Policy Bulletin 2022/7 Crime Policy: Mandatory Disease Testing

5 Sep 2022

The Legal Aid NSW Board has approved the introduction of a new policy to provide legal aid for responding to applications to the Local (and Children’s) Court for mandatory testing orders for vulnerable third parties under section 14 of the Mandatory Disease Testing Act 2021 (NSW) (Act).

Background

In June 2021, the Act passed the NSW Parliament. The Act provides for mandatory blood testing of a person by either administrative or court order where a law enforcement, health, emergency or public sector worker comes into contact with the person’s bodily fluid as a result of the person’s deliberate action.

If a mandatory testing order is made, the person against whom the order is made (third party) must submit to a blood test, regardless of whether they consent or not, and the results of that blood test can be shared with the worker’s nominated medical practitioner who in turn can relay those results to the worker. Failure to comply with a mandatory testing order is punishable by a fine of $11,000 and/or 12 months’ imprisonment.

An application for a mandatory testing order can be made with respect to any person aged 14 or over. Special provisions apply in relation to “vulnerable third parties” – namely, children aged 14 to 17 (inclusive), and any person who has a mental health impairment or cognitive impairment, within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which significantly affects their capacity to consent to voluntarily provide blood to be tested for blood-borne diseases.

If a senior officer {as defined in the Act) receives an application for a mandatory testing order with respect to a vulnerable third party but does not refuse it, they must apply to the Children’s Court of NSW or the Local Court of NSW, respectively.

Commencement date

The change applies to applications determined on or after 5 September 2022.

Contact for further information

Email Manager, Aideen McGarrigle at Client Eligibility Unit