Australian Capital Territory

blood donation (TRANSMITTABLE DISEASES) act 1985
This consolidation has been prepared by the ACT Parliamentary Counsel’s Office
Updated as at 9 December 1998
TABLE OF PROVISIONS
Section
	1.	Short title
	2.	Interpretation
	3.	Liability of Red Cross Society
	4.	Liability of hospitals and medical practitioners
	5.	Requirements to be complied with
	6.	Liability where requirements not complied with
	7.	False statements
	8.	Liability of donor
	9.	Evidentiary certificates
	10.	Regulations

An Act to limit liability in respect of the transmission of Acquired Immune Deficiency Syndrome and other diseases through the transfusion of blood
1. 	Short title
	This Act may be cited as the Blood Donation (Transmittable Diseases) Act 1985.1

2. 	Interpretation
	In this Act, unless the contrary intention appears—
“approved”, in relation to an instrument or method, means approved by the Medical Officer of Health by instrument for the purposes of this Act;
“donor” means a person who gives blood at premises or a vehicle of the Society;
“prescribed action” means an action brought by or on behalf of—
	(a)	a person who claims to have contracted a transmittable disease—
	(i)	by reason of having been administered blood supplied from the Society or a blood product derived from blood supplied by the Society;
	(ii)	by reason of having been involved in the taking, testing, handling, producing, supplying or administering to a patient of blood supplied by the Society or a blood product derived from blood supplied by the Society; or
	(iii)	from a person who contracted that disease in a circumstance specified in subparagraph (i) or (ii); or
	(b)	a dependant of a person who dies as a result of having contracted a transmittable disease in a circumstance specified in paragraph (a);
other than an action brought under the Commonwealth Employees Rehabilitation and Compensation Act 1988 of the Commonwealth  or the Workers’ Compensation Act 1951;
“Society” means the society incorporated by Royal Charter under the name of the Australian Red Cross Society;
“transmittable disease” means any of the following diseases:
	(a)	the disease known as Acquired Immune Deficiency Syndrome in any of its forms or stages;
	(b)	hepatitis B;
	(c)	hepatitis C;
	(d)	any disease resulting from infection by the Human T cell Lymphoma virus 1 or 2;
	(e)	syphilis;
	(f)	any other prescribed disease.
3. 	Liability of Red Cross Society
(1) 	In a prescribed action against—
	(a)	the Society;
	(b)	an employee of, or a person working without payment for, the Society; or
	(c)	any other person or body who takes blood from a donor on behalf of the Society;
it is a defence that the Society complied with the prescribed requirements, or caused the prescribed requirements to be complied with, in respect of the taking of the relevant blood and the testing, processing and handling of that blood and of blood products derived from that blood.
(2) 	The defence specified in subsection (1) is not available where it is established that—
	(a)	the Society, the employee or the person or body referred to in paragraph (1) (b) or (c), as the case requires, was negligent in relation to the taking of the relevant blood or the testing, processing or handling of that blood or of a blood product derived from that blood; and
	(b)	a transmittable disease was contracted as a result of that negligence, whether or not any other actions contributed to the contracting of that disease.
4. 	Liability of hospitals and medical practitioners
(1) 	In a prescribed action against—
	(a)	a hospital or other body at whose premises blood supplied by the Society, or a blood product derived from blood supplied by the Society, is administered to a patient; or
	(b)	a medical practitioner or a person acting on behalf of a medical practitioner who administered to a patient, or authorised the administration to a patient of, blood supplied by the Society or a blood product derived from blood supplied by the Society;
it is a defence that—
	(c)	at the time the blood or blood product was administered, there was attached to the container in which the blood or blood product was contained a certificate purporting to be signed by the person in charge of the laboratory at which a sample of the blood was tested and stating—
	(i)	in the case of blood—that a sample of the blood; and
	(ii)	in the case of a blood product—that a sample of each unit of blood from which the blood product was derived;
was tested, using approved equipment and in accordance with an approved method, to ascertain whether the blood contained any pathogen capable of causing the relevant transmittable disease and the result of the test was negative; or
	(d)	the Society complied with the prescribed requirements, or caused the prescribed requirements to be complied with, in respect of the taking of the relevant blood and the testing, processing and handling of that blood or of blood products derived from that blood.
(2) 	The defence specified in subsection (1) is not available where it is established that—
	(a)	the hospital or other body, or the medical practitioner or person acting on behalf of the medical practitioner, was negligent in relation to the administering of the relevant blood or blood product to the patient; or
	(b)	the Society was negligent in relation to the taking of the relevant blood or the testing, processing or handling of that blood or of a blood product derived from that blood;
and a transmittable disease was contracted as a result of that negligence, whether or not any other actions contributed to the contracting of that disease.
5. 	Requirements to be complied with
(1) 	For the purposes of sections 3 and 4, the prescribed requirements, in relation to the taking of blood from a donor, are—
	(a)	that, before taking blood from the donor, the Society obtains from the donor a declaration in accordance with a form approved by the Minister by instrument in writing published in the Gazette; and
	(b)	that, before supplying the blood to be administered to a person, or to be used in the preparation of blood products to be administered to a person, a sample of the blood is tested, using approved equipment and in accordance with an approved method, to ascertain whether the blood contains any pathogen capable of causing the relevant transmittable disease and the Society ascertains that the result of the test is negative.
(2) 	An instrument under paragraph (1) (a) is a disallowable instrument for the purposes of section 10 of the Subordinate Laws Act 1989.
6. 	Liability where requirements not complied with
(1) 	Section 3 does not apply where, after the Society has taken blood to be supplied for the purpose of being administered to a person or used in the preparation of a blood product to be administered to a person, the Society has reasonable grounds for believing that—
	(a)	a statement in the declaration made by the donor of the blood may be false; or
	(b)	the blood or blood product may contain any pathogen capable of causing the relevant transmittable disease;
and the Society does not take all reasonable steps to ensure that the blood or blood product is not administered to a person.
(2) 	Section 4 does not apply where, at any time up to and including the time at which the blood or blood product was administered, the hospital or other body at whose premises the blood or blood product was administered—
	(a)	had been informed that that blood or blood product may contain any pathogen capable of causing the relevant transmittable disease; and
	(b)	did not take all reasonable steps to ensure that the blood or blood product was not administered to a person.
(3) 	Section 4 does not apply in relation to a medical practitioner or person acting on behalf of a medical practitioner where, at the time the blood or blood product was administered, the medical practitioner or other person had been informed that that blood or blood product may contain any pathogen capable of causing the relevant transmittable disease.
7. 	False statements
	A person who in a declaration referred to in paragraph 5 (a) makes a statement that is false in a material particular is guilty of an offence punishable, on conviction, by a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 6 months, or both.
8. 	Liability of donor
(1) 	No proceedings, civil or criminal, other than proceedings under section 7, lie against a donor of blood by reason only of a person having contracted a transmittable disease from the administration to the person of blood given by, or of a blood product derived partly from blood given by, that donor.
(2) 	Subsection (1) does not apply to or in relation to a donor who has been found guilty of an offence against section 7.
9. 	Evidentiary certificates
	In proceedings of the kind referred to in section 3 or 4, a certificate purporting to be signed by the person in charge of the laboratory at which a sample of blood was tested and stating—
	(a)	that the blood sample was tested using approved equipment and in accordance with an approved method; and
	(b)	that the results specified in the certificate were obtained;
is evidence of the matters so stated and of the facts on which they are based.
10. 	Regulations
	The Executive may make regulations for the purposes of this Act.

NOTES
1.	The Blood Donation (Transmittable Diseases) Act 1985 as shown in this reprint comprises Act No. 27, 1985 amended as indicated in the Tables below.
	Citation of Laws—The Self-Government (Citation of Laws) Act 1989 (No. 21, 1989) altered the citation of most Ordinances so that after Self-Government day they are to be cited as Acts.  That Act also affects references in ACT laws to Commonwealth Acts.
2.	The Legislation (Republication) Act 1996 (No. 51, 1996) authorises the Parliamentary Counsel in preparing a law for republication, to make certain editorial and other formal amendments in accordance with current legislative drafting practice.  Those amendments make no change in the law.  Amendments made pursuant to that Act do not appear in the Table of Amendments but details may be obtained on request from the Parliamentary Counsel’s Office.
Table 1
Table of Ordinances
Ordinance	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Blood Donation (Acquired Immune Deficiency Syndrome) Ordinance 1985	27, 1985	1 July 1985	1 July  1985		
Blood Donation (Acquired Immune Deficiency Syndrome) (Amendment) Ordinance 1985	55, 1985	18 Oct 1985	18 Oct 1985	—	
Blood Donation (Acquired Immune Deficiency Syndrome) (Amendment) Ordinance 1986	47, 1986	22 Aug 1986	22 Aug 1986	—	
Blood Donation (Acquired Immune Deficiency Syndrome) (Amendment) Ordinance (No. 2) 1986	90, 1986	22 Dec 1986	22 Dec 1986	—	
Community and Health Service (Consequential Provisions) Ordinance 1988	29, 1988	30 June 1988	2 July 1988	S. 4	
Self-Government (Consequential Amendments) Ordinance 1989	38, 1989	10 May 1989	Ss. 1 and 2: 10 May 1989 Remainder: 11 May 1989       (see s. 2 (2) and Gazette 1989, No. S164)
	—	
Self-Government day 11 May 1989

Table 2
Table of Acts
Act	Number  
and year	Date of 
notification 
in Gazette	Date of 
commencement	Application, saving or transitional provisions	

Health Services (Consequential Provisions) Act 1990	63, 1990	28 Dec 1990	Ss. 1 and 2:  28 Dec 1990 Remainder:  31 Jan 1991 (see 
s. 2 (2) and Gazette 1991, No. S4)	Ss. 6-17	
Workers’ Compensation (Consequential Amendments) Act 1991
	106, 1991	15 Jan 1992	Ss. 1 and 2:  15 Jan 1992 Remainder:  22 Jan 1992 (see
s. 2 (2) and Gazette 1992, No. S9)	—	
Health (Consequential Provisions) Act 1993	14, 1993	1 Mar 1993	1 Mar 1993 (see s. 2)	Parts IV-VI (ss. 14-34)
	
(Reprinted as at 30 April 1993)	
Blood Donation (Transmittable Diseases) (Amendment) Act 1996	78, 1996	20 Dec 1996	20 Dec 1996	—	
Statute Law Revision (Penalties) Act 1998	54, 1998	27 Nov 1998	Ss. 1 and 2:  27 Nov 1998
Remainder:  9 Dec 1998 (see Gazette 1998, No. 49, p. 1078)
	—	
Table of Amendments
ad. = added or inserted      am. = amended     rep. = repealed      rs. = repealed and substituted

Provision	How affected

Title	am. Act No. 78, 1996
S. 1	am. Act No. 78, 1996
S. 2	am. No. 47, 1986; No. 29, 1988; Act No. 63, 1990; No. 106, 1991; No. 14, 1993; No. 78, 1996
Ss. 3, 4	am. No. 47, 1986; Act No. 78, 1996
S. 5	am. No. 55, 1985; No. 47, 1986; No. 38, 1989; Act No. 78, 1996
S. 6	am. Act No. 78, 1996
S. 7	am. Act No. 54, 1998
S. 8	am. Act No. 78, 1996
S. 10	ad. No. 47, 1986
	rep. No. 90, 1986
	ad. Act No. 78, 1996
The Schedule	rep. No. 55, 1985