PRISONS AMENDMENT BILL 2020

Time Limits — Statement by Leader of the House

HON SUE ELLERY (South Metropolitan — Leader of the House) [2.24 pm]: I wish to advise the house that the Prisons Amendment Bill 2020 will be dealt with as a bill in response to the COVID-19 crisis. Today I consulted with all party leaders and, following those discussions, pursuant to the temporary order agreed by the house on 31 March 2020, I advise the following maximum time limits for each stage of the bill. The second reading stage will have 165 minutes; the Committee of the Whole stage, 180 minutes; adoption of report, five minutes; and the third reading stage, five minutes.

Second Reading

Resumed from 18 March.

(Comments and speeches from various members)

HON ALISON XAMON (North Metropolitan) [3.07 pm]: I rise as lead speaker for the Greens on the Prisons Amendment Bill 2020. I state from the outset that the Greens have significant reservations about this bill being dealt with under the COVID-19 temporary order, but recognise that accommodation has been made to enable us to give our full contribution, and that is certainly what I intend to do. I note that the bill has been around since before the extent of COVID-19 crisis became apparent, and I understand that this bill originated as an election promise made by the now Premier when he was opposition leader, at a WA Prison Officers’ Union conference. I understand that that was effectively the motivation for this legislation and it was not to try to address the immediacy of the COVID-19 crisis.

As has been outlined, this bill will do a number of things. Most controversially, it provides for the mandatory testing of prisoners for infectious diseases when there are reasonable grounds to suspect a transfer of bodily fluids from a prisoner to a prison officer. It also will do a range of other things that I understand are considered to be long overdue. One is increasing monetary penalties for a range of offences under the act. This opportunity is being used to do a little bit of a tidy up of the act. The bill also expands regulation-making powers.

I want to say a fair bit about the mandatory testing of prisoners for infectious diseases, because, as I have just said, I believe that is the most controversial element of this bill. The current act contains provisions regarding medical examination of prisoners. Section 46 permits medical examination of prisoners if there are reasonable grounds for believing it will afford evidence of an offence. I note in that instance that reasonably necessary force is already permitted to be used. Section 110 permits regulations to be made for the taking of blood and other body samples from a prisoner by a prison officer when there is a reasonable suspicion that the prisoner may have committed a prison offence. That section also regulates the treatment of the samples. Section 110 also goes on to permit regulations to be made for the superintendent to direct an officer to take blood or other body samples from prisoners at random to detect whether an aggravated prison offence under section 70—for example, random drug and alcohol testing—has been committed by a prisoner, and also regulates the taking and the treatment of the samples.

To these already existing provisions, the bill proposes adding new section 46A, which is under clause 12 of the bill. New section 46A provides for the inspection of medical records and the mandatory taking of blood samples when a prison officer may have been exposed to infectious disease, although I note that new section 46A is proposed to be amended. Under proposed section 46A, if the chief executive officer suspects on reasonable grounds that there has been a transfer of bodily fluid from a prisoner to a prison officer, the CEO may check the prisoner’s medical records to find whether the prisoner has an infectious disease, and also require the prisoner to submit to a blood test for an infectious disease. “Bodily fluid” has been defined to include semen, blood and saliva. The transfer of bodily fluid is also defined. The way the transfer occurs is irrelevant. I note that it could be via an assault, cleaning up after a prisoner has committed self-harm, as a result of a fight amongst prisoners, a workshop accident, or a variety of ways. “Infectious disease” means HIV, hepatitis B, hepatitis C and any other prescribed disease capable of being transmitted by bodily fluid. That is how the bill reads currently. I note that the government will move amendments for the bill to authorise taking any sample from a prisoner for mandatory testing, not just blood. I understand that is because the government intends to prescribe COVID-19 as an infectious disease that prisoners can be mandatorily tested for. As members would be aware, the test for COVID-19 is not a blood test. Amending the bill to provide for the taking and testing of any sample from a prisoner opens the door to the government prescribing a much wider variety of infectious diseases in the future for mandatory testing, not only those that require a blood test and not only COVID-19. It is my understanding that the legislation is intended to be that way to futureproof for the possibility of other diseases being included.

I note that the CEO’s powers are delegable and can be delegated, for example, to the superintendent and the medical officer. The Greens, the minister and at least the Liberal and National Parties have been contacted by the Western Australian AIDS Council with the support of Hepatitis WA, the National Association for People with HIV Australia, the Australasian Federation of AIDS Organisations and the Australasian Society for HIV, Viral Hepatitis and Sexual Health Medicine. I note that all those organisations have asked for this bill to legislate for a medical practitioner to inform the decision about whether or not to undertake a mandatory test, because they are concerned to ensure that there are reasonable grounds for testing. They point out, for example, that if a prisoner spits at a prison officer, it does not pose a risk of HIV transmission and therefore testing the prisoner for HIV would be unmerited. As I have said in previous debates in this place only a matter of weeks ago, spitting, of course, is absolutely abhorrent and is an assault, and a response would be absolutely appropriate. However, that does not mean there is necessarily merit in mandatorily testing for a disease that is not transmissible by spitting. To address the stakeholders’ concern, I asked at the briefing whether the government would be willing to undertake to put protocols in place so that every decision to mandatorily test a prisoner pursuant to this bill would be clinically informed. Unfortunately, I was not able to get such an undertaking from the government. I am very concerned about this. In my view, it points to a substantial weakness in the bill.

Given the government’s amendment, I also asked at the briefing when a prisoner would be mandatorily tested for COVID-19 and I have received substantial feedback that prisoners and their families are strongly supportive of increased voluntary COVID-19 testing. It would be no surprise to members to hear that, on an ongoing basis, long before this legislation was proposed under COVID-19 provisions, I was liaising with prisoner advocacy groups and I have heard extensively from families of prisoners about their concerns involving what is going on in the prisons and about how COVID-19 risks are being managed within our prisons. I can assure members that the feedback I am getting from prisoners and their families is that their concern is not about being subject to compulsory testing; they desperately want to get tested but are finding that they are not able to access the testing regime in the way that they believe it is needed. I can assure members that if a prisoner is concerned they may have COVID-19, the one thing they want is to be tested urgently and, ideally, to be sent to hospital. They do not want to be left in prison unaware that they have COVID-19 and potentially at risk of getting seriously unwell or even losing their life. I have stood in this place and pointed out previously that, unfortunately, a disproportionate number of our prisoners are at a higher risk of contracting complications arising from COVID-19 than other members of the population because of the disproportionate number of prisoners who live with comorbidities. As such, people are acutely aware of how vulnerable prisoners are to COVID-19. It is problematic to suggest that legislation like this needs to be passed urgently on the basis that prisoners are refusing to be tested when the exact opposite is true. We are finding that, en masse, prisoners want to access far more extensive testing regimes for COVID-19 but feel they have not had that opportunity. They very much want the opportunity to be tested to see whether they have this terrible illness. Nevertheless, I understand from the briefing that prisoners are separated from other prisoners when they are tested for COVID-19 only if it is medically indicated—that is, if the prisoner has flu-like symptoms. Also, on admission to prison, prisoners are routinely asked about their recent travel history and whether they have had contact with a person who has COVID-19. To date, 141 COVID tests have been performed on prisoners, all of which have been done voluntarily and none of which have tested positive for COVID-19. I am relieved that it appears that the disease is not in any Western Australian prison. My goodness, I hope that continues to be the case. It takes about 24 hours to get the test results when the test has been done in Perth. Obviously, it takes longer for prisoners held in regional prisons. Meanwhile, as a precaution, prisoners who are tested are isolated from other prisoners and are issued with a face mask to wear and the prison officers who have direct dealings with them are also provided with personal protective equipment, which is an appropriate response.

It is a little difficult to see how this bill could reasonably mandate COVID-19 testing. If COVID-19 got into our prisons, it would probably spread very, very quickly and surely the officers would be keen to get themselves tested anyway. If our prisoners continue to be COVID-19-free, for the testing to be reasonable, people being admitted to prison would have to be showing flu-like symptoms and refuse to be tested voluntarily. As I said, that is highly unlikely, given prisoners are clamouring for more voluntary testing. Even then, they would have to be interacting with a prison officer in such a way that the officer’s PPE had been rendered ineffective.

Under this bill, the CEO or their delegate can authorise reasonably necessary force for taking the sample. The explanatory memorandum states that as a safety precaution, it is intended that a prison officer will hold the prisoner while a medical officer or nurse takes the sample. I want to be crystal clear about what this means: we are talking about only a situation in which the prisoner is cooperative. I understand that if the prisoner is uncooperative, the testing will not proceed and the prisoner will instead be charged with noncompliance. I ask the minister to please confirm for the record whether that is the case. I understand that if the prisoner is noncompliant, it would be really unsafe to proceed with testing. If a prisoner has COVID-19, the concern is that their resistance and exertion would increase the risk of infection to everyone nearby. Of course, if testing for HIV, hepatitis B or hepatitis C, there is the risk of needlestick injury if the prisoner is uncooperative, even if it turns out that they do not have any bloodborne disease. The bill proposes that noncompliance with blood testing becomes an aggravated prison offence. This is the same as noncompliance with having other samples taken when required under the act. The bill also proposes increasing the maximum fine for an aggravated prison offence from $300 to $3 000.

The bill is proposing that regulations deal with the taking of blood samples and treatment of the samples taken, disclosure to the prison officer of the prisoner’s medical records and blood test results, and further disclosure and use of that information. The explanatory memorandum is suggesting that this would include disclosure to the prison officer’s doctor and family and other recording disclosure and use of the blood test results. The EM also suggests that this would include disclosure to the prisoner’s treating doctor.

In the interests of transparency, a disclosure that I would like to see, which has been called for by the stakeholders I mentioned earlier, is de-identified data showing the number of tests performed and whether the result was positive or negative. I ask the minister whether the government is willing to undertake to do that.

Hon Stephen Dawson interjected.

Hon ALISON XAMON: One of the things that I am hoping is that de-identified data showing the number of tests performed and whether the result was positive or negative can be provided and made available.

Hon Stephen Dawson: To the house or to —

Hon ALISON XAMON: No, just generally as part of the provisions within this bill, so that it is recorded and is generally able to be collected, so, effectively, it has been collected.

The Greens are gravely concerned that the bill in front of us lacks the safeguards that are contained in equivalent legislation. Specifically, I am referring to the Mandatory Testing (Infectious Diseases) Act 2014 and the Public Health Act 2016. Back in 2014, the Greens supported the Mandatory Testing (Infectious Diseases) Bill 2014, which dealt with a very similar subject matter for police officers. Our support was primarily for reasons of occupational health and safety, primarily psychological health and safety. Indeed, the Greens made a pre–2013 election commitment to such legislation in response to a survey from the Western Australian Police Union. My former colleague Hon Lynn MacLaren had carriage of the legislation at that time. She made clear during the debate that to be exposed to diseases such as HIV, hepatitis B and hepatitis C in the line of duty and to then have to wait out an incubation period—which is usually one to three months for HIV; 45 to 180 days for hep B, for which I know immunisation is available; and two weeks to six months for hep C, for which no immunisation is available—and possibly have to undergo repeated testing for a variety of diseases, is extraordinarily stressful for workers and their families. I recognise that those occupational safety and health reasons absolutely apply to prison officers.

Regarding what OSH arrangements are in place to protect prison officers from the sort of diseases we are talking about, I asked at the briefing whether prison officers are required to maintain a current vaccination for hep B. The question was not able to be answered at the time. Can the minister please answer that question now, as it is highly relevant to the prison officers’ safety at work? Are prison officers required to have a hepatitis B vaccination in order to undertake their duties? I also asked whether prison officers who may have been exposed to HIV at work are provided with post-exposure prophylaxis, if that is medically indicated. It concerns me that it was not clear that their workplace would pay for it if the officer needed it. I ask for the minister’s reassurance on that point, please.

I return to the Mandatory Testing (Infectious Diseases) Act. I note that that act has substantially more safeguards than this bill. Hon Lynn MacLaren explicitly referred to those safeguards in her speech. Those safeguards made the act what the Greens called at the time a good and useful piece of legislation. First, that act applies to police who are acting in the course of their duty for the purpose of ensuring that the officer receives appropriate treatment. That is really important. This bill should not be able to be used by prison officers who are not acting in the course of their duty. There would be concern at the possibility of individual prisoners perhaps being able to be punished or singled out. I think that would be an utter abuse of this provision.

Second, there are special provisions under part 3 for the testing of protected persons—that is, children and incapable persons. In those instances, an application has to be made to a court and if the order is made, the person and a third party responsible have to be served and given certain other information, including about the right of appeal. I understand that this bill will not apply to children, but I ask the minister to confirm that it will apply to mentally impaired accused people in our prisons. That is certainly my understanding. I am disappointed that the safeguard that is currently present within the Mandatory Testing (Infectious Diseases) Act is not also available in this bill.

Third, under that act, there is a formal process for testing to occur, including a written application, approval and service on the suspected transferor. This promotes accountability and protects against abuse.

Fourth, that act includes a defence for reasonable excuse for noncompliance.

Fifth, that act carefully regulates the handling and analysis of the sample. The sample must immediately be sent to a pathology laboratory with appropriate testing facilities. Also, it can then be destroyed by the lab after testing. This is one of the safeguards that Hon Lynn MacLaren relied on explicitly in her support of that 2014 bill. Payment cannot be demanded of the suspected transferor for the cost of taking the sample or for testing it. Importantly, the sample cannot be used for any other purpose than analysis under the act, on penalty of a fine up to $9 000 and imprisonment for nine months. This is another safeguard that the Greens referred to explicitly and relied on in support for that bill.

The act also regulates disclosure of the test results. Essentially, disclosure is limited to the officer, the commissioner, the suspected transferor and the health professionals treating either the officer or the suspected transferor; otherwise, disclosure is admitted only under a written law to a prescribed person, again, on penalty of a fine up to $9 000 and imprisonment for nine months. Those restrictions do not apply to the officer or the suspected transferor unless one of them goes to the media and identifies the other. This allows them to freely disclose to their family and friends as needed; that is happening on their terms. The application approval and test results are not admissible in any proceedings except under the act.

Last, and always of great importance to the Greens, the act contains a review provision. That provision requires a review to occur after five years and the report of the review to be tabled. Again, this is a feature of the legislation that was explicitly referred to at the time and mentioned and relied on in support of the bill. The act came into operation on 1 January 2015, and the review has now tentatively begun, although I understand from a briefing that I received today in relation to a similar bill that because of COVID-19, that has all been pushed out and is not expected to be available for some time. We are being asked to debate this bill without the benefit of considering what has been learnt from what would otherwise have been a most timely review of the preceding legislation. I note that not a single one of the safeguards I have just articulated are present in the bill before us today.

The Greens supported the Public Health Bill 2014 at the time. It contains provisions for compulsory testing, called test orders, in certain circumstances. But again, that legislation contains more safeguards than this bill does. There is a formal process for testing to occur and it must be in writing from the CEO. I note again that this is exactly what stakeholders are seeking in respect of this bill. It must be served on the person to be tested and explained to them and, if necessary, to enforce the order, an application can be made to a magistrate for a warrant. Again, there is the defence of a reasonable excuse for failing to comply with a test order, and the person named in the test order can apply to the State Administrative Tribunal for review.

The Greens have a history of being prepared to support these sorts of measures, subject to appropriate safeguards and making sure that the context is very carefully safeguarded and that it cannot be used in a discriminatory way. I am disappointed that this bill does not contain similar provisions. But as I also said, this bill contains a number of other provisions that are not related to the mandatory testing regime. Aside from introducing that, the bill increases the maximum fine penalties for certain offences. The explanatory memorandum explains that this is aligned to consumer price index changes, although no changes are made to current penalties of imprisonment. There are increasing fines relating to the failure of an officer to supply information or the provision of false information to an inquiry by an officer without reasonable excuse. There is an increase in the penalties for hindering or resisting the minister, the CEO or a person authorised by the CEO from accessing a prison, a contractor vehicle, or contractor or subcontractor documents, for compliance monitoring under the legislation. There is an increase in penalties for hindering or resisting an administrator or appointed reporting officer from accessing the same, for the purposes of exercising their functions under the legislation. There are changes to address noncompliance by a contractor, subcontractor or person appointed by a contractor or subcontractor with administrator’s directions in relation to performance of contract. There is an increase in penalties for visitors to prisons who refuse a search of themselves, children or an article in their possession, and who refuse to state in writing, or falsely state, their full name and address or that of an accompanying child for that purpose. There is also an increase in penalties for bringing or attempting to bring an article into prison with the intent to breach the good order, security or good governance of the prison; for bringing or removing an article in or out of prison without permission; and for false information to get permission to bring or remove an article in or out of prison. If an officer is complicit in the first two offences, they are also subject to an increased penalty. There is a range of other provisions that have been subject to increases in penalties without changing the nature of the offences.

The legislation also takes the opportunity to tidy up other areas of the act, including various typographical errors, removal of obsolete provisions and corrections. It also expands the regulation-making powers. As I understand it, there are currently two sets of regulations: the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 and the Prisons Regulations 1982. I understand that the intention behind a provision in this bill was to use the regulation-making powers to increase the current $1 000 penalty under prisons regulation 87 and to impose a $6 000 fine for unlawful disclosure of a prisoner’s medical information. I would like to point out that disclosure is a very substantive matter that I think should be contained within the bill itself, not the regulations. As I indicated earlier, the Greens and the stakeholders would like to see a particular form of disclosure included in order to ensure that there is transparency. In any case, the bill does not limit the regulation-making power to those matters. It is an extremely broad power, without any reasonable justification.

I want to talk a little further about the concerns that have been raised specifically by the Western Australian AIDS Council. It has written to me and others extensively to raise its concerns about this bill. I know it is intensely disappointed that the bill has been brought in under COVID-19 provisions, because it feels it needed more time to draw its concerns to the attention of members. I advise members that it is my intention to refer this bill to the Standing Committee on Legislation. I am not sure that I necessarily have the support of the house, but I will test that because I believe the bill requires considerably more scrutiny, particularly given the lack of safeguards I have already articulated. It is also extremely disappointing that this legislation is proceeding without the benefit of a five-year statutory review.

I note a press release by the AIDS Council that went out yesterday and articulates some of its concerns. I will read out parts of it, and I am quite happy, if members wish, to table it, but I would like at least to get it into Hansard. It states —

Proposed laws to forcibly test prisoners for HIV have no basis in science, perpetuate stigma, and should be referred to a parliamentary committee, according to the WA AIDS Council and National Association for People with HIV Australia.

Under laws set to be introduced to the WA Parliament on Tuesday, a prisoner who assaults a prison officer will be immediately tested for HIV. The laws overlook the following critical facts:

• HIV is not transmitted through saliva, a key myth perpetuated to justify this and similar legislation.

• In the unlikely event a prison officer was exposed to HIV, they should take post-exposure prophylaxis,

a medicine which can prevent transmission within 72 hours of exposure.

• The Government’s press release falsely claims prison officers who have been assaulted have to wait three months before they themselves can be tested for HIV. This is false. Modern HIV tests detect exposure within six days.

• Falsely equating HIV with criminality inflames stigma and discourages people from seeking tests for HIV.

• A vaccine exists for Hepatitis B and there is a cure for Hepatitis C. WAAC President, Asanka Gunasekera said:

“HIV thrives on stigma and misinformation. These laws inflame that problem and hinder our prevention efforts. Marginalised communities such as gay and bisexual men, people who inject drugs, and sex workers will be less likely to seek a test for HIV when they see it associated with criminality.

“Part of the case for these laws rests on the discomfort prison officers face when they are spat upon. However, HIV is not transmitted through saliva, destroying one of the key arguments for introducing this legislation.

“The Government has also argued a prison officer may face an anxious three month wait to know if they have contracted HIV. The truth is that modern tests pick up the presence of HIV within six days of exposure. Rapid tests provide highly accurate results within fifteen minutes.

NAPWHA President Scott Harlum said:

“Frontline workers including prison officers need to know they’re being sold a lie and offered nothing but dangerous false reassurance by these proposed laws and any government promoting them.

 “There is no mystery in how best to respond to a genuine potential exposure to HIV, such as a needlestick injury, and that does not include any time wasted or misdirected attention on anybody but the person potentially exposed.

“In cases where someone faces genuine potential exposure to HIV, such as a needlestick injury, post-exposure prophylaxis medicine is highly effective at preventing HIV transmission if taken as soon as possible and within 72 hours. Additionally, all frontline workers should be protected against hepatitis B through vaccination.

“These laws fail to solve any problem, and only hinder the HIV prevention effort. Likewise, there is no evidence mandatory testing of prisoners will do anything other than further marginalise those living with HIV and other blood borne viruses. Amplifying anxiety and misplaced fear around HIV is simply the wrong thing to do.”

As I mentioned, concerns articulated in this press release have also been articulated by a number of other organisations that have written to me and to many other people here. I have some amendments on the supplementary notice paper that we will get to when we go into Committee of the Whole House, which I hope will help mitigate at least some of the more immediate concerns that have been raised. I am aware that there is a majority support within the chamber for this legislation. I am happy to say more during the committee stage, and will make no further comment as part of my second reading contribution.

Referral to Standing Committee on Legislation — Motion

HON ALISON XAMON (North Metropolitan) [3.41 pm] — without notice: I move —

(1)  That the Prisons Amendment Bill 2020 be discharged and referred to the Standing Committee

on Legislation for consideration and report by no later than 12 July 2020; and

(2)  the committee has the power to inquire into and report on the policy of the bill.

(Comments and speeches from various members)

Question put and negatived.

Second Reading Resumed

(Comments and speeches from various members)

Committee interrupted, pursuant to standing orders.