Opposition to Mandatory Disease Testing Bill 2020

(Debate & Amendments, 18 November 2020, Legislative Assembly, NSW Parliament)

Bill, full debate and amendments HERE.

10:05am: The Mandatory Disease Testing Bill 2020 is retrograde, irresponsible and encourages stigma and discrimination of people who live with bloodborne diseases like HIV. It is not based on evidence and will do nothing to protect frontline workers. The bill should not be made law, and I call on all members of this House to oppose it. The bill has very few safeguards in it, and I will be proposing a number of amendments to put safeguards in the legislation. At the outset, I make it clear that this bill is not about COVID or COVID tests. Public health orders are in place regarding that, and the Government could strengthen those without legislation if it so wished. This legislation predates the pandemic. It follows the Leader of the Opposition jumping on a dangerous bandwagon for a headline to force—without evidence—HIV tests on vulnerable people at the behest of a police officer, which then sparked the Government to act to outdo the Opposition.

I will outline why I, as a gay man, am so deeply concerned about this bill. When you come from a community that has been bashed by the police, has been body-slammed by police and whose safety was negligently ignored by the police for decades, you get very concerned with legislation that would potentially allow a police officer to weaponise an HIV test as a form of punishment against a gay person or someone from another vulnerable group. In the height of the AIDS crisis this law was not needed. Why is it now needed when HIV spread has almost been eliminated in this State?

Regardless of the history of police violence and neglect against the LGBTQI community, I will outline the work I have done to build and repair relationships between that community and the NSW Police Force. I have participated in recruitment drives for the police to encourage more LGBTQI people to join the force. I helped broker the Mardi Gras accord after a police officer body-slammed a parade marcher. I have taken police officers up on stages in gay bars and urged the community to trust and work with them. I have spoken at police leadership training about LGBTQI issues. I find this legislation—brought to this House as a result of a fearmongering campaign by the Police Association of NSW—personally insulting and extremely damaging to the work done by myself and people in the NSW Police Force itself to support good relationships between the LGBTQI community and the police.

The Mandatory Disease Testing Bill would allow a frontline worker who has come into contact with a third person's bodily fluids as the result of a deliberate action to seek an order from a senior officer to force that third person to get tested for HIV and other bloodborne diseases. Mandatory tests go against all harm minimisation and evidence-based health principles—the policies that have helped New South Wales become a world leader in HIV management. HIV spread has almost been eliminated in this State. This was the result of incredible work led by the AIDS Council of New South Wales [ACON] that involved removing stigma, encouraging safe behaviour such as condom use and not sharing needles, providing access to testing, and supporting new treatment. This work was done within high-risk communities and across the wider population.

Only 0.1 per cent of the Australian population is now living with HIV, and new diagnoses amongst men who have sex with men are decreasing. Its prevalence among sex workers is lower than that in the general population, at 0.04 per cent, and Australia has one of the lowest rates of HIV for injecting drug users in the world, at 1.1 per cent. More than 95 per cent of people living with HIV in this State are taking medication to eliminate the risk of transmitting the virus. Hepatitis B notifications have been declining: Fewer than 84,000 people across the country have the disease. There is easy access to a hepatitis B vaccine and other bloodborne viruses can be prevented, managed and cured. ACON has a long history of opposing mandatory testing policies because they are counterproductive to disease control. Forced testing incites discrimination and stigma and provides little long‑term benefit. Removing a person's autonomy to consent to medical procedures and using such procedures as a form of punishment with little independent oversight not only breaches human rights but also is poor public health policy.

While there has not been an occurrence of occupational transmission of HIV for emergency service workers in Australia in over 15 years, I do understand that being exposed to someone's bodily fluids could cause distress. But this bill will do nothing to reduce that stress or provide certainty or confidence to those workers. We know that there can be a time lag before a bloodborne virus is detected in someone's system, so a negative test is never conclusive. We also know that exposure does not always mean transmission occurred, so a positive test in the third party does not confirm transmission. Indeed, testing a third person is unlikely to provide any useful information to someone concerned about transmission. It is universally agreed that it is far more reliable to test the person who is concerned that they could have contracted a disease than testing the person who could have infected them. The best thing for a person worried about potential exposure to HIV is to start post exposure prophylaxis medication.

This bill is not about protecting frontline workers. It does not even limit orders to incidents in which there has been a transmission of bodily fluid. Orders can be made purely based on being in contact with a bodily fluid, such as being spat at. This has no scientific health basis. The bill has clearly been designed to enable the use of the orders as a form of punishment. While an applicant is required to consult with a medical practitioner, there is no requirement for them to provide the senior officer the advice they receive before making a decision. The inclusion of children in this bill is abhorrent. HIV rates in under 18s are negligible, with only three young people diagnosed with the condition last year and they are being treated. Sending mandatory testing applications to the Children's Court is a gross waste of resources in a system that needs to focus on child protection.

Powers to use force against a person held in custody to undergo a blood test are blatantly disturbing. Senior officers will be able to issue mandatory testing orders before the guidelines are even in place. The guidelines will set up the framework for determining applications, providing medical advice to applicants and taking blood from third parties. In drafting the guidelines the Chief Health Officer needs to consult only with the commissioners representing frontline workers, with no provision to ensure that there is input from organisations representing those most likely targeted by the orders. The guidelines are not even legislated and will not be subject to the scrutiny of the Parliament. HIV testing normally occurs in a health context where people are counselled before their test and before they receive their results. A test may uncover difficult news about someone's health status or bloodborne virus status.

The bill removes that testing from the supportive health context and moves it to a punitive environment. This is blatantly wrong and will deny people the support they need to prepare for or deal with results. Options available to third parties to get a review of an order against them provide few safeguards. Mandatory testing orders do not need to include clear information about how to request a review. A third party has only one business day to request a review and they will still be forced to submit to a blood test regardless of the outcome of that review. Forcing someone to undergo any puncture with the threat of fines or jail time is not an effective health policy and will not give genuine comfort to frontline workers. [Extension of time]

Providing frontline workers with training about bloodborne virus transmission and modern prevention in treatment practices would be a more useful policy in protecting frontline workers and will give them peace of mind should they come into contact with someone else's bodily fluids. It is likely that these orders will be disproportionately used as retribution against people who mistrust authority and lash out because they are marginalised. They include people who are homeless, who have mental health concerns, who struggle with addiction, who are Aboriginal or Torres Strait Islander, who are LGBTQI, who have complex emotional problems and who are disadvantaged. These people should be supported, not feared. Medical procedures should never be mandatory and should never be used as a form of punishment. We became the world leaders in HIV and COVID‑19 transmission because we listened to the experts and we based policy on health advice.

This bill transfers disease control from a health context to a punitive context while inciting fear. It is a backward step for New South Wales. I foreshadow that at a later stage I will be moving a number of amendments to strengthen safeguards and address some of the most problematic parts of this bill. In the context of this bill members have talked about spitting. This bill spits on years of progress to destigmatise HIV; it spits on years of progress to build stronger relationships between the police and the LGBTQI community; it spits on all the medical advice that shows it is unnecessary and dangerous. This is an appalling bill. I oppose the bill.

3:15pm: I would like to comment on the contribution by the member for Newtown. We have heard the concerns of frontline workers expressed by members. I represent a number of them in my electorate and, like the member for Newtown, I also represent a large community of young people who could be LGBTI, who could be from an Aboriginal and Torres Strait background. History shows that these cohorts do not have the best relationship with police and that is not because of their doing. When it comes to young people, I take the House back to the Mardi Gras of 2014 when the police assaulted a young person. The police officer has since been fined and I believe discharged, and the individual was awarded $40,000 as a result of that assault. At the moment of that assault the police officer grabbed the young parade-goer and body-slammed him on Oxford Street. It is completely foreseeable that in that process the young person may have screamed for help. While he was screaming for help it is foreseeable that saliva could have left that person and landed on the police officer. Under this bill in its current form, if that police officer wanted to further punish, abuse or harass that young person, he could order an HIV test for them without any regard to the person's age and without any regard to whether there was intent. That is why I am so seriously concerned about this bill. I am concerned about this bill because I want the police and the LGBTI community and young people to get along, but without safeguards we cannot be introducing legislation that could potentially be weaponised. I commend the amendments to the House.

7:27pm: support these very commonsense amendments from the member for Newtown. In the current bill a person who is subject to a mandatory testing order has only one business day to request a review from the Chief Health Officer. As we have already heard, they may not necessarily even be aware of that right at that point. This provides absolutely no time to get in contact with advocacy and support services, especially if that person has employment, education or carer duties. Most community legal centres do not have the capacity to see clients within one business day and it would be very difficult for most people to understand their rights. The system cannot be fair if people do not have access to advice about their rights and options, or if the appeal period is grossly inadequate. I support the amendments, which go to the wider concern that this bill has absolutely zero safeguards. As the member for Newtown put it, having a 24-hour—one day—period during which to seek a review is certainly not sufficient.

The examples that we have been provided with could be traumatic for both people, who could still be dealing with quite traumatising experiences. With this bill, the order is in force within one day. The amendments go to the lack of due process and procedural fairness in the bill. They will have no impact whatsoever on whether transmission has occurred. I strongly support the amendments moved by the member for Newtown. I think seven days is a good period but, as the member for Newtown said, this could potentially be amended. It is an issue that I hope the upper House committee looks at, but the issue of procedural fairness and natural justice should be something we all support. I commend the member for Newtown and the amendments.

20:09: I support the amendment moved by the member for Newtown about consultation and the list of stakeholders to be included. The amendment goes to the establishment of guidelines by the Chief Health Officer and the entities with whom the Chief Health Officer needs to consult in forming those guidelines. Currently, the bill limits those to a number of government departments that represent frontline workers, and I fully support the inclusion of those entities and bodies. If we are to have faith in the process that will come with the bill, there has to be full and thorough consultation with all impacted parties.

As I have outlined multiple times, my concern is that I do not want to see any further disruption between the police or other emergency services and vulnerable groups. To ensure that outcome one would hope that there would be full and thorough consultation with those groups. The amendment moved by the member for Newtown not only includes organisations that the New South Wales Government regularly consults with—like ACON, for example. It also includes government agencies like Multicultural NSW. Importantly, it includes the corporate sponsors for sexuality and gender diverse people, and Aboriginal engagement within the police. Those are two positions which will have to deal with many of the struggles that will come with the implementation of the bill.

Whether members like it or not, there will be struggles. All the amendment seeks to do is make sure that the views of a range of other key stakeholders are heard when forming the guidelines. Doing so will help the implementation of this policy. I support the sensible amendment moved by the member for Newtown. I appreciate the consultation she has undertaken to build the robust list of people, which is all about ensuring that when and if this legislation comes into effect there has been proper consultation with those bodies. Again, this is a safeguard around good process, full legislation and the formation of guidelines. I support the amendment.