Do WA's emergency health powers allow forcible testing, vaccination and removal of underwear of children? Here are the facts

Do WA's emergency health powers allow forcible testing, vaccination and removal of underwear of children? Here are the facts

There have been claims on social media that WA's emergency health powers allow forced testing, vaccination and removal of clothing of children.

The claim

A post shared widely on social media claims that Western Australia has passed a "COVID-19 Emergency Powers Act" that authorises officers to forcibly test and vaccinate children at school.

The claim was made on Twitter on May 17, 2020 by user @talialikeitis, a promoter of alternative health views.

It states: "Western Australia — They just passed a Covid 19 Emergency Powers Act That will authorize officers to test & vaccinate children at school — this includes removing their underwear."

The tweet includes a screenshot of Western Australia's declaration of a public health state of emergency and two screenshots that are untitled but mirror the wording of the WA Public Health Act. There is also a link to the Public Health Act under the original tweet.

The tweet was then shared in the Facebook group 99% unite Main Group "it's us or them" which is popular with anti-vaccination supporters and had more than 60,000 members at the time of publication.

So, does a COVID-19 Emergency Powers Act exist in Western Australia and does it authorise the forcible testing and vaccination of children, including removing their underwear? RMIT ABC Fact Check investigates.

The verdict

This claim is not the full story.

There is no legislation known as the COVID-19 Emergency Powers Act in WA.

The Public Health Act 2016, however, does set out powers that allow an authorised emergency officer to direct a person, including a child, to be tested and vaccinated under a public health state of emergency. 

The act also gives emergency officers the power to use "reasonable force to ensure that the direction is complied with" including the removal of underwear if necessary.

In WA, a public health state of emergency was declared in March in response to the COVID-19 pandemic.

There are safeguards under WA's Public Health Act 2016 around forcible vaccination. (ABC News: Freya Michie) There are safeguards under WA's Public Health Act 2016 around forcible vaccination. (ABC News: Freya Michie)

While the legislation gives emergency officers considerable powers, it also provides safeguards, including that the powers can only be used on the authorisation of the Chief Health Officer.

The legislation states that the removal of clothing must be done "with decency and sensitivity".

Furthermore, the removal of any child's clothing must be done in the presence of a parent or guardian who can represent and support their interests.

WA's Chief Health Officer, Andrew Robertson, told Fact Check the powers invoked by the declaration of a public health state of emergency had been used to require COVID-19 testing, but no force had been used to ensure compliance. 

David Cox, the chairman of the Law Reform Commission of Western Australia, told Fact Check that the Public Health Act 2016 is "unquestionably a very powerful act, but it is designed to be implemented in very rare and extraordinary circumstances".

He said the claim failed to mention safeguards and therefore provided a misleading picture.

The law in WA

The WA list of 2020 legislation identifies COVID-19 specific acts, but there is no "COVID-19 Emergency Powers Act" as mentioned in the tweet.

However, the emergency powers mentioned in the tweet are contained in sections 184 and 185 of the Public Health Act 2016.

The current version of the act commenced on July 22, 2019, so it has not been amended during the COVID-19 crisis.

These powers are only enforceable under a public health state of emergency, as was declared in Western Australia on 23 March 2020, in response to the COVID-19 pandemic.

Under the current Public Health State of Emergency Declaration, all of the emergency powers under the Public Health Act 2016 are available to emergency officers, including powers under sections 184 and 185.

The state of emergency was in force on the day the tweet was posted on Twitter.

Who are authorised officers?

Michael Eburn from ANU College of Law told Fact Check, "in practical terms, only an employee of the Department of Health or a person employed or engaged in a health service provider can be classified as an emergency officer for the purposes of sections 184 and 185".

He said police officers could assist an emergency officer in the execution of their duties.

Can a person be directed to be tested and vaccinated?

Section 184, which refers to quarantine and medical procedures, states that an emergency officer may direct a person "to undergo medical observation, medical examination or medical treatment or to be vaccinated".

WA's Chief Health Officer Dr Robertson said in an email to Fact Check: "These powers may be used to compel a person to undergo a medical examination, including a test for COVID-19, or to be vaccinated if there was a vaccine available."

He said that directions under section 184 had been issued to require people to undergo testing for COVID-19.

Laura Tomlinson, a spokeswoman for the Western Australia Department of Health told Fact Check: "There is no vaccine or immunisation programme for COVID available in WA schools or anywhere else."

Dr Eburn said during a public health emergency the Chief Health Officer could authorise an emergency officer to direct any person, including anti-vaxxers, to be vaccinated.

Under emergency powers in WA people could compelled by an emergency officer to undergo a COVID-19 test. (ABC News: Hugh Sando) Under emergency powers in WA people could compelled by an emergency officer to undergo a COVID-19 test. (ABC News: Hugh Sando)

Can a person have their clothing forcibly removed?

The claim included a screenshot of legislation that said officers may use reasonable force to remove a person's clothing if it is necessary for them to be medically examined, treated or vaccinated.

Section 185 provides the power for an emergency officer or police officer to use "reasonable force" to ensure a direction under section 184 is complied with.

This includes removing a person's clothing if it is necessary to enable the medical examination, treatment or vaccination to be carried out.

Dr Robertson, however, pointed out: "As COVID-19 testing involves the use of nasal/throat swabs, only clothing covering the nose or mouth would prevent testing being carried out."

He said that section 185 had not been used. 

The Law Reform Commission's Dr Cox said children could be forcibly tested and vaccinated at school, but it was unlikely.

"Theoretically they could, but it's not going to happen," he said.

The guarantee of reasonableness that underpins the act would make medical testing impractical in a school, he said, adding that, in Western Australia, COVID-19 testing is conducted at hospitals and health clinics.

Are there safeguards in the legislation?

Dr Cox said: "While the act grants wide-ranging powers, those powers would need to be exercised reasonably and only to the extent necessary."  

"The claim is misleading, in the sense that it fails to address the safeguards that would always be applicable in any event.

"I cannot envisage why it would be necessary to remove the underwear of a person but that said, the act is drafted broadly and perhaps such a circumstance exists where it would be necessary for that to be done," he said.

Marco Rizzi, senior lecturer at the UWA Law School said, reasonableness underpins section 185 to make sure the powers cannot be exercised arbitrarily.

"While it's possible for an emergency officer to require the removal of clothing, there are guarantees built into section 185 to ensure it is done with decency and sensitivity," he said.

Removal of any clothing must be done "with regard to the gender of the relevant person, minimising intrusiveness and, where the relevant person is a child, in the presence of a responsible person who can provide the child with support and represent their interests", he said.

Do these powers conflict with any existing laws?

Under a state of emergency, the Government is able to respond rapidly to a public emergency. In order to resolve the crisis, the Government invokes a range of sweeping powers that can only be used in exceptional circumstances.

Under the Public Health state of emergency that has been in place since March, emergency powers are limited to the sections listed in this document that refer to the Public Health Act 2016.

Dr Eburn said there are a number of laws that are in conflict with these emergency powers. One of them is the law that medical treatment requires the patient's consent.

"Clearly the emergency powers under the Public Health Act override all those conflicting laws," he said. 

Sources

 

Principal researcher: Nicolas Zoumboulis

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