Two New WA Acts Concerning Mandatory Testing for Infectious Diseases

On 21 May 2020, the Mandatory Testing (Infectious Diseases) Amendment (COVID-19 Response) Act 2020 (WA) (‘the Mandatory Testing Amendment Act’) and the Prisons Amendment Act 2020 (WA) received assent in WA.

The Mandatory Testing Amendment Act

The Mandatory Testing Amendment Act amends the Mandatory Testing (Infectious Diseases) Act 2014 (WA) (‘the Principal Act’) in order to broaden the authorised types of samples that can be taken from a suspected transferor. Under the Principal Act, a public officer may apply to a senior police officer for a disease test approval if -

• there are reasonable grounds for disease testing; and
• the suspected transferor is not a protected person; and
•  the senior police officer is not involved in the investigation of any suspected offence to which the proposed disease test approval relates.

Prior to the Mandatory Testing Amendment Act receiving assent, a disease test was exclusively limited to the taking and analysing of blood samples from a suspected transferor. According to the Second Reading Speech, the Mandatory Testing Amendment Act removes the specification of “blood samples” in order to allow for samples of saliva, mucus, respiratory secretions or other material to also be taken for a disease test. This is to accommodate for the fact that blood tests cannot diagnose whether a person is currently infected with COIVD-19 but can only determine if a person has the antibodies that demonstrate that they have recovered from the virus. COVID-19 is diagnosed using these other types of samples, in particular, swabs from the back of the nose and throat.

The Prisons Amendment Act

The Prisons Amendment Act amends the Prisons Act 1981 (WA) by introducing mandatory testing of prisoners for certain infectious diseases if there are reasonable grounds to suspect a transfer of bodily fluids from a prisoner to a prison officer. A notable distinction between the Prisons Amendment Act and the Mandatory Testing Amendment Act is that the former has no indication in either the explanatory secondary material or in the language of the Act itself that it is expressly intended as a response to the COVID-19 pandemic. When first introduced, the Prisons Amendment Act made no mention of being COVID-19 related, however, amendments were introduced to expand the operation of the Prisons Amendment Act to “body samples” instead of merely “blood samples”.  The Minister for Corrective Services, Francis Logan, stated that while the Prisons Amendment Act had been initially drafted specifically for testing bloodborne viruses, the current pandemic appropriately justified the expansion of the Bill’s original operation.

The  Prisons Amendment Act specifically defines infectious disease to include:

• Human Immunodeficiency Virus (HIV);
• Hepatitis B;
• Hepatitis C;
• any other prescribed disease capable of being transmitted by the transfer of a bodily fluid.

The chief executive officer (‘the superintendent’) may inspect a prisoner’s medical records in order to determine if the prisoner has an infectious disease. The superintendent may also require the prisoner to submit themselves for the purpose of having a blood or other body sample taken to test for infectious disease. The superintendent can authorise the use of reasonably necessary force for the purpose of taking such a sample. The Prisons Amendment Act also enables the chief executive officer to make regulations pertaining to the disclosure of a prisoner’s medical records to a prison officer provided the chief executive officer suspects on reasonable grounds that there has been a transfer of bodily fluid from a prisoner to that prisoner officer. Further, refusal to comply with a direction by the superintendent to have a blood or other body sample taken may incur a penalty. During the debate within the Legislative Assembly, the Minister for Corrective Services stated this “would be up to six months’ additional incarceration—which is served commensurate with the existing sentence—or $6 000, or up to 28 days’ solitary confinement.”

In addition, the Prisons Amendment Act makes several amendments to increase the monetary penalties for offences in the Prisons Act. The Minister mentioned in his Second Reading Speech that these penalties have not been revised since they have been introduced and “have not kept pace with changes in the consumer price index and in some cases have lost their deterrent impact.”

Response to the Acts

When mandatory testing for COVID-19 was first introduced, President of the WA Police Union, Mr Harry Arnott stated that mandatory COVID-19 testing is “an important and commonsense move in the current climate.” A May Media Release stated that the new laws are intended to complement the tough penalties introduced in response to the COVID-19 crisis including up to 10 years' imprisonment for assaulting a frontline worker in circumstances where a person knows they have COVID-19 or creates a belief, suspicion or fear they have COVID-19. The Minister for Police, Michelle Robert, said that the use of mandatory testing “will provide some reassurance and enable the Commissioner to return officers to the frontline quickly, without the need for lengthy quarantine.” The Minister for Corrective Services echoed these sentiments in relation to prison officers stating, “It can be a long and anxious wait for an officer not knowing whether the prisoner is carrying an infectious disease” and that these “tough new amendments fulfil a McGowan Labor Government commitment to support prison officers in the same way as police officers.”

However the Prisoners Amendments Act in particular has received significant criticism from HIV activists. According to a May Media Release produced by the National Association of Australia with HIV and the WA AIDS Council, the law is a product of “stigma and misinformation” citing facts such as the inability of HIV to be transmitted through saliva and the availability of a vaccine and cure for Hepatitis B  and C respectively. Both bodies also took issue with the government’s statement that, following an assault, a prison officer will have to wait 3 months before they can be tested for HIV, stating that modern HIV tests detect exposure within 6 days. The WAAC President, Asanka Gunasekera also expressed concern over the effect of the legislation in decreasing the likelihood that marginalised groups will seek a HIV test voluntarily if an association with criminality is established. Criticism from activist groups also suggested that the COVID-related amendments to the Prisoners Amendment Act disabled the Act from being more thoroughly reviewed and debated due to its urgent subject matter.

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Mandatory Testing (Infectious Diseases) Amendment (COVID-19 Response) Act 2020 (WA), Prisons Amendment Act 2020 (WA), Bills and explanatory material available from TimeBase’s LawOne Service

Media Release: Expanding mandatory testing to better protect police during Coronavirus pandemic (Minister for Police, Hon Michelle Roberts, 12 May 2020)

Media Release: Mandatory COVID-19 Testing Vital for Police Officers (Western Australia Police Union, 12 May 2020)

Media Release: HIV prison laws inflame stigma, offer no protection (NAPWHA; WA AIDS Council, 11 May 2020)

Media Release: Proposed mandatory infectious diseases testing of prisoners who assault officers (Minister for Emergency Services; Corrective Services, Hon Francis Logan, 18 February 2020)