NSW govt could face RAT court challenge

·3-min read

The NSW government could face a legal challenge if it forces residents to report their positive COVID-19 rapid antigen test results, a leading law expert says.

The state government wants to make residents report their positive RAT results, with Health Minister Brad Hazzard saying the move is being made at the request of NSW Chief Health Officer Kerry Chant, the Sydney Morning Herald says.

The health department is reportedly seeking advice on Tuesday from the Crown Solicitor's Office over whether state authorities can enforce the mandatory reporting of RAT tests.

The move would bring NSW in line with Victoria, which has mandated the reporting of positive RAT results via an online portal or over the phone.

Ron Levy, an associate professor with expertise in public law at the ANU College of Law, said if the government pushed ahead with the plan, it could face a legal challenge on an "administrative law" basis, with a key legal question likely to be whether current laws give state authorities the discretion to mandate reporting of RATs.

"That would be a matter of interpreting the statute to see whether you can find whether the government has already been given this power," Associate Professor Levy told AAP.

There could also be hurdles for the government flowing from privacy laws in NSW, according to the academic.

He said if residents were compelled to reveal positive COVID-19 diagnoses to a government agency it could "on the surface of things" look like a breach of privacy but that the move would probably be allowable on public policy grounds.

"It raises a privacy concern but it's not something that will obviously lead to invalidation," he said.

The professor said NSW residents currently had "no rights" that would prevent the state government from mandating the reporting of a positive COVID-19 test result.

"I don't think there is any really strong way of preventing the government from being able to do that, I guess the only question is whether there's a statute that's already on the books that would give them that power, and I assume that does exist," he said.

If there was no law on the books giving the Perrottet administration the relevant power, then "there's nothing to keep the government from creating a piece of legislation for that", Associate Professor Levy said.

Marie Bismark, professor of law and public health at the University of Melbourne, said one way forward for the government would be to list COVID-19 with diseases like measles and tuberculosis that require mandatory reporting.

"There are certainly examples of other 'notifiable infectious diseases' where there is a legal requirement for a positive test to be reported to the Department of Health," Dr Bismark told AAP.

Meanwhile, NSW Council for Civil Liberties secretary Michelle Falstein queried whether the government's proposal could be enforced.

Ms Falstein pointed to practical challenges such as how to determine whether someone had symptoms severe enough to warrant taking a test, as well as supply and cost issues.

"It would be more appropriate for the government to encourage, rather than mandate, reporting of RAT results by explaining the benefits of doing so," she told AAP.

Professor Adrian Esterman, an epidemiologist at the University of South Australia, said it was critical for all states, including NSW, to record RAT results as soon as possible to clarify the national COVID-19 picture.

"Then we can get back to where we were before, being able to fairly confidently say how well things are going or how badly things are going," Professor Esterman said.

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