In the 40 or so years since cases of HIV/AIDS were first reported in Australia, New South Wales has been a world leader in the prevention and management of the illness.
At the height of the AIDS crisis, Bill Bowtell, the senior private secretary to the Commonwealth health Minister, stated:
In Australia, we rejected international orthodoxy and instead developed a swift, radical and bold response to HIV/AIDS across the spectrum of treatment, care, research and, above all, prevention.
Academics have pinned the success of the approach to a combination of tolerance, innovation, agility and partnership.
In New South Wales, we adopted an early community based response led by a partnership of governments, public sector agencies, community controlled organisations, not for profits and communities themselves. Our early adoption of harm minimisation and needle exchange programs, decriminalisation of sex work and homosexuality and landmark policy innovations such as the establishment of the medically supervised injecting centre set New South Wales apart.
I am proud that many of those achievements are the legacy of Labor governments.
The current Government is continuing this by setting the aim of virtually eliminating HIV transmission in New South Wales and the current development of an LGBTIQ+ Health Strategy.
As a State, the cornerstone of our success in responding not only to HIV but also to other bloodborne viruses, including hepatitis, is that our approach has most often been rooted in compassion and understanding.
Throughout, a primary concern has been to reduce the stigma, discrimination and judgement that has often been levelled at people living with bloodborne viruses.
I am concerned that the Mandatory Disease Testing Bill 2020 will undo that good work.
I fully support measures to protect frontline workers in our health and emergency services. Without question, every worker has a right to be safe at work, especially those who put their own wellbeing and life on the line to keep others in our community safe. Whether they work in our hospitals, ambulances, police stations or correctional facilities, workers and their families deserve to know that their workplace is free from violence. We must categorically condemn and act on assaults against frontline workers.
I understand the motivation of unions, including the Public Service Association and the Health Services Union, which are advocating for these measures, and I note that even the strongest opponents of this legislation acknowledge that the measure is well intended and support the need to protect frontline workers.
Nobody believes that an assault of violence is in any way acceptable.
However, I question whether legislation like this will have any effect on reducing the unacceptable levels of violence against frontline workers. It will not act as a deterrent, nor do I believe that the safety of frontline workers is mutually exclusive to the wellbeing of vulnerable people in our community with bloodborne viruses.
Rainbow Labor has said of the policy:
As trade unionists we believe that no one should be made to feel unsafe at work. Many of our Rainbow Labor members … are frontline workers, particularly nurses and social workers. We understand the genuine concerns that all frontline workers have around assault. However this is a policy that will not reduce harm and will instead further stigmatise those living with HIV.
Union Pride has said:
As unionists, we are opposed to any attacks on workers and want to see safer workplaces for everyone. However, this Bill will not stop assaults and it will not reduce HIV and other Blood Borne Viruses. It will increase fear and stigma. Union Pride stands with workers who have fought tirelessly for decades to reduce the stigma faced by people living with HIV.
I strongly support calls from ACON and others that the bill be referred to a parliamentary committee for further amendment.
It is critical that we fully understand and grapple with the possible unintended consequences of a bill that strives to do the right thing but may set us backwards.
When managing complex health questions, it is critical that we bring all the voices to the table and chart an approach that gives frontline workers security, while also continuing our good work in stemming the spread of bloodborne viruses and ensuring that those in our community who live with a bloodborne disease are treated with dignity, compassion and respect.
The bill sets out a scheme whereby a person may be ordered to provide a blood sample for testing when they are responsible for their bodily fluids coming in to contact with a health, emergency or public sector worker and where there is deemed to be a risk of transmission of a bloodborne virus.
The bill defines bloodborne viruses as HIV and hepatitis B or C. In his second reading speech, the Minister noted that currently in health settings where a health worker is concerned about the risk of transmission of a bloodborne illness following an interaction with a patient, the patient may be asked to consent to a blood test but is under no obligation to give one.
Current laws do not allow for consent for testing to be requested in any other setting, nor do they allow for the mandatory testing for bloodborne illness in any setting.
The bill allows for a prescribed worker to make an order for an application for mandatory testing to a senior officer within five days of the contact occurring and only after consulting a medical practitioner. Orders against persons aged between 14 and 17 may occur only after an application to the Children's Court.
In instances where a third party is being called on to submit to mandatory testing exhibits an impairment, orders must be made through the Local Court.
The person against whom an order is made can apply within one day to the Chief Health Officer to have the order overturned and the Chief Health Officer has three days to rule on the order. I note that while an order is being reviewed, it remains in force and a blood sample may be taken before an appeal is decided. That has raised significant concerns for stakeholders, who report that such a process undermines procedural fairness and threatens potentially innocent people with fines and jail time for failing to submit to a medical procedure they do not consent to.
When blood samples are taken under the terms of an order, they must be extracted by a listed medical professional using, in the Minister's words, no "more force than ordinarily required to take blood from a person".
Reasonable force is also permitted when ensuring a person is transported to and from a facility for the purposes of a mandatory blood test. Stakeholders have raised understandable concerns about what constitutes reasonable force in those instances. The bill also lays out provisions relating to the appropriate disclosure of a person's health information after being submitted to a mandatory blood test and spells out offences for failure to comply with any of the provisions in the Act.
A statutory review of the bill is scheduled to occur as soon as possible following the publication of a monitoring report by the Ombudsman one year after the commencement of the scheme.
I also understand that the current bill follows consultation on a draft version with key stakeholders and community groups and that some stronger protections were adopted than what was initially the case.
It is important to outline the strong concerns raised by community groups, including ACON.
Opposition to the bill is predicated on the fact that there has not been a single incidence of occupational transmission of HIV among emergency workers in over 15 years.
ACON and other stakeholders contend—rightly, I believe—that is clear evidence that the current suite of protections for frontline workers is working.
Specifically, stakeholders raise concerns about what a "deliberate action" constitutes under the bill and that the scheme may be applied in instances where accidental transfer of fluids occurs. They also note that the threshold for testing is very low.
The NSW Council for Civil Liberties has argued,
Reasonable suspicion of a police officer does not really provide an evidence-based medical reason for the action.
Similarly, there is concern that the initial decision to issue an order is at the discretion of a senior officer who may not be equipped with the expert knowledge regarding the transmission of bloodborne diseases.
A case in point is that the bill allows for mandatory testing orders in events where spitting or biting is involved even though the Expert Consensus Statement on the Science of HIV in the Context of Criminal Law—a document authored by 20 of the world's leading scientists on HIV—states:
There is no possibility of HIV transmission via contact with the saliva of an HIV-positive person, including through kissing, biting or spitting.
There is no possibility of HIV transmission from biting or spitting where the HIV-positive person's saliva contains no, or a small quantity of, blood.
The possibility of HIV transmission from biting where the HIV-positive person's saliva contains a significant quantity of blood,and their blood comes into contact with a mucous membrane or open wound,and their viral load is not low or undetectable varies from none to negligible.
In its audit of Australia's mandatory disease testing laws, the National Association of People with HIV Australia concluded that this was a key problem in other States where similar schemes are in place, noting that
"decisions to test for HIV or bloodborne viruses are particularly vulnerable to stigma and not informed by the latest medical knowledge".
One concern is that the Australian Medical Association [AMA] NSW has noted that testing itself may be unreliable given the window of up to six months from infection before some antibodies appear in tests. That raises the spectre of frontline workers being given inaccurate information about their health status. Dr Lim, former President of AMA NSW, has said:
You could not in good conscience tell a police officer or frontline health worker that they were safe. The worse case scenario would be if someone was falsely assured that due to a negative test on an alleged offender that they were not at risk … that would probably be the most tragic outcome.
ACON has also raised strong objections to the fact that a person subject to an order may still be required to undergo a forced procedure even if they make an appeal, which they and others have characterised as a breach of civil liberties.
Specific objection is raised with the fact that children as young as 14 may be subjected to an order. ACON notes that in the past year only three people under the age of 18 were diagnosed with HIV and that the application of this law on teenagers constitutes an alarming breach of civil liberties. Forcing mandatory blood testing on young people will cause considerable distress to what is an already vulnerable group of people caught up in the criminal justice system. Given revelations about the strip search of children in New South Wales, I understand the valid concerns raised by stakeholders and the public that this law may further erode the protections, freedom and safety of young people in this State.
Similarly, ACON and others have raised concerns that the scheme is likely to disproportionately impact already vulnerable and marginalised people, including homeless people, people experiencing mental illness or addiction and First Nations people.
In short, ACON and others contend that the bill represents the further criminalisation of what is a fundamental health issue in our State and may have significant unintended consequences for some of the most vulnerable people in our community.
Another key concern is that the proposed scheme is likely to cause further discrimination and stigma against people living with bloodborne viruses in our community.
We have made extraordinary headway in reducing stigma and increasing participation for people living with HIV or bloodborne viruses. We have come leaps and bounds in treating HIV and bloodborne illnesses with advances in treatments such as pre‑exposure prophylaxis and post-exposure prophylaxis.
Diagnosis is no longer a death sentence.
We have also been the beneficiary of decades of education and reconditioning that has removed the public perception of HIV or bloodborne viruses far from the Grim Reaper images of the 1980s.
Not only do we better understand the transmission of bloodborne viruses but we also no longer apportion blame and judgement on those living with them in our community. That is good news for those people's mental and physical wellbeing and it plays an important role in reducing transmission.
In response to the proposal to introduce mandatory blood testing in 2017, Hepatitis NSW, the NSW Users and AIDS Association and other organisations noted the following in their submission to the inquiry into Violence Against Emergency Services Personnel:
The implementation of mandatory testing would have a detrimental impact on the ability of NSW specifically, and Australia more broadly, to address viral hepatitis. This includes weakening our ability to eliminate hepatitis C, because increased discrimination may dissuade people from engaging with health care services. It would also undermine campaigns for increased testing for viral hepatitis B.
In the midst of the current pandemic, we know how important testing, treatment and support is.
When describing the lessons we could learn from the HIV/AIDS crisis to combat COVID-19, Bill Bowtell says that what set Australia apart in its response compared with other countries is that politicians largely stayed out of it. He said:
In the 1980s, prime minister Bob Hawke and opposition leader Andrew Peacock took the wise decision to withdraw completely from public involvement and commentary on the HIV response. They knew political leaders were fatally compromised by being political leaders.
We must apply the same logic here because politicians are not experts in this field. The approach to complex health challenges must not be rooted in fear but scientific evidence, guided by medical specialists and those who have lived experience of illness.
I hope that a thorough inquiry into the bill will help us do that.