Commonwealth Ombudsman Oversight of Covert Electronic Surveillance –
Report to the Minister for Home Affairs on agencies’ compliance with the Telecommunications (Interception and Access) Act 1979 and the Telecommunications Act 1997 from Commonwealth Ombudsman inspections conducted from 1 July 2024 to 30 June 2025
https://www.ombudsman.gov.au/__data/assets/pdf_file/0022/325390/Oversight-of-Covert-Electronic-Surveillance-Report-2024-2025-AMENDED.pdf
The NSW Ombudsman report Mandatory disease testing in NSW: monitoring the operation and administration of the Mandatory Disease Testing Act 2021 - in part informed by a submission from myself - comments
The Mandatory Disease Testing Act 2021 (the MDT Act, or the Act) came into effect in July 2022. It provides for the mandatory blood testing of a person whose bodily fluids have come into contact with a worker from certain government agencies in NSW, including law enforcement, corrective services, and health and emergency services workers. The NSW Ombudsman has a statutory role to monitor the administration of the Act. We are required to prepare a report to NSW Parliament after 12 months of commencement of the Act and every 3 years after the first report, including information about our monitoring of the scheme and the exercise of functions under the Act.
This is our first report following commencement of the Act, covering the first 18 months of the Act’s operation, from 29 July 2022 to 31 December 2023 (the reporting period). The report comprises 3 parts: • Part A is an overview of the Act and its operation during the reporting period. • Part B provides our overarching comments and key recommendations. • Part C provides our detailed comments on specific legal and operational issues.
Operation of the MDT scheme during the reporting period (Part A)
A mandatory testing order (MTO) can be made only where contact with a person’s bodily fluids has occurred ‘as a result of a deliberate action’ by the person and where the making of an MTO for the testing of their blood is ‘justified in all the circumstances’. A worker can apply for an MTO only after consulting a ‘relevant medical practitioner’.
An MTO can be made by a ‘senior officer’ from the worker’s agency. The senior officer must first seek the consent of the third party to voluntarily provide blood for testing, unless it appears to the senior officer that the third party is a vulnerable third party (defined as a person with a mental health impairment or cognitive impairment affecting their capacity, or a child aged 14 to 17 years) in which case the senior officer may apply to the court for an MTO. The senior officer’s determination (to make an MTO or refuse the application) is reviewable by the Chief Health Officer (CHO).
Failing to comply with an MTO is a criminal offence.
Use of the Act
During the reporting period, staff from 3 agencies made MDT applications: (a) (b) (c) NSW Police Force (the NSWPF): 106 applications Corrective Services NSW (CSNSW): 32 applications NSW Ambulance Service: 1 application.
Of the 139 MDT applications made during the reporting period: • 33% (46) proceeded by way of testing by consent • 22% (31) were refused by a senior officer. In approximately half (16) of these refusals, the senior officer recorded that they considered the person to be a vulnerable third party • 18% (25) were approved by a senior officer • 17% (24) were withdrawn or cancelled • 7% (10) were the subject of court applications. Of those, 7 MTOs were made by the court and 3 were refused.
Key statistics
• Most incidents that led to an MDT application being made involved either spitting or biting. Eighty- four per cent (117 of 139) of all agency applications recorded exposure to saliva. Of those, 26% (30 of 117) indicated a concern about potential exposure to blood in or with the saliva. • Relative to the general population, MDT applications disproportionately related to young people – people aged 14 to 17 comprise 4.8% of the general population but comprise 7.2% of third parties (10) subject to MDT applications. People aged 18 to 24 comprise 8.4% of the general population but comprised 33% of third parties (46) subject to MDT applications. • Males are overrepresented in total applications made by all agencies – over two-thirds (68% or 95 of 139) of third parties were male. • Females are significantly overrepresented in CSNSW MDT applications – 25% of third parties in CSNSW MDT applications were female, but females make up around 6.7% of the inmate population. This suggests that female inmates are just under 4 times more likely to be subject to an MDT application than male inmates. • In 24% (33 of 139) of MDT applications, senior officers recorded that the person to be tested appeared to them to be a vulnerable third party. Of those 33 applications, 10 proceeded to court. Seven of these resulted in the court making an MTO. • MDT applications have disproportionately related to Aboriginal and Torres Strait Islander people. Aboriginal and Torres Strait Islander people comprise 3.4% of the general population but were the subject of 28% of MDT applications. Third parties who are Aboriginal and Torres Strait Islander people had a higher rate of MDT applications dealt with by consent (41% compared with 29.7%) and were less likely to be assessed as vulnerable. • No worker whose MDT application was refused applied for a review of that decision by the CHO during the reporting period. One review application was made by a third party who was subject to an MTO – the CHO upheld the decision to make the MTO. • No judicial review proceedings were commenced in respect of a decision made under the MDT Act during the reporting period. • The NSWPF and CSNSW have not reported any use of force in connection with administering an MTO during the reporting period. • It is a criminal offence to fail to comply with an MTO without reasonable excuse. During the reporting period, one person was charged with ‘fail to comply’.
Overarching comments and core recommendations (Part B)
The Act is mostly being used in cases where there is no real risk of a worker contracting a blood-borne disease
Most MDT applications (at least 87 of 139, or 62.6%) involved the exposure of a worker to saliva only. Of these, 52 (60%) resulted in a senior officer making an MTO, applying to the court for an MTO or testing by consent of the third party.
Guidance from the CHO is that this type of exposure carries no real risk of transmission of any relevant blood-borne disease. Given that one of the objects of the Act is to encourage workers to seek medical advice and information about the risks of contracting blood-borne disease, as well as to protect and promote their health and wellbeing, the high proportion of applications being made with no risk of contracting a blood-borne disease suggests that the Act is not working as intended.
We saw no evidence that the Act is improving the health and wellbeing of workers
A survey of workers we conducted indicated that, of those who responded: • no worker had their treatment changed following the third party being tested • no worker felt that the scheme promoted their wellbeing • some workers felt that the process of applying for an MTO added to their stress and anxiety.
We share the concerns of some stakeholders that the Act itself – for example, by including saliva as a relevant bodily fluid – may be contributing to misinformation and misunderstanding among workers of the risk of transmission of blood-borne diseases, and therefore contributing to their stress and fear.
Protections for third parties are ineffective
While the Act contains a range of provisions which aim to protect the rights of third parties and afford them procedural fairness, they are largely ineffective. • The test for vulnerability (ie whether the third party is under 18 or has a mental or cognitive impairment) is subjectively applied and conceptually confusing, providing no guidance as to indicators of vulnerability. • Blood test results of third parties are given to workers and there appears to be no legal restriction on the worker’s ability to disclose those results. • The third party’s right to make submissions before an MDT application is determined is ineffectual in practice due to the short timeframe involved and the fact that the third parties are generally not given a copy of the worker’s MDT application. • There are significant practical barriers to a third party seeking external review of decisions by the CHO (the only review mechanism in the Act). • Protections against the use of information in other proceedings against the third party are ambiguous, inadequate and poorly drafted.
The Act is disproportionately impacting Aboriginal and Torres Strait Islander people
The disproportionate impact of the scheme on Aboriginal and Torres Strait Islander people is even greater than can be explained by their disproportionate involvement in the justice system. For example, while Aboriginal and Torres Strait Islander people make up 3.4% of the general population and 31% of the inmate population, half of all CSNSW’s MDT applications concerned an Aboriginal or Torres Strait Islander person.
There are legal complications with testing by consent
Before determining an MDT application in respect of a non-vulnerable third party, the Act requires the senior officer to seek the consent of the person to voluntarily provide blood. Almost half of all MDT applications in respect of non-vulnerable people proceeded to testing by consent.
If consent is obtained, the MDT application must be refused. If consent is obtained, testing proceeds entirely outside the framework of the MDT Act. This leaves gaps because: • there is no mechanism to deal with what happens if the person, having given consent, then fails or refuses to provide a blood sample • provisions within the Act which require testing to occur ‘subject to an MTO’ are not enlivened, including: − the authorisation (and restriction) on the pathology laboratory to send the results to relevant medical practitioners and the CHO (and to no one else) − the entitlement of the third party to cost reimbursement − the non-disclosure of information gathered under the Act − the requirement for the agency to notify the NSW Ombudsman when a determination is made on an MDT application. • the Act requires consent to be sought by the senior officer, and so this is occurring in a non-clinical context, and without the person having the opportunity to obtain medical, legal or other advice before making the decision to consent • in some cases involving the NSWPF, we observed pressure being applied when consent was sought • even when overt pressure is not applied, there is an inherent power imbalance between senior officers and third parties that may lead to doubts as to whether consent is being provided on a free and fully informed basis.
Senior officers of agencies are ill-equipped to be making determinations about MTOs, and decision-making processes within the NSWPF seem particularly poor
The Act confers decision-making power on senior officers, who are generally non-experts – either as administrative lawyers or as medical clinicians. This includes the decision as to whether a third party ‘appears’ to have a mental health or cognitive impairment which would qualify them as a vulnerable third party.
The Act provides extremely broad discretion to these decision makers, who can make an MTO if they consider it to be ‘justified in all the circumstances’. Although reasons are required to be given, in practice documented reasons are perfunctory and, in the case of the NSWPF, are entered using a structured decision-making tool that functions largely as a check-a-box.
Core recommendations
In light of the observations above, we recommend that consideration be given to whether the Act should be continued at all (recommendation 1) and whether the administrative resources currently applied to the scheme would be better directed toward providing better avenues of advice and support directly to frontline workers exposed to bodily fluids in the workplace.
There were, at most, only 47 MDT applications during the 18-month reporting period where there existed even a low risk of blood-borne disease transmission to a worker. In any case, the existence of a testing window (that is, a gap in time between when a person contracts a disease and when they develop the antibodies that show up in testing) applies to the third party as well as the worker. As such, when there may be a transmission risk, a negative result returned from the third party is no assurance against transmission.
Given the lack of clear and measurable benefits to workers, it is questionable whether the significant and complex legislative and administrative burden of the MDT scheme is warranted for such a small number of exposures.
The Act attempts to balance important competing policy priorities, including: • a scheme that will operate on a fast enough timeframe to make third party testing at least potentially relevant to a worker’s medical treatment • protections and procedural fairness rights for third parties.
It may be that these competing policy concerns are irreconcilable. Workers who responded to our survey generally told us that the scheme did not support their wellbeing, and they found that the process added to their stress. On the other hand, as noted above, the legislative safeguards for third parties are also ineffective and often inadequate.
If recommendation 1 is not accepted and the Act is continued, we suggest that the different pathways that currently exist based on whether a third party appears to the senior officer to be vulnerable or non-vulnerable be removed.
Given the inadequacies in identifying vulnerability, the problems with decision making by senior officers alone and ineffective procedural fairness mechanisms, it is our view that all applications, if supported by the worker’s employer, should be determined by the court (recommendation 2).
Detailed comments on legal and operational issues (Part C)
Part C contains our observations and analysis on the legal and operational issues we identified during our monitoring of the operation and administration of the Act. In this part of the report we have made recommendations on how the Act should be amended, it if it is to remain in effect. Part C also contains recommendations to make changes to the CHO guidelines and to agency policies and procedures, and for the increased publication of MDT-related data.
MDT applications
Under the Act, a worker can only apply for an MTO where bodily fluid contact has been caused as ‘a result of a deliberate action’ – however, this phrase is undefined and ambiguous (see recommendation 3). Although the MDT Act requires ‘a detailed description of the contact, including the date, time, place and surrounding circumstances, and the nature of the worker’s contact with the third party’s bodily fluid’, applications often only included only brief or minor details.
Consultation with a relevant medical practitioner
The Act requires workers to consult a ‘relevant medical practitioner’ with specialist qualifications or experience in blood-borne diseases before an MDT application can be made. There is no mechanism that allows us to determine the extent to which workers have attempted to do this. From what we can ascertain, it does not appear that workers are obtaining advice from medical practitioners with specialist expertise in blood-borne diseases (see recommendation 4). It is also apparent that the medical advice that workers are obtaining is not comprehensively addressing the requirements prescribed in the Act (recommendations 5 and 6).
Worker experience and wellbeing
It has not been possible to assess the extent to which (if at all) the medical treatment of workers following an exposure incident has been affected by the testing of third party. The majority of workers who responded to a survey we conducted about their experience of the MDT process said they would have sought medical advice following exposure even if the MDT Act had not been in place. Survey results did not suggest that a worker’s decision to receive treatment (that is, post-exposure prophylaxis (PEP)) was affected by third party testing under the Act. Worker survey results also indicated that workers generally did not feel that the MDT scheme had promoted their health and wellbeing.
Chief Health Officer reviews and court submissions
Reviews of MTO decisions are undertaken by the Chief Health Officer (the CHO). The CHO advises that, as it lacks legal expertise, it considers that it cannot be expected to conduct an administrative ‘merits’ review. If senior officers are to remain the decision maker under the Act, a proper merits review mechanism should be integrated into the scheme (see recommendation 7). There is also a lack of clarity around what happens if the CHO’s review decision is to set aside the making of an MTO (see recommendation 8).
We identified operational flaws in the Act’s review mechanism, including the following: • The Act requires workers and the third parties to make any application for review within 1 business day of ‘being notified’ of the senior officer’s decision – but it can be unclear when ‘notice’ of a senior officer’s determination decision has been given (see recommendation 9) – and notice to a third party about their review rights is typically given after the review application period has already expired (see recommendation 10). • The Mandatory Disease Testing Regulation 2022 (the Regulation) requires a third party’s application for review to include a copy of the MTO, but they typically do not have it at that time (see recommendation 11). • There is no clear power for the CHO to accept a late review application (see recommendation 12). • It is difficult and impractical for people to obtain advice (including legal or medical advice) within the 1 business day timeframe in which they may apply for review (see recommendation 13). • Third parties do not have a fair opportunity to make submissions to reviews of MTO decisions (see recommendation 14). • There is no reasonable justification for requiring testing to proceed pending the outcome of a review, as currently occurs under the Act. Stakeholders raised significant opposition to this aspect of the Act, one noting that it ‘wholly negates the purported safeguard against arbitrary bodily interference’. The Act’s prohibition on disseminating test results during review is also ineffectual (see recommendation 15).
No worker applied for a review during the reporting period. Potential reasons for this include the limited timeframe for applying for a review (1 business day following notification of the senior officer’s determination), lack of awareness of review rights, and a perception that the review may be futile. The CHO may make submissions to the court in relation to an application for an MTO, and the court must take these submissions into account. However, it notes that it has historically faced barriers to doing so (see recommendation 16). Even when it is notified of a court application, the CHO is not given all the information needed to make an informed submission (see recommendation 17).
Vulnerable third parties
Assessment of the vulnerability of a third party is subjective, and it appears that the senior officer is not required to make any inquiries to assess vulnerability. Unless the Act is amended to provide that all MTOs should be made by the court (recommendation 2), the test for vulnerability should be amended so that the presumption is that a person is vulnerable unless an assessment is made otherwise (see recommendations 18 and 19).
Aboriginal and Torres Strait Islander third parties have been assessed as vulnerable at a lower rate than non-Indigenous third parties. The number of third parties recognised as vulnerable by the NSWPF generally appears surprisingly low. Twenty-three per cent (33 of 139) of all third parties were identified by a senior officer as appearing to be vulnerable.
Senior officers also do not typically include a record of the enquiries made or reasons for their assessment of vulnerability (and such records are not currently required by the Act) (see recommendation 20).
The current test of vulnerability is based on the incapacity of the third party to consent, which is a narrow concept. We suggest that the threshold of ‘significant impact on capacity to consent’ should be removed from the Act’s test of vulnerability, and instead the test should be extended to include an inability to understand the nature of the decision or to make proper submissions. Several submissions recommended widening the definition of vulnerable third party to include Aboriginal and Torres Strait Islander people. We agree that this would be appropriate. The timing of the application of the test of vulnerability is also ambiguous. In our view, if a person has a relevant impairment at any relevant time, that should result in the person being considered vulnerable.
We recommend Government amend the Act’s definition of vulnerable third party to address these issues (recommendation 21).
Chief Health Officer guidelines
The Act requires the CHO to issue guidelines to assist senior officers, relevant medical practitioners and persons taking blood from third parties under an MTO. The MDT Act does not specify any mandatory content requirements for the CHO guidelines. Some of the information they contain could be made clearer for senior officers (see recommendation 22). The CHO guidelines will also need to be updated if other legislative amendments recommended in this report are implemented (see recommendation 23). Police-developed training materials do not reference the CHO guidance on transmissibility risk, nor do they include training on how to consider and apply the CHO guidelines more generally (see recommendations 24 and 25).
Decision making and determinations by senior officers
The MDT Act confers a wide discretion on senior officers to make an order if subjectively satisfied that it is ‘justified in all the circumstances’. The NSW Crown Solicitor's Office (the Crown Solicitor) has advised that a senior officer must take into consideration the worker’s MDT application (as well as the CHO guidelines and any submissions). Senior officers should be required to form a view that the worker is eligible to make an MDT application before it is determined (see recommendation 26).
The Act is ambiguous as to whether it is necessary for there to be at least some transmission risk for an MTO to be made, even though a key object of the Act is to provide for blood testing where ‘the worker is at risk of contracting a blood-borne disease’ (see recommendation 27). Given there is no real risk of transmission, saliva should be omitted from the MDT Act (recommendation 28). The MDT Act defines bodily fluids to include those prescribed by regulation. Additional bodily fluids should not be able to be included unless they carry a real risk of transmission of a relevant blood-borne disease (recommendation 29).
Senior officers appear to be making inconsistent decisions about similar incidents or risks. Unclear advice about the possibility of blood in saliva increases inconsistencies in decision making and heightens the likelihood that MTOs are being made where there is no real risk of transmission.
Records of decisions by CSNSW senior officers do not suggest that the CHO guidelines are being routinely considered.
It also appears that senior officers are not consulting workers’ medical practitioners before making determinations, even in cases where no written medical advice was provided (see recommendation 30). Senior officers may need to consult with medical practitioners and access records beyond what is contained in the written medical advice. Currently their ability to do so applies only in the case where no written medical advice has been obtained, and it is unclear why this is the case (see recommendations 31, 32 and 33). Although the NSWPF guidelines advise NSWPF workers to seek written medical advice and attach it to their application, written medical advice is not always obtained for the senior officer to consider. Thirty- nine per cent of NSWPF MDT applications (41 of 106) did not contain written medical advice. A high proportion of these applications resulted in blood testing, either by way of an MTO or by consent. Third parties are often not given sufficient opportunity to make a submission (see recommendation 34), and it appears that NSWPF senior officers use their consent form as the third party’s opportunity to provide a submission, effectively conflating the Act’s requirement to provide an opportunity to make a submission with the requirement to seek consent (see recommendation 35).
Enforcement
There is ambiguity in the Act around whether force can be used against a person who is arrested and detained for failing to comply with an MTO (see recommendation 36).
Testing with consent
As noted in part B, a high proportion of blood tests (47%) are being conducted by consent – and it is likely that these reported numbers are understated. There are inconsistent practices between and within agencies about how applications are to be finalised if consent is obtained – the Act does not specify what senior officers may or must do in relation to the MDT application when consent has been obtained, and senior officers from the NSWPF and CSNSW have demonstrated differing approaches.
The Crown Solicitor has confirmed that, if consent is obtained, the senior officer must refuse the application (see recommendation 37). It may be necessary to amend the MDT Act to explicitly set out what is to occur if a third party consents, given the risk that they might later withdraw consent (recommendation 38).
Some provisions of the MDT Act are predicated on testing being undertaken subject to an MTO – meaning they will not be enlivened if the testing occurs by consent (see recommendation 39). While there is no express prohibition in the Act, it is clearly not intended that senior officers would seek consent in respect of vulnerable third parties. However, in a small number of cases this has occurred, and in (at least) 2 cases with some pressure applied. We also have concerns that in some cases senior officers have already decided that they will make the MTO when they approach a third party to seek consent – meaning their decision would be contrary to law.
In most cases, there is little or no documentation recording the contact made by senior officers with the third party during which consent was obtained. This has made it challenging for us to consider the extent to which consent is being obtained in accordance with the Act, and whether it has been provided on a free and informed basis. Although the CHO guidelines recommend that they do so, agencies rarely record any reasons as to why a third party has not consented. This information is important for purposes of transparency (see recommendation 40). It is also apparent that the obtaining of consent by the NSWPF is not routinely captured on body-worn video (BWV) (see recommendation 41).
If consent is obtained before an MDT application is made, the MDT Act does not apply.
Blood samples and test results
Although the Act requires it, pathology laboratories are not always providing blood test results to the CHO when the third party has not nominated a medical practitioner. This may be due (at least in part) to a lack of knowledge on the part of pathology laboratories about this obligation (see recommendations 42 and 43). When undertaking a test under an MTO, pathology staff are made aware that testing is subject to an MTO but are not provided a copy of the MTO itself. This is in contravention of the Act. It also appears that the applicant worker can legally nominate more than one medical practitioner for dissemination of blood test results. The disclosure of a person’s health information to anyone without consent violates the person’s health privacy and should be permitted under the Act only where absolutely necessary (see recommendation 44).
Neither the Act, the Regulation nor the CHO guidelines set out what information must be included with the test results when sent to medical practitioners (see recommendations 45 and 46). Further, it appears that workers may be under no legal obligation to maintain the confidentiality of the third party’s test results. The Act provides that the recipient medical practitioner may disclose the blood tests to the applicant worker, but it does not provide any guidance as to what the worker may (or may not) do with those results (see recommendation 47).
The MDT Act appropriately does not authorise the senior officer to seek out, request or obtain the third party’s test results. The pathology laboratory should be required to notify the senior officer in writing as soon as practicable after blood has been taken from the third party, without notifying them of the actual results (see recommendations 48 and 49). One of the exceptions to non-disclosure of third party health information is ‘in other circumstances prescribed by the regulations’. Allowing additional exceptions to the disclosure of third party health information to be prescribed by regulation is justified (see recommendation 50).
We have not identified any impermissible attempts to use blood test samples for other law enforcement purposes – however the statutory protections in this regard appear inadequate (see recommendations 51 and 52). The Act only authorises (but does not require) blood test samples to be destroyed when no longer required for MDT purposes (see recommendation 53).
Ombudsman monitoring and reporting
Limitations on the Ombudsman’s information gathering powers under the Act are problematic (see recommendation 54). Additionally, the Act does not expressly prevent agencies withholding information required by the Ombudsman on the grounds of public interest or other privilege (see recommendation 55). 4 There may also be a question as to whether, at that time, they had also considered the CHO guidelines (which are also mandatory considerations).
The powers of the Ombudsman to compel agencies (and others if necessary) to produce information remain limited. We are currently unable to assess the number of third parties who, following a mandatory test, actually returned a positive result for blood-borne diseases. This information would be valuable in assessing whether the MDT Act may provide some benefit to workers (see recommendation 56). Agencies are required to notify the Ombudsman when senior officers make determinations of MDT applications. This does not encompass all MDT applications that are made to agencies, such as those that are withdrawn. To address this, mandatory notification requirements should be expanded (see recommendation 57).
The NSWPF’s use of a structured decision-making tool through BluePortal to both make and record decisions by senior officers has led to the recording of inadequate ‘reasons’ for decision, that impede any such assessment. Senior officers should make and provide full and proper reasons for their determinations, including what was considered and relied upon in making the decision and a clear statement of the reasoning process (see recommendations 58 and 59).
Detailed demographic data also cannot currently be reported as agencies do not routinely collect and retain it. Agencies need to be directed to make and keep a record of the demographic information that Parliament intends to be reported (see recommendation 60).
The Act provides for the Ombudsman to report every 3 years on its monitoring of the MDT scheme. Going forward, we intend to publish (at least annually) a report on our monitoring, including non- identified, non-health, statistical data on the operation of the MDT scheme (recommendation 61). BOCSAR could also report MDT activity of the NSWPF on their public platform, including information about the number of applications and orders made (recommendation 62).
Recommendation 1 That consideration be given to whether the Act should be continued at all, and whether the administrative resources currently applied to the scheme would be better directed toward providing improved avenues of advice and support directly to front-line workers who become exposed to bodily fluids in the workplace. That could include establishing and funding a panel of specialist blood-borne disease clinicians to be available for immediate consultations with workers (and their general practitioners) if required following a workplace incident of exposure to bodily fluids.
Recommendation 2 If the Act is to be continued, the Act be amended to provide that, in all cases, MTOs may only be made by the court, on application by the worker’s senior officer. If this recommendation is implemented: a. Consideration should also be given to all of the recommendations set out in the next part of this report (other than those expressly stating that they do not apply if this recommendation is implemented). This includes that: i. A panel of relevant medical experts should be made available to workers (recommendation 4) and their written medical advice should be put before the decision maker. b. ii. The criteria for making an MTO should include that there must be a real risk of transmission of a blood-borne disease and that testing of the third party may affect the treatment of the worker (recommendation 27). In addition (and although the concept of ‘vulnerable third party’ can otherwise be omitted from the Act), consideration should be given to amending the Act to explicitly deal with how, prior to an MDT application being determined by the court, consent may (or may not) be obtained in the case of a minor or other person who lacks capacity to consent.
Recommendation 3 If the Act is to continue, that the Act be amended to clarify whether the requirement that contact with bodily fluid be a ‘result of a deliberate action’ by the third party means that: a. b. as indicated in the second reading speech for the Bill, the third party engaged in the action with the intention of causing contact between their bodily fluid and the worker (the narrower view), or as per the Crown Solicitor’s preferred construction of the MDT Act currently, the third party need only have intended to engage in the action which caused the bodily fluid contact, without necessarily also intending to cause contact between their bodily fluid and the worker (the broader view).
Recommendation 4 That agencies work with the CHO to put in place arrangements with a list of relevant expert medical practitioners for workers, including those in regional areas, to have rapid telehealth consultations (including outside normal business hours) following an exposure event.
Recommendation 5 If the Act is to continue, that the Act be amended to provide that a worker’s medical practitioner must, both during the consultation and in written advice, inform the worker about all of the following: a. b. c. the medical practitioner’s assessment as to: i. whether there is any risk of the worker contracting each blood-borne disease ii. if so, the level of such risk. the appropriate action (if any) to be taken by the worker to mitigate that risk to the extent (if any) to which testing the third party’s blood: iii. will assist in assessing the risk to the worker of contracting each blood-borne disease iv. may affect the appropriate action (if any) to be taken by the worker to mitigate that risk v. may affect the worker’s mental health or wellbeing the risk that the third party test may return a false result.
Recommendation 6 If the Act is to continue, that the CHO develop a form for workers to provide to their medical practitioner, addressing each of the matters referred to in recommendation 5, and which upon completion would constitute written medical advice for the purposes of the MDT Act. This proforma could be contained in the Regulation, or in the CHO guidelines and each agency’s MDT policy.
Recommendation 7 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to provide that decisions of senior officers to make or refuse to make an MTO, are subject to a review: a. by NCAT, the Local Court, or other relevant court or tribunal with expertise in reviewing administrative decisions b. c. which permits the reviewing body to consider whether the senior officer’s determination was the correct and preferable decision which, if the senior officer’s decision is overturned, permits the reviewing body to make the correct and preferable decision.
Recommendation 8 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to clarify that if, on review, the CHO [or other review body] sets aside a decision to make an MTO, they may then: a. b. c. decide to refuse the MDT application in the case of a person who is not a vulnerable person, make an MTO (in different terms to that made by the senior officer) in the case of a person who is a vulnerable person, apply to the court to make an MTO
Recommendation 9 If the Act is to continue, that the Act be amended to make clear that ‘notice’ in s 23 means the written notice of determination required to be given under s 13.
Recommendation 10 If the Act is to continue and recommendation 2 is not adopted, that the NSWPF, CSNSW and other relevant agencies include information in any notice of determination about workers’ and third parties’ review rights, and that the Act be amended to make this a requirement.
Recommendation 11 If the Act is to continue and recommendation 2 is not adopted, that Government amend the Regulation to provide that an application for review from a third party must include either the MTO or a copy of the senior officer’s notice of determination and reasons for determination.
Recommendation 12 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to provide that the CHO [or other review body] may accept an application for review out of time in exceptional circumstances.
Recommendation 13 If the Act is to continue, that the Act be amended to provide that the period within which an application for review must be made is 3 business days from notification of the decision.
Recommendation 14 If the Act is to continue, that the Act be amended to provide that both the third party and the worker are to be given an opportunity to make submissions on any review, and the CHO [or other review body] is to consider any submissions received.
Recommendation 15 If the Act is to continue, that the Act be amended to provide that testing in respect of an MTO is not to take place until whichever is later of the following: a. b. the expiry of the time within which an application for review may be made the finalisation of any review.
Recommendation 16 If the Act is to continue, that the CHO adopt the practice of always making submissions to assist the court in determining MDT applications. Recommendation 17 If the Act is to continue, that the Act be amended to require that a senior officer must provide the CHO with a complete copy of the court application, including all filed documents, at the same time as the application is made.
Recommendation 18 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to provide that a third party is to be taken to be a vulnerable person unless the senior officer is satisfied, on reasonable grounds, that the person is not a vulnerable person.
Recommendation 19 If the Act is to continue and recommendation 2 is not adopted, that the CHO revise the CHO guidelines to include advice to senior officers about assessing whether a third party is or is not a vulnerable person, and to provide that, if senior officers assess that a person is not a vulnerable person, they should record what enquiries were made and what factors were taken into consideration.
Recommendation 20 If the Act is to continue and recommendation 2 is not adopted, that the NSWPF amend its guidelines to require that senior officers record what, if any, enquiries were made concerning vulnerability, and what factors were taken into consideration when assessing vulnerability – see recommendations 18 and 19.
Recommendation 21 If the Act is to continue and recommendation 2 is not adopted, that the Act be amended to change the definition of vulnerable third party to include, in addition to children aged 14 to 17 years, any person: a. who has, or at the time of the contact incident had, a cognitive impairment or mental health b. c. impairment, or whose English language proficiency prohibits them from, or who is otherwise unable to, understand the nature of the decision to be made or to properly make submissions or otherwise represent themself in respect of that decision, or who is an Aboriginal or Torres Strait Islander person.
Recommendation 22 If the Act is to continue, that the CHO review the CHO guidelines in consultation with agencies to consider whether advice on the transmission risk (or lack of risk) associated with contact types can be made clearer to non-expert readers.
Recommendation 23 If the Act is to continue, that the CHO promptly review and update the CHO guidelines accordingly following the passage of any legislative amendments as recommended by this report.
Recommendation 24 If the Act is to continue, that the Act be amended to provide that: a. b. a senior officer must complete a course of training, delivered or approved by the CHO, and determinations of MDT applications (including, if recommendation 2 is adopted, applications to the court) may only be made by a senior officer who has completed that training.
Recommendation 25 If the Act is to continue, that all agencies ensure that the CHO guidelines are the primary reference source for any MDT-related policies and training material developed or used by agencies under the Act, including for the purpose of training senior officers on the risks (if any) of transmission.
Recommendation 26 If the Act is to continue, that the Act be amended to make it clear that a senior officer may only make an MTO (or apply to the court for an MTO, including if recommendation 2 is adopted) if satisfied that the worker making the application was eligible to do so under s 8. This would mean that the senior officer must form a view on the following before making a decision on an MTO determination: a. b. c. d. e. f. g. the worker came into contact with bodily fluid of the third party the contact occurred in the execution of the worker’s duty the contact was the result of a deliberate action by the third party the contact was without the consent of the third party the third party is over the age of 14 the worker has consulted a relevant medical practitioner the application is made within 5 days of the contact.
Recommendation 27 If the Act is to continue, that the Act be amended to provide that, to make an MTO the decision maker (including the court if recommendation 2 is adopted) must be satisfied, having regard to the CHO guidelines and medical advice, that there is a real risk that the worker has contracted a blood-borne disease from the contact incident.
Recommendation 28 If the Act is to continue, that the Act be amended to omit saliva as a ‘bodily fluid’ (noting that, if contact is made with both saliva and blood, the Act could still apply in respect of that contact as blood is a bodily fluid).
Recommendation 29 If the Act is to continue, that the Act be amended to omit from the definition of ‘bodily fluid’ the regulation-making power to prescribe any ‘other bodily fluid or substance’ as a bodily fluid, or alternatively to put in place a safeguard that a bodily fluid is only prescribed following certification by the CHO.
Recommendation 30 If the Act is to continue, that the Act be amended to require that all MDT applications must include written advice from the worker’s medical practitioner. (See also recommendation 5 as to the required content of that advice).
Recommendation 31 If the Act is to continue, that the Act be amended to provide that a worker’s statement(s) consenting to the senior officer consulting their medical practitioner and accessing their medical records extends to the case of an MDT application that is determined by the senior officer deciding to apply to the court, to the extent necessary for the purpose of pursuing court proceedings.
Recommendation 32 If the Act is to continue, that the Act be amended to provide that, in all cases, a worker’s MDT application must include statement(s) of consent to the senior officer accessing their relevant medical records as necessary.
Recommendation 33 If the Act is to continue, that the CHO review and revise the CHO guidelines to provide guidance to senior officers as to how and when they should be consulting with a worker’s medical practitioner.
Recommendation 34 If the Act is to continue, that the Act be amended to require that, for the purpose of affording third parties an opportunity to make a submission: a. b. c. the senior officer must provide them with a redacted copy of the MDT application immediately, and in any case no later than 1 business day after the MDT application is made, and should they indicate that they wish to do so, third parties be given the opportunity to obtain medical and/or legal advice to assist with the decision to make (or not make) a submission, and to assist in the making of that submission. Pending any change to the legislation, this practice should be adopted by agencies as a matter of policy.
Recommendation 35 If the Act is to continue, that the NSWPF review its policy and practices to ensure that third parties are genuinely provided an opportunity to make a submission on any matters relevant to the determination of an MDT application, and not merely on their reasons for not consenting to provide a blood sample for testing.
Recommendation 36 If the Act is to continue, that the Act be amended to provide that the powers of law enforcement officers in respect of a detained third party provided by s 21 do not apply if the person has been detained only in connection with an offence under the Act.
Recommendation 37 If the Act is to continue, that the NSWPF, CSNSW and other relevant agencies amend their policies to include a direction that, if a non-vulnerable third party consents to providing a blood sample for testing after an MDT application has been made, the senior officer must proceed to determine the application by refusing it, and giving notice of that determination in accordance with s 13 of the Act.
Recommendation 38 If the Act is to continue, that the Act be amended to provide that, in respect of an MDT application about a non-vulnerable third party who has consented to voluntarily provide a blood sample for testing: a. b. c. the application is to remain on foot (and not be determined) until the blood sample for testing is provided - even if this is outside the 3-business-day timeframe within which a determination must ordinarily be made once the blood sample has been provided, the senior officer is to determine the application by refusing it but if the blood sample is not provided voluntarily (ie consent is withdrawn), the senior officer (or the court, if recommendation 2 is adopted) may proceed to determine the application by either making an MTO or refusing the application.
Recommendation 39 If the Act is to continue, that the Act be amended to provide that the following provisions also apply where, following the making of an application for an MTO, testing is conducted with consent: a. b. s 22 (Results of blood test) s 29 (Disclosure of information) c. s 34 (Costs).
Recommendation 40 If the Act is to continue, that the NSWPF, CSNSW and other covered agencies review and if necessary, revise their policies and procedures to provide that: a. b. c. d. a form is provided for completion by any non-vulnerable third party to allow them to indicate whether they will or will not consent the form includes a specific field inviting the third party to provide reasons for not consenting, if they do not consent returned forms (where consent has not been provided) are considered by the senior officer before determining an MDT application (or provided to the court if recommendation 2 is adopted), and otherwise kept on the relevant file if a third party does not complete a form, this is noted on the relevant file.
Recommendation 41 If the Act is to continue, that the NSWPF, CSNSW and other covered agencies review and revise their MDT policies and procedures to include directions to senior officers that they: a. b. are to seek consent by asking whether or not the person will consent are to give the third party a reasonable opportunity to consider (including after seeking legal or other advice, if necessary) whether they will consent c. d. e. are not to apply pressure in seeking consent - including that they must not imply that, if consent is not provided, an MTO will necessarily be made are to make a record of the manner in which consent was sought and, if relevant, obtained on the MDT application file (in the case of the NSWPF and CSNSW) are to record on BWV any conversation in which consent is sought.
Recommendation 42 If the Act is to continue, that the CHO take steps to ensure that pathology laboratories are aware of their obligation to provide a copy of blood test results to the CHO if no medical practitioner has been nominated by the relevant third party.
Recommendation 43 If the Act is to continue, that the CHO be funded to develop and deliver training for NSW pathology staff in relation to the operation of the MDT Act, including their obligations concerning the dissemination of blood test results and treatment of blood test samples, and risk mitigation for staff who administer tests under an MTO.
Recommendation 44 If the Act is to continue, that the Act be amended to provide that a worker may nominate only one medical practitioner to receive the third party’s blood test results on the worker’s behalf.
Recommendation 45 If the Act is to continue, that the Act (or the Regulation) be amended to provide that, when blood test results are to be disseminated to a medical practitioner: a. b. c. The pathology laboratory is to contact the medical practitioner to confirm that they are authorised and willing to receive the results on behalf of the relevant person The results are to be marked as confidential for the personal attention of the medical practitioner, and The results are to be accompanied by the following information: i. The fact that the test was undertaken under an MTO ii. iii. iv. The names of the relevant worker and third party A list of all persons who are receiving the results and why A copy of, or a reference to a public website that includes, the CHO guidelines.
Recommendation 46 If the Act is to continue and subject to recommendation 45 being adopted, the CHO should issue advice to pathology laboratories with instructions to the above effect.
Recommendation 47 If the Act is to continue, that the Act be amended to: a. b. provide that any person who receives the health information of a third party, including a worker and any person to whom the worker then discloses the information, is also subject to the prohibition on disclosing the information unless one of the exceptions in s 29(1) apply, and add exceptions for the disclosure of information where reasonably necessary for the purpose of: i. the worker informing a spouse, intimate partner or other person in respect of whom the third party’s health information may be relevant to that person’s own health or safety, or ii. the worker or a person referred to in paragraph (i) above for the purpose of seeking medical, counselling, legal or other professional advice.
Recommendation 48 If the Act is to continue, that the CHO guidelines and the NSWPF, CSNSW and other agencies’ policies be amended to state clearly that the third party’s blood test results should not be disclosed to the senior officer, and the senior officer must not request those results.
Recommendation 49 If the Act is to continue, that the Act be amended to provide that, at the time of disseminating the blood test results under s 22, the pathology laboratory is to notify the senior officer that the test was successfully completed in accordance with MTO.
Recommendation 50 If the Act is to continue, that s 29(1)(e) of the Act be repealed.
Recommendation 51 If the Act is to continue, that the Act (s 7) be amended to provide there is an absolute prohibition on the use of blood samples for any purpose not authorised by the Act, and that this applies to any law enforcement agency and any other person.
Recommendation 52 If the Act is to continue, that the Act (s 31) be amended to provide that the prohibition on the use of samples and information as evidence applies to all proceedings and administrative decisions or assessments (other than if adduced by the third party themselves).
Recommendation 53 If the Act is to continue, that (subject to consultation with the CHO to confirm that there is no impediment under national pathology standards to doing so) the Act be amended to provide that the sample must be destroyed by the pathology laboratory as soon as it is no longer required for the purposes of the Act.
Recommendation 54 If the Act is to continue, that the Act (s 36) be amended to provide that the Ombudsman’s power to require information can: a. b. be exercised for the purpose of any Ombudsman function under the Act (and not just for its function of preparing a report) relate to any information relevant to the Act (and not limited to information relating to an MDT application) c. be made to any person (and not just to senior officers or the Commissioner of Police).
Recommendation 55 If the Act is to continue, that the Act (s 36) be amended to provide that no Act (including any other provision of the MDT Act) or law prevents a person complying or affects a person’s duty to comply with a requirement of the Ombudsman to provide information, except that the Ombudsman must set aside a requirement to produce information if: a. b. c. the person is not a public authority, the person has a ground of privilege that would entitle them to resist such a requirement in court proceedings, and the person has not waived that privilege.
Recommendation 56 If the Act is to continue, that the Act be amended (subject to consultation with the CHO to confirm that there is no impediment under the relevant health privacy laws and standards) to provide for the CHO to receive and collate: a. b. c. the result of pathology tests administered on third parties under the Act the PEP treatment of workers, including whether this changed following receipt of the third party test results data to the Ombudsman in deidentified and aggregated form for the purposes of our monitoring and reporting functions. (This should include in respect of all MDT applications, including where testing was done pursuant to an MTO and where testing was done by consent).
Recommendation 57 If the Act is to continue, that the Act be amended to include (in addition to the requirement to give notice to the Ombudsman of any determination under s 13) that agencies must report annually to the Ombudsman on the number of MDT applications received and the outcome of those applications, including those that proceeded to determination, those that were withdrawn, and those that were dealt with by consent.
Recommendation 58 If the Act is to continue (and to the extent necessary if recommendation 2 is adopted), agencies should ensure, and the Act should be amended to require, that the notices of reasons provided under s 13 are adequate, including by ensuring that they describe with appropriate specificity: a. the decision b. c. d. the findings on material facts the evidence or other material on which those findings are based the reasons for the decision.
Recommendation 59 If the Act is to continue (and to the extent necessary if recommendation 2 is adopted), agencies should ensure – and the Act should be amended to require, that notices given to the Ombudsman under s 13(1)(d) of the Act are accompanied by: a. b. references to any information considered in making a decision, including a copy of all relevant (non-public) documents where the decision is to apply to the court for an MTO, a copy of the court application documents (and subsequently, once the court proceedings are finalised, notice of its outcome).
Recommendation 60 If the Act is to continue, that the Act be amended to prescribe demographic information about third parties that agencies are required to seek and, if provided, to keep. This may include information about: a. age b. gender (including trans, intersex and non-binary) c. local government area of residence d. Aboriginal and/or Torres Strait Islander status e. cultural and linguistic diversity f. sexual orientation g. disability.
Recommendation 61 If the Act is to continue, that the Act be amended to provide that: a. b. in addition to the full 3-yearly report required under the Act, the Ombudsman is to include in its Annual Report under the Ombudsman Act a report on its monitoring activities during the year, and this report may include de-identified, aggregated data, including demographic data, in relation to MDT applications and orders.
Recommendation 62 If the Act is to continue, NSWPF enter into an arrangement to provide BOCSAR with data on key MDT Act activities of the NSWPF that it can include in its NSW Policing activity dashboard, including information about the number of applications and orders made.
The headnote for State of New South Wales v Cullen [2024] NSWCA 310 states
The respondent, Ms Cullen, was a bystander at an “Invasion Day” rally held in Sydney on 26 January 2017. As the rally progressed up Broadway toward Victoria Park and stopped at Buckland Street, a Mr Dunn-Velasco addressed the crowd and appeared to prepare to set fire to an Australian flag. In response, police officers from the Operational Services Group (“OSG officers”) pushed through the crowd in order to extinguish any fire. Another police officer, LSC Lowe, was videoing what occurred from a short distance away. A rallygoer next to her, Hayden Williams, struck her arm and knocked the camera to the ground. Another officer, LSC Livermore, witnessed this assault. He moved towards Williams to effect an arrest and Williams moved away. They both eventually fell down, knocking over the respondent as they did so. The respondent fell heavily and was injured.
The respondent brought proceedings in the Supreme Court against the appellant, the State of New South Wales, claiming that her injuries were caused by the negligence of the OSG officers and of Livermore, and further alleging that Livermore had committed the torts of assault and battery. The primary judge held in favour of the respondent on the basis of negligence as regards both the OSG officers and Livermore and awarded damages. His Honour rejected the claim in battery.
The State appealed. In response Ms Cullen filed a notice of contention. Together they raised five issues:
(1) Whether s 43A of the Civil Liability Act 2002 (NSW) applied with respect to the acts of the OSG officers or Livermore;
(2) Whether the OSG officers owed the respondent a duty of care and, if so, whether it was breached;
(3) Whether Livermore owed the respondent a duty of care and, if so, whether it was breached;
(4) If a duty was owed and breached by the OSG officers, whether their actions were legally causative of Ms Cullen’s injuries; and
(5) Whether Ms Cullen’s claim in battery should be upheld on the ground that Livermore’s arrest of Williams was not “utterly without fault”.
The Court (per Gleeson and Kirk JJA, White JA disagreeing on the second and fourth issues and dissenting) allowed the appeal, holding:
As to s 43A of the Civil Liability Act:
Per Gleeson and Kirk JJA: Section 43A articulates two connecting notions between the claim made and the exercise of, or failure to exercise, a special statutory power. One requires the liability in question to be “based on” the exercise of such a power, the other refers to acts or omissions “involving” an exercise/non-exercise of it: [38]. The former can be understood as requiring that the acts or omissions said to found the civil liability in question were ones which involved, in a significant way, the exercise of a special statutory power. So understood, the two connecting notions coalesce: [39]. ...
2. With respect to the OSG officers, per Gleeson and Kirk JJA: It is not necessary to resolve whether their impugned acts, being them rushing into the crowd and using one or more fire extinguishers on the flag, can be characterised as use of force as authorised by s 230 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) in exercise of a common law power to respond to an apprehended breach of the peace. Even so characterised, invocation of s 230 is not to the point as what was impugned about the actions of the OSG officers was not any use of force: [42]-[43]. Nor were the officers exercising a power to enforce the conditions of the authorisation of the march. An assembly which is not an “authorised public assembly” under Pt 4 of the Summary Offences Act 1988 (NSW) is not by that reason alone an “unlawful assembly” for the purposes of s 545C of the Crimes Act 1900 (NSW): [44]. In any case anyone can do the actions here impugned without specific statutory authority. Section 43A thus did not apply, and the primary judge erred in finding to the contrary: [46]. ...
Per White JA: The OSG officers were exercising a statutory power to prevent a breach of the peace, but it was not a special statutory power as a member of the public has the same right to intervene to prevent a breach of the peace: [218]-[219]. ...
With respect to the actions of Livermore, per Gleeson and Kirk JJA: Livermore’s forceful arrest of Williams, subject to consideration of common law powers of arrest, was in exercise of a power that generally requires specific statutory authority: [48]. Williams was not arrested because of any apprehension or actual breach of the peace, but because of the criminal assault of Lowe that had just occurred: [50]. The offence of assaulting a police officer while in the execution of the officer’s duty, without causing actual bodily harm, is a “serious indictable offence” under the Crimes Act and can be characterised as a felony, for which an ordinary member of the public is authorised to arrest Williams under the common law. Section 43A therefore did not apply: [53]. ...
Per White JA: Williams’ assault on Lowe was unquestionably a breach of the peace and a member of the public would have had the power to use reasonable force to arrest Williams: [219], [221].
As to duty and breach with respect to the OSG officers:
Per Gleeson and Kirk JJA: The primary judge erred in identifying the relevant risk of harm in regard to the conduct of the OSG officers in the way he did. As to the scope of a duty of care, the issues of to whom was it owed and what risk of harm needs reasonable steps taken to avoid are linked: [68]. The duty of care owed by the OSG officers should be stated as a duty to take reasonable care to avoid the risk of the OSG officers’ actions inflicting physical injury on persons in the immediate vicinity of an operational response during the protest march: [72], [79]. ...
As to breach, the primary judge failed to have regard to the obligations of OSG officers to take action to prevent breaches of the peace, even in crowded situations: [81]. The precautions which his Honour suggested the OSG officers should have taken were impractical and ignored the conflicting obligations of the OSG officers to prevent breaches of the peace even in crowded situations: [82]. His Honour failed to consider various concessions concerning the OSG officers’ conduct which Mr Halpin, a witness of the respondent, made in cross-examination: [85]. The finding of breach of duty by the OSG officers must be set aside, and that is so even if the risk of harm was as articulated by either the primary judge or the respondent: [88].
Per White JA, dissenting: Whilst the OSG officers were exercising a statutory power to keep the peace, this does not negate the existence of a duty of care. The fact that the officers were exercising statutory power does not mean that a common law duty of care only arises if the statute affirmatively indicates an intention that such a duty exists: [177]-[180]. Bystanders at the rally were vulnerable to the risk of injury if the police provoked violence. As the OSG officers had caused the mêlée that led to the respondent’s injury, they had used their powers to intervene in a field of activity that increased the risk of harm to bystanders: [182]. No authorities cited by the appellant suggested that a duty of care would be negated on the facts of this case: [183]-[197]. The OSG officers’ duty to prevent a breach of the peace and a duty to take reasonable care for the safety of bystanders who might be affected by a breach of the peace were congruent: [199]. ...
The actions of the OSG officers were calculated to inflame the situation and create a mêlée as happened. They therefore breached their duty of care to the bystanders: [226].
As to duty and breach with respect to Livermore:
Per Gleeson and Kirk JJA: It is sufficient for the purposes of this appeal to accept (without deciding) that Livermore owed a duty to take reasonable care to avoid the risk of inflicting physical injury on persons in the immediate vicinity of the arrest of another person: [91].
Per White JA, Gleeson and Kirk JJA agreeing as to the finding of no breach: Whilst Livermore did not owe a duty of care to Williams, he did owe a duty of care to bystanders: [201], [212]. The evaluation of police conduct in effecting an arrest must be conducted by reference to the pressure of events and the agony of the moment, rather than hindsight. As Williams would have escaped had an arrest not been effected, and it was not reasonable to simply ask the rallygoer to halt, it was reasonable to effect the arrest by tackling the rallygoer. Livermore therefore did not breach the duty of care owed: [209]-[212], [230]. ...
As to causation:
Per Gleeson and Kirk JJA: Section 5D(1)(b) of the Civil Liability Act provides that a determination that negligence caused particular harm requires not only that factual causation is made out but that it falls within the legal scope of liability. That is a legal, normative question: [94]. A decision by a person who was outside the relevant crowd to commit a criminal assault in order to impede the gathering of evidence of possible offences was not the “very kind of thing” likely to be sparked by the officers’ actions: [103]. Williams’ actions (leading to the respondent’s injury) cannot be characterised as occurring in the ordinary course of things which might flow from the actions of the OSG officers, taking account of the independent, free, deliberate choice made by Williams at a place materially distant from the melee catalysed by the action of the officers: [105]. The issue is one of fact and degree in all the circumstances: [95], [105] and [108]. It was the distinct, significant criminal action of Williams that led to Livermore undertaking the arrest. And it was the difficulty of effecting that lawful arrest which led to the respondent being injured. For legal purposes the chain of causation from their actions to her injuries was broken: [109]. ...
Per White JA, dissenting: The police foresaw the risk that sudden and unexpected movements of participants in the rally arising from police intervention could result in officers being assaulted or hindered, and such a situation could clearly also result in injury to participants in the rally: [242]-[243]. It is enough that the incident leading to Ms Cullen’s injury was of a kind or class which might normally be foreseen or contemplated. The voluntary and unlawful actions of Williams and the resulting forceful arrest were a natural, probable and reasonably foreseeable consequence of the OSG officers’ actions. The chain of causation was therefore not broken by the unlawful actions of Williams, and the negligence of the OSG officers was causative of the respondent’s injuries: [245]-[247].
As to battery:
The State could avoid liability for battery if Livermore acted without negligence, in the sense of being “utterly without fault”, in colliding with the respondent: [112] (per Gleeson and Kirk JJA), [237] (per White JA). Brereton JA in State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 stated the relevant standard as requiring that the defendant show that it could not possibly have prevented the impact by exercise of ordinary care and caution. Basten JA and Simpson AJA adopted a less demanding standard. If that lower standard was applied here then the claim in battery would fail on the basis that Livermore’s conduct did not breach any duty of care: [112]-[113] (per Gleeson and Kirk JJA). Assuming (without deciding) that the more demanding standard applied, where Livermore was not conscious of the presence of the respondent, was seeking to get away from members of the crowd who were seeking to assist Williams escape whilst effecting the lawful arrest of Williams, and all of this happened in the course of a few seconds, he could not possibly have prevented the impact with the respondent by the exercise of ordinary care and caution. His actions were utterly without fault. The respondent’s claim in battery is not made out: [115]-[116] (per Gleeson and Kirk JJA), [237] (per White JA).
Statistics from today's annual report to the national parliament on the Surveillance Devices Act 2004 (Cth):
• In 2023–24, 6 law enforcement agencies were issued 636 surveillance device warrants, a decrease of 46 from the 682 issued in 2022–23.
• In 2023–24, 12 applications for surveillance device warrants were refused by an issuing authority, compared to the one refused in 2022–23.
• In 2023–24, 18 computer access warrants were issued to law enforcement agencies, an increase of 7 from the 11 issued in 2022–23. No computer access warrants were refused in 2023-24, compared to 2022–23 where one computer access warrant was refused.
• One data disruption warrant was issued during 2023–24, an increase of 1 from the 0 issued in 2022–23. No data disruption warrants were refused in 2022–23 or in 2023-24.
• In 2023–24, 2 network activity warrants were issued, a decrease of one from the 3 issued in 2022–23. No network activity warrants were refused in 2022–23 or 2023–24.
• In 2023–24, 244 applications to extend surveillance device warrants were granted, representing an increase of 145 from the 99 granted in 2022–23. Applications to extend warrants are often required due to the prolonged nature of investigations for complex and serious crime (where evidence gathering may not have been completed within 90 days).
• In 2023–24, 17 retrieval warrants were issued to law enforcement agencies in order to retrieve lawfully installed surveillance devices, a decrease of 4 from the 21 issued in 2022–23.
• In 2023–24, 10 tracking device authorisations were issued, a decrease of 7 from the 17 issued in 2022–23. No tracking device retrieval authorisations were issued in 2023-24, as was the case in 2022–23.
• In 2023–24, information obtained under the SD Act contributed to 148 arrests, 102 prosecutions, and 18 convictions. In 2022-23, information obtained under the SD Act contributed to 75 arrests, 87 prosecutions and 52 convictions.
A detailed review by Scottish Biometrics Commissioner of biometric data retention practices under sections 18 to 19C of the Criminal Procedure (Scotland) Act 1995 considers the collection, retention, and destruction of biometric data such as fingerprints, DNA profiles, and custody images by Police Scotland, assessed as relying on broader criminal record retention rules rather than a specific biometric data retention policy.
The report states
1. Following the 2018 report of the Independent Advisory Group (IAG) on the use of biometric data in Scotland[1], the Scottish Government (SG) committed to reviewing the retention of biometric data provided for under sections 18 to 19C of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") as recommended by the IAG. The 1995 Act is the primary Scottish legislation allowing the collection and retention of fingerprints and other biometric samples (including hair samples and nail clippings) from a person arrested by the police. Although the 1995 Act does not include reference to facial images, the IAG did include these in its review.
2. Since 2018, it is recognised that many of the IAG's findings relevant to the laws of retention have been at least partly addressed or mitigated by subsequent developments in the intervening period such as the: commencement of United Kingdom (UK) -wide Data Protection Act 2018 ("the 2018 Act") and in particular the provision for data controllers to ensure that retention is subject to periodical review; the European Court of Human Rights' judgement on 'Gaughran v UK ("the Gaughran judgement) in 2020; commencement of the Scottish Biometrics Commissioner (SBC) Act 2020 ("the 2020 Act") and the appointment of the SBC in 2021 which provides oversight of the collection, use, retention and destruction of biometric data by Police Scotland, the Scottish Police Authority (SPA) and the Police Investigations and Review Commissioner (PIRC); implementation of the SBC's Code of Practice ("the Code") and public complaints mechanism in 2022; planned rolling programme of annual compliance assessments with the Code undertaken by the SBC which began from late 2022; annual thematic assurance reviews already undertaken/proposed by the SBC on particular subject themes; establishment of the Police Scotland Biometrics Oversight Board (which meets every 6 months and has the following areas of business: Biometric Data; Forensic Biometrics; Biometrics Technology; Ethics).
3. In the course of 2023, the SG and the SBC (the review team) therefore considered whether a review of retention periods as recommended by the IAG was still required. Such considerations also included consultation with the SBC's own independent advisory group. The review team concluded that such a review could still be beneficial.
4. The purpose of this review is therefore to generate findings in respect of the retention of biometric data for policing purposes at this current time. The review makes recommendations as considered necessary – with a view to ensuring that the approach taken to the retention of biometric data is lawful, ethical, effective and proportionate. ....
5. It is recognised that biometric retention in Scotland is informed by a combination of legislative requirements and police retention policies. The review therefore considers three distinct areas - the legal provision concerning the retention of biometric data; the current policy and procedures adopted by Police Scotland; and the current available evidence base in order to support its findings. The review also recognises the importance of ethical and human rights considerations on such matters. It is expected that the findings from this review may inform the policies and procedures of the SG, the SBC and policing partners going forward.
6. For the avoidance of doubt, the scope of biometric data considered in this report are fingerprints, deoxyribonucleic acid (DNA) profiles and custody images. Although images do not feature in the 1995 Act, the review team have included them in the course of their work for completeness. This reflects their longstanding use by police in the detection and prevention of crime and their inclusion in the 2018 IAG report, from which this review originates.
7. The review team also wish to highlight that they were unable to ascertain a legal definition of what constitutes indefinite retention of data. As such, the review team interpreted it as meaning of long duration with no end date specified.
Further
11. Biometric data is important to the detection of crime - bringing perpetrators to justice and exonerating the innocent. How biometric data is managed following acquisition continues to raise questions for society as a whole in ensuring that this is undertaken by the police in a lawful, effective, ethical and proportionate way.
12. This review has therefore focused on the current legislative landscape around retention; the retention policies and procedures currently adopted by Police Scotland; and the current research and evidence base available on biometric retention in the UK, European Union (EU) and beyond.
Key Findings and Recommendations
13. The review finds that the current research and evidence base on biometric retention in the UK, EU, and wider is not sufficiently developed to enable a robust proposal to be made around alternatives to current Scottish law and operational rules. It is considered, at this time, that there is not a gold standard of retention that Scotland should seek to follow, as a variety of approaches are being taken by different countries in regard to the retention of biometric data.
14. The review finds that the law on the retention of biometric data as set out under Section 18 of the 1995 Act complies with human rights and recent legal judgments, based on the available evidence. In terms of future-proofing the legislation, the review found that a more robust evidence base was required in order to determine whether and how Scotland should change its existing legislation for biometric retention. The review does however acknowledge that (although not included in the scope of the review), issues around the acquisition and use of biometric data - particularly images - would benefit from further exploration going forward.
15. The review finds that Police Scotland does not currently have a bespoke policy on the retention of biometric data taken for policing purposes. The retention of biometrics is instead aligned to a separate retention policy for retaining a person's criminal record and retaining productions as part of evidence in criminal proceedings.
16. The review finds that Police Scotland and the SPA do not hold sufficient management information on biometric data to determine a suitably overarching policy on retention. However, the review team acknowledges that as a result of self-assessment activity relating to the SBC's Code of Practice, Police Scotland and the SPA Forensic Services are currently developing distinct biometric strategies as part of strengthening their internal governance.
17. The review finds, in principle that the one-month timeframe for the taking of samples and prints under section 19 of the 1995 Act (where previous acquisition proved unsuitable/inadequate) could benefit from further review – subject to further evidence being provided by Police Scotland to support a case for change to that timeframe.
The following recommendations aim to assist these findings:
1. The existing retention periods for the biometric data of non-convicted persons should remain as set out in the 1995 Act.
2. For now, the current legislative silence in the 1995 Act should be retained with regard to the retention period for the biometric data of convicted persons, subject to the outcome of Police Scotland reviewing its retention policies. the findings of a robust evidence base once this has been assembled by Police Scotland.
3. Police Scotland to set up a Short Life Working Group to develop an options appraisal for their retention policies for the biometric data of convicted persons, which is evidence-based; observes the need for proportionality and necessity; and complies with the law and relevant legal rulings of the European Court of Human Rights (ECtHR), particularly Article 8 ECHR. The options must expressly prohibit indefinite retention without periodic review. The options should be consulted on, and new policies should be put in place by 31 October 2025.
4. Police Scotland should, as matter of routine, collect and retain accurate and robust management information in respect of the retention of biometric data going forward. This information should provide a solid and transparent evidence base to support future assurances that such retention policies are lawful, ethical, effective and proportionate.
5. Police Scotland should accelerate their current review of retention periods for volunteer data and put changes into place by 31 October 2025.
6. Police Scotland should collect management information to ascertain whether the one-month timeframe under Section 19 has caused any operational difficulty. If such evidence exists to support the need for change, the SG should consider bringing forward primary legislation, subject to consultation.