Submission to the NSW Ombudsman about the Mandatory Disease Testing Act 2021

The NSW Council for Civil Liberties has lodged a submission to the NSW Ombudsman with respect to the review of the Mandatory Disease testing Act 2021.

The Mandatory Disease Testing Act came into force in July 2022 and provides for mandatory testing of a person whose bodily fluid comes into contact with a health, emergency or public sector worker.

The making of a “mandatory order” compels a person to provide a blood sample, under the threat of prosecution for a failure to comply. If convicted, it carries a maximum penalty of twelve months imprisonment and/or a maximum fine of $10, 000.

We have submitted that the Act should be repealed in its entirety.

Comments from Lydia Shelly, President, NSW Council for Civil Liberties

There is no empirical evidence supporting that the Act will protect frontline health workers without arbitrarily, unnecessary or disproportionality encroaching upon the rights of individuals in New South Wales.

The risk of any transmissions occurring due to being exposed to a person’s bodily fluid is extremely low. ACON confirmed just how low this risk was in their 2019 report which found zero occupational transmissions towards police officers in the last 17 years.

This was conceded by the Police Association of New South Wales who have directly stated that: “…the risk of transmission of a communicable disease is in most cases very low”.

There is no doubt that health, emergency, and public sector workers undertake valuable work and that they deserve to be protected from violence and other risks associated with the work they do.

This Act is a distraction from the real risks that our frontline workers are facing, and it does not address the substantial risks they face on a daily basis.

This legislation was introduced during a healthcare crisis – a crisis that has continued.

Frontline workers work incredibly long hours and under very stressful conditions. Their pay does not reflect their skills, their commitment, and the valuable service they provide our communities.

Frontline workers have to juggle vicarious trauma and other related mental health risks, whilst juggling the escalating cost of living crisis.

We should all be concerned that 2 in 3 paramedics want to or are considering leaving the profession.

We should all be concerned that 6 out of 10 emergency patients are not getting an ambulance soon enough when they need urgent care.

Our unfettered healthcare crisis is a bigger risk to our frontline workers than any risks purported to be mitigated as a result of this Act.

There is current industrial action because of successive wage cuts and a lack of emergency healthcare investment from the NSW Government. The recent wage increase promise of 4% that was announced in June 2023 by the New South Wales Government does not consider inflation and the rising costs of living. We understand that this issue has not been resolved.

Our prisons in New South Wales are privately owned and geared towards making a profit. They are not geared towards creating conditions supporting rehabilitation programs for people who are incarcerated which would be a tangible investment in the safety of corrective officers and the community. They are not geared towards providing adequate healthcare for those who are incarcerated. Private prisons have been criticised in multiple Coronial inquests.

The current conditions do not support corrective services staff. We only have to look at the recent action at Junee Correctional Centre that saw at least 50 staff walk off the job in response to claims of excessive and unsafe overtime conditions. We hope that the transfer of this facility back to public ownership will address the conditions that make prisons unsafe for both the Corrective Services staff and those who are incarcerated. This Act also fails to address the real risks that Corrective Services staff are exposed to.

The Public Services Association of New South Wales submitted to the Standing Committee on Law and Justice in 2021 that there was a need for the Mandatory Disease Testing Act to be introduced as there had been a marked increase in serious assaults and incidents, including the fact that “use of force” incidents has doubled in the last five years.

The Act does not address the conditions that create violent and unsafe working conditions.

We urge the Government to review the real risks facing our frontline workers – and address them holistically – including committing to funding the frontline workers appropriately for the valuable services they perform for our communities.

More information about the review is available here.