Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 3.

The CHAIR: Are there any questions on clause 3, member for Elizabeth?

Mr ODENWALDER: I will go straight to clause 4.

Clause passed.

Clause 4.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [AG–1]—

Page 3, after line 5—Insert:

(1a) Section 5AA(1)—after paragraph (c) insert:

(ca) the offender committed the offence against a community corrections officer (within the meaning of the Correctional Services Act 1982) or community youth justice officer (within the meaning of the Youth Justice Administration Act 2016) knowing the victim to be acting in the course of their official duties;

The Criminal Law Consolidation Act 1935 contains a number of offences that have an aggravated form. An aggravated form of an offence will have significantly greater penalties than the non-aggravated form of the offence. Section 5AA and regulations made under section 5AA set out the circumstances that are aggravating factors under the act.

These include certain workers who are victims of the offending while in the course of performing their duties. They are generally emergency services workers and include police, other law enforcement and other front-line healthcare and emergency workers. The bill will add workers in training centres to this list. This amendment will also add Community Corrections officers and Community Youth Justice officers to this list.

Mr ODENWALDER: Can the Attorney explain the inclusion of this particular class of worker in the bill when there are others at the end that can be prescribed by regulation? What are the criteria by which the occupation or the worker or the class of worker gets included or excluded from being specifically mentioned in this particular bill?

The Hon. V.A. CHAPMAN: In relation to the first, which is workers in training centres, we were advised by the drafters that it remained unclear whether they were captured or not. We want to make it crystal clear. In relation to Community Corrections officers and Community Youth Justice officers, my recollection is that they were identified during the course of the consultations as being necessary because they are in training centres and therefore under a different legislation. They are not Correctional Services officers. They are analogous to that. There are corrections officers in prisons. We call them different things in training centres, so we wanted to be clear that they were added in.

Mr ODENWALDER: So these are not corrections officers who visit someone's home to check on parole conditions and those sorts of things?

The Hon. V.A. CHAPMAN: They can.

Mr ODENWALDER: I wanted to clarify that. In that case, and I assume this was done in consultation with the PSA and with advice from the PSA—

The Hon. V.A. CHAPMAN: I am trying to remember exactly if it was the PSA. It may have been raised by Mr Nev Kitchin, but certainly it was raised during the course of consultation.

Mr ODENWALDER: Given that then, I assume—and maybe I make the assumption wrongly—that they are included specifically because the nature of their job requires them to be front-line workers, in the sense that they go to people's houses and serve papers and warrants and that sort of thing. Why are other people who conduct checks on dangerous people or serve papers, such as Sherriff's officers and those types of people, not specifically included in that, but are presumably possibly included in the regulations?

The Hon. V.A. CHAPMAN: There is a possibility to consider that. We have not had any request from Sheriff's officers or indeed the Chief Justice, who is responsible as the head of the Courts Administration Authority for the Sheriff's Office. They certainly have not raised it. I suppose it is exactly the same as someone who might be delivering registered post mail. Nobody has come to us from Australia Post to say, 'Our posties might be at risk, so could you add them into the list.'

However, we have made provision in the act that, if a case is presented that we capture a front-line worker, then there is capacity to prescribe by regulation. I am further advised that, in relation to draft regulations, amongst those being considered for insertion are the employment as a court security officer, which would cover the Sheriff's Office, employment as a protective security officer, which would cover all the people who work in this parliament for security purposes, and employment in a training centre as an employee (in other words, they are obviously working in a children's prison as such), and the police support work.

Mr ODENWALDER: My question still stands then. The Labor amendments and the Labor bill have been criticised by you and the Premier for prescribing certain workers and only being specific about police within the legislation. Why then have you cherrypicked certain occupations and left others to the regulations?

Mr Pederick interjecting:

Mr ODENWALDER: No, I am serious.

Mr Pederick: No, I am not laughing at you.

Mr ODENWALDER: Okay, good. I appreciate it. Why have you cherrypicked certain occupations to include in the legislation and left others to the regulations?

The Hon. V.A. CHAPMAN: I think it is fair to say that perhaps the member misunderstands what the government's bill attempts to achieve. We have identified people who, through consultation, have been brought to our attention. We have listed those people in the act. We see that as important. We have identified a couple of other areas that it seems parliamentary counsel might have thought were picked up, but to be absolutely clear, we are going to cover them.

The third aspect, which is the reason that we have a prescription power, is to enable for the future flexibility of inclusion. The concern that the government has for the opposition's bill is that they have simply identified four or five key areas and then left everything else to prescription, so it is clearly nowhere near as comprehensive as the government's identified position of those who are clearly to be included. The capacity to prescribe for the future is to do exactly what is intended by most of these circumstances to enable flexibility to supplement the legislation's applicability without it having to come back to the parliament, but clearly within the rules of subordinate legislation.

Amendment carried.

Mr ODENWALDER: Given what the Attorney said before, I appreciate the fact that the bill leaves open the possibility of regulations which allow the future flexibility of the act. I understand that entirely, and that is the thinking behind that particular part of my amendment, too. Since you already have some of those professions—you just read some into Hansard that you were considering for the regulations—why would you not amend the legislation today to include those that you have already considered for regulation?

The Hon. V.A. CHAPMAN: I think when we come to the parliament with a body of work, we need to bear in mind that, while some things have been brought to our attention and we have put them in regulation, they have not had the consultation of the opposition as to these aspects. Draft regulations are not usually distributed before the passage of legislation.

Mr ODENWALDER: Did you say 'are' or 'are not'?

The Hon. V.A. CHAPMAN: 'Are not'—in fact, frequently, when I was sitting where the member for Elizabeth is sitting in these matters—

Mr ODENWALDER: To be fair, it was slightly to the left.

The Hon. V.A. CHAPMAN: No, during committees I sat there for a very long time, I can assure you. Draft regulations were not even a twinkle in someone's eye at that stage. In a purer sense, they are not prepared obviously until the parliament has expressed its will by passing the statute. But in a practical sense, obviously, it is important to bring along the machinery/operational provisions of laws, namely, regulations, as expeditiously as possible, if one wants to implement the reforms that are in the statute.

I am indicating to the member that in draft regulations at this point it is anticipated that they will be considered. I suppose we are giving a heads-up. But remember that subordinate legislation can be challenged by the parliament, so if there was any concern about any of those that are foreshadowed, then of course, there will be the proper opportunity of the parliament to challenge them. In that sense, there is sometimes a fine line between that and bringing something into the statute straightaway.

But in a circumstance where there has been little notice of that, I think it is reasonable that they stay in the regulations and that you, and any other member of the chamber, will have an opportunity to challenge them if for any reason you felt that they were inappropriate.

Mr ODENWALDER: I apologise if you covered this at the very beginning of your answer, but when will the regulations be available for parliament to peruse? Are you saying that will be after the passage of the bill? At what point after the passage of the bill? What sort of consultation does the Attorney-General intend before those regulations go to the Legislative Review Committee, for instance? When will the list be available?

The Hon. V.A. CHAPMAN: I can only give you usual practice, but I can tell you in relation to this legislation that we have started the preparatory work. We are not doing that in any way to presume the will of the parliament. Nevertheless, we think it is important to try to have these things progress as expeditiously as possible. Sometimes regulations, when drafted, are identified by the relevant agencies to implement them, for example, that there is a practical impediment.

If I were to give one example of a similar nature, it would be when there were changes to the law in relation to intervention orders and the power of police officers to issue them on an interim basis. The government of the day took some two years to draft and implement the regulations to bring about the proclaimed new law to be operational on the basis that it was going to take significant time to prepare and train police officers for the purposes of this new area of responsibility. I remember that one particularly because I was critical of it taking so long, given the domestic violence problems we had in the community.

Nevertheless, that is an example of where it can take a long time. I do not know at this point how quickly that will occur, but the usual process is that once they have gone through the process of consultation within our agencies, approval by cabinet, they are then tabled in parliament and there is an opportunity to challenge. The Legislative Review Committee can become seized and investigate any that they see fit, and then I assume the 14-day rule still applies. Otherwise, they will come into operation.

Mr ODENWALDER: Will the Attorney-General consider occupations that are well outside what we might think of as emergency workers? I am thinking of educators who might go into a prison to work or social workers who might go into a prison or social workers who might go to a house of someone on parole or something like that? I am referring to someone you would not consider a front-line emergency worker.

The Hon. V.A. CHAPMAN: We have not had that put to us specifically, those categories, that I am aware of. For example, in a youth training centre the Department for Education has a school service at one of the campuses—it may be at both campuses, actually. I have seen that, and they come in and operate as a classroom facility. They also work in rooms to do training, such as cookery and other skills in mechanical work and the like. So there are other people who come to visit prisons. We have not had any request to consider those for inclusion.

In those circumstances, we already cover the Community Youth Justice officers because, a bit like the adult Community Corrections officers, they visit people at their home. So we can see that that is a continued supervisory role: while someone is either in home detention or in custody, there is a similar role. However, if there are areas of occupation that the opposition thinks should be included, and you have not put them in your amendments for whatever reason, we are happy to receive any further advice on that.

The only other area that I can think of immediately is in relation to nurses, who were putting to us that perhaps all nurses should be covered. I made it very clear to the representatives at the time that, although we were looking at nurses who are working in an emergency situation of identified significant risk—that is, where people are being removed from ambulances at the Royal Adelaide Hospital emergency department or are drug or alcohol affected—we were not considering situations outside that environment. However, we fully acknowledge that nurses are the subject of volatile situations even outside that. They might be at a local clinic, or they might be visiting someone in a home hospital situation, which is now becoming quite common.

I do not have it with me, but they provided me with a booklet during the course of our consultation, the Victorian 10 Point Plan to End Violenceand Aggression in the workplace, as part of their discussion with me that nurses, midwives or healthcare workers in other jurisdictions had looked at this issue. They asked me to look at it. I welcomed that initiative, but in my view it was not appropriate to put it in this legislation.

The CHAIR: One last question. I am being generous.

Mr ODENWALDER: Thank you, I appreciate your forbearance. This is more broadly about clause 4, in that it does amend section 5AA about aggravated offences. This will come up again soon, I am sure. Did the Attorney-General ever at any point consider the inclusion of standalone specific offences around assaults on emergency workers? I assume you had conversations with PASA about it. Was there any point at which you or your office considered it and then discarded it?

The Hon. V.A. CHAPMAN: I think it is fair to say that all the submissions presented by the Police Association were indeed considered by the government. We placed high value on the passion with which the association put their case on behalf of their membership. I think there was one occasion when Mr Carroll apparently made a public statement suggesting that if judges or politicians were the subject of heinous conduct, including being spat at or coward punched or stabbed, and so on, there would soon be some reforms. It is a bit like saying that if men had babies then we would soon have some extra support in relation to maternity matters in our law.

Apart from that statement, which I thought was slightly offensive, the reason I say that is that, certainly in the 20 years I worked in courtrooms, there were circumstances where judges were shot and murdered. In fact, a bomb was handed to the wife of a judge in Sydney in the time I operated and she died. People do, particularly in judicial office, have to suffer, and they have suffered at the highest level. Obviously, people take some risk when they make determinations, especially when they send people to prison. Security for them is important, and minimising injury or death should be a priority.

As to politicians, well, we get abused every day. Obviously, we are not coward punched every day, I accept that, and we are not walking around expecting to physically manage our constituents, but neither are we armed. Most of us are not. I am not. I do not know about the other members, but I am not armed. I do not walk around my electorate office with a revolver. I do not think I have ever been threatened by anyone in my electorate, but then again I have very orderly and disciplined, well-behaved, constituents—or they are scared of me. I do not know. Perhaps it is a bit of both.

In any event, I make this point in all seriousness. We totally accept in the government that our police officers put their life and limb on the line when they go out to do their work for the benefit of all of us, as do other emergency workers. We were the ones on this side of the house who, when in opposition, fought to have provision for police officers in relation to injuries arising out of their work. I can remember, and the new member for Cheltenham would be proud of me in this regard, addressing police officers when we were fighting on their behalf to expand that provision.

Do not get me wrong. I want you and every member in the house to be absolutely clear about this, that the government are absolutely committed to support him, otherwise he would not have brought this comprehensive proposal to the parliament for consideration. It is a little bit ugly to suggest that that sort of statement was made by Mr Carroll. That having been said, the consideration of the matters that they presented to us were well considered.

With some of these proposals, we would not have even thought we would get to a threshold of need or identified benefit. We are prepared to give some of those the benefit of the doubt, such as the additions to the secondary sentencing principles because, if they help, and there is a possibility that they might help and it is a refreshing message back to our prosecutors and judiciary, we would be prepared to support them. Others do meet the threshold; some have not and will not.

Mr SZAKACS: Attorney, I apologise if this is verbalising a previous answer, but you identified that the bill identified categories of employees that were brought to the attention of government through the consultation process and that the regulations were somewhat ancillary or included categories that were ancillary to the consultation process. Were there any categories of employees that were identified to the government through the consultation process that have not been included in the bill?

The Hon. V.A. CHAPMAN: I refer to my previous answer, but the stand-out was the request from the nurses' union, that all nurses doing any duty anywhere, at any time, ought to be included. We considered that. We felt that it needed to be confined to the emergency circumstances.

Mr SZAKACS: Will the Attorney take that question on notice, as to what other categories of employees were identified through the consultation process that did not ultimately find their way into the bill?

The Hon. V.A. CHAPMAN: We have canvassed that at some length, so I refer to the answer before last.

Clause as amended passed.

Clause 5.

Mr ODENWALDER: Clause 5 amends section 19—Unlawful threats. Can the Attorney go over each of those new provisions and just explain, first of all, by how much the penalties have increased and what purpose she thinks that serves?

The Hon. V.A. CHAPMAN: The rewrite of section 19(2), or the substitute, (a) and (b) remain the same, and (c) has gone from seven to eight years.

Clause passed.

Clause 6.

The CHAIR: Attorney, you have two amendments in your name. Do you wish to deal with them separately or together?

The Hon. V.A. CHAPMAN: I am happy to deal with them together, but I will explain. First, I move:

Amendment No 2 [AG–1]—

Page 3, line 26 [clause 6(2), inserted paragraph (d)]—Delete '4' and substitute '5'

This is one of four similar amendments. It increases the maximum penalty for the assault offence under section 20 of the Criminal Law Consolidation Act where a person is assaulted and is one of the special categories of workers referred to in the aggravated offence provision of section 5AA of the act, and regulations made under section 5AA. The current maximum penalty is three years' imprisonment. The bill will increase it to four years, but this amendment would make it five years. I now move:

Amendment No 3 [AG–1]—

Page 3, line 31 [clause 6(4), inserted paragraph (d)]—Delete '5' and substitute '7'

This amendment increases the maximum penalty for the section 20 assault offence in the Criminal Law Consolidation Act where a person suffers harm from being assaulted, and is one of the special categories of worker referred to in the aggravated provision of section 5AA of the Criminal Law Consolidation Act and regulations made under section 5AA. The current maximum penalty is four years' imprisonment. The bill would increase it to five years, but this amendment would now make it seven years.

Amendments carried.

Mr ODENWALDER: I want to clarify with the Attorney clause 6(2) with respect to section 20(3)(d), which provides:

for an offence aggravated by the circumstances referred to in section 5AA(1(c) or (ka)—imprisonment for 4 years.

By the time this bill has finished, that is the default assault police charge once section 6(1) is removed from the Summary Offences Act; is that right?

The Hon. V.A. CHAPMAN: I think for simple assault, that is right. I suppose for ease of understanding, once the assault provisions under section 6 of the Summary Offences Act are repealed, which we both agree are to go, this will be the only one that is able to be dealt with in that lower level category of assault against a police officer. However, it should be borne in mind that there are remaining offences in the Criminal Law Consolidation Act, which I will list as follows: assault causing harm, which we have referred to; unlawful threats to harm another; and acts likely to cause another, which we have just referred to, going from seven to eight years.

In addition, we have shooting at police, 10 years; unlawful threats to kill or endanger the life of another, 12 years; acts likely to cause serious harm to another, 12 years; causing harm to another, 13 years if it is intentional, seven years if it is reckless, going to eight years under our bill; acts endangering the life of another, 18 years; causing serious harm to another, 25 years if it is intentional, 19 years if it is reckless; and shooting at police and causing harm to an officer (I assume by actually shooting them), 25 years; manslaughter, life and/or a fine at the court's discretion; and murder, life imprisonment.

Clause as amended passed.

Clause 7.

Mr ODENWALDER: I move:

Amendment No 1 [Odenwalder–1]—

Page 4, line 3 to page 5, line 10 [clause 7, inserted section 20AA]—Delete inserted section 20AA and substitute:

20AA—Causing harm to, or assaulting, certain emergency workers etc

(1) A person who causes harm to a prescribed emergency worker acting in the course of official duties, intending to cause harm, is guilty of an offence.

Maximum penalty: Imprisonment for 15 years.

(2) A person who causes harm to a prescribed emergency worker acting in the course of official duties, and is reckless in doing so, is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(3) A person who assaults a prescribed emergency worker acting in the course of official duties is guilty of an offence.

Maximum penalty: Imprisonment for 5 years.

(4) A person who hinders or resists a police officer acting in the course of official duties is guilty of an offence.

Maximum penalty:

(a) if harm is caused to the police officer—imprisonment for 10 years;

(b) in any other case—imprisonment for 2 years.

(5) In proceedings for an offence against this section, it is a defence for the defendant to prove that the defendant did not know, and could not reasonably have been expected to know, that the victim was a prescribed emergency worker acting in the course of official duties.

(6) Without limiting the ways in which a person can cause harm to a prescribed emergency worker, harm can be caused by causing human biological material to come into contact with a prescribed emergency worker.

(7) For the purposes of this section, a person causes human biological material to come into contact with a victim if the person performs any act (including, without limiting the generality of this subsection, by spitting or throwing human biological material at the victim, or deliberately applying human biological material to their person knowing that the victim is likely to come into physical contact with the person in the course of their duties) intended or likely to cause human biological material to come into contact with the victim.

(8) This section does not apply to conduct occurring before the commencement of this section.

(9) In this section—

assault means an assault within the meaning of section 20(1) and includes, to avoid doubt, an act consisting of intentionally causing human biological material to come into contact with a victim, or threatening to do so;

harm has the same meaning as in Division 7A;

human biological material means blood, saliva, semen, faeces or urine;

prescribed emergency worker means—

(a) a police officer; or

(b) any other person, or person of a class, declared by the regulations to be included in the ambit of this definition.

This amendment has been pretty widely canvassed in the media. This is the substantive amendment that I will be proposing for this bill. I think it addresses the inherent weakness. There are two major amendments, including the one coming up later regarding the Sentencing Act. This deletes the intended section 20AA, which we have just been amending, and replaces it with a whole new 20AA—Causing harm to, or assaulting, certain emergency workers.

Contrary to what the Attorney said, I have consulted more broadly than with the Police Association. I have consulted with various bodies, including the CFS, MFS and their volunteer associations and the ambos. I think I even sent a copy to the Law Society. I have not heard back yet, to my knowledge, but I look forward to that.

The offences that will essentially replace or supersede some of the aggravated offences which currently exist, and which the Attorney is currently in the process of amending, include, firstly, a person who causes harm to a prescribed emergency worker acting in the course of official duties, intending to cause harm, is guilty of an offence. This carries with it a maximum penalty of 15 years. From what I understand the Attorney said, the equivalent aggravated offence at the end of this process would carry with it a maximum of 13 years, so it is a two-year increase on that. That is my understanding, but the Attorney can correct me if I am wrong.

Before I go on with the other provisions, it should be pointed out that this whole section is intended to work in concert with the two changes proposed to the Sentencing Act, one of which the Attorney also supports, in that together as a package it sends the very clear message to the community and the judiciary that this parliament intends to place very severe sentences on people who assault police and emergency workers, particularly those who harm police and emergency workers.

The second provision provides that a person who causes harm to a prescribed emergency worker acting in the course of official duties, and is reckless in doing so, is guilty of an offence, carrying with it a maximum penalty of 10 years. If I understand what the Attorney said in her previous answer, the equivalent amended part of 5AA would carry with it maximum imprisonment of seven years, I think.

The Hon. V.A. CHAPMAN: Eight.

Mr ODENWALDER: Eight. I stand corrected. Again, we can quibble about penalties. The Attorney's one-year increase is one thing; our three-year increase is another. Essentially, it does not work either way on its own. It requires the amendments to the Sentencing Act to send the complete message. The third provision is:

(3) a person who assaults a prescribed emergency worker acting in the course of official duties is guilty of an offence.

That is essentially assault police. This amendment proposes to replace section 61 of the Summary Offences Act. That is the simple assault police offence plus the aggravated assault emergency worker offence.

New subsection (4), the first major deviation from what the Attorney is proposing, works in concert with removing the entirety of section 6 of the Summary Offences Act, which we will get to. It is about moving hindering and resisting police in the course of their official duties to the CLCA to this particular section. In a simple case, it carries with it a maximum penalty of two years. But, if harm is caused to the police officer, it carries with it a maximum penalty of ten years. This brings it into line with the proposed section 20AA(2), recklessly causing harm.

That is because the crux of this legislation is about harm. It is about harming and injuring police and emergency workers. It is not about anything else. It is not about increasing penalties for disorderly behaviour or threatening or assaulting: it is about actual harm and it is about sending a very clear message that actual harm to people who are on the front line is a very serious offence. There is a defence written in here that the defendant did not know and could not know reasonably that the person was an emergency worker or a police officer. I think that is pretty standard.

New subsections (6) and (7) relate to human biological material. We have had regard to the main body of the Attorney's amended bill, which concerns human biological material. Again, I understand this was a request from the police commissioner or certainly from SAPOL. They may have requested a specific offence, but they certainly wanted some clarification around the use of human biological material in assaulting police officers and emergency workers.

I understand the Attorney's comments about nurses particularly being subject to these kinds of attacks. These attacks, of course, are disgusting. Any police officer you speak to will tell you it is a matter of course, whether it is just in the line of their ordinary duty or particularly during arrests. It is a very common cause of assault during arrests and it can, of course, cause terrible harm, as we have seen in some pretty high-profile cases, with people contracting some pretty serious and debilitating diseases through these actions.

In no way do I minimise these types of assaults, but I maintain they are assaults. I maintain that harm caused by these assaults is harm, already defined by the CLCA, but out of an abundance of caution I think it is worth including in any amendment reference to human biological material. There are then the definitions relevant to this section, including the further clarification that the use of human biological material to assault does constitute assault.

It then defines a prescribed emergency worker as a police officer or any other person or a person of a class declared by the regulations to be included in the ambit of this definition. We have gone over quite a bit of this already during the course of this debate, so I will not trouble you any further. I move that this amendment be adopted, then we will be halfway to getting where we should be.

The Hon. V.A. CHAPMAN: I have a question of the mover of the amendment. In respect of new section 20AA(4), which is to make provision for hindering and resisting a police officer, which I place in concert with the repeal of the entire section 6 of the Summary Offence Act, it is a matter that the member would be aware is not consistent with the views of the Commissioner of Police. Did the member consult with the Commissioner of Police on this issue or any aspect of this proposed amendment? If not, why not?

Mr ODENWALDER: It is my recollection—I will check my assistant's email stream—that I sent a copy of a draft bill to the Commissioner of Police in February, and I received no submission from SAPOL.

The Hon. V.A. CHAPMAN: When you became aware of the Commissioner of Police's view on that, which is that he supports the removal of 'assault police' from section 6 but not hinder and resist (I am paraphrasing), did you make any inquiry of the police commissioner at that stage? If not, why not?

Mr ODENWALDER: I am not aware that the police commissioner has objected to it. Perhaps the Attorney could furnish me with the commissioner's exact words, and then I will be prepared to answer the question.

The CHAIR: No further questions?

The Hon. V.A. CHAPMAN: I wish to speak further. I acknowledge the honourable member's aspects in relation to the amendment. It is not supported by the government. While this amendment adopts part of the government's new biological materials offence, its main purpose is to introduce new provisions for offences against prescribed emergency workers, which the amendment defines as police officers and other persons prescribed in the regulations. This amendment does not create new offences and, in that regard, it is unnecessary.

There are already offences on the statute book for assaulting and causing harm to a police officer and a broad range of other emergency services workers. I refer to my previous answer. For example, section 20 of the Criminal Law Consolidation Act contains an offence of assault. As discussed, the government's amendments Nos 2 and 3 would increase the maximum penalty where a police or other emergency service worker is assaulted to five years' imprisonment and, where such a worker is harmed, to seven years' imprisonment.

The committee divided on the amendment:

Ayes 18

Noes 24

Majority 6

Amendment thus negatived.

The CHAIR: We are still on clause 7. Attorney, you have amendments Nos 4 to 14 in your name. You can move one, some or all.

The Hon. V.A. CHAPMAN: I move:

Amendment No 4 [AG–1]—

Page 4, line 10 [clause 7, inserted section 20AA(1), penalty provision, (a)]—Delete '5' and substitute:

7

Amendment No 5 [AG–1]—

Page 4, line 11 [clause 7, inserted section 20AA(1), penalty provision, (b)]—Delete '4' and substitute:

5

Amendment No 6 [AG–1]—

Page 4, after line 31 [clause 7, inserted section 20AA(5)]—Insert:

accident or emergency department of a hospital means the part of the hospital dedicated to the hospital's major accident and emergency functions, including those areas of the department used for administrative, waiting, reception, storage, diagnostic, treatment, consultation, triage and resuscitation functions and the access bays for ambulance and police;

Amendment No 7 [AG–1]—

Page 4, lines 34 and 35 [clause 7, inserted section 20AA(5), definition of human biological material]—Delete 'or urine' and substitute:

, urine or vomit

Amendment No 8 [AG–1]—

Page 4, after line 38 [clause 7, inserted section 20AA(5), definition of prescribed emergency worker]—Insert:

(ba) a community corrections officer or community youth justice officer; or

Amendment No 9 [AG–1]—

Page 4, after line 40 [clause 7, inserted section 20AA(5), definition of prescribed emergency worker]—Insert:

(ca) a person (whether a medical practitioner, nurse, security officer or otherwise) performing duties in the accident or emergency department of a hospital; or

(cb) a person (whether a medical practitioner, nurse, pilot or otherwise) performing duties in the course of retrieval medicine; or

(cc) a medical practitioner or other health practitioner (both within the meaning of the Health Practitioner Regulation National Law (South Australia)) attending an out of hours or unscheduled callout, or assessing, stabilising or treating a person at the scene of an accident or other emergency, in a rural area; or

Amendment No 10 [AG–1]—

Page 5, after line 10 [clause 7, inserted section 20AA(5)]—Insert:

retrieval medicine means the assessment, stabilisation and transportation to hospital of patients with severe injury or critical illness (other than by a member of SA Ambulance Service Inc);

Amendment No 11 [AG–1]—

Page 5, after line 10 [clause 7, inserted section 20AA(5)]—Insert:

rural area means an area outside of Metropolitan Adelaide (within the meaning of the Development Act 1993);

Amendment No 12 [AG–1]—

Page 5, after line 10 [clause 7, after inserted section 20AA]—Insert:

20AB—Further offence involving use of human biological material

(1) A person who commits a prohibited act involving human biological material against another person is guilty of an offence.

Maximum penalty:

(a) if harm is caused to the victim—imprisonment for 3 years;

(b) in any other case—imprisonment for 2 years.

(2) For the purposes of subsection (1), a person commits a prohibited act involving human biological material against another person (the victim) if—

(a) the person intentionally causes human biological material to come into contact with the victim; or

(b) the person threatens (by words or conduct) to cause human biological material to come into contact with the victim.

(3) For the purposes of this section, a person causes human biological material to come into contact with a victim if the person performs any act (including, without limiting the generality of this subsection, by spitting or throwing human biological material at the victim) intended or likely to cause human biological material to come into contact with the victim.

(4) In this section—

harm means physical or mental harm (whether temporary or permanent);

human biological material means blood, saliva, semen, faeces, urine or vomit.

Amendment No 13 [AG–1]—

Page 5, line 11 [clause 7, inserted section 20AB]—Delete '20AB' and substitute:

20AC

Amendment No 14 [AG–1]—

Page 5, line 14 [clause 7, inserted section 20AB(a)]—After '20AA' insert:

or 20AB

Firstly, this batch of amendments has the effect of increasing the maximum penalty for the purpose of the new biological materials offence where the prescribed emergency worker is a victim of the offence and suffers harm as a result. Essentially, the amendment increases the imprisonment maximum from five years to seven years. Similarly, amendment No. 5 increases the maximum from four years to five years.

Amendment No. 6 is part of a set of amendments (amendment Nos 9, 10 and 11), which extend the biological materials offence to front-line health workers, et al. Amendment No. 7 also relates to the new biological materials offence, when a person uses substances as weapons against a prescribed emergency worker, and adds 'vomit' to the list of biological materials for the reasons I have previously stated. Amendment No. 8 extends the list of workers to be prescribed in outlining the matters I have previously indicated.

Amendment No. 9 relates to amendment No. 6, which I have referred to previously. Amendment No. 10 provides the definition of retrieval medicine for the purposes of the biological materials offence. This definition excludes members of the SA Ambulance Service because they are already caught by the definition of prescribed emergency worker for the purpose of the offence. Amendment No. 11 is consequential. Amendment No. 12 creates the new offence, as modelled on the biological offences, and amendments Nos 13 and 14 are both pretty much consequential.

Mr ODENWALDER: I have a question about amendment No. 7, which introduces the concept of vomit. I take on board what the Attorney has already said about the subject of vomit. I understand why it has been included, but can the Attorney-General just explain why the provisions are to do with only human biological material? Was there any thought given to any other biological material being included in this provision? It would be my understanding that if someone threw dog faeces, for instance, at a police officer or an emergency worker that would constitute some sort of assault. Has any consideration been given to putting that within these provisions and, if not, why not?

The Hon. V.A. CHAPMAN: No, we have not considered that; no-one has asked for it. I think it is fair to say, though, that human biological material is one which can carry disease which, if transmitted through a bodily fluid, can be both terrifying for the recipient and, of course, offensive. I think I used the example of somebody spitting on a police officer while lying on the ground of a cell, which was highlighted in the Law Society submission.

It becomes a problem not when it sticks to the bottom of the police officer's trouser leg; it becomes a real worry if it accesses a break in the skin or, of course, the mouth or eyes or so on of the person. I think there is reason to differentiate between that and other excreta from animals, but certainly nobody has asked for it.

Mr ODENWALDER: I take on board what you say, and I think human biological material is probably more readily at hand in most cases. In terms of the harm that is done by human biological material—and in my head I am thinking of the spitting in the mouth and herpes, that sort of thing—the harm is not immediate in the same way that a stabbing harm would be, so it is different in that sense. It is a different sort of harm resulting from assault, but the same sort of harm, in that it takes a while to become apparent and that there are tests and things like that, could come from other animals' biological material. Do you understand the difference? There is a period where the injured person does not know that they are injured.

The Hon. V.A. CHAPMAN: I am not an expert on dog faeces, but I suppose it is possible that you can get rabies from dog faeces. I do not know. If you get bitten by a bat or a dog, you can get rabies. Nobody has actually raised this with us as instilling the same level of fear or concern or, in fact, terror as human excreta, etc., as human biological material because of the known particular contaminant.

Nurses and medical people particularly know of the fear they might have in relation to blood that might come from someone they are treating, and so obviously they take precautions, such as wearing gloves, etc. because this is a known concern for people working with other human beings and the risk they have of getting very serious conditions, some of them life threatening, but certainly others that could stay in their own system for life, and so we do need to appreciate that. With respect to the opposition, I think they also understand that.

In relation to other animals, if the member wants to bring to me some evidence that there is a serious health risk, for example, from other biological material out of some other dog, rat, bird, whatever, I am happy to look at it.

Mr ODENWALDER: This relates back to a previous question I had regarding who is and who is not included in the remit of the prescribed emergency worker. Has the Attorney done any consultation or received any submissions regarding the issue of personal carers for people with disabilities who visit people's homes when the person with the disability may well be on bail or on parole or some sort of bond, or someone living with that person may well be? Would someone like that possibly be included within that remit?

The Hon. V.A. CHAPMAN: Not within the definition of this bill. Has it been raised? Only by the AMA representatives who came to see me in the context of someone who had a mental health condition. We also discussed the question of someone with a disability. If it is a cognitive impairment, they may not be able to be found to be liable for any offence because they have to be able to have the capacity to form the intent in order to be prosecuted successfully. So we discussed it within the parameters of that.

It was certainly felt that someone suffering from a mental health condition may or may not escape prosecution and/or punitive action, but that would very much depend on the evidence before the court as to the person's capacity. Assuming that they are fit to plead, they are found to be legally responsible, it may have an impact on the sentence that is given. Only in that general way did we discuss it. Again, we were not asked to consider that for persons who were working with persons with a disability.

I think it is fair to say, though, that in some health conditions, for example, someone with dementia—and I do not want to pick them out particularly, but they are known to have had some aggressive responses—that is one of the areas of risk if you are dealing with someone with a certain medical condition. Again, that is not an area of expertise that I have or could answer. I simply say it has not been raised to the extent of seeking inclusion in this bill.

Mr ODENWALDER: It occurs to me that I could freely ask three questions on each of these amendments presumably.

The CHAIR: Not necessarily.

Mr ODENWALDER: They were moved en bloc.

The CHAIR: You have my indulgence at the moment. This is your fourth question.

Mr ODENWALDER: I do not want to risk your indulgence, sir. This is about amendment No. 11, which extends the provision around human biological material to non-emergency workers, to people who do not fit into the categories we have been talking about this whole time. It leads me to ask again about the policy underpinnings of the Attorney's bill. The name of the bill suggests that it is about emergency workers. It is about protecting emergency workers; that is certainly the impetus for the bill from the Police Association and others. I wonder why this provision, which does not relate to emergency workers at all—in fact, it almost excludes them because they already have their own section about it—was put into the bill at the last minute?

The Hon. V.A. CHAPMAN: That was the request of the AMA. I think I mentioned in the general body of the debate that they brought to our attention that the emergency work may be done by the practitioners out on the roads. For the purposes of dealing with that peculiarly rural aspect, we then had to look at how we define 'rural' as distinct from 'metropolitan', so we have simply adopted the definition here so that it is consistent with the meaning under the Development Act because that is apparently the common area that is used for the purposes of defining 'urban' to 'rural'. We have not created some new definition. We have adopted the Development Act's definitions so that it is consistent.

Mr ODENWALDER: With respect, that was not my question.

The Hon. V.A. CHAPMAN: That is what the amendment is about.

Mr ODENWALDER: Is it? I beg your pardon then. Let me refer to my notes. Yes, I stand corrected. In fact, I had a question about that. You answered another question. Could I seek your indulgence, sir?

The Hon. V.A. CHAPMAN: I am sorry. I am happy to answer it.

The CHAIR: You have my indulgence, member for Elizabeth. There are 11 amendments here, so I am happy for you to ask a few more questions, if you wish.

Mr ODENWALDER: There are 11 amendments? I have amendment 12 here, in clause 7. My question is: why was this section, which relates to non-emergency workers, included in a bill which purports to be about emergency workers? I am not particularly opposed to the measure that is described. This is about extending the provisions around human biological material to non-emergency workers, if I understand it correctly. If I do not, please correct me.

The Hon. V.A. CHAPMAN: This is specifically to relate to ordinary people like you and me, and that is why what we need to do here is still make it an offence to transmit human biological material to an ordinary person. We are not saying that they should escape any punitive responsibility. We are saying that this is something where anybody who is the subject of this should be able to say, 'I am a victim of this.' So we have the ordinary people, which is you and me, and then we have the emergency workers, which is a different order.

Mr ODENWALDER: I appreciate that—

The CHAIR: Member for Elizabeth, can I clarify which of the amendments we are asking questions about?

Mr ODENWALDER: Amendment 12.

The CHAIR: Yes. You have asked one on amendment 11 and two on amendment 12, is that correct?

Mr ODENWALDER: Have I? I am really just trying to get to the nub of one question. I understand what you are saying, and again I do not oppose the intent of the provision. The bill is not called the criminal law consolidation (human biological material) amendment bill; it is called the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill. I wonder why, when all the other provisions in this bill relate to emergency workers, this one applies to ordinary people like you and me?

The Hon. V.A. CHAPMAN: Because we are now defining, at the request of the police commissioner, that emergency workers are vulnerable in this area. The government takes the view that nobody should be the subject of this, so we have made a provision for any other person—which is just ordinary people like you and me—and then implemented the provision at a higher level of penalty for people who are working at the coalface. The fact that it is not in the short title of the bill is simply because the priority of this bill is harnessed in the terms of that short title. However, that does not mean that you and I miss out, because ordinary people also need to be protected from being vulnerable to the threat of receiving human biological material without consent.

Amendments carried.

The CHAIR: Member for Elizabeth, you have three amendments in your name. If I can be of some assistance, we are dealing with clause 7. You have amendments Nos 2, 3 and 4 in your name, in relation to this clause.

The Hon. V.A. CHAPMAN: We consent to amendments Nos 2, 3 and 4 moved in the member's name.

The CHAIR: Let him move them first, Attorney.

Mr ODENWALDER: I move:

Amendment No 2 [Odenwalder–1]—

Page 5, line 17 [clause 7, inserted section 20AB(b)]—Delete 'section 20' and substitute:

this Act

Amendment No 3 [Odenwalder–1]—

Page 5, line 19 [clause 7, inserted section 20AB(c)]—Delete 'section 20' and substitute:

this Act

Amendment No 4 [Odenwalder–1]—

Page 5, line 22 [clause 7, inserted section 20AB]—Delete 'section 20' and substitute:

this Act

The CHAIR: Do you want to speak to these at all? I think you have had an indication from the Attorney already.

Mr ODENWALDER: Only to thank the Attorney. The impetus of this is around my previous amendment, which is why it loses some of its strength anyway. In the existing bill, which will pass this house presumably, it really only affects section 20 of the act. However, I appreciate that we have broadened it out so that perhaps wiser amendments broaden out section 20.

The Hon. V.A. CHAPMAN: The government receives and supports the amendments.

Amendments carried; clause as amended passed.

Clause 8.

The CHAIR: I advise the committee of an error to clause 8 and, pursuant to standing order 283, I will correct the bill. I will replace the words 'unlawful threats' with 'causing harm'.

Clause as corrected passed.

Clause 9 passed.

Schedule 1.

The CHAIR: The member for Elizabeth has amendments to the schedule.

Mr ODENWALDER: For the purposes of this debate, I will not proceed with amendment No. 5. I will not proceed with amendment No. 6 because, in this house anyway, it has become redundant.

The CHAIR: What about No. 7?

Mr ODENWALDER: Yes, I do intend to proceed with amendment No. 7.

The CHAIR: So you will move amendment No. 7 standing in your name to the schedule and speak to that?

Mr ODENWALDER: No. I will speak to it, though. I was hoping, of course, for the passage of amendment No. 1. Please interrupt me if I am getting this procedurally wrong.

The CHAIR: Amendment No. 1 was not agreed to.

Mr ODENWALDER: It was not agreed to, that is right. And this amendment is contingent on the passage of amendment No. 1, and I intend not to proceed with it.

The CHAIR: When you speak in this place, you really need to speak to something. If there is no amendment moved—

Mr ODENWALDER: I can speak to the overall clause then; is that right?

The CHAIR: Yes. You can still speak to the whole schedule, but what I am getting from you is that you are not progressing any of your amendments with this.

Mr ODENWALDER: Yes, as long as I can still speak to it.

The CHAIR: You can. If you wish to speak to schedule 1, member for Elizabeth, let's do that now.

Mr ODENWALDER: Sure, and perhaps this will serve as a summing up anyway. I was hoping that the committee would accede to amendment No. 1, which is the substantive amendment which guides this whole thing. As I said earlier in my remarks, this is no indication that we will or will not ultimately support the bill in its present form. It will pass through this house, presumably today, but we reserve the right to make further amendments as we go on.

In accordance with amendment No. 1 and the new offences created by my amendment No. 1, I was hoping to designate them as designated offences for the purposes of sentencing. That was raised very early on with the Police Association and strongly supported by people such as the Ambulance Employees Association. It would mean that a sentence of imprisonment imposed by a court could not be suspended if, during the five-year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or a period of detention imposed on the defendant for a designated offence.

As I have been at pains to point out from the beginning, and the Attorney has thrown it at me as an accusation, it is not a mandatory minimum sentencing regime, or whatever others in the community are trying to label it. I do not think the Attorney understands that there are many other offences in this category. I was simply hoping to move that assaulting police and emergency workers is deemed serious enough by this parliament to be included in that set of offences, and I am sorry that it has not been included today. We will press on, though, so that ultimately we arrive at a bill that properly protects emergency workers and police.

Similarly, my amendment No. 8 would have repealed the entirety of section 6. We have traversed this ground fairly well already, so I will not go over it. As well as the assault police provisions, which are a no-brainer, it would have repealed the hinder and resist provisions. Police officers tell me that the hinder and resist provisions are inadequate in the Summary Offences Act.

When an officer is inadvertently harmed during part of an arrest or any operation, the current laws are often downgraded to a resist or hinder in the Summary Offences Act. There is no remedy, so what we have both done with assault police today is make sure we cannot charge a lesser offence. If we adopt the bill the Attorney has put before us today, we will retain these lesser offences when police officers are harmed in one of their basic functions, which is to arrest offenders.

Schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:57): I move:

That this bill be now read a third time.

Again, I express my appreciation to the opposition to work as cooperatively as we can. There is a difference, and I accept that, but we are very pleased that this is the situation. I want to thank our long-suffering advisers, who have put in a sterling effort in helping to advise me, and I hope that they have been of benefit to the committee.

The DEPUTY SPEAKER: Member for Elizabeth, this is a little bit out of order on both sides, but I will cut you some slack. I will indulge you.

Mr ODENWALDER (Elizabeth) (17:58): This is the third reading; I can go for as long as I want.

The DEPUTY SPEAKER: Yes, away you go, at two minutes to six.

Mr ODENWALDER: I simply want to thank the Attorney for bringing this bill. Its passage through the house today in no way indicates our overall support for the measures in the bill. We still retain some very grave reservations about the bill and we absolutely reserve our right to explore those to the fullest in the upper house. I look forward to following that debate with interest.

Bill read a third time and passed.