Subdiv 3authorising the taking and testing of a blood sample

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). grounds for disease testing, see section 147FB(5). incapable person means a person who is not a child and who: (a) for any reason is unable to give consent to being tested for an infectious disease; or (b) is deceased, unconscious, or otherwise unable: (i) to understand a request to give consent to being tested for an infectious disease; or (ii) to communicate whether or not the person consents to being tested for an infectious disease. infectious disease means any of the following: (a) Human Immunodeficiency Virus (HIV) infection; (b) Hepatitis B; (c) Hepatitis C; (d) another disease prescribed by regulation capable of being transmitted by the transfer of a substance. nurse means a person registered under the Health Practitioner Regulation National Law to practise in the nursing and midwifery profession as a nurse (other than as a student). protected person means: (a) a child; or (b) an incapable person. qualified person means a person who has been trained to take samples of blood from persons by a registered training organisation (as defined in section 3 of the National Vocational Education and Training Regulator Act 2011 (Cth)). senior member means a member of or above the rank of superintendent. Police Administration Act 1978 136 substance means blood, saliva or faeces. transfer of a 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. (2) In this Division, a person is a responsible person for a transferor in the following circumstances: (a) if the transferor is a child – the person is any of the following: (i) a parent of the child; (ii) a guardian of the child; (iii) another adult person who has responsibility for the day-to-day care of the child; (iv) if no person mentioned in subparagraph (i) to (iii) is available – a person, or a person in a class of persons, prescribed by regulation; (b) if the transferor is an incapable person other than a deceased person – the person is any of the following: (i) an adult relative of the incapable person; (ii) a person who is a guardian of the incapable person under the Guardianship of Adults Act 2016; (iii) a person who is a donee of an enduring power of attorney created by instrument under the Powers of Attorney Act 1980 and is authorised to perform functions in relation to the incapable person in the circumstances in which this Act applies; (iv) a person who is a decision maker for the incapable person under the Advance Personal Planning Act 2013 and is authorised to perform functions in relation to the incapable person in the circumstances in which this Act applies; (v) a person who is a carer (as defined in section 4 of the Carers Recognition Act 2006) in relation to the incapable person; Police Administration Act 1978 137 (vi) if no person mentioned in subparagraph (i) to (v) is available – a person, or a person in a class of persons, prescribed by regulation; (c) if the transferor is a deceased person – the person has lawful custody of the transferor's body. 147FB Application for disease test approval (1) An affected member may apply to a senior member for a disease test approval in relation to a transferor if: (a) there are grounds for disease testing; and (b) the transferor is not a protected person; and (c) the senior member is not involved in the investigation of any suspected offence to which the proposed disease test approval relates. (2) The application must: (a) if practicable be in writing; and (b) state the full name of, and other relevant details in relation to, the applicant; and (c) state the full name and address of the transferor, if known; and (d) state the grounds for suspecting that there has been a transfer of a substance from the transferor to the affected member; and (e) include any other information that is prescribed by regulation for this subsection. (3) If it is not practicable to make the application in writing, the applicant must, as soon as practicable after the application is made, make a written record of it, including all the information required under subsection (2). (4) If the transferor is being detained under section 147FC, the application must be made: (a) as soon as practicable after the transferor's apprehension; and Police Administration Act 1978 138 (b) in a manner that ensures the determination of the application as soon as practicable after that apprehension. (5) In this section: 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: (a) an assault by the transferor against the member; or (b) the lawful apprehension or detention of the transferor by the (c) another circumstance prescribed by regulation and involving the transferor and the member. 147FC Detention of transferor A member may apprehend and detain the transferor for as long as is reasonably necessary to enable the determination of the application. 147FD Disease test approval (1) A senior member may grant a disease test approval: (a) after having considered an application made under section 147FB, if satisfied that: (i) there are grounds for disease testing; and (ii) the transferor is not a protected person; or (b) even if the affected member has not made an application under section 147FB if, in addition to being satisfied of the matters mentioned in paragraph (a)(i) and (ii), the senior (i) has knowledge of the circumstances that gave rise to the grounds for disease testing; and (ii) is satisfied that it was not feasible for the affected member to apply for the approval within a reasonable time after those grounds arose. (2) The disease test approval may be granted subject to any conditions that the senior member considers appropriate and specifies in the approval. Police Administration Act 1978 139 (3) A disease test approval may be: (a) granted orally, whether in person or by radio, telephone or any other available means of communication; or (b) granted in writing, containing the particulars in the form approved by the Commissioner, which must include a statement of the effect of the approval. (4) The senior member must, as soon as practicable after granting an approval orally, make a record in writing of the particulars mentioned in subsection (3)(b) relating to the approval. 147FE Service of copy of disease test approval (1) A copy of the disease test approval must be served personally on the transferor. (2) The copy of the disease test approval must contain an explanation, in a form approved by the Commissioner: (a) of the purpose and effect of the approval; and (b) that force may be used to enforce the approval; and (c) that failure to comply with a requirement mentioned in section 147FF(e) is an offence. (3) A disease test approval does not take effect until a copy of it is served in accordance with this section. 147FF Effect of disease test approval A disease test approval relating to a transferor: (a) authorises a blood sample to be taken from the transferor in accordance with the approval; and (b) authorises a member to apprehend the transferor and detain the transferor for as long as is reasonably necessary to enable the taking of a sample of the transferor's blood; and (c) authorises, for paragraph (b), a member to enter any place where the member suspects on reasonable grounds that the transferor might be located; and (d) authorises a member to take the transferor to a place that the member considers has appropriate facilities for taking the blood sample; and Police Administration Act 1978 140 (e) authorises a member to require the transferor to submit to the taking of the blood sample in accordance with the approval; and (f) authorises a medical practitioner, nurse or qualified person to take a blood sample from the transferor; and (g) authorises the blood sample to be tested for an infectious disease. 147FG Failure to comply with requirement under disease test approval (1) A transferor commits an offence if the transferor: (a) is required by a member, as mentioned in section 147FF(e), to submit to the taking of a blood sample in accordance with a disease test approval; and (b) fails to comply with the requirement. Maximum penalty: 100 penalty units. subsection (1) if the defendant has a reasonable excuse. 147FH Application for disease test order The following persons may apply to the court for a disease test order in relation to a transferor: (a) an affected member, if: (i) there are grounds for disease testing; and (ii) the transferor is a protected person; (b) a senior member if, in addition to being satisfied of the matters mentioned in paragraph (a)(i) and (ii), the senior member: (i) has knowledge of the circumstances that gave rise to the grounds for disease testing; and (ii) is satisfied that it was not feasible for the affected member to apply for the order within a reasonable time after those grounds arose. Police Administration Act 1978 141 147FI Service of copy of application The applicant must serve a copy of the application personally on a third party for the transferor. 147FJ Hearing of application (1) The court: (a) must hear and decide the application with as little delay as possible and in the absence of the public; and (b) may, in extraordinary circumstances, adjourn the application (but for no more than 24 hours) to allow further evidence to be put before the court; and (c) must ensure that the transferor and the third party are given the opportunity to be represented by a lawyer at the hearing; and (d) may appoint another responsible person to be the third party for the transferor if satisfied that the third party on whom the application was served is not available to attend the hearing or otherwise act as third party under this Division. (2) An affected member cannot be compelled to give evidence at the hearing. 147FK Disease test order (1) The court may make a disease test order in relation to the transferor if the court is satisfied that: (a) there are grounds for disease testing; and (b) in the circumstances, a blood sample should be taken from the transferor. (2) The disease test order may be made subject to any conditions that the court considers appropriate and specifies in the order. (3) The court may, by further order, vary or revoke a disease test order. 147FL Explanation of disease test order (1) A court making a disease test order must ensure that the transferor and the third party are informed of the following: (a) the transferor's right under section 147FP to appeal to the Supreme Court against the disease test order; Police Administration Act 1978 142 (b) that the transferor has a right to obtain legal advice and to communicate with a lawyer; (c) about the purpose and effect of the order; (d) that force may be used to enforce the order; (e) that failure to comply with the order is an offence. (2) The court must take all reasonable steps to ensure that the explanation provided to the transferor is expressed in a language and manner that the transferor is likely to understand. (3) A failure by the court to comply with this section does not invalidate the disease test order. 147FM Service of copy of disease test order (1) A copy of a disease test order must be served personally on the third party for the transferor. (2) A disease test order does not take effect until a copy of it is served in accordance with this section. 147FN Effect of disease test order A disease test order relating to a transferor: (a) authorises a blood sample to be taken from the transferor in accordance with the order; and (b) requires the third party for the transferor to take all reasonable steps to enable the taking of the blood sample in accordance with the order; and (c) authorises a member to apprehend the transferor and detain the transferor for as long as is reasonably necessary to enable the taking of a sample of the transferor's blood; and (d) authorises, for paragraph (c), a member to enter any place where the member suspects on reasonable grounds that the transferor might be located; and (e) authorises a member to take the transferor to a place that the member considers has appropriate facilities for taking the blood sample; and (f) authorises a member to require the transferor to submit to the taking of the blood sample in accordance with the order; and Police Administration Act 1978 143 (g) authorises a medical practitioner, nurse or qualified person to take a blood sample from the transferor; and (h) authorises the blood sample to be tested for an infectious disease. 147FO Failure to comply with disease test order (a) the person is the third party for a transferor; and (b) a disease test order is made for the transferor; and (c) the person fails to take all reasonable steps to enable the taking of the blood sample in accordance with the order. Maximum penalty: 100 penalty units. subsection (1) if the defendant has a reasonable excuse. 147FP Appeal against disease test order on behalf of transferor (1) The third party for a transferor in relation to whom a disease test order has been made may, on behalf of the transferor, appeal to the Supreme Court against the order. (2) Unless the Supreme Court otherwise orders, the appeal: (a) must be filed without delay; and (b) does not stay the operation of the disease test order. (3) The Supreme Court cannot order a stay of a disease test order of more than 48 hours from the time the disease test order is made. (4) The Supreme Court must hear and decide the appeal: (a) (unless it is impossible to do so) within 48 hours after the disease test order is made; and (b) in the absence of the public; and (c) (unless it is impossible to do so) without adjourning the appeal. (5) The Supreme Court may allow or dismiss the appeal. Police Administration Act 1978 144 147FQ Appeal against disease test order by affected member (1) If a court decides not to make a disease test order under section 147FK, the following persons may appeal to the Supreme Court against the decision: (a) an affected member named in the application for the order; (b) a senior member if the senior member is satisfied that it is not feasible for the affected member to file the appeal without delay. (2) Unless the Supreme Court otherwise orders, the appeal must be filed without delay. (3) The Supreme Court must hear and decide the appeal: (a) (unless it is impossible to do so) within 48 hours after the decision not to make a disease test order; and (b) in the absence of the public; and (c) (unless it is impossible to do so) without adjourning the appeal. (4) The Supreme Court may allow or dismiss the appeal. 147FR Taking blood sample under disease test authorisation (1) A member executing a disease test authorisation in relation to a transferor may ask a medical practitioner, nurse or qualified person to take a blood sample from the transferor. (2) When asking the medical practitioner, nurse or qualified person to take the blood sample, the member must produce a copy of the disease test authorisation for inspection by the medical practitioner, nurse or qualified person. (3) Subject to subsection (4), the medical practitioner, nurse or qualified person must take a blood sample from the transferor in accordance with the disease test authorisation. Police Administration Act 1978 145 (4) A medical practitioner, nurse or qualified person is not required to take a blood sample as authorised in the disease test authorisation, until the practitioner, nurse or qualified person is satisfied that: (a) there is no serious risk that serious harm would be caused to the transferor, or another person, by the taking of the sample; and (b) the health of the transferor would not be adversely affected by the taking of the sample. (5) If assistance is needed for taking a blood sample, the medical practitioner, nurse or qualified person may ask another person to give assistance that is necessary and reasonable. (6) The medical practitioner, nurse or qualified person, and a person assisting the medical practitioner, nurse or qualified person, may use the force that is reasonably necessary for taking the blood sample. (7) The medical practitioner, nurse or qualified person must, as soon as practicable after taking the sample, send the sample to a pathology laboratory with appropriate facilities for testing the sample for infectious diseases. 147FS Analysis of blood sample (1) A person who works in the pathology laboratory and who receives a blood sample sent under section 147FR(7) must conduct an analysis of the sample, or arrange for another person to conduct an analysis, without delay after receiving the sample. (2) The person who conducts the analysis may destroy the sample, or part of the sample: (a) before it has been used for the analysis or a further analysis, if it is not required for any analysis or further analysis; or (b) after it has been used for the analysis or a further analysis, if it is not required for any further analysis. 147FT No payment for taking or testing blood A person who takes a blood sample under a disease test authorisation cannot require any of the following persons to make any payment (whether in money or money's worth) for, or in relation to, the taking or testing of a blood sample under a disease test authorisation: (a) the transferor; Police Administration Act 1978 146 (b) if the transferor is a protected person – a responsible person, whether or not the responsible person was a third party to the application for the authorisation; (c) if the transferor is a deceased person – the person who has lawful possession of the transferor's estate. 147FU Restriction on disclosure of results of analysis (1) Section 155(1) does not apply to a disclosure of the results of an analysis of a blood sample under this Subdivision by a person who conducted the analysis, if the disclosure is to one or more of the (a) an affected member in relation to the analysis; (b) the transferor; (c) if the transferor is a protected person – a responsible person for the protected person; (d) if the transferor is a deceased person – the senior next of kin of the transferor; (e) a medical practitioner, nurse or other health professional involved in treating, or providing care for, an affected member or the transferor; (f) a psychiatrist, psychologist or social worker providing counselling for an affected member or the transferor; (g) a person, or a person in a class of persons, prescribed by regulation for this section. (2) Section 155(1) does not apply to a person mentioned in subsection (1) who discloses information (the secondary disclosure) disclosed to the person under this section: (a) if the secondary disclosure is to another person mentioned in subsection (1); or (b) if the person is an affected member – if the secondary disclosure is not a public disclosure to the media made in a way that would reveal the identity of the transferor; or (c) if the person is a transferor – if the secondary disclosure is not a public disclosure to the media made in a way that would reveal the identity of an affected member. Police Administration Act 1978 147 senior next of kin, see section 3 of the Coroners Act 1993. 147FV Prohibition on use of blood sample for other purpose A person commits an offence if: (a) the person intentionally uses a blood sample for a purpose; and (b) the blood sample was taken under this Part and the person is reckless in relation to that circumstance; and (c) the purpose is other than analysis under this Part and the person is reckless in relation to that circumstance. Maximum penalty: 100 penalty units or imprisonment for 12 months.