4 March 2025
The Hon. R.A. SIMMS (15:31): I rise to speak on the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024 on behalf of the Greens to indicate that we are not supportive of this bill. This bill is problematic, to say the least, and the Greens will be moving several amendments in an effort to try to fix what is a deeply flawed legislative approach. Indeed, I would argue that this is an example of populist politics at its worst, devoid of any evidence and, in effect, a policy-free-zone approach to what is a complex area.
Of course, the Greens support everybody's right to feel safe at work; this is vitally important. But the problem is that this bill does not actually achieve its purported aim; that is, of improving the safety of frontline workers. Indeed, if anything, this bill will actually create more anxiety among frontline workers.
The proposed reforms would compel offenders to undergo compulsory blood testing if an emergency worker has had any form of contact with biological material. Biological material is not defined by the bill and can be taken to mean anything, including saliva, faeces, urine, blood or semen. The bill's definition of emergency workers includes lifesavers, youth justice workers and health workers.
We recognise that this was an election promise made by the Labor Party, but this should not, in and of itself, be a reason to deliver a deeply flawed bill. This bill is not based on health advice or based on the science. Even worse, the bill will lead to an increased stigma for people who live with HIV AIDS and hepatitis.
Under the existing Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act 2015, senior police officers can already require a person to provide blood; however, there is a risk matrix applied to determine whether or not such an approach is necessary in the circumstances. This is a sensible approach, as we know, of course, that not all contact with biological material has any risk of transmission of a disease.
I was intrigued to hear the Hon. Heidi Girolamo say that there is a high risk of transmission of disease from saliva. This is certainly not the case. Indeed, a 2018 study reviewed over 30 years of scientific evidence and found that there is no risk of transmission of HIV through saliva, and the risk through biting is considered negligible at best.
At that time, there were no published cases of transmission of HIV by saliva, and the only cases where there had been any transmission was by biting and when the perpetrator had blood in their mouth at the time of the incident. We know after 40 years of HIV research that HIV is not transmitted by saliva and that contact with saliva does not create any risk or threat to an emergency worker.
I am deeply concerned about the potential for this bill to stigmatise people who are living with HIV and AIDS and to feed into those old fears that people had around transmission of this virus. The deeply flawed views were that HIV could be transmitted through saliva and that it was dangerous to kiss someone with HIV. It has taken decades and decades to move away from these falsehoods, and sadly the Labor Party, through this deeply flawed bill, are fanning the flames of prejudice once again. I really urge them to consider what they are doing here. I think this is a deeply dangerous and unhelpful approach that they are taking.
To implement public policy that suggests that there is some level of risk associated with saliva in this way has the potential to significantly increase misunderstanding about the risk of transmission in the community. We know that such misunderstanding leads to an increasing stigma for people living with HIV, many of whom have a viral load that is not detectable, due to modern medications.
What message do we send to our emergency workers if we tell them that the offender must be tested where there has been contact with biological material that cannot even transmit HIV? That emergency worker then has to live with the stress of worrying about whether they have contracted HIV when it is not even possible. Those emergency workers would not even be able to access post-exposure prophylaxis or PEP, and this is one of the elements that is really ridiculous about the legislative approach that the government is taking here.
Even if an emergency worker was spat on by somebody who tested positive to the HIV virus, under existing health protocols they would not be eligible to access PEP because there is no risk associated with saliva. What does the impacted worker do in that circumstance? They are going to have potentially three months of worry, because we know that it takes three months before you can potentially test positive to HIV should you have been exposed to the virus—three months of worry, when there is not a skerrick of evidence to suggest that they are at risk.
Health practitioners are required to consider the risk of prescribing PEP when they make this available. It is my understanding that neither a human bite nor saliva contact would make any worker eligible to access the medication. Regardless of all these issues, mandatory testing is also unnecessary. It is important that we note the statistics in terms of HIV, in particular within our community. In Australia, less than 0.01 per cent of the population is now living with HIV. That is approximately 29,000 people across the entire country. Of those 29,000, 95 per cent are now taking antiviral medication, which renders the virus untransmissible.
For those who are not great at doing the maths on the fly, that leaves potentially 1,450 people in the whole country who are likely at risk of transmission. The risk is so low, so if the government has any health advice that supports this bill I urge them to make it public, because I cannot understand how such an approach can be justified on the evidence.
The Greens have a long record of advocating for a science and evidence-based approach. In 2015, when a similar act was debated in this place, the Hon. Mark Parnell, my predecessor, stated, on behalf of the Greens, that he was concerned about invasive procedures such as blood testing, and there was a need for them to be limited to occasions where they are strictly necessary. I share that view. He also spoke about how neither HIV nor hepatitis can be transmitted by saliva—and, again, we restate that position today. The facts have not changed.
The Greens have continued to advocate for an evidence-based approach to this issue, and in 2016 you, Acting President, asked a question in this place about whether an evidenced-based approach was being used when requiring blood tests of offenders and how police were ensuring that any legislation was not adding to the stigma for people living with bloodborne viruses where the only contact was with saliva—a pertinent question to ask.
The then Minister for Police and Emergency Services, the Hon. Peter Malinauskas, now our Premier, responded to the question but did not address the fact that there is no risk associated with exposure to saliva with these bloodborne viruses. When a similar bill was considered in New South Wales, the Greens also highlighted their concerns.
Since this bill was first proposed some time ago, my office has been contacted by a number of stakeholder groups that have expressed their concerns about this approach. The South Australian Rainbow Advocacy Alliance (SARAA), for instance, is concerned that the bill has unintended consequences and that mandatory testing will further stigmatise people living with bloodborne viruses, including people with HIV. They additionally note that mandatory testing is not effective, nor an evidence-based approach to public health. SARAA has stated:
We recognise that policies to mandate blood testing for those who spit at or bite frontline emergency services workers are intended to protect emergency services workers from communicable diseases.
While SARAA supports keeping emergency workers safe, we're deeply concerned about the potential unintended consequences of such policies to further stigmatise vulnerable South Australians living with blood-borne viruses (BBVs) including people with Human Immunodeficiency Virus (HIV).
Given medical experts have firmly stated that mandatory testing for [blood-borne viruses] is not an effective or evidence-based approach to public health, SARAA is concerned that the risk of harm caused by this policy deeply outweighs the potential benefits.
The National Association of People with HIV Australia (NAPWHA) and Health Equity Matters have also come out against this bill and flagged the potential adverse consequences that could flow for people living with HIV but also for our health system more broadly. We should note that the Labor Party have made much of the fact that it was an election commitment. Well, their other election commitment was to end ramping, and we know how that has ended up. I do wonder how this mandatory blood testing approach could potentially contribute to the ramping crisis by further overburdening our health system.
In their briefings on this bill, the two organisations (that is, the National Association of People with HIV and Health Equity Matters) stated:
The Bill continues South Australia's flawed approach to Mandatory Disease Testing Laws.
The Bill proposes changes that will produce a dramatic increase in the number of Mandatory Disease Tests (MDT) that will take place in South Australia and the situations in which they will occur. MDT laws are already unnecessary, anti-scientific and, due to a lack of appropriate oversight and accountability, ripe for misuse.
By proposing to devolve decision making about when to test to non medical decision makers at the lowest levels of workplace hierarchies and by removing the discretion of Senior Police Officers not to order a test when one is not needed, the Bill proposes to exacerbate this situation. Tests will be ordered based on stigma and not on evidence based science. This puts emergency services workers at risk as well as the communities they serve and will exacerbate existing pressure on health services in South Australia.
I agree. Indeed, NAPWHA and Health Equity Matters have provided a submission that argues against this bill and have raised concerns about a number of the clauses. I will be raising some of these concerns with the Attorney at the committee stage.
While the Greens are not in favour of this bill, we will be moving several amendments in an effort to try to improve the legislation somewhat. We will seek to change the definition of 'biological material' to remove saliva, as the diseases that this bill purports to capture cannot be transmitted by saliva. Our amendments aim to ensure that the biological material of the offender must come into contact with the blood of the emergency worker before a test is ordered. Mere contact with unbroken skin or clothing is not likely to cause any transmission, and this will reduce the circumstances in which these tests will be ordered.
We also have amendments that consider the timeframe of the test related to the contact incident. There is no benefit that could flow from testing someone after seven days as the person may have potentially contracted a bloodborne virus after the contact incident in question. All this will do, potentially, is add further worry and anxiety to the worker. It may extend the duration of their worry that they may have been affected, even when this was not at all possible.
Finally, our amendments require the use of a risk matrix before any tests are ordered. This matrix will be determined by regulation, and in fact this is already the current practice when senior police officers determine whether or not a test is required. I note that SA-Best has an amendment to include workers in retail shopping centres, petrol stations and fast-food outlets. I think it is very clear, from our general concerns around this bill, that we will not be supporting that amendment.
I am concerned that, whilst the Greens are seeking to narrow the application of these laws, the Hon. Connie Bonaros' amendments will actually extend their application and extend the number of workers who will feel undue anxiety. In this case, it is most likely to be young workers, who may not understand that there is no risk profile associated with exposure to saliva. To put them in that position does not seem to make sense and, once we start expanding the number of workers that fall within the remit of these laws, has the potential to expand the level of stigma that I spoke of earlier.
To conclude, the Greens consider this bill to be deeply flawed. We will move amendments that we consider to be for the benefit of people living with bloodborne viruses but also for frontline workers. I want to put on the public record my disappointment in the Labor Party for the way they have approached this. It seems to me that this was a commitment that was made in the middle of an election campaign without any evidence. It is not supported by anyone in the health space and indeed has been roundly condemned by all of the advocacy groups in that space.
I would like to know what level of consultation the Labor Party adopted in developing this policy. I am keen to understand why such a poorly conceived concept would win the support of the opposition as well, who do not seem to be adopting a critical eye over what appears to be some sort of Labor Party brain fart that has not been given due consideration. I look forward to the committee stage, and I will be raising a number of questions on behalf of the Greens.