Terrorism (Police Powers) (Use of Force) Amendment Bill

Introduction and First Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (15:41): Obtained leave and introduced a bill for an act to amend the Terrorism (Police Powers) Act 2005. Read a first time.

Second Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (15:41): I move:

That this bill be now read a second time.

As part of the government's election commitment to introduce a broad suite of measures to keep the community safe from the evolving threat of terrorism, I am very pleased to introduce the Terrorism (Police Powers) (Use of Force) Amendment Bill 2018. This bill is the culmination of longstanding Liberal policy that the former minister for police suggested was not necessary and not required. At present, South Australian police officers are governed in how they are allowed to use their firearms and lethal force by a series of general orders.

The bill seeks to provide a clear legislative statement for South Australian police officers that they are protected from criminal liability if they are required to use force, including lethal force, when responding to a terrorist incident. These amendments are informed by the approach taken in New South Wales and the recent bill introduced by the Western Australian government in response to the New South Wales State Coroner's investigation into the Lindt Cafe siege.

The coroner concluded that it may be that special powers available to police responding to terrorist incidents should include a more clearly defined right to use force and recommended that the minister for police consider amendments to the Terrorism (Police Powers) Act 2002 of New South Wales to ensure that the legal position of police officers resorting to the use of deadly force is sufficiently clear and certain to enable them to respond to terrorist incidents in a manner most likely to minimise the risk to members of the public.

The actions undertaken in this bill reinforce this government's determination to equip the Commissioner of Police with the necessary powers to combat terrorism. The attacks on Lindt, on Bourke Street, in Paris, in Manchester and across the world are at the forefront of our minds today. These attacks have unfortunately become all too frequent. As a government, the safety and security of our community is our utmost priority. This bill will follow on from New South Wales and ensure South Australia has strong counterterrorism legislation in the unwelcome circumstance that it should be required.

The bill inserts part 2A into the Terrorism (Police Powers) Act 2005 to provide for terrorist act declarations by the Commissioner of Police, or the Deputy Commissioner of Police if the commissioner is unavailable. The commissioner can make a terrorist act declaration if satisfied that an incident to which police officers are responding is, or is likely to be, a terrorist act and planned and coordinated police action is required to defend any persons threatened by that act or to prevent or terminate their unlawful detention. The terrorist act declaration will apply to each location at which police officers are responding to the incident, which may include vehicles, buildings or other structures.

A declaration must be in writing; however, in urgent circumstances, the declaration may be made orally and then confirmed in writing as soon as reasonably practicable to do so. To avoid any doubt, I will repeat that sentence. A declaration must be in writing; however, in urgent circumstances, the declaration may be made orally and then confirmed in writing as soon as reasonably practicable to do so. If a declaration is revoked, the protections offered by part 2A continue to apply until the officer is aware of the revocation or the officer ought reasonably to have been aware of the revocation, whichever comes first.

Proposed new section 27B(1) sets out the police action authorised under a terrorist act declaration; that is, a police officer who has authorised, directed or used force, including lethal force, in relation to a declared terrorist act will not incur any criminal liability if the use of force was reasonably necessary in the circumstances as the officer perceives them to be. Subsection (2) further provides that the protections in subsection (1) do not apply to the action of a police officer that was in contravention of an order of the police officer in charge of police officers responding to the incident, or that was not in good faith.

The bill also includes a provision to protect the identity of police officers involved in the use of force. Proposed new section 27C provides that, if a person is to give evidence that would tend to reveal the identity of a relevant police officer involved in the use of force, the court must make an order requiring all persons to absent themselves from the proceedings while the evidence is being given. The new provision also restricts the publication of any statement or representation that would reveal the identity of a relevant police officer, unless the officer consents or the Supreme Court makes a publication order. Notably, the legislation will commence on assent.

To conclude, the bill builds on the announcement made by the then opposition, the Liberal Party, in August 2017. Although this issue and the urge for legislative change was discussed at the Council of Australian Governments meeting in Hobart last year, no action was taken by the former Labor government. Having worked with the Commissioner of Police on this legislation and the reform required, as indeed, the Attorney-General has also, she commends the bill, as do I, to members. I seek leave to have an explanation of clauses inserted into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of Terrorism (Police Powers) Act 2005

3—Amendment of section 2—Interpretation

This clause inserts definitions for the purposes of the measure.

4—Insertion of Part 2A

This clause inserts a new Part as follows:

Part 2A—Terrorist act declarations

27A—Declaration

This section provides that the Commissioner of Police may make a terrorist act declaration (or the Deputy Commissioner if the Commissioner is not able to be contacted when an urgent declaration is sought). The provision also prescribes the manner of notification and revocation of such declarations.

27B—Use of force in relation to declared terrorist act

This clause provides that a police officer does not incur any criminal liability for authorising, directing or using force (including lethal force) that is reasonably necessary, in the circumstances as the police officer perceives them, to defend any persons threatened by an incident that is the subject of a terrorist act declaration or to prevent or terminate their unlawful deprivation of liberty. This protection will not apply if the police officer's action was in contravention of an order of the police officer in charge of the police officers responding to the incident or was not in good faith.

If a court finds that a declaration has not been validly made, any action taken by the police officer up until the date of the finding is to be treated as if the declaration were valid. If a declaration is revoked, this provision applies to any actions taken by the police officer until the police officer becomes aware or, acting reasonably, ought to be aware of the revocation.

27C—Identity of police officers not to be revealed in court or published

This provision requires a closed or restricted court if, in any proceedings, a person is to give evidence that directly or indirectly identifies a person as a police officer who has taken police action to which section 27B(1) applies (a relevant police officer) and makes it an offence to publish material by which the identity of a person as a relevant police officer is revealed or from which such identity might reasonably be inferred, unless the police officer consents to the publication. The penalty for that offence is a fine of $10,000 for a natural person or $120,000 for a body corporate. The Supreme Court may however authorise publication despite the lack of consent of the officer concerned.

Debate adjourned on motion of Ms Hildyard.