Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 July 2014.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:42): I rise to speak as the lead speaker on this matter for the opposition and indicate that we will be supporting this bill. However, we are of the view that, in essence, the relief which is being offered under this bill to the members of the South Australian police force ought also be available to other persons who work in emergency services circumstances, and I will come to the detail of that shortly.

I understood that a copy of the amendments that were proposed to expand the application of the entitlements under this bill had been tabled. I certainly authorised them to be. In any event, I will make sure that a copy is immediately provided to minister Piccolo, who tabled the bill and who I assume has formal carriage of the matter. I will ascertain where it is. So that nobody is caught by surprise in this regard, I will explain in the second reading contribution our objectives in relation to dealing with this matter in the principal bill, plus the amendments that we propose.

The bill was introduced by minister Piccolo on 2 July 2014. If he is not formally responsible for the bill and it is in fact the Attorney-General's bill, I will make sure that he also has a copy of the amendments. In short, the bill amends the Criminal Law (Forensic Procedures) Act to require an offender who bites or spits at a police officer to undertake a blood test for an infectious disease. Members would be aware that we have the Criminal Law (Forensic Procedures) Act 2007, which sets out a series of protections and provisions for the carrying out of forensic procedures when evidence is obtained relevant to the investigation of criminal offences. It also makes provision for a DNA database system

As I am sure members can well imagine, with the advance of technology and procedures in this important area of detection for the purposes of investigating criminal activity, we have needed to make clear not only what is to happen with data that is collated for the purposes of forensic assessment but also what procedures are to be undertaken during the course of collating that material and to ensure that there is a clear set of rules as to who gets access to the material that is collected and how it might be stored and made available to others.

For a lot of reasons, we have fairly strict laws to deal with this information. Obviously, it has to be kept secure—and we understand that—for it to be kept pristine for its ultimate use in evidence, prosecutions, trials and the like. What this act currently does is also set out some fairly strict rules in relation to in what circumstances a person is able to have forensic material harvested from them, and that is what is really being amended here today.

Obviously, we have moved from a circumstance where physical evidence that is found at crime scenes is collected, kept secure and made available for inspection and testing; that is one thing. What has become clear in recent decades is the important information that can be obtained from human beings, whether by way of fingerprinting or the profiling of DNA. In the course of its application and usefulness in the detection of crime and subsequent prosecution of the guilty, and indeed exclusion of the innocent, this is an important area.

Coupled with the importance of successful prosecutions and the like is the importance of ensuring that strict rules are to be applied to those who are required to make themselves available for either fingerprinting or testing, especially in circumstances where they do not consent to the provision of that material and/or are either too young or not of sufficient soundness of mind to be able to consent on their own behalf to the provision of certain material.

We also have circumstances where the justification varies for the level of invasion to a person for the collation and harvesting of material. For example, to seek that someone make themselves available for fingerprinting and for identification purposes, either as a suspect or to identify the person who has been detained for the purpose of just even working out who they are, is one level. If there is a refusal to cooperate in that regard, one could imagine that any imposition of ink on someone's fingers would be far less invasive than other procedures to take that evidence.

For example, in order of intrusiveness, it could probably go from taking a hair sample, which might hurt a bit if you are having your hair plucked out, to requiring that saliva be swabbed, usually from the mouth area, or that blood be taken. If blood is to be taken with a needle, for example, to assist, again, in identification or for DNA sampling, then one starts to get into fairly intrusive procedures.

The police have a job to do and they need to be able to have as much assistance as possible to detect the guilty, to identify if there has been a crime scene or if there have been victims and the like, but because of the level of intrusiveness of procedures that can now occur for the purposes of assisting in this regard we have developed a fairly severe structure to protect both privacy and against unnecessary intervention or intrusion into a person's space and/or their body—and it is something to be protected.

As I am sure would be known to most members here (some perhaps not because they are probably a bit too young), in the early 1980s the world was gripped with the prospect that persons who contracted HIV might develop an AIDS condition which left their immune system subject to conditions which could, and often did in those days, lead to death. It was certainly a great concern, as the contracting of the HIV virus and its explosion into the full-blown AIDS condition sent a shudder up people's spines, a bit like the current Ebola circumstance where, not surprisingly, we become very concerned if someone contracts a deadly disease.

In all the circumstances that prevail, usually the desire of health officials and governments and the like is to ensure there is not unnecessary alarm in the community but that there is a management of the circumstance and that best practices are implemented to protect the general public. As a public health issue, these become very important and, unsurprisingly, usually take precedence when these things develop.

As these pandemics or epidemics or, in any event, threats develop, in this instance with a virus, what we find is that various treatments are developed over the following decades and, thankfully, this occurred in relation to the AIDS epidemic, as it was known. Fortunately now, they are at such a sophisticated level that it enables us to have considerable hope, with justification, for those who are in that area and who are vulnerable to what 30 years ago would otherwise have been a sentence of death. We are able to give them targeted treatment, medication that is very effective and, with that support, we are able to save a lot of lives—not 'we' personally but, of course, our health officials.

Coupled with that is the knowledge that comes with the development of this type of circumstance about ensuring that we are better able to identify how the spread of a disease can occur. In that instance, for example, it took a few years to realise that giving blood transfusions to people with blood that had not been screened for the purposes of identifying AIDS had catastrophic consequences, not only in terms of the spread of the disease but in taking the lives of children and those who had gone in for medical treatment in emergencies. The inadvertent provision of contaminated blood took away their life, so we had to learn a lot in relation to how we managed that.

But also during the course of that we had to learn a lot about how we managed the privacy of those who were carrying the virus. The reason for that particularly was that within the envelope of what you could describe as public hysteria about it originally, and certainly once there were issues in relation to the capacity for contamination through bodily fluids and the like, those who were carriers were under enormous pressure, firstly, to disclose it, particularly to a partner with whom they were having an intimate relationship, and to ensure that they were responsible in making every effort that neither their organs nor blood would be made available.

In fact, structures were eventually set up to ensure that there was such efficient screening of blood collection in this state, and I think across the board in Australia, that it would prevent what would have been a tragic situation for those who contracted it. Within that envelope, as I say, not only did those who were carriers have the obligation of some disclosure to their partner by virtue of the public expecting it but also it challenged all the rules we had set up about confidentiality of information. What obligation would a doctor have who was treating a patient who was carrying the virus? What obligation would they have to advise the patient about their circumstances? I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 12:59 to 14:00.