugs in the employers system, then an assumption will be made that drugs adversely affected this employee and that drugs were the reason for the incident. A climate of intolerance within the employee group towards drug use is created. Secondly, BDT forms evidence when an employer is required to prove it meets its statutory requirement that employees must not be on a mine whilst adversely affected by intoxicating drugs.
[hr]“Australia continues to ‘list and ban’ despite knowledge that this approach for synthetic cannabis is flawed and presents a risk for triggering the development and introduction of new SCRAs onto the domestic market.”[hr]
Alternate solutions
‘Fit for work’ testing is an alternative approach to eliminating the hazard. Testing consists of impairment measuring, which means measuring pupil response time and a series of rapid motor function tests utilising computer technology. Impairment measuring is advantageous over BDT because it detects fatigue-induced impairment, which BDT cannot, and is less invasive. It also accurately measures impairment without resorting to the collection of body samples. Measuring actual impairment, rather than the existence of a drug metabolite in the first instance, would capture all employees that are actually intoxicated by synthetic cannabis.
Empirical evidence shows that impairment measuring detects drugs, stress and fatigue, providing objective quantifiable data as to whether a person is intoxicated and subsequently unfit for work. If a person does not achieve a status that is fit for work, then a requirement to undertake a conclusive drug test would occur based on objective factual data, along with a root cause investigation to ascertain reasoning behind the failure to meet the requirement of being fit for work. It measures if an employee is either fit for work, or not, at a point in time. Results based on objective data mean that an employer is able to objectively know to a ‘reasonable belief’, not assume or infer that an employee is adversely affected by drugs and therefore meet their obligation. This would also likely meet the Model regulation requirements.
This is more a holistic approach to OHS, rather than a punitive approach. Unions are likely to be extremely supportive, as this approach, compared to urine BDT, is less invasive, tests for actual impairment and does not impact on the private life of employees. It is recommended that WA mining employers revisit this alternative approach.
[hr]Steven Meacher
Steven Meacher is a graduate working for Herbert Smith Freehills within the Employment, Pensions and Incentives Practice Group.
Previous to this, Steven spent 15 years working as a health specialist in the Armed Forces, public and private hospital setting and within mining. His relevant qualifications include: Bachelor of Laws (Hons), Registered Nurse; Post Graduate Diploma of Emergency Nursing; Masters of Advanced Nursing Practice (Oncology).
[hr]Peter Holland, Amanada Pyman, and Julian Teicher, ‘Negotiating the contested terrain of drug testing in the Australian workplace’ (2005) 47(3) The Journal of Industrial Relations, 326, 327; Peter Holland, ‘Case-study. Drug testing in the Australian Mining Industry’ (2003) 1(2) Surveillance & Society, 204, 204.
Government of Western Australia, Department of Mines and Petroleum, ‘Guidelines: General duty of care in Western Australian Mines’ (2nd ed, 2011) 1, 34. <http://www.dmp.wa.gov.au/documents/Guidelines/MSH_G_GeneralDutyOfCareWAMines.pdf>.
Breen Creighton, and Andrew Stewart, Labour Law (The Federation Press 5th ed, 2010) 439.
Ken Pidd, Victoria Shtangey, and Ann Roche, ‘Drug use in the Australian workforce: Prevalence, patterns, and implications: Findings from a secondary analysis of 2004 NDSHS data. (2008) Adelaide: National Centre for Education and Training on Addiction, 46.
Gideon Warhaft, ‘Not for human consumption?: The banning of synthetic cannabinoids’ (2011) 9(3) Of Substance: The National Magazine on Alcohol, Tobacco and Other Drugs, 14, 15.
Poisons Act 1964 (WA); Misuse of Drugs Act 1981 (WA) sch 1-9; Department of Health and Aging, Therapeutic Goods Administration, ‘Standard for the Uniform Scheduling of Medicines and Poisons No. 4’. Sch 9 (2013).
Mines Safety and Inspections Act 1994 (WA) s 9(1)(a); Government of Western Australia, Department of Mines and Petroleum, ‘Guidelines: General duty of care in Western Australian Mines’ (2nd ed, 2011) 4 <http://www.dmp.wa.gov.au/documents/Guidelines/MSH_G_GeneralDutyOfCareWAMines.pdf>.
R Vandrey, K Dunn, J Fry, and E Girling, ‘A survey study to characterize use of Spice products (synthetic cannabinoids)’ (2012) 120(1) Drug & Alcohol Dependency, 238, 240.
K Seely, J Lapoint, J Moran, and L Fattore, ‘Spice drugs are more than harmless herbal blends: a review of the pharmacology and toxicology of synthetic cannabinoids’ (2012) 39(2) Progress in Neuro-psychopharmacology & Biological Psychiatry, 234, 240.
Poisons Act 1964 (WA); Misuse of Drugs Act 1981 (WA) sch 1-9; Department of Health and Aging, Therapeutic Goods Administration, ‘Standard for the Uniform Scheduling of Medicines and Poisons No. 4’. Sch 9 (2013).
Warhaft, above n 5, 17.
Advisory Council on the Misuse of Drugs, ‘Consideration of the Major Cannabinoid Agonists’ (2009), 1, 5 <https://www.gov.uk/government/publications/acmd-report-on-the-major-cannabinoid-agonists>; Liana Fattore, and Walter Fratta, ‘Beyond THC: the new generation of cannabinoid designer drugs’ (2011) 5 Frontiers in Behavioural Neuroscience, 60, 65.
Simon Hudson, and John Ramsey, ‘The emergence and analysis of synthetic cannabinoids’ (2011) 3 Drug Test Anal, 466, 470.
Poisons Act 1964 (WA); Misuse of Drugs Act 1981 (WA) sch 1-9.
Nahoko Uchiyama, Ruri Kikura-Hanajiri, Jun Ogata, and Yukihiro Goda, ‘Chemical analysis of synthetic cannabinoids as designer drugs in herbal products’ (2010) 198(1) Forensic Science International, 31, 32.
Liana Fattore, and Walter Fratta, ‘Beyond THC: the new generation of cannabinoid designer drugs’ (2011) 5 Frontiers in Behavioural Neuroscience, 60, 62.
Warhaft, above n 5, 15.
Ibid.
Email from Nathan Sumner, Team Leader Workplace Toxicology, Forensic Science Laboratory Chemcentre to Steven Meacher ‘New synthetic cannabinoids’ 29 August 2013.
Allyn Howlett, ‘The cannabinoid receptors’ (2002) 68 Prostaglandins & Other Lipid Mediators, 619, 619.
Seely, above n 12, 236.
Advisory Council on the Misuse of Drugs, ‘Consideration of the Major Cannabinoid Agonists’ (2009) 1, 7 <https://www.gov.uk/government/publications/acmd-report-on-the-major-cannabinoid-agonists>; Richard Hammersley, ‘Dangers of banning spice and the synthetic cannabinoid agonists’ (2010) 105(2) Addiction, 373, 375.
A Schneir, J Cullen, and B Ly, ‘“Spice” girls: synthetic cannabinoid intoxication’ (2011) 40(3) The Journal of Emergency Medicine, 296, 297.
Mohini Ranganathan, and Deepak D’Souza, ‘The acute effects of cannabinoids on memory in humans: a review’ (2006) 188(4) Psychopharmacology, 425, 441.
Richard Johnstone, Elizabeth Bluff, and Alan Clayton, Work health and safety law policy (Thomson Reuters, 3rd ed, 2012) 8.
Mines Safety and Inspections Act 1994 (WA) s 4; Occupational Safety and Health Act 1984 (WA) s 3; Safe Work Australia, ‘Code of practice: How to manage work health and safety risks’ (2011) 1, 4. <http://www.safeworkaustralia.gov.au/sites/swa/about/publications/pages/manage-whs-risks-cop>.
Johnstone, above n 28, 9.
Aja Styles, ‘Mine workers flocking to ‘legal cannabis’: scientists’ WA News (online), 11 May 2011 <http://www.watoday.com.au/wa-news/mine-workers-flocking-to-legal-cannabis-scientists-20110511-1eiai.html>.
Warhaft, above n 5, 16.
Vandrey, above n 11, 240.
Scott MacDonald, ‘Work-place alcohol and other drug testing: a review of the scientific evidence’ (1997) 16 Drug and Alcohol Review, 251, 251.
Poisons Act 1964 (WA); Misuse of Drugs Act 1981 (WA) sch 1-9
Rainer Lindigkeit, Anja Boehmea, Ina Eiserloha, Maike Luebbeckea, Marion Wiggermanna, Ludger Ernstb, and Till Beuerlea, ‘Spice: A never ending story?’ (2009) 191(2) Forensic Science International, 58, 58.
Warhaft, above n 5, 19.
S Dresen, N Ferreiros, M Putz, F Westphal, R Zimmermann, and V Auwarter, ‘Monitoring of herbal mixtures potentially containing synthetic cannabinoids as psychoactive compounds’ (2010) 45(10) Journal of Mass Spectrometry, 1186, 1190.
Ibid.
Lindigkeit, above n 36, 60.
Advisory Council on the Misuse of Drugs, ‘Consideration of the Major Cannabinoid Agonists’ (2009) 8. <https://www.gov.uk/government/publications/acmd-report-on-the-major-cannabinoid-agonists>.
Ibid.
Ibid.
Sumner, above n 22.
Sumner, above n 22.
European Monitoring Centre for Drugs and Drug Addiction, ‘Europol 2011 Annual Report on the implementation of Council Decision 2005/387/JHA. In accordance with Article 10 of Council Decision 2005/387/JHA on the information exchange, risk assessment and control of new psychoactive substances’ (2011) 10. <http://www.emcdda.europa.eu/attachements.cfm/att_155113_EN_EMCDDA-Europol%20Annual%20Report%202011_2012_final.pdf>.
Ibid.
Poisons Act 1964 (WA); Misuse of Drugs Act 1981 (WA) sch 1-9; Department of Health and Aging, Therapeutic Goods Administration. (2013) ‘Standard for the Uniform Scheduling of Medicines and Poisons No. 4’. Sch 9.
National Cannabis Prevention and Information Centre, ‘Synthetic Cannabis’ (2013) <http://ncpic.org.au/ncpic/publications/factsheets/article/synthetic-cannabinoids>.
(WA).
Poisons Act 1964 (WA) s 20A.
Therapeutic Goods Act 1989 (Cth) s 52.
Poisons Act 1964 (WA) App A. cl 1(1); Or known as or the ‘Standard for the Uniform Scheduling of Medicines and Poisons’ Poisons Act 1964 (WA) s 5, App A; Misuse of Drugs Act 1981 (WA) s 4; Poisons Standard 2013 (Cth) Sch 9.
Poisons Act 1964 (WA) App A. cl 1(1).
Poisons Standard 2013 (Cth) Sch 9.
Misuse of Drugs Act 1981 (WA) s 42, Sch IX.
Poisons Standard 2012 (Cth).
Advisory Council on the Misuse of Drugs, above n 41, 9.
Warhaft, above n 5, 16.
Creighton, above n 3, 445.
Breen Creighton, and Andrew Stewart, Labour Law (The Federation Press 5th ed, 2010) 441; Richard Johnstone, Elizabeth Bluff, and Alan Clayton, Work health and safety law policy (Thomson Reuters, 3rd ed, 2012) 12.
Richard Johnstone, and Michael Tooma, Work health and safety regulation in Australia: the model Act (The Federation Press, 2012) 1.
Safe Work Australia, ‘Issues Paper: Draft model Work Health and Safety (WHS) Regulations and draft model Codes of Practice for Mines’ (2011) 1, 4.
Mines Safety and Inspections Act 1994 (WA) s 3(a).
Mines Safety and Inspections Act 1994 (WA) s 3(1)(b).
Creighton, above n 3, 456.
Mines Safety and Inspections Act 1994 (WA) s 9(1)(a); Government of Western Australia, Department of Mines and Petroleum, ‘General duty of care in Western Australian Mines‘. Guidelines’ (2nd ed, 2011) 4 <http://www.dmp.wa.gov.au/documents/Guidelines/MSH_G_GeneralDutyOfCareWAMines.pdf>.
Mines Safety and Inspections Act 1994 (WA) s 4.
Mines Safety and Inspections Act 1994 (WA) s 4.
Commonwealth government, First Report to the Workplace Relations Ministers’ Council, ‘National review into Model Occupational Health and Safety Laws’ (2008) 28.
Mines Safety and Inspection Regulation 1995 (WA) r 4.7(1).
Mines Safety and Inspection Regulation 1995 (WA) rs 4.7(4)(a)(b).
Mines Safety and Inspection Regulation 1995 (WA) r 4.8(2).
Mines Safety and Inspection Regulation 1995 (WA) r 4.8.
Mines Safety and Inspection Regulation 1995 (WA) r s4.22, 5.3, 5.4, 6.4.
Sai Global, ‘AS 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=996711>.
Sai Global, ‘AS 4760:2006 Procedures for specimen collection and the detection and quantitation of drugs in oral fluid’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=318005>.
Model Work Health and Safety (Mines) Regulations 2011 (Exposure draft) r 9.3.2(1).
Model Work Health and Safety (Mines) Regulations 2011 (Exposure draft) r 9.3.2(2).
Reeve v Aqualast Pty Ltd [2012] FCA 679, 66 (Yates J).
Mines Safety and Inspections Act 1994 (WA) s 93(1).
Mines Safety and Inspections Act 1994 (WA) s 93(3).
Mines Safety and Inspections Act 1994 (WA) s 93(7)(a)(b).
Government of Western Australia, Department of Mines and Petroleum, above n 2, 41.
Johnstone, above n 28, 293.
Government of Western Australia, Department of Mines and Petroleum, above n 2, 42.
Government of Western Australia, Department of Mines and Petroleum, above n 2, 41.
Government of Western Australia, Department of Mines and Petroleum, above n 2, 37.
Government of Western Australia, Department of Mines and Petroleum, above n 2, 42.
Government of Western Australia, Commission for Occupational safety and health, ‘Guidance Note: Alcohol and other drugs at the workplace’ (2008) 16.
Ibid 17.
David Cliff, and International Mining for Development Centre Mining for Development ‘Guide to Australian Practice: The Management of Occupational Health and Safety in the Australian Mining Industry’. (2012) 1, 11.
Johnstone, above n 28, 28.
Occupational Safety and Health Regulations 1996 (WA) r 3.1; Mining Safety and Inspection Act (WA) s 9(1)(a).
Government of Western Australia, Department of Mines and Petroleum, above n 2, 42.
Sai Global, ‘AS 4801:2001’ Occupational health and safety management systems – Specification with guidance for use’ (2013) <http://infostore.saiglobal.com/store/Details.aspx?ProductID=386329>.; Sai Global, ‘AS 4804:2001 Occupational health and safety management systems – General guidelines on principles, systems and supporting techniques’ (2013) <http://infostore.saiglobal.com/store/Details.aspx?DocN=AS694960756228>.; Sai Global, ‘AS 31000:2009 Risk Management-Principles and Guidelines’ (2013) <http://infostore.saiglobal.com/store/Details.aspx?ProductID=1378670>.
Sai Global, ‘AS 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=996711>.
Sai Global, ‘AS 4760:2006, Procedures for specimen collection and the detection and quantitation of drugs in oral fluid’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=318005>.
Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (1984) 295 CAR 188, 191 (Full Bench of the Australian Conciliation and Arbitration Commission).
Government of Western Australia, Commission for Occupational safety and health, above n 89,16.
Caltex Australia Limited v Australian Institute of Marine and Power Engineers, The-Sydney Branch; The Australian Workers’ Union [2009] FWA 424, [97] (Senior Deputy President Hamberger).
Construction, Forestry, Mining & Energy Union v Wagstaff Piling Pty Ltd, Thiess Pty Ltd And Fair Work Australia [2012] FCAFC 87 [47] (Buchanan, Flick And Katzmann JJ).
Worksafe, Department of Commerce Western Australia, above 89, 16.
Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [2011] FWA 8288, [26] (Vice President Lawler).
Endeavor Energy v Communications, Electric, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others [2012] FWA 1809, 61 (Senior Deputy President Hamberger).
Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Association of Professional Engineers, Scientists and Managers, Australia [2012] FWAFB 4998 [33] (Justice Boulton, Senior Deputy President Senior Deputy President O’Callaghan, Commissioner Harrison).
Holland, above n 10, 328.
Alcohol and other Drugs Council of Australia, ‘Submission to: The Department of Transport and Regional Services and the Civil Aviation Authority – Review of the safety benefits of introducing drug and alcohol testing for safety- sensitive personnel in the aviation industry’ (2004) 4; Peter Holland, Amanada Pyman, and Julian Teicher, ‘Negotiating the contested terrain of drug testing in the Australian workplace’ (2005) 47(3) The Journal of Industrial Relations, 326, 330.
Debra Comer, ‘Employees’ attitudes toward fitness-for-duty testing’ (2000) 12(1) Journal of Managerial Issues 61, 61.
Ibid.
Sai Global, ‘AS 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=996711>.
Sai Global, ‘AS 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=996711>.
Sai Global, ‘AS 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine’ (2013) <http://infostore.saiglobal.com/store/details.aspx?ProductID=996711>.
Scott Macdonald, Wayne Hall, Paul Roman, Tim Stockwell, Michelle Coghlan, and Sverre Nesvaag, ‘Testing for cannabis in the work-place: a review of the evidence’ (2010) 105(3) Addiction, 408, 415.
Holland, above n 10, 329.
Shell Refining (Australia) Pty Ltd, Clyde Refinery v Construction, Forestry, Mining and Energy Union [2008] AIRC 510 [127] (Senior Deputy President Hamberger).
Mines Safety and Inspection Act 1994 (WA) s 9; Mines Safety and Inspection Regulation 1995 (WA) r 4.7(1); Construction, Forestry, Mining & Energy Union vWagstaff Piling Pty Ltd, Thiess Pty Ltd And Fair Work Australia [2012] FCAFC 87 [47] (Buchanan, Flick And Katzmann JJ).
Comer, above n 107, 62.
Alcohol and other Drugs Council of Australia, ‘Submission to: The Department of Transport and Regional Services and the Civil Aviation Authority – Review of the safety benefits of introducing drug and alcohol testing for safety- sensitive personnel in the aviation industry’ (2004) 1, 5.
Ibid 4.
Comer, above n 107, 63.
Endeavor Energy v Communications, Electric, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Others [2012] FWA 1809, 19 (Senior Deputy President Hamberger).
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