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SERIAL NO. 177
EXPLANATORY STATEMENT
The purpose of this Bill is to provide new powers that will allow the taking of a blood sample from a person where that person has assaulted a police officer, or in the course of arrest or detention, is suspected of transferring a substance to an officer. The new powers also provide for the analysis of the blood sample to determine whether the person has an infectious disease and enable authorised persons (including professionals)
to disclose those analysed results.
NOTES ON CLAUSES
Clause 1 Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Police Administration Amendment Act 2016 (the Amendment Act).
Clause 2 Commencement
This is a formal clause which establishes when the Amendment Act will commence. The Amendment Act will commence on the date fixed by the Administrator by Gazette notice.
Clause 3 Act amended
This is a formal clause that provides for the Amendment Act to amend the Police Administration Act (the Act).
Clause 4 Section 4 amended
This clause inserts new definitions in s 4 of the Act for the purposes of interpreting this Bill.
It also includes ‘third party’ for a transferor which means:
(b) another responsible person for the transferor appointed third party under s 147FJ(1)(d).
This clause inserts s 4A which applies pt IIAA of the Criminal Code, relating to the general principles of criminal responsibility,
general defences and the burden of proof, to an offence against s 147FG, 147FO, 147FV or 155. Part IIAA also defines, or elaborates on,
certain concepts commonly used in the creation of offences.
Clause 6 Part VII Division 7AA inserted
This clause inserts a new division into pt VII (Police powers) of the Act:
Division 7AA Blood testing for infectious diseases
Subdivision 1 Preliminary Matters
147FA Interpretation
This clause defines various words and expressions used in new
div 7AA. The key definitions are:
affected member means a member in relation to whom there are grounds for disease testing.
disease test approval means an approval under Subdivision 2 for the taking and testing of a blood sample from a transferor.
disease test authorisation means a disease test approval or a disease test order.
disease test order means an order of the court under Subdivision 3 authorising the taking and testing of a blood sample from a transferor, and includes a variation of the order under section 147FK(3).
incapable person means a person who is not a child and who:
(b) is deceased, unconscious, or otherwise unable:
(ii) to communicate whether or not the person consents to being tested for an infectious disease.
(b) Hepatitis B;
(c) Hepatitis C;
(d) another disease prescribed by regulation capable of being transmitted by the transfer of a substance.
senior member means a member of or above the rank of superintendent.
substance means blood, saliva or faeces.
transfer of substance means the transfer of a substance from a person into broken skin, or a mucous membrane, of a member.
transferor, where there are grounds for disease testing, means the person from whom it is suspected the substance was transferred.
Subdivision 2 Disease test approvals
147FB Application for disease test approval
This clause allows an affected member to apply for a disease test approval in relation to a transferor if there are reasonable grounds and the transferor is not a protected person. The application must be in writing; however, if not practicable, a written record must be made as soon as possible after the application is made, to a senior member who is of the superintendent rank or above. If the transferor is being detained under s 147FC, the application must be made as soon as practicable after their apprehension or in a manner that ensures the determination of the application as soon as practicable after that apprehension.
The definition grounds for disease testing, in relation to a transferor, means grounds for suspecting that there has been a transfer of a substance from the transferor to a member as a result of:
(b) the lawful apprehension or detention of the transferor by the member; or
(c) another circumstance prescribed by regulation and involving the transferor and the member.
This allows police to detain a transferor to enable the completion of an application for a disease test approval in situations where a transferor is detained in relation to an alleged offence; however,
is then eligible to be released from custody. It will also allow police to apprehend and detain a transferor after they are released and need to be returned to custody to enable an application to be determined.
147FD Disease test approval
In considering the application, the senior member must consider:
(b) the transferor is not a protected person; and
There may be circumstances where the affected member is not available to complete an application for a disease test approval, for example, may be unconscious or completing/conducting urgent operational duties. Therefore a provision has been made for an approval to be made by a senior member if they are aware of the circumstances and those circumstances meet the relevant criteria.
147FE Service of copy of disease test approval
To ensure a transferor is informed and aware of the obligations placed on them as a consequence of a disease test approval, a copy must be served personally on the transferor in a form approved by the Commissioner. This will explain the purpose and effect of the approval, that use of force may be used to enforce the approval, and that failure to comply with a requirement is an offence.
147FF Effect of disease test approval
This clause presents powers for police to:
(b) enter any place where the member suspects on reasonable grounds that the transferor might be located; and
(c) take the transferor to a place the member considers has appropriate facilities for taking a blood sample.
147FG Failure to comply with requirement under disease test approval
Failing to comply with a disease test approval will result in the transferor committing an offence, where the maximum penalty is 100 penalty units.
This is intended as a deterrent to persons who may refuse to submit to the taking of a blood sample; however, a reasonable excuse is a defence to prosecution, for example due to a medical condition.
Subdivision 3 Disease Test Orders
147FH Application for disease test order
This clause makes provision for an affected member or senior member (the applicant) to make application to a court where the transferor is a protected person. This is similar to the requirements for an application for a disease test approval.
147FI Service of copy of application
This clause provides that the applicant must then serve a copy of the application personally on a third party (meaning a responsible person [i.e., a parent of the child or guardian of the person etc.]) for the transferor.
147FJ Hearing of application
When an application is made to the Court, the Court must then hear and decide the application with as little delay as possible, in the absence of the public. The Court may, in extraordinary circumstances, adjourn the application (not more than 24 hours)
to allow further evidence to be put before the Court and must ensure that the transferor and the third party are given the opportunity to be represented by a lawyer at the hearing. The Court may also appoint another responsible person to be the third party for the transferor.
147FK Disease test order
Once satisfied there are grounds for disease testing and a blood sample should be taken, the court may make a disease test order. This may be subject to any conditions that the Court considers appropriate and specified in the order. The Court may, by further order, vary or revoke a disease test order. This provision is similar to the clause that applies to a senior member when considering whether to make a disease test approval; however, the Court will also need to take into consideration any evidence (whether provided by the affected member, witness or transferor) to establish if there has been a transfer of substance.
147FL Explanation of disease test order
When an order is made the Court must ensure that the transferor and the third party are informed of the right to appeal, obtain legal advice, purpose and effect of the order and their obligations to comply with an order. All reasonable steps should be made to ensure that the explanation is provided to the transferor in a language and manner that is likely to be understood.
However, failure by the Court to comply with this does not invalidate the order.
147FM Service of copy of disease test order
This clause provides that a copy of the order must be served personally on a third party (meaning a responsible person
[i.e., a parent of the child or guardian of the person etc.]) for the transferor. This is to effect the certain obligations placed on a third party when an order is made.
147FN Effect of disease test order
This clause is similar to clause 147FF where it presents powers for police to:
(b) enter any place where the member suspects on reasonable grounds that the transferor might be located; and
(c) take the transferor to a place the member considers has appropriate facilities for taking a blood sample.
147FO Failure to comply with disease test order
Failing to comply with an order (such as the taking all reasonable steps to enable a blood sample) will result in the third party for a transferor committing an offence. The maximum penalty is 100 penalty units. A reasonable excuse is a defence to prosecution.
147FP Appeal against disease test order on behalf of transferor
This clause will enable an appeal to the Supreme Court against the order on behalf of the transferor. They must be filed without delay and unless otherwise ordered does not stay the operation of the disease test order. A decision must be made by the Supreme Court within 48 hours after the order is made without adjourning the appeal (unless impossible to do so) and in the absence of the public.
The Supreme Court may allow or dismiss the appeal.
Imposing timeframes for an appeal to be dealt with expeditiously is to ensure the affected member receives early advice of the status of the transferor.
147FQ Appeal against disease test order by affected m ember
If a court decides to not make a disease test order, appeals by the affected member or senior member (if it is not feasible for the affected member) may be made to the Supreme Court. The Supreme Court must hear and decide the appeal within 48 hours after the decision to not make the order and in the absence of the public and without adjourning the appeal (unless it is impossible to do so).
Imposing timeframes for an appeal to be dealt with expeditiously is to ensure the affected member receives early advice of the status of the transferor.
Subdivision 4 General
147FR Taking blood sample under disease test authorisation
On executing a disease test approval or order, a member may ask a medical practitioner, nurse or qualified person to take a blood sample from a transferor; providing they produce a copy of the authorisation for inspection. The medical practitioner, nurse or qualified person must comply with the disease test approval or order.
A medical practitioner, nurse or qualified person is not required to take a blood sample (as authorised in the disease test approval or order) until he or she is satisfied that:
(b) the health of the transferor would not be adversely affected by the taking of a sample (for example due to a medical condition).
Once the sample is taken it must be sent to a pathology laboratory with appropriate facilities for testing infectious diseases as soon as practicable.
147FS Analysis of blood sample
This clause imposes that upon receiving the sample a person who works in the pathology laboratory must conduct an analysis of the sample without delay, or arrange another person to conduct an analysis. The sample, or part of the sample, may be destroyed if it is not required for any analysis or further analysis.
The purpose of this legislation is to determine if a transferor has an infectious disease, therefore the analysis of a blood sample taken under this new Part cannot be used for other purposes. Results are forwarded to a person who is authorised to have the results.
147FT No payment for taking or testing blood
The purpose of this clause is to ensure the costs associated with the taking and analysis of blood samples is not borne by the transferor, responsible person or third party to a transferor, or if the transferor is deceased the person who has lawful possession of the transferor’s estate. The obligation to fund these costs will be from the Northern Territory Police Force budget.
147FU Restriction on disclosure of results of analysis
Following the analysis of a sample, disclosure of the results is restricted to an affected member, the transferor, if the transferor is a protected person then a responsible person, if the transferor is a deceased person then the senior next of kin to the transferor,
a medical practitioner, nurse or other health professional involved in treating or providing care for an affected member or the transferor,
a psychiatrist, psychologist or social worker providing counselling for an affected member or the transferor, a person or a person in a class of persons, prescribed by regulation. Failing this will result in an offence of unauthorised disclosure of confidential information.
Where disclosure is not an offence relates to ‘secondary disclosure’; for example, if a person authorised as above discloses to another authorised person as listed above or if the person is an affected member/transferor and the disclosure is not a public disclosure to media made in a way that would reveal the identity of the transferor/affected member. This allows professionals to discuss results of the analysis, as well as allowing the affected member or transferor to disclose the results to their partner/family.
The information relating to the analysis of results will not be provided to Northern Territory Police Force for the purpose of retaining information on police record management systems such as PROMIS; this is not intended, nor is it allowed under this provision.
This ensures discrimination does not occur in relation to the status of a person with an infectious disease, nor that personal medical information is not kept by an authority.
147FV Prohibition on use of blood sample for other purpose
It is an offence to use a blood sample taken under this new part for any other purpose than to test for an infectious disease.
The maximum penalty is 100 penalty units or 12 months imprisonment.
Clause 7 Part VIIA Division 2 replaced
This clause repeals and replaces pt VIIA div 2 (Protection of members from civil liability):
Division 2 Protection from liability and vicarious liability of the Territory
148B Protection from liability
New s 148B provides protection from liability so a person is not civilly or criminally liable for an act done or omitted to be done in good faith in the exercise of a power or performance of a function under the Act. This section reflects changes so as to include people acting under the new provisions of this Bill (i.e., medical practitioners, nurses and qualified persons).
This has replaced an old section which only covered members under the Act.
Clause 8 Section 155 replaced
This clause repeals and replaces s 155 (Communication of information).
155 Unauthorised disclosure of confidential information
New s 155 adopts the standardised offence for publishing confidential information. It provides it is an offence if a person who obtains information in the course of performing functions connected with the administration of the Act, intentionally engages in conduct and the conduct is reckless in the disclosure of the information and the person is reckless in relation to that result. The maximum penalty is 200 penalty units.
Clause 9 Expiry of Act
This is a standard clause which provides that the Amendment Act expires the day after it commences. As this is an amending Act, there is no need to retain the Act on the statute book, once all the amendments to the Act have been effected.