Mandatory Testing (Infectious Diseases) Act 2014

The Act rests on a few core legal concepts, each defined in s 4 and elaborated across Parts 2-4. Understanding these concepts explains who decides, what is authorised, and the constraining safeguards.

• Disease test authorisation: a statutory authorisation to take and test a sample, which may be either a disease test approval granted by a senior police officer under Part 2, or a disease test order made by a court under Part 3 (s 4; s 7(1); s 15). The authorisation is the operative instrument that confers powers on police and clinicians (s 12(1); s 22(1)).

• Reasonable grounds for disease testing: defined in s 4 as reasonable grounds to suspect transfer of bodily fluid from a suspected transferor to a public officer as a result of an assault, lawful apprehension/detention, or any other prescribed circumstance. The statutory test is fact focused; the Act requires application applicants to state the grounds (s 8(3)(e)) and for the decision‑maker to be satisfied of reasonable grounds before authorising testing (s 10(1)(a); s 19(1)(a)).

• Protected person and responsible person: protected persons are children and incapable persons (s 4). Different procedural protections apply to protected persons: a court order is required (s 14-16), personal service is directed on a responsible person (s 17(1)), and the court must run a private hearing and ensure representation rights for the suspected transferor and third party (s 18). Responsible persons are defined by reference to family, guardianship, carers and prescribed persons, drawing on other statutes such as the Guardianship and Administration Act 1990 and the Disability Services Act 1993 (s 4).

• Sample and testing limits: sample is defined broadly to include blood, saliva, mucus, respiratory secretions and other material (s 4). Samples taken under an authorisation must be sent to a pathology laboratory with appropriate facilities and may only be used for analysis under the Act (s 26(6); s 30). Pathology officers may analyse and dispose of samples when not required (s 27).

• Confidentiality and admissibility constraints: results are tightly restricted in disclosure (s 29) and, importantly, the making of an application, the giving of an authorisation, and results of analysis are inadmissible in other proceedings (s 31). This creates a firewall between these testing powers and general evidentiary use.

• Procedural timing and service: approvals or orders do not take effect until personally served (s 11(3); s 21(2)). For court orders, the court must explain rights and adviser access to suspected transferor and third party and take steps to ensure understandable explanation; but failure to comply with this explanation requirement does not invalidate the order (s 20(1)-(3)).

• Powers and limits on force: the Act expressly authorises reasonable force for the taking of samples and for enforcement where noted (s 11(2)(b); s 26(5)). The detention power is constrained to what is reasonably necessary to enable determination of an application or taking of the sample (s 9; s 10(2)(b); s 19(2)(b)).

These concepts allocate decision rights: public officers apply; senior police officers decide approvals for non‑protected persons (s 8-10); courts decide for protected persons (s 16-19); clinicians and qualified persons perform sampling (s 26); laboratories analyse and handle samples (s 27); and the Commissioner and police exercise powers of apprehension and detention (s 4, s 10, s 19). The Act ties in with other statutory regimes for definitions and relationships, for example the Health Practitioner Regulation National Law (WA) for registration status of doctors and nurses (s 4), and provisions in other Acts defining guardians, carers and coronial next of kin (s 4; s 29(1)).

The Act directly affects several defined categories of persons and bodies; the statutory text names who bears obligations, who may be compelled, and who receives information.

• Suspected transferors: persons from whom bodily fluid is suspected to have been transferred to a public officer are the primary subjects of authorisations and orders. They may be adult, child, incapable person, or deceased persons in relation to certain procedural steps (s 4; Pt 2 and Pt 3). When a disease test authorisation is served, the suspected transferor becomes the person from whom samples may be taken (s 10(2); s 19(2); s 12(2); s 22(2)(a)).

• Public officers and affected public officers: the Act is aimed at protecting police and related public officers. Public officer is defined to include police officers, police‑related officers (special constables, Aboriginal police liaison officers, auxiliary officers, police cadets), and police service employees acting in the course of duty (s 4). An affected public officer is a public officer in relation to whom there are reasonable grounds for disease testing (s 4). Public officers are the applicants who initiate the process (s 8(1); s 16).

• Senior police officers: for non‑protected suspected transferors, a senior police officer (inspector or higher) decides whether to grant a disease test approval upon application by a public officer (s 7(1); s 8(1); s 10(1)). A senior police officer must not be involved in the investigation of any suspected offence to which the proposed approval relates (s 8(1)(c), creating a conflict‑avoidance rule).

• Responsible persons and third parties: for protected persons the application must be served on a responsible person, who becomes a third party to proceedings under s 17(1)-(2). Responsible persons are defined with reference to parents, guardians, adult carers, enduring guardians, advocates, or prescribed persons (s 4). The Act makes responsible persons criminally liable if they fail, without reasonable excuse, to take all reasonable steps to enable sampling (s 22(2)(b), s 23).

• Doctors, nurses and qualified persons: clinicians and "qualified persons" carry out sampling. Doctors and nurses are defined by registration under the Health Practitioner Regulation National Law (WA) (s 4). A qualified person may be the holder of a Certificate III in Pathology Collection or an equivalent qualification or persons prescribed for taking particular sample types (s 4). The clinical personnel who take samples must inspect the authorisation, may ask for help, may use reasonable force for the taking, and must immediately send the sample to an appropriate pathology laboratory (s 26(1)-(6)).

• Pathology laboratories and officers: laboratories receive samples, analyse them or arrange analysis, and may destroy sample material not required for analysis (s 27). Laboratory officers are constrained by s 29 on disclosure and s 30 on use of samples.

• Commissioner and police: the Commissioner is a defined term (s 4) and police execute authorisations, including apprehension, detention and entry powers contained in authorisations and orders (s 10(2)(b)-(d); s 19(2)(b)-(d)), and police must serve authorisations (s 11(1)) and produce authorisation to clinicians (s 26(2)).

• Courts and judiciary: the Children’s Court and Magistrates Court hear applications for protected persons (s 15), the court must conduct private hearings with representation rights (s 18), and the District Court hears appeals in expedited timeframes (s 24-25).

• Others who may receive results: s 29 lists persons who may receive test results, including treating health professionals, psychiatrists, psychologists, social workers, the suspected transferor, responsible persons for protected persons, senior next of kin in deceased cases, the Commissioner and public officers acting in the course of duty, and prescribed classes.

Indirectly the Act affects employers or agencies that engage public officers because the Act is framed to ensure public officers receive appropriate medical, physical and psychological treatment where exposed to risk (s 3). It also affects legal advisers and advocates acting for suspected transferors or third parties, because the court must ensure rights to representation and communication with lawyers during hearings (s 18(1)(c); s 20(1)(b)).

Financially, the Act bars charging suspected transferors or responsible persons for taking or testing under an authorisation (s 28), reallocating the cost of testing away from the individual to the public system or service provider that conducts the testing. Liability protections in s 32 shield persons acting in good faith from civil or criminal liability for performance of functions under the Act.

The Act distributes procedural duties among applicants, decision makers, police, clinicians, laboratories, responsible persons and courts. It also sets out express rights for parties.

Duties of applicants and decision steps

• Public officers who apply for a disease test approval or disease test order must show reasonable grounds for disease testing (s 8(1)(a); s 16(a)). Applications must include specified information such as full names, addresses and grounds for suspicion (s 8(3)(b)-(e)). If the application is not practicably in writing it must be recorded in writing as soon as practicable (s 8(4)). For detained suspects the application must be made and determined as soon as practicable after apprehension (s 8(5)).

• Senior police officers deciding applications must be satisfied there are reasonable grounds and that the suspected transferor is not a protected person; they must use approved forms and may impose reasonable conditions; approvals may be given remotely but must be recorded in writing as soon as practicable when given orally (s 10(1)-(5)).

Service, explanations and effective commencement

• A copy of an approval must be personally served on the suspected transferor and include an approved form explanation of purpose, effect, that force may be used to enforce, and that non‑compliance is an offence (s 11(1)-(3)). A disease test approval does not take effect until served (s 11(3)). Similarly, disease test orders must be personally served on a third party and do not take effect until service (s 21(1)-(2)). Courts must ensure suspected transferor and third party are informed of appeal rights, right to legal advice and communication with a lawyer, purpose and effect, that force may be used, and that failure to comply is an offence (s 20(1)); the court must take reasonable steps to ensure explanations are in a language and manner the suspected transferor will understand (s 20(2)), but failure to comply with s 20 does not invalidate the order (s 20(3)).

Powers and duties of police

• A police officer may apprehend and detain a suspected transferor while an application is determined (s 9), and a disease test approval or order explicitly authorises police to apprehend, detain for as long as is reasonably necessary to enable sampling, enter premises where the suspected transferor may be located, and take them to appropriate facilities for sampling (s 10(2)(b)-(d); s 19(2)(b)-(d)). Police executing an authorisation must produce a copy for clinician inspection when asking a clinician to take a sample (s 26(2)).

Duties and powers of clinicians and qualified persons

• Doctors, nurses or qualified persons may take samples in accordance with an authorisation (s 26(3)). They may ask for assistance and may use any reasonably necessary force for taking the sample (s 26(4)-(5)). Clinicians must immediately send the sample to an appropriate pathology laboratory (s 26(6)).

Duties and powers of pathology laboratories

• An officer of a pathology laboratory may analyse samples or arrange for analysis, and may destroy any part of the sample not required for analysis (s 27(1)-(2)). Laboratory officers are subject to strict disclosure limits (s 29) and must not use the sample for purposes other than analysis under the Act (s 30).

Duties of responsible persons for protected transferors

• Where the suspected transferor is a protected person, the responsible person must be served with the application (s 17(1)) and is a third party (s 17(2)). The disease test order requires that responsible persons take all reasonable steps to enable sampling; failure to comply without reasonable excuse is an offence (s 22(2)(b); s 23).

Rights and safeguards for suspected transferors and third parties

• For protected persons, the Children’s Court or Magistrates Court must hear and decide applications with as little delay as possible and in the absence of the public (s 18(1)(a)), may adjourn in extraordinary circumstances for no more than 24 hours (s 18(1)(b)), and must ensure the suspected transferor and third party are afforded the right to be represented by a lawyer (s 18(1)(c)). Affected public officers cannot be compelled to give evidence at the hearing (s 18(2)). The suspected transferor and third party have appeal rights to the District Court; appeals must be filed without delay and are to be heard quickly, but unless the District Court orders otherwise the appeal does not stay the operation of the order; the District Court’s power to stay a disease test order is capped at 48 hours from the time the disease test order is made (s 24(1)-(4)).

Privacy, disclosure and evidentiary rights

• The Act excludes the operation of the Freedom of Information Act 1992 to the extent FOI would enable disclosure of the identities of suspected transferors and affected public officers (s 5). It restricts disclosure of analysis results to a limited list of recipients, imposes penalties for unauthorised disclosure, and restricts onward disclosure by permitted recipients (s 29(2)-(3)). The Act also makes applications, authorisations and results inadmissible in other proceedings (s 31).

Liability protections and costs

• Persons performing functions in good faith under the Act incur no civil or criminal liability for that performance (s 32(1)). Disclosure of results to persons listed in s 29(2) is explicitly protected from being treated as a breach of confidentiality or professional ethics (s 32(2)). Clinicians and laboratories cannot charge the suspected transferor, responsible persons for protected persons, or a person in lawful possession of a deceased suspected transferor’s estate for taking or testing carried out under an authorisation (s 28).

The Act embeds criminal sanctions, evidentiary constraints and administrative enforcement mechanisms. The statutory text sets criminal penalties for non‑compliance, prescribes limitations on information flows backed by criminal sanction, provides for the use of force by authorised persons, and contains liability protections for persons acting in good faith.

Specified criminal offences and penalties

• Refusal by a suspected transferor to comply with a requirement under a disease test approval is an offence carrying a penalty of a fine of $12 000 and imprisonment for 12 months (s 13). The text makes non‑compliance by a responsible person who is a third party to enable sampling for a protected person an offence with an identical penalty: a fine of $12 000 and imprisonment for 12 months (s 23).

• Improper disclosures and uses of samples and information are penalised. A person who conducts an analysis under the Act must not disclose results except to authorised recipients; breach carries a fine of $9 000 and imprisonment for 9 months (s 29(2)). An authorised recipient who then discloses further in contravention of s 29(3) faces the same penalty (s 29(3)). Use of a sample for any purpose other than analysis under the Act is a further offence with a fine of $9 000 and imprisonment for 9 months (s 30).

Mechanisms for enforcement

• Enforcement of compliance with an approval or order is effected by police powers to apprehend, detain and use reasonable force to effect taking of the sample; the approval and order statements must notify that force may be used and that failure to comply is an offence (s 10(2)(b)-(d); s 19(2)(b)-(d); s 11(2)(b); s 20(1)(d)-(e); s 12(2)(b)). The Act requires personal service of approvals and orders and states that such instruments do not take effect until served, which conditions enforcement powers on procedural service (s 11(1)-(3); s 21(1)-(2)).

• Courts play a gatekeeping and oversight role for protected persons. The Children’s Court or Magistrates Court must hear applications in private and decide with as little delay as possible; the Act also provides expedited appeal processes to the District Court (s 18; s 24-25). Appeals generally do not stay operation of orders unless the District Court orders a stay, and even then a stay on a disease test order is limited to 48 hours from the time the order is made unless the District Court otherwise orders (s 24(2)-(4)).

Limitations on evidentiary use and liability shields

• Section 31 excludes the making of an application, the giving of an authorisation, and the results of analysis from admissibility in proceedings other than those under the Act. This evidentiary exclusion limits secondary enforcement or use in prosecutions and civil litigation, with potential implications for criminal investigations that might otherwise rely on such evidence.

• The Act protects persons performing functions in good faith under it from civil or criminal liability (s 32(1)), and expressly provides that disclosures to listed recipients under s 29(2) are not to be regarded as breaches of confidentiality or professional ethics (s 32(2)). These protections reduce potential legal risk to clinicians, laboratories and public officers who follow the Act’s processes.

Operational enforcement risks and constraints

• Enforcement is contingent on procedural compliance. Approvals and orders do not take effect until personally served (s 11(3); s 21(2)); courts must ensure explanation and representation rights but such failures do not invalidate orders (s 20(3)). The requirement that the senior police officer deciding an approval not be involved in the investigation mitigates perceived conflicts (s 8(1)(c)), but enforcement still depends on police operational capacity to locate and detain suspected transferors and to arrange for immediate clinical sampling and laboratory transfer (s 9; s 26(6)).

• The Act does not specify administrative penalties or regulatory sanctions beyond criminal penalties; it provides criminal sanctions for refusal and mis‑disclosure, leaves practical questions of enforcement to police and courts, and relies on professional obligations and statutory protection to facilitate compliance by clinicians and laboratories.

The Act deliberately cross‑references and interacts with several other statutory regimes; these references define roles, qualifications and procedural markers, and create cross‑statutory implications for guardianship, professional registration, coronial roles and access to information.

Direct cross‑references in definitions and roles

• Health Practitioner Regulation National Law (Western Australia): The Act defines “doctor” and “nurse” by reference to registration under that National Law (s 4). That link means registration, scope of practice and disciplinary regimes under the National Law remain relevant to clinicians who take samples.

• Guardianship and related Acts: The concept of responsible person for incapable persons refers to guardians under the Guardianship and Administration Act 1990 and enduring guardians under the same Act, advocates recognised under the Disability Services Act 1993 s 32(2), and carers as defined in the Carers Recognition Act 2004 s 4 (s 4). These cross‑references allocate decision‑making and notification duties to existing statutory roles.

• Coroners Act 1996 and Civil Liability Act 2002: Section 29(1) borrows the definition of senior next of kin for deceased persons from the Coroners Act, and uses the Civil Liability Act to define the term “health professional” for disclosure‑permitted recipients (s 29(1)). Those cross‑statutory definitions determine who may receive results for deceased persons and under what professional classification.

Freedom of Information Act exception

• Section 5 expressly excludes the Freedom of Information Act 1992 from applying to activities or records under this Act, to the extent FOI would otherwise enable or require disclosure of the identity of a suspected transferor or an affected public officer. This operationally narrows public transparency channels for records generated under the Act.

Evidentiary exclusions in relation to other proceedings

• Section 31 renders the making of an application for a disease test authorisation, the giving of an authorisation, and the results of analysis inadmissible in proceedings other than those under the Act. This creates a statutory evidential firewall between testing under the Act and other legal processes, for example criminal prosecutions and civil litigation. The text does not, however, alter other disclosure obligations where a written law requires disclosure; s 29(2)(h) preserves authorised disclosure under other laws.

Criminal and civil liability regimes

• Section 32(1) removes civil or criminal liability for persons performing functions under the Act in good faith. It also states that disclosures made under s 29(2) are not to be regarded as breaches of confidentiality or professional ethics (s 32(2)). These provisions interact with general duties of confidentiality, privacy laws and professional disciplinary regimes by creating statutory exceptions where the Act authorises conduct or disclosure.

Court and appeal structure

• The Act designates the Children’s Court and Magistrates Court as the courts to hear applications for protected and non‑protected persons respectively, and gives appeal jurisdiction to the District Court with detailed timing and confidentiality requirements (s 15; s 24-25). This embeds the test within the Western Australian court hierarchy and its procedures.

Regulatory and subsidiary law links

• The Governor may make regulations to prescribe matters required or permitted by the Act (s 33), and the Act repeatedly contemplates "prescribed" persons, classes or circumstances (for example s 4, s 7(1), s 29(2)(i)). These regulatory instruments will materially affect how the statute operates in practice, for example by specifying additional infectious diseases, classes of qualified collectors, or persons entitled to receive disclosures.

Costs, payments and public expenditure

• The Act forbids charging the suspected transferor, responsible persons for protected persons, and persons in lawful possession of a deceased suspected transferor’s estate for taking or testing carried out under an authorisation (s 28). The statutory prohibition shifts the cost burden to the public health/pathology system or the pathology provider, rather than to individuals; the Act itself does not state which public entity bears the cost.

Potential interaction gaps and operational issues

• The Act leaves certain implementation details to regulation and to professional practice rules. For example, the Act establishes that samples are to be sent to a pathology laboratory with appropriate facilities (s 26(6)) but does not designate which laboratories are "appropriate" other than allowing regulations to prescribe matters. The Act’s protections from liability for good faith actions (s 32) intersect with professional regulation frameworks where actual complaints may still be made; the Act specifies those actions are not to be regarded as breaches, but complaints processes under the Health Practitioner Regulation National Law or other regimes may still be activated and will require navigation in practice.

The compilation table and marginal notes in the text identify three amendments recorded in the Act’s compilation information. The Act’s own text indicates multiple amendments to specific sections; the compilation table is the source for those amendments.

Recorded amendments in the compilation table

• Health Practitioner Regulation National Law (WA) Amendment Act 2018, No. 4 of 2018, s 113: Amended defined terms and registration references, with commencement on 1 December 2018 (see compilation table). The marginal notes show s 4 and s 7 had amendments recorded as “No. 4 of 2018 s. 113” and the Act’s defined term cross‑references to doctor and nurse were updated accordingly.

• Mandatory Testing (Infectious Diseases) Amendment (COVID‑19 Response) Act 2020, No. 21 of 2020: This amending Act made a series of textual amendments across many provisions, reflected in marginal notes: s 3 amended (s 3 amended: No. 21 of 2020 s. 4), s 4 amended (No. 21 of 2020 s. 5), s 7 amended (No. 21 of 2020 s. 6), s 10 amended (No. 21 of 2020 s. 7), s 12 amended (No. 21 of 2020 s. 8), s 15 amended (No. 21 of 2020 s. 9), s 19 amended (No. 21 of 2020 s. 10), s 22 amended (No. 21 of 2020 s. 11), s 26 amended (No. 21 of 2020 s. 12), s 27 amended (No. 21 of 2020 s. 13), s 28 amended (No. 21 of 2020 s. 14), s 29 amended (No. 21 of 2020 s. 15), s 30 amended (No. 21 of 2020 s. 16), s 31 amended (No. 21 of 2020 s. 17), s 32 amended (No. 21 of 2020 s. 18). The compilation table records assent and commencement dates: assent 21 May 2020, other than s 1 & 2 commenced 22 May 2020.

• Legal Profession Uniform Law Application Act 2022, No. 9 of 2022, s 424: This appears in the compilation table as an amendment with commencement 1 July 2022 (see compilation table). The marginal notes show s 15 was amended referencing No. 9 of 2022 s. 424.

Nature of amendments reflected

• The marginal notes attached to specific sections indicate textual changes across many provisions by the 2020 COVID‑19 response amendment. The Act itself, as reproduced, incorporates those amendments. The Act’s purpose statement in s 3 is noted as amended by No. 21 of 2020 s. 4. Many operational provisions including definitions, application and authorisation procedures, and sampling and lab procedures were amended by the 2020 Act. The compilation table gives the formal legislative history entries and commencement dates.

What the compilation table does not show

• The Act’s compilation notes list the amending Acts and when changes took effect, but do not provide the policy materials, second reading speeches, or the full amending texts. The Act’s marginal notes identify which sections were amended by the listed Acts. The Act’s text as compiled is the operative text; for precise pre‑amendment wording one would consult historical versions or original Acts.

Statutory review requirement

• Section 34 requires the Minister to review the operation and effectiveness of the Act as soon as practicable after five years from the commencement of section 3, prepare a report and lay it before Parliament. This statutory review mechanism anticipates consideration of the Act’s performance; the Act as compiled shows the review requirement (s 34). The compilation table shows the Act commenced and subsequent amendments, which would be relevant when constructing the review period.

The Act as provided contains no case law, judicial decisions, or references to litigation involving the Mandatory Testing (Infectious Diseases) Act 2014. The statutory text includes procedural mechanisms for court involvement and appeals (s 18; s 24-25), and courts have defined roles; however, the source material does not list any reported litigation. Accordingly, from the text supplied:

• There are no judicial authorities, appellate decisions or litigation summaries embedded in the Act. Section 31 excludes certain evidence from admissibility in other proceedings and the Act prescribes appeal routes (s 24-25), but the text does not show how courts have interpreted the Act or how appellate courts have applied its provisions.

• If litigation exists, it is not referenced in the statutory compilation provided. Practitioners seeking judicial interpretation, scope of "reasonable grounds", definition of "reasonably necessary" detention, limits on force, or the meaning and scope of “good faith” for liability protection will need to search case law databases, court judgments and unreported decisions, because the Act itself records none.

• The Act does create fast‑track court processes and time-limited appeals which are likely to generate urgent judicial consideration in cases; however the Act does not provide examples, precedent, or judicial gloss in the text supplied.

In short, no litigation history is supplied with the Act; research beyond the statutory text is necessary to locate judicial decisions that interpret or construe the Act’s provisions.

The Act contains several procedural and substantive features that can catch users and advisers who rely on assumptions rather than the text. These are particular points where operational detail or statutory phrasing materially affects outcomes.

Personal service is a triggering event

• Approvals and orders do not take effect until personally served: disease test approvals do not take effect until a copy is served in accordance with s 11(1)-(3); disease test orders do not take effect until a copy is served in accordance with s 21(1)-(2). This means that a senior police officer’s oral approval or a court’s order has no operative force until personnel have effected personal service, and any use of force or detention preceding valid personal service risks being outside the Act’s authorisation.

Senior police officer conflict bar

• A senior police officer must not be involved in the investigation of any suspected offence to which the proposed disease test approval relates (s 8(1)(c)). Applications made to a senior police officer who is involved in the underlying investigation are procedurally impermissible. Practitioners should confirm the independence of the deciding senior officer before relying on an approval.

Effect of s 20(3) on court explanations

• The court must take steps to explain an order’s purpose and effect and rights to the suspected transferor and third party, and ensure explanations are in an understandable language (s 20(1)-(2)). However the statute explicitly states failure to comply with s 20 does not invalidate the order (s 20(3)). This means procedural shortcomings in explanations may not provide automatic relief; appeals or other legal remedies remain available but invalidation is not automatic.

Appeals do not by default stay orders and stays are time‑limited

• Appeals by third parties to the District Court do not stay the operation of the disease test order unless the District Court otherwise orders (s 24(2)(b)), and the District Court cannot order a stay of more than 48 hours from the time the disease test order is made (s 24(3)). Where an appeal is filed, the District Court must hear and decide it within 48 hours (s 24(4)). Practitioners should not assume that an appeal will suspend operational execution of an order beyond a very short period unless the District Court intervenes.

Evidentiary exclusion limits use of results elsewhere

• Section 31 renders the making of an application for an authorisation, the giving of an authorisation and the results of analysis inadmissible in other proceedings. This prevents the use of those materials as evidence in subsequent criminal or civil proceedings. Practitioners planning investigative or prosecutorial strategies should be aware that results obtained under the Act are shielded from use in other proceedings and cannot be admitted as evidence in those proceedings, except where the Act contemplates otherwise.

Strict confidentiality and cascading restrictions

• Section 29 imposes a closed list of permitted recipients for results and prohibits onward disclosure except among persons referred to in s 29(2). Penalties apply to both unauthorised initial disclosure and prohibited onward disclosure. A permitted recipient may not disclose results to persons outside the listed classes except where a written law explicitly authorises such disclosure (s 29(2)(h)). Note the limited exceptions for public mass media disclosures by affected public officers or suspected transferors, which carve out certain public statements from the onward disclosure ban, but only where those public disclosures reveal the identity of the counterpart (s 29(4)-(5)).

No payment for testing under an authorisation

• Clinicians and laboratories cannot require payment for taking or testing under a disease test authorisation from the suspected transferor or relevant responsible persons, or persons in lawful possession of a deceased suspected transferor’s estate (s 28). The Act does not state which public agency funds the testing, only that charging the listed private persons is forbidden. Operational arrangements must be settled with pathology providers.

Liability protection for good faith acts does not immunise reckless conduct

• Section 32(1) removes civil or criminal liability for persons performing functions under the Act in good faith. The qualifier "in good faith" matters; the Act does not insulate fraudulent, malicious, or knowingly improper conduct. The statutory protection also applies to disclosure to listed recipients (s 32(2)). How courts will construe "good faith" is a question for case law, which is not provided in the text.

Use and destruction of samples

• Pathology officers may destroy samples or parts of samples if not required for analysis (s 27(2)(a)-(b)). This makes chain‑of‑custody and retention policy important. Parties seeking subsequent testing or independent analysis outside the Act’s scheme may find samples destroyed if not preserved under specific arrangements; the Act makes no express provision for retention beyond required analyses.

FOI exclusion

• The Act excludes FOI access to identities of suspected transferors and affected public officers (s 5). Records otherwise disclosable under FOI will be withheld to the extent they would reveal those identities. Organisations handling requests must apply s 5 where relevant.

Definitions and prescribed matters left to regulations

• The Act uses "prescribed" for diseases capable of being transmitted, sample taking qualifications for certain sample types, and prescribed persons who may receive disclosures (s 4; s 7(1); s 29(2)(i)). The content of regulations will materially affect implementation; absence of regulations or narrow prescription may limit the Act's operation in practice.

This section targets operational steps and checklists for public officers, senior police officers, clinicians, pathology laboratories, responsible persons and legal advisers to comply with the Act’s formalities and substantive duties. Each step cites the operative provisions.

For public officers applying for authorisation (s 8; s 16)

• Confirm reasonable grounds for disease testing: record the factual bases that support reasonable grounds as defined in s 4 (assault, lawful apprehension/detention, or prescribed circumstances). The application must state the grounds (s 8(3)(e)).

• Confirm the status of the suspected transferor: determine whether the suspected transferor is a protected person (child or incapable person) as defined in s 4. If the person is protected, proceed under Pt 3 (court application); if not, use Pt 2 (senior police officer approval) (s 6; s 14; s 8(1)(b); s 16).

• Use approved forms where required: for Part 2 the application should be in or be capable of being recorded in the "approved form" and include required identification and contact details for applicant, affected public officer and suspected transferor (s 7(1); s 8(3)). If the application is made by remote communication, make a written record as soon as practicable if not practicable to file in writing (s 8(2), s 8(4)).

• Timing after apprehension: if the suspected transferor is being detained pending the application, make the application and determine it as soon as practicable after apprehension (s 8(5); s 9).

For senior police officers deciding approvals (s 10)

• Check disqualification: ensure you are not involved in the investigation of the suspected offence to which the proposed approval relates (s 8(1)(c)).

• Satisfy statutory test: be satisfied of reasonable grounds for disease testing and that the suspected transferor is not a protected person before granting an approval (s 10(1)).

• Use approved forms and include mandatory statements: the approval must be in the approved form and include the full name and address, authorisation for apprehension and detention, entry, transfer to appropriate facilities and the persons authorised to take samples, and any reasonable conditions (s 10(2)-(3)).

• Record approvals given remotely: if an approval is given by remote communication, make a written record of particulars as soon as practicable (s 10(4)-(5)).

• Serve personally and include explanation: serve a copy of the approval personally on the suspected transferor and ensure it contains the approved explanation of purpose and effect, notice that force may be used, and that failure to comply is an offence; the approval does not take effect until service (s 11(1)-(3)).

For courts dealing with protected persons (s 16-21)

• Expedited private hearing: hear and decide applications as quickly as possible and in the absence of the public; allow for a short adjournment in extraordinary circumstances; ensure suspected transferor and third party may be represented by a lawyer (s 18).

• Make express findings: be satisfied there are reasonable grounds and that a sample should be taken before making an order; include in the order the same mandatory statements about apprehension, entry, transfer and authorised sample takers as in s 19(2) (s 19(1)-(2)).

• Ensure explanation and service: inform the suspected transferor and third party of appeal rights, right to legal advice, purpose and effect, that force may be used, and that failure to comply is an offence; take reasonable steps to ensure explanations are in an understandable language and manner (s 20(1)-(2)). Personally serve a copy on the third party; order takes effect only on service (s 21(1)-(2)).

For police executing authorisations and detaining suspects (s 9; s 10(2); s 19(2); s 26)

• Limit detention to what is reasonably necessary: s 9 and s 10(2)(b) and s 19(2)(b) authorise apprehension and detention only for as long as reasonably necessary to determine the application or enable the taking of the sample.

• Produce authorisation to clinician: when asking a clinician to take a sample, produce a copy of the disease test authorisation for inspection (s 26(2)).

• Ensure clinically appropriate facilities and immediate forwarding: take the suspected transferor to an appropriate facility and the clinician must immediately send the sample to a pathology laboratory with appropriate facilities for testing (s 10(2)(d); s 26(6)).

• Use of force: ensure any force used is reasonably necessary and proportionate to the lawful aim of taking the sample (s 11(2)(b); s 26(5)).

For doctors, nurses and qualified persons taking samples (s 26; s 4)

• Verify qualifications and registration: confirm you are authorised under the Health Practitioner Regulation National Law (WA) or meet the qualified person definition such as Certificate III in Pathology Collection or a prescribed qualification for the sample type (s 4, s 7(1)).

• Inspect authorisation: when asked to take a sample ensure you inspect the disease test authorisation produced by the police officer (s 26(2)).

• Assistance and force: if help is needed to take the sample, you may ask for reasonably necessary help, and you and any helper may use reasonably necessary force (s 26(4)-(5)). Use and documentation of force should be consistent with clinical and policing use‑of‑force policies.

• Immediate forwarding to pathology: send the sample immediately to an appropriate pathology laboratory for testing (s 26(6)).

• No charging: do not require payment for taking or testing a sample under an authorisation from the suspected transferor, responsible person or person in lawful possession of a deceased person’s estate (s 28).

For pathology laboratories handling samples (s 27; s 29; s 30)

• Analyse and document chain of custody: record receipt and analysis decisions; an officer may analyse or arrange for analysis, but must preserve material until it is no longer required; parts not required for analysis may be destroyed (s 27(1)-(2)).

• Restrict disclosures: limit disclosure of results to persons listed in s 29(2). Ensure clear policies and staff training about permitted recipients and the penalties for unauthorised disclosure (s 29(2)-(3)).

• Do not use samples for other purposes: do not use a sample taken under the Act for any purpose other than analysis under the Act (s 30). Maintain strict operational separation between samples taken under this Act and other research, forensic or clinical uses.

For responsible persons and third parties (s 17; s 22; s 23)

• Accept and act on service: if personally served under s 17(1) or s 21, understand you are a third party and have duties to take all reasonable steps to enable sampling if the order requires it (s 22(2)(b)). Define and document what "reasonable steps" entail in the specific facts.

• Consider legal advice and appeal: a third party may appeal on behalf of the suspected transferor to the District Court (s 24). Appeals are time critical and may not stay the order unless the District Court orders a stay, which cannot exceed 48 hours from the time the order is made (s 24(2)-(4)).

For legal advisers and advocates

• Time sensitivity and confidentiality: prepare to act quickly; courts must decide and hear appeals within 48 hours and hearings are in private (s 18(1)(a); s 24(4)). Confidentiality protections and FOI exclusions apply; manage client communications and media handling carefully given s 29 and s 5.

• Consider evidentiary consequences: results and authorisations under the Act are inadmissible in proceedings other than under the Act (s 31). If an investigative or prosecutorial aim involves evidence gathering, advise clients about the limited evidentiary use of tests done under this Act.

Recordkeeping and operational protocols

• Maintain records of applications and approvals, including contemporaneous written records of remote approvals and applications made orally (s 8(4); s 10(4)-(5)). Preserve chain‑of‑custody documentation for samples and ensure laboratories document analysis and destruction in line with s 27.

• Training: relevant officers and clinicians should be trained on the statutory forms, service requirements, use‑of‑force constraints, confidentiality rules and penalties. Prepare templates for approved forms and explanations that meet the statutory content (s 7; s 11(2); s 19(2)).

Regulatory monitoring and review

• Watch for regulations: many operational elements are subject to prescription by regulation (s 4 uses "prescribed", s 7(1) contemplates prescribed additional information, s 29(2)(i) contemplates prescribed persons). Monitor the Regulations under s 33 for further obligations or allowances.

• Prepare for statutory review: the Minister must review the operation and effectiveness of the Act five years after the commencement of s 3 and table a report in Parliament (s 34). Agencies implementing the Act should compile operational data and case summaries to assist the review.

By following these steps and documenting decisions and actions against the statutory requirements and timelines, practitioners can reduce procedural risk and align practice with statutory duties and rights as set out in the Act.