Bills

COVID-19 Emergency Response (Bail) Amendment Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:51): Obtained leave and introduced a bill for an act to amend the COVID-19 Emergency Response Act 2020. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:51): I move:

That this bill be now read a second time.

I am pleased to introduce the COVID-19 Emergency Response (Bail) Amendment Bill 2020. The bill seeks to protect prescribed workers, including front-line emergency workers, hospital workers and others employed in retrieval medicine, through amendment to the recently passed COVID-19 Emergency Response Act 2020. The bill also promotes general community safety as it seeks to protect private property from intrusion.

Section 10 of the Bail Act 1985 currently provides that if an eligible person applies for bail, the bail authority should release the offender on bail having regard to a number of different factors. Accordingly, in most cases there is a presumption that bail should be granted. The presumption of bail is reversed in particular circumstances which are set out in section 10A creating a presumption against bail. This section provides that bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.

A prescribed person is someone who has committed a particular class of offences and therefore does not have the presumption of bail. Members would be aware that one of the prescribed parties already in that list is a person who is a member of serious and organised crime and has offences in that regard.

What constitutes a prescribed applicant will be temporarily broadened during the COVID-19 pandemic by clause 3 of the bill to include those charged with the following offences: firstly, serious criminal trespass in residential and non-residential premises and criminal trespass in a place of residence; and secondly, any offence against the person that is aggravated due to the victim falling into the category of a person who was acting in the course of a prescribed occupation on a paid or voluntary basis for the purpose of section 5AA(1)(ka) of the Criminal Law Consolidation Act 1935 and the victim was acting in the course of their duties.

This includes emergency workers, those employed to perform duties in a hospital, and those employed in retrieval medicine—that is, medical practitioners, nurses, midwives, security officers or otherwise—and medical or other health professionals attending out of hours, on an unscheduled callout or assessing, stabilising or treating a person at the scene of an accident or other emergency in a rural area. It also includes passenger transport workers, police support workers, court security officers, bailiffs under the South Australian Civil and Administrative Tribunal Act 2013, protective security officers, and inspectors under the Animal Welfare Act 1985.

Thirdly, an offence against either section 20AA or 20AB of the Criminal Law Consolidation Act 1935 provides for causing harm to or assaulting certain emergency workers, and the further offence involving the use of human biological material. Members will note that was frequently referred to as the spitting and biting provisions.

The COVID-19 pandemic has placed property, particularly commercial and small business premises, at greater risk of exposure to crime due to the necessary policy of requiring people to remain at home as much as possible. South Australia Police have recently stated that there has been a spike of 28 per cent in non-residential break-ins compared with the same period last year—that is, 1 February to 20 April—where businesses have needed to close their doors during the virus.

The Commissioner of Police who is, of course, our State Coordinator under the State Emergency Management provisions, noted that we are now seeing businesses that are unattended and not being managed in a way that they were previously, and therefore at a higher vulnerability. As a result, the presumption of bail is to be temporarily reversed for those who commit serious criminal trespass in residential and non-residential premises and criminal trespass in residential premises in order to protect public safety, which includes private property.

Further, the safety of emergency service and front-line personnel is paramount. In light of the current enforceable restrictions placed against the community, front-line emergency service workers may encounter members of the public who do not accept these restrictions. The imposition of specific bail conditions that protect these workers—for example, by preventing offenders from contacting emergency services workers such as medical practitioners—is at the discretion of the court.

Instead of relying on the imposition of such conditions to ensure their safety during this time, the bill makes it clear that the presumption should be against bail in these circumstances. To ensure that these provisions only operate for the period already agreed to by the parliament, these amendments are to schedule 2 of the COVID-19 Emergency Response Act 2020 and will therefore only operate while that act operates. This aligns with the request of the State Coordinator for these changes to be only in operation for the period of COVID-19.

That act will expire on either the day on which the relevant declarations relating to the outbreak of COVID-19 within South Australia have ceased, provided that I am satisfied that there is no present intention to make further declarations, or six months from commencement of the act, whichever is the earlier. The government is focused on the safety of all South Australians and is taking decisive steps to stop the spread of COVID-19 in SA. Like all measures, we are acting on the advice provided by experts, including the State Coordinator, the Commissioner of Police.

As shown through swift action, such as the introduction and passage of the COVID-19 Emergency Response Act, we have seen remarkable results so far in our South Australian fight against the COVID-19 pandemic. I commend the bill to members and I propose to insert a copy of the explanation of clauses.

In concluding, I want to thank in advance members of the opposition for indicating their cooperation in the consideration of this matter in an expedited way. Again, we are not in normal circumstances. We do not ask for there to be consideration except in these types of situations of emergency, but we do appreciate their cooperation and understand that we are bridging a process not just in time for the consideration of the parliament but, indeed, in direct response to the submission to me from the Commissioner of Police on 9 April, that we deal with this matter.

There are some other matters in his list which he has been advised we are looking at for the May sitting of the parliament but they will, as best we can, go through the normal consultation process. I can say quite clearly that this has not been a matter that has gone through any extensive consultation, but certainly we have received advice from the police commissioner and the Crown Solicitor's Office to ensure that we are doing all this properly, of course, as well as Legislative Services and parliamentary counsel, both of which are attached to myself as Attorney-General. It has limited consultation for the reasons already stated, but I commend the bill to the house.

The DEPUTY SPEAKER: Attorney, are you seeking leave to insert the explanation of clauses?

The Hon. V.A. CHAPMAN: Yes.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of COVID-19 Emergency Response Act 2020

3—Amendment of Schedule 2—Temporary modification of particular State laws

This clause amends the Schedule of temporary modifications of particular State laws to include temporary modifications to section 10A of the Bail Act 1985. The temporary modifications specify a number of additional offences against the Criminal Law Consolidation Act 1935 that will attract the presumption against bail during the COVID-19 period.

Mr ODENWALDER (Elizabeth) (16:00): I do not need to indicate the opposition's support because the Attorney has already indicated the opposition's support for the bill.

The DEPUTY SPEAKER: Member for Elizabeth, you are also the lead speaker?

Mr ODENWALDER: I am indeed the lead speaker and, I believe, the only speaker on the bill. We do support, certainly through this house anyway, the COVID-19 Emergency Response (Bail) Amendment Bill 2020. Last year, of course, we saw the passage through this place of Labor amendments to the Criminal Law Consolidation Act, which gave emergency workers, police officers, ambos, transport workers and others far greater protections under the law than they previously had.

Members will recall that the new provisions made it very clear to the courts and to the crooks that attacks on our front-line workers were not only reprehensible but essentially constituted an attack on the rest of us, on society, and should be punished properly and appropriately. Of course, COVID-19 has changed everything. It has amplified the need for protection for our front-line workers, which is why the opposition has offered to work cooperatively with the government on any measures that might provide such protection.

That is also why in our last sitting we supported the government on a whole range of measures that effectively enhanced the powers of the police commissioner acting as State Coordinator and gave him the tools that he needed to protect the rest of us. In fact, we supported the initial COVID act, as it is now, despite being given very little notice of any of its measures, as well as its very speedy passage, because we recognise that these are extraordinary times and we should all be striving to work together, on the advice of experts, in order to protect our community.

In that spirit of cooperation we support this bill. I do note the Attorney's comments about consultation and I take on board her explanation of the need for some urgency for this bill. I was certainly advised through The Advertiser on Monday morning, and I sought and received a briefing—which was a very good briefing and I appreciate it—at 1.30 yesterday. I appreciate also the Attorney's comments that any further emergency measures related to the COVID emergency will be better consulted, that the police commissioner has already made some submissions to her in regard to the next round, if you like, of the COVID emergency measures that he sees as necessary.

As I said, we do support this bill, and I want to thank the Attorney's staff, etc., for providing me and the shadow attorney with that briefing yesterday. In supporting this bill, we of course maintain our right, and our obligation indeed, to interrogate the bill, and if necessary to discuss any changes or amendments between the houses, but we have absolutely no intention of unnecessarily hampering the progress of the bill.

As I understand it, the bill reverses the presumption of bail for offenders who commit certain offences, but only during the COVID-19 pandemic. It does this by temporarily modifying the list of applicable offences in section 10A of the Bail Act. Members will be aware that such offences that are mentioned in section 10A of the Bail Act are very serious offences indeed, ranging from murder to serious drug offences and terrorism offences, as I think the Attorney mentioned. While we support it, it has to be recognised that to include assaults on all front-line workers is a very serious move to protect these workers.

The workers it applies to are the same workers as those in the changes to the Criminal Law Consolidation Act that we saw last year. It includes people like police, emergency workers, medical and health practitioners in a range of settings, passenger transport workers, court security officers, bailiffs, protective security officers and animal welfare inspectors. As the Attorney said, it also specifically includes offences charged under 20AB, which concerns the use of human biological material.

The Attorney has advised that the State Coordinator has requested these changes in light of the increased risk posed to front-line emergency workers during the COVID-19 pandemic. In short, it means that anyone arrested for any of these types of offences would ordinarily not be entitled to bail; that is, their usual presumption to bail is reversed, unless there were very special circumstances. This is entirely appropriate, given the COVID-19 emergency, and the opposition of course supports this measure.

The bill goes on to apply the presumption against bail to people charged with serious criminal trespass in residential and non-residential premises and criminal trespass in a place of residence. The Attorney advises that there has been a spike of 28 per cent in non-residential break-ins, compared with the same period last year. The assumption is that so many businesses are currently left unattended for longer periods or entirely.

It has to be said that the need for a presumption against bail is perhaps not so clear here. The policy intention is not as clear as the protection of emergency workers. Is there evidence, for example, that the same people are consistently involved in these offences? Are they committing them while on bail? I would appreciate it if the Attorney could flesh that out a bit, either in her closing remarks or in the committee stage. As I said, of course we will not delay the measures in this place, particularly if the State Coordinator has asked for them to be enacted. But I do ask the Attorney to make the case for those other changes around serious criminal trespass, etc.

I came into this place two weeks ago with a proposal to significantly increase penalties for the types of assaults we are talking about, particularly the spitting, coughing and biting types of offences that we have discussed so often here and that are just so dangerous to our front-line workers and, by extension, to all of us during this panic. It has to be said that the government's response to the increased risk posed to front-line workers should and could have been much stronger and much quicker in coming. Perhaps tomorrow morning will get some answers on the record to why the Attorney does not believe that these other types of new protections are warranted.

As I said, we have worked cooperatively on every measure so far and offered to work with the government on our own initiatives. It is a pity the government has not chosen to take up that offer. However, as I have previously indicated, we will not be opposing this bill. I look forward to asking a few questions in the committee stage.

Mr TEAGUE (Heysen) (16:06): I rise briefly to make some observations about the temporary changes that are the subject of the bill. We are living in extraordinary times. We are living in the course of a public health emergency, the result of the global COVID-19 pandemic. Extraordinary times call for extraordinary measures, as they say, and the temporary measures that are the subject of this bill are in that category, in expanding, as they do, the range of charges for which there will be a presumption against bail. They will be included in the list of offences that are set out in section 10A(2)(d), in particular, of the Bail Act.

I want to make clear, first of all, that in the way that bail works—and this is the subject of section 10 of the Bail Act—there is no such thing as automatic bail. However, for the majority of offences, someone who is charged has an opportunity to apply for bail, and the bail authority will exercise a discretion after considering a range of factors. Section 10A of the Bail Act provides for special circumstances in which there is a presumption against bail.

I hasten to add that one important feature of the machinery of section 10A is not so much that the presumption against bail operates according to the gravity of the offence but rather according to its nature, its character. Those offences that are the subject of section 10A are by and large of a common character. There are some very grave offences indeed that are not caught by section 10A, perhaps chief amongst them is murder itself: there is no presumption against bail in relation to murder. The relevant point, though, is that the bail authority in section 10 will have regard to the gravity of the offence in deciding whether or not to grant bail in those circumstances.

The reason why there is a presumption against bail in relation to certain specific offences is that those offences, by their definition, are of a character that includes violence, particularly in domestic circumstances, urgent protection and perhaps the repetition of such behaviour, and those offences, by their nature, are threats to the public, to public authorities or to public processes and the granting of bail in circumstances of charges of that nature might, therefore, run a particular risk to either individuals or public authorities in those circumstances.

Just to underscore that point, the offences that are presently listed, set out in section 10A(2)(d), that are added to by those that are the subject of this bill, are five in number. They are, firstly, an offence against section 20A of the Criminal Law Consolidation Act, which is choking or strangulation in domestic circumstances; secondly, an offence against section 85B, which is the offence of riot; thirdly, an offence against section 172, which is blackmail; fourthly, an offence against section 248, which is concerned with threats or reprisals in relation to a criminal or a judicial investigation; and, fifthly, an offence against section 250, which is concerned with threats or reprisals against public officers.

In rising to make those observations about the way in which section 10A works, and highlighting the character of the offences to which it applies, I am wanting to emphasise both the very special circumstances of emergency in which the offences that are peculiarly within the scope of heightened public concern in the course of an emergency are all the more brought to attention in terms of necessary police powers to prevent the occurrence of those particular offences, and, as it were, put the charged person out of commission in a more certain way. They are very special and particular circumstances indeed.

I would say particularly the group of offences that are the subject of part 6A of the Criminal Law Consolidation Act relating to serious criminal trespass in a residential or a non-residential context in ordinary times would not come to any particular attention or consideration, in my view, relevantly in relation to a presumption against bail for the reason that in ordinary circumstances those offences are not of the character that is otherwise common to those that are the subject of section 10A(2)(d), but they are right now, and for reasons that the Attorney has described. They are right now because people are staying at home. They are not tending to their farm or holiday home, which is remaining vacant.

We are told that businesses are substantially less attended and monitored at this time also, with the result that there is a special superadded vulnerability to those who would, much like a looter might in circumstances similar to this—and I might say, it is an extremely low act—take advantage of the public emergency, take advantage of people in this state acting on the advice of our health authorities and staying home, take advantage of that particular vulnerability and act therefore contrary to the public interest in engaging in conduct that might attract charges of serious criminal trespass in a place of residence or a non-residential building.

As the Attorney has indicated, we are advised by police that there has been a significant increase particularly in non-residential trespass in the order of a third on that front, just short of a 30 per cent increase, and that this is a measure that will considerably assist police in these present circumstances. It is important that we do all we can in these particular circumstances to assist police in going about the work that they do in protecting the public. It is with those words, in particular highlighting the character of offences that are properly the subject of section 10A, that I commend these emergency measures, the subject of the bill, to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:17): I thank the member for Elizabeth for his contribution and of course the member for Heysen for his erudite contribution as well. A number of issues were raised during the course of this consultation, brief and abridged as it has been. Can I just place on the record some information that I have received, which has come from the Attorney-General's Department but, as I understand, largely relates to information provided by SAPOL.

Firstly, in relation to consultation on the bill, as I indicated, the usual suspects have not been consulted. We did send—by email, I think—copies of the bill last Friday to the Chief Magistrate, Chief Judge of the District Court, Chief Justice, the state courts coordinator, the Aboriginal Legal Rights Movement (ALRM), the Legal Services Commission, the Law Society and the South Australian Bar Association. I am not expecting for one moment that any of them were able to necessarily digest and have an opportunity to advise on this. They were really provided as a matter of courtesy.

Although it is a very short bill, it still requires some consideration for obvious reasons. Most particularly, this is a very short-term bill that is proposed. I have explained the reason we have done that. A question that was otherwise asked was: is there a criminal trespass offence, a non-residential offence, that has not been included in the bail bill? I am advised that there is only a serious criminal trespass offence in the Criminal Law Consolidation Act (CLCA) for non-residential premises. There is no similar offence to 'Criminal trespass—places of residence' as set out in section 170A of the non-residential premises in the CLCA.

A further question was: what is the rationale for including residential premises in the bill and not just non-residential premises? The information I have been provided is that SAPOL requested these amendments; indeed, I was just rechecking my 9 April memo from the police commissioner as to making provision to help achieve a greater level of public safety during the emergency other than through reliance on strict bail conditions alone.

Can I add to that by saying that, although we do not have some of the data that has been sought, the question was asked: is there any information about who is committing the serious criminal trespass in non-residential buildings, and is it the same people reoffending? SAPOL has advised that it is currently running Operation Hurricane II, which probably the member for Elizabeth is more familiar with than I am, but I have lots of operations, of course.

This operation, I am advised, is aimed at reducing volume crime, including serious criminal trespass. The SAPOL intelligence function constantly looks at crime trends, and in this case has identified several instances where recidivist offenders have been involved in recent crime series, including serious criminal trespass on commercial premises. SAPOL cannot, however, provide an exact number on how many offenders are reoffending.

The next question was: why were the offences under section 5AA(1)(ka) included in the bill as it appears that the offence in section 20AA would adequately cover all those references in section 5AA(1)(ka)? The answer, I am advised, is that the offences that refer to section 5AA(1)(ka) of the CLCA and section 20AA are two different groups of offences. It was decided that there needed to be reference to both groups to ensure full coverage of offences against emergency workers in the bail bill. One relates to assault and the second relates to bodily fluids; and I hope that, when he has a look at that, the member can fully appreciate that.

The only other matter, which I think is a reasonable question, relates to any data of residential—that is, home invasion—as such for the purposes of causing looting, or damage or indeed even worse: if somebody is present in the home, that is, the family is sleeping or something of that nature. These types of examples carry different levels of penalty. But what is most important is that, at the moment, we do not have any extra data of increased serious criminal trespass into residential properties, but I do not think it would be unreasonable to take into account a number of things.

First, pretty much everyone has been confined to living in their own premises to the extent that our movement has been significantly restricted. For those who are not involved in occupations that are continuing, that is, employment or voluntary service, there is a large cohort of people, especially over the age of 70 years, who have been strongly advised to remain at home.

Obviously, as the Premier has outlined today, we have a much greater level of capacity and opportunity to go out, shop, have medical treatment, go to the local park, walk on the beach, take the dog for six walks a day, whatever we are doing to keep sane during this period, but also there are a large number of people who are still undertaking employment. I think that it is not unreasonable to extrapolate from that that obviously there are not a lot of empty houses that are the usual dwelling place of residents in South Australia.

But it is also not unreasonable to take into account that we have a lot of other homes that are empty other than for the purposes of seasonal or holiday occupation. As the member is aware, there has been a very strong recommendation from the State Coordinator that those of us living in our homes not go out to country regions during Easter particularly, and school holidays, and that we, for the want of a better description, holiday at home, and that we try to ensure as best we can that we minimise the transmission into regional areas.

With the Easter period in particular having come and gone and during which there has been an enormous amount of goodwill and compliance with this request, we have not moved to anywhere near the level of restriction or shutdown that has been experienced in other states. But it does leave a number of properties vulnerable, and if there was ever an example of where that has actually happened, can I use the most recent bushfire circumstances in South Australia where houses are damaged or destroyed, property is left vulnerable and unsecured and in which there is no occupant to be able to assist in the security in relation to that property.

Unfortunately, properties have been accessed, particularly in relation to farm areas, and there has been occasional looting. More concerning, really, is that even when the new fencing materials arrive and they are put on the side of the road, sometimes people just come along and help themselves. These types of terrible situations—whether it is a bushfire or COVID-19—bring out the best in people and sometimes they bring out the worst. That is a very real and recent experience that leaves me in no shadow of doubt that the police commissioner's advice in relation to this issue for this period of protection is worthy of our consideration and support. On that basis, I thank members for their indication that they will do so.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The CHAIR: We have just three clauses on the amendment bill. Do you have questions on clause 1, member for Elizabeth?

Mr ODENWALDER: I will begin by thanking the Attorney for some of the answers provided in her summing up of the second reading explanation; that has been very helpful. I also thank the member for Heysen. His explanation of the character of the offences to which 10A applies was very useful and answered some of my questions, so I want to thank him as well. I do have some questions, though, and I will be brief. As I said, it is not my intention to delay the passage of the bill.

I have a general question about the measures contained in the bill. Was any thought given to making any of them permanent? Was that discussed at all; and what is your view of making any of these measures permanent? I understand it is not possible with this bill.

The Hon. V.A. CHAPMAN: The State Coordinator—namely, the police commissioner—had not sought that they be permanent. That is the first thing. Secondly, he sought other measures that he thinks should be considered and hopefully, from his perspective, supported by the parliament. He did not identify that as being something that needed to be as pressing, if I can put it in that category, bearing in mind that, as the member would be aware, we are amending the COVID legislation that we passed only 10 days or two weeks ago.

The State Coordinator was given significant other clarifying and extended powers for the purposes of that legislation—and there was quite a list of them—that in his assessment were needed to ensure that his officers were fully able to undertake their duties. I do not need to repeat those; we have passed them. Parliament accepted that that was the case. The government of the day thought that they were appropriate, and we had all the advice in relation to them. So we are really adding on an extra interim measure.

Firstly, he did not ask for this to be permanent. Secondly, if he had sought that it be permanent, I think it is fair to say that the first thing the government would have done is to try to ensure that we look at this much more in the usual process, namely, that consultation occurs, that there is an opportunity for submissions to be presented and that the opposition and everyone here in the parliament has time to fully address that on the basis that it is a proposed permanent measure. Obviously, given the time frame, we have not been able to do that.

If we were to introduce something permanently, as distinct from an urgent matter which we expedited and where we shortcut things, which includes making all of us in the parliament have to address something quickly, then we would need to be very clear as to the narrowing of that and be precise in exactly what had been sought. As a government, we felt that there had been a case presented for this, for these particular reverse onus of bail matters.

I think, as I have indicated certainly publicly if I have not to the parliament, I mention that there are some other child protection matters the police commissioner has raised with us. They are matters which do require a little bit more work to be done and also for people to be consulted, and it has not been suggested that they are so urgent that they need to be done at this stage. We have really relied on the judgement of urgency by the commissioner and, in light of that, we have accepted a very abridged and otherwise unacceptably short period for consideration by the parliament.

Mr ODENWALDER: By way of a supplementary, you mentioned in your second reading contribution this 9 April submission from the commissioner, so presumably that talks about the provisions in this bill and about the addressing of some child protection matters. Are you able to expand at this stage on what those measures might be and whether there are any other measures requested as part of what we might be considering in what would be the May session of the parliament?

The Hon. V.A. CHAPMAN: For obvious reasons, I have explained to the parliament before that we do not make provision of these minutes available, but I will try to indicate to you as best I can. I was just trying to find you another reference to exactly the words we used, which indicated that it was during the period of the emergency; I just cannot find it immediately, but it is there. The issue in relation to child protection matters relates to police powers under the Children and Young People (Safety Act) 2017 and also largely relates to the rank of the police officer under that act who can carry out responsibility.

In relation to other matters, he points out that there are provisions of the Summary Offences Act that set out good examples of how this temporary extension of powers might be structured, so he is even very helpful in giving us some advice as to where we might also find some precedent; otherwise, there is some advice in relation to those matters. Can I say, though, that in addition to this memo of 9 April, which covers the matters which are the subject of this bill, there are ongoing discussions with the Coordinator. I do not by any means suggest that what he is seeking for the May bill is exhausted by that memorandum.

One of the issues that I know has recently put been under consideration is how we process a notice from him to me as Attorney-General under the Emergency Management Act for a circumstance where he wishes to cancel the declaration period. He can give notice to me under the act of the intention to cease the declaration that puts him in the State Coordinator role, but there is no time frame on that.

In fact, today in question time in parliament some questions were along the lines of asking what sort of notice are we going to get as to changes of circumstances, hopefully as we are going to the upside of this event. One of the issues I am dealing with at present is what sort of notice he needs to give to me as the representative person under the act, who then, of course, would advise government of decisions to be made for public distribution of that.

They are the sorts of machinery things we are having to look at for the very first time because, as you know, this is the first time the Emergency Management Act has actually been exercised for the purposes of a state emergency. I give you that example because there are other things coming up from time to time that all the clever people in my department are working on as quickly as they can to try to make sure that we action what has been determined—and the determining party is the State Coordinator—and ensure that we bring into effect any regulatory obligation or legislative change consistent with things that are canvassed at the federal council level.

They are coming up with ideas all the time. For example, the Prime Minister announced on 29 March that we would protect tenants in commercial and residential tenancy arrangements. That was a great idea, Prime Minister, but we actually have to change the law. As you know, a couple of weeks ago we implemented the law that provides that protection. Some of these things obviously have to be actioned through us as a parliament to make sure that we can provide the protections that have been signed up to at the COAG level.

It is a moving feast. We are resuming the parliament in the next sitting week on 12 May, as I am advised, and the parliament has already determined that in fact. Although we have added this sitting week as a parliament, we will be back then and, although that is fairly soon, we are still working on what I call COVID bill No. 3 in my schedule. We will provide that as soon as we have it pulled together for consideration by relevant parties, including you, sir, as the member for Elizabeth, as you are an important part of the parliamentary process in progressing these matters.

The CHAIR: Further questions on clause 1?

Mr ODENWALDER: If you will be so generous, sir, there is a very quick one. This is just about consultation. I appreciate that the Attorney has been quite fulsome in her explanation about the consultation, or the necessary lack thereof. However, why was PASA or any other worker representative groups affected not consulted in the same way that whoever else was consulted? Why were those unions not consulted?

The Hon. V.A. CHAPMAN: I had not thought to consult PASA, given that it was a matter arising from the police commissioner himself, but I agree with the member that in the ordinary course of consultation they would be a logical group to consider matters. However, it seemed to me that the people most important to consult were in the Corrections division because they were the ones who were actually going to have to accommodate people who were going to be held in custody. That occurred—and I made that very clear.

I had a meeting with the minister for corrections, who also happens to be the Minister for Police, and the head of Corrections, the chief executive, Mr David Browne, to be satisfied that there is sufficient capacity. He also had conversations with the police commissioner. They are a key group.

Another key group is the courts, because if there is a presumption against bail and if there is going to be an increase in requests for applications for bail which might be more hard fought, then it is a matter for their advice or they are entitled to have some contribution to it. All I am saying at this point is that we gave notice on Friday.

Whether they have even read these, by the time we are actually looking at this, in any meaningful way to be able to consider it, I am not in any way expecting that they have really had an opportunity in the normal course to do that. It was really a matter of saying, 'Look, this is what we are dealing with and if there's some urgent matter that you need to address with us we are here,' but at this stage, unsurprisingly, I have not had any feedback on that. That is probably good and bad.

Mr ODENWALDER: You haven't had feedback from Corrections?

The Hon. V.A. CHAPMAN: No, I have met with Corrections directly and the minister, and I obviously had the material from the police commissioner, who is the State Coordinator. That is the extent of the direct consultation, but the Friday list, which I have read in, complements that.

Clause passed.

Clause 2.

Mr ODENWALDER: With your indulgence, I might ask something of a supplementary to the Attorney's previous answer since it is all interrelated. In your discussions with Corrections, has there been any increase in bailing by any bail authority in response to the COVID emergency? For instance, in other jurisdictions we have seen prisoners, remandees or whoever more easily bailed or more easily released in order to release pressure on the prisons. Has that been discussed or indeed has that happened at all?

The Hon. V.A. CHAPMAN: I am aware that there has been a release by the chief executive, who already has powers under the corrections law to release prisoners. There are certain restrictions on that as to the nature of prisoners. In fact, as the member may be aware, there is a continuing direction from the minister, which followed previous corrections ministers' directions, to the chief executive in respect of child sexual abuse offenders; that is, they do not get a chance to be released through that process.

Certainly, during the course of the COVID matter during March and this month of April there have been a number of initiatives in other jurisdictions. We have monitored those and there have been none that have been brought to our attention by Corrections here as being in need of them. At first blush, I must say a lot of them our Corrections chief executive already has, in the sense of the power to release, to effectively parole them out himself. So South Australia had fairly generous—if I can describe it as that—powers already.

Some have been released, consistent with his lawful powers. One of the other matters needing to be considered under the whole plan for the COVID-19 situation is how we as a state mobilise the circumstances of prisoners if COVID-19 gets into any one of our prisons or correctional facilities. That is a plan I have discussed at length with the chief executive, because we have a number of facilities across the state. I am advised that each unit has, in the plan already set out by Corrections, an area in which they are able to be isolated in those circumstances.

Secondly, they have initiated a thing called a one single entrance policy—'policy' is my word but it probably has some other clever description. Essentially, it is to make sure that there is a very close eye on who comes in and out of a prison, more than usual, because—

Mr Odenwalder: That is a good idea.

The Hon. V.A. CHAPMAN: As I say, you would expect that in any event, but to make sure that there is a clear line of sight, or temperature or whatever is going to be used, to make sure that we minimise the risk of it coming into the prison. Obviously, there has also been some restriction on access by visitors to prisons, other than legal representatives and the like. I think even a number of rehab programs are being done by AVL and some have been suspended. I have had briefings on all those sorts of things and, in that context, a number of these are as a result of the chief executive of Corrections having weekly—it may be daily, actually, but certainly at least weekly—contact with his colleagues around the country.

I know that, only a week or so ago, New South Wales, for example, had to deal with I think two prisoners testing positive for COVID-19. I suppose we have had the benefit of learning what they have done in relation to their facilities, but if we are going to potentially impose an extra load onto Corrections, I certainly felt—and the Minister for Correctional Services certainly agreed—that we needed to consult with the minister about the capacity there. He confirmed to me that he had already had discussions with the police commissioner about this issue. For all of that, I was satisfied that he had not only comprehensively set up a good plan for his own departmental management and for the protection of both prisoners and correctional workers but also confirmed his capacity to be able to accommodate the commissioner's request.

Mr ODENWALDER: By way of clarification, and I do not mean to be difficult, you are saying that there have been some releases that are related to the need to accommodate COVID, or have they just been ordinary—

The Hon. V.A. CHAPMAN: I have not inquired as to whether they specifically related to COVID. I had understood them to be in the ordinary course of the prison processes, of the chief executive being able to authorise the release of prisoners, but not in any enhanced way as a result of COVID-19. I had not understood that to be the case. I may be wrong, but that is the way I understood it.

Mr ODENWALDER: I will take the opportunity to ask if the Attorney is willing to approach the Minister for Correctional Services or the CE of Corrections for a copy, or a precis, of that plan, so that we can all understand what may happen in our prison system over the next few months.

The Hon. V.A. CHAPMAN: I am happy to make the inquiry, whether it is available publicly or whether it is available in detail. I have indicated to you what I have had from a briefing, which led me to be satisfied that it would be reasonable to come to the parliament—or to cabinet first, and then to the parliament—with an urgent bill. I wanted to be satisfied that there was sufficient capacity in Corrections to be able to accommodate that. In the course of that, I indicated to the parliament what matters I have taken into account, and capacity was the most significant.

Quite frankly, if Corrections had indicated to me that they have no capacity and would it find completely untenable to accommodate any increase, then obviously that would need to be considered. But I got the reverse: I got an indication that Corrections understood what the police commissioner was seeking and expected that it may result in some extra persons being remanded in custody and that they would be able to accommodate that, bearing in mind that they have responsibility for adult prisons and the women's prisons, some of which facilities take the remandees.

It did not relate to children because obviously that is under the Human Services portfolio, but I am satisfied in relation to the capacity of that facility—that is, the Youth Training Centre—even though at present I think that there are still some works being done at the original Cavan youth training centre. The younger children under the age of 14—there are usually only one or two of them—and the girls have been temporarily located in a unit at the newer facility at Cavan. I forget which one is on Jonal Drive and which one is on Goldsborough Road, but those children are at either one. But again there was no indication that there was going to be a problem there if a child happened to be required to be held on remand during this COVID time.

Clause passed.

Clause 3.

Mr ODENWALDER: By way of preamble, the Attorney in her summing up suggested—and this is only a minor matter really—that there is a need in the bill to include the professions listed under 20AA and the professions listed under the aggravated offences regulation, whatever that is. It is still my understanding, and I have had a good look at it, that 20AA specifically does include that 5AA(1)(ka) and so whatever regulations are made under that regulation 3(a) are automatically included in 20AA. So the question still remains why—and again it is not particularly important; it is just a question on the drafting—20AA is not sufficient. If you do not want to answer it now, perhaps I will leave it to the upper house.

That was by way of preamble. Was any thought given to broadening out the definition of 'worker' to include any other profession or were you satisfied that the definitions under 20AA and 5AA(1)(ka) were sufficient?

The Hon. V.A. CHAPMAN: Just to be clear on the record, the advice I have is very clear—that is, the reason both are listed is that they are two different offences. One relates to assault.

Mr ODENWALDER: I understand 20AB. I am not talking about human biological material.

The Hon. V.A. CHAPMAN: No, I am just saying that that is the reason that they are both there. So there is a legal reason why there is reference to both lists, as you described them. The second thing you ask is: did you consider any others? Presumably, members of parliament. I do not know, there might be other groups out there in the coalface looking after our people—

Ms Bedford: Being spat on.

The Hon. V.A. CHAPMAN: Well, hopefully not being spat on, as the member contributes. Nevertheless, in short, no. There has certainly been discussion in the general community, largely by the Australian Labor Party, about a criminal sanction around persons who work in supermarkets, I think food outlets—I cannot remember the full definition—largely to say that they are in the firing line for somebody who is angry that they cannot get toilet paper or unhappy that they have a restriction on what they are allowed to buy, on the quantity or whatever.

Firstly, there has been no request by the police commissioner for us to look at that group. I think it is fair to say—and again SAPOL has a role in this—that supermarkets introduced their own protocols for security in their precincts and good on them for doing that. Secondly, they introduced a separation policy, that is a social distancing arrangement, and limited numbers in and out of their supermarkets. Thirdly, as I understand it, SAPOL made themselves available at certain places to try to make sure that there was an orderly supervision of purchase.

Whilst during a period, there was what you would describe as a run on supermarkets for certain products, that seemed to have been handled. It may well have been that the police commissioner took the view that there was no need for us to proceed down that line and include a special list.

In relation to the groups that are already in the definition, a lot of time was spent in this house and in the other place working out who should be on the list, who were genuinely people at the front line. The obvious ones are easy: police, nurses in emergency departments, etc. But you might recall that that list was expanded during the course of debate because the AMA brought to our attention that they were concerned about doctors who might be called out to an accident on the side of a road in rural areas and we added them to the list.

The Hon. D.C. van Holst Pellekaan interjecting:

The Hon. V.A. CHAPMAN: Surf lifesaving, the minister suggests. I cannot remember whether they were already in there, but they may have been added during the course of the debate. The third area I recall was the addition of inspectors under the Animal Welfare Act. It is fair to say that both houses of this parliament gave a fair bit of attention to who really should be in that list as front liners. I suppose, depending on whatever emergency you have, there can be different ones. We tried to capture what we call the 'usual suspects', but we did not include MPs trying to do their job or shop assistants or any others. I have not had any submissions from any other group that needs to be included.

I did receive a submission from conveyancers that they should be included in the list of people who should be able to sign documents. I think they were a bit miffed that they were left off the list. In any event, I am open to consideration but we are here on this bill because this is what the police commissioner identified as the priority. I have to say, if he felt there was something else that was a priority that is not as urgent but we could put in a subsequent bill, then we will bring it to the parliament. If permanency or expansion needs to be looked at, we can look at these matters down the track.

It is fair to say that when we finish this whole exercise and we end up with some review of how the act has gone—and I have said this to the parliament before—we will need to sit down and do that and we will need to work out whether we need to make any amendments to that legislation and that model. Secondly, we need to work out whether there is anything that has come out of this horribly wicked sort of time that should be considered on a permanent basis.

One of those, for example, is the expansion of people who can sign documents—declarations—and another, which has been related to me by the Chief Justice, looks at the question of the use of AVL in court hearings. Some of that can be accommodated by the Supreme Court, District Court and Magistrates Court rules, but these are the sorts of things that I am asking certainly the divisions that are responsible to me to think about: what is something that we can translate to the longer term.

Meetings via AVL, where there was ordinarily a requirement of personal attendance, have been an absolute boon. The commissioner of business services (CBS) has the capacity to dispense with some of these matters under associations law, but groups such as the Royal Agricultural and Horticultural Society of South Australia have to have an annual general meeting. If they do not have an annual general meeting for the appointment of their board, it raises questions, obviously, as to the validity of decisions that the continuing board might make.

These are the sorts of things that come about when you think, 'Suddenly, we can't meet. We can't call on public meetings.' There are lessons like that that we have learned through this exercise, which I hope we can sit down and through some review process identify that might merit some permanent reform, but we are yet to get to that.

Mr ODENWALDER: I hope this will be my last question, and it goes to the serious criminal trespass and criminal trespass provisions. The member for Mawson actually raised this with me. He has a lot of holiday homes. We have already discussed the holiday homes and the fact that they are often sitting empty at the moment. Measures like this and indeed other penalty-based measures deal with it after the fact.

Perhaps this is a question you can take on notice. Have there been any moves or any thought given or any practical action taken in relation to better policing those homes? You would have a lot on Kangaroo Island, I assume? Has there been an increased police presence? Has there been any thought to any other security measures that could actually prevent these things happening in the first place, or any provision of CCTV funding or anything like that?

The Hon. V.A. CHAPMAN: I have not had any request in this area either by any group such as a residents association or, indeed, SAPOL themselves, in respect of seeking, I am assuming, financial support to add security doors, surveillance, cameras or dogs or whatever they might use for security in those areas. But I think you have added in something else that had not been raised before and that is: has there been some protocol or practise or operation of the police to issue a request to each of their outlying stations in coastal tourist towns, for example? And we have lots of them all across the state. I should not just say coastal; I am sure there are people who go up to Blinman and—

Mr Odenwalder: Kalangadoo—Kalangadoo might have some holiday homes.

The Hon. V.A. CHAPMAN: —Kalangadoo and other places—

The Hon. D.C. van Holst Pellekaan: Kalangadoo, Kimba, Kapunda.

The Hon. V.A. CHAPMAN: Exactly—who holiday in those regions. But, yes, there is no question that there are vacant properties—caravan parks where there is structure and so on—which are potentially able to be vandalised. I can make some inquiry with the commissioner as to whether there has been any action or whether it is part of his operation, whatever it was—operation something that we were briefed on.

An honourable member interjecting:

The Hon. V.A. CHAPMAN: Hurricane II, yes. It sounds like Katrina or something, but in any event he may have already alerted all his personnel across the state. Clearly, they were called to arms, so to speak, in dealing with transport, so there were some police officers at the ferry, at Cape Jervis, for Kangaroo Island in the lead-up to Easter. He may well have deployed a number of his officers to different regions, or he may have just sent out a message to all police stations and agents—and there are obviously smaller groups across the state—to say, 'Look, be alert. I want you to do extra patrols,' or whatever the process is as to instruction in that regard.

I am not familiar with it, but if there is anything else that I can get information on and provide, I am happy to do that, but I am not aware of any particular program that has been put in operation.

Mr ODENWALDER: Thank you, I appreciate any advice that you get; and not just the holiday homes, because it occurs to me that, obviously, there are a lot of empty businesses in the CBD, which would be another hotspot I imagine. If you can get any advice, that would be great. That is the end of my questioning.

Ms BEDFORD: My question is about the reversal of presumption of bail. I am wondering: are these provisions not already in there? For instance, I have been asked to clarify whether it is already in place, given that there is already discretion for the police to oppose bail.

The Hon. V.A. CHAPMAN: The Bail Act sets out the model and the law that is to apply to bail, and it starts with a general presumption in that law that bail will be given unless there are certain events. I think that even the member for Heysen identified a number of them: the severity of the charges, the fleeing from the region, and so on. There are lots of different factors, such as no fixed abode.

These are the sorts of things that counsel will often put in submissions on behalf of someone and say, 'Well, my client is not a risk and he'll turn up to court.' But the statute already says that there are certain areas, and I think I mentioned one of them, such as someone involved in serious and organised crime offences, that just do not get that presumption of bail.

They have to be able to go in there with the judge or the magistrate already making the assessment and say, 'Well, I'm not going to give you bail unless you can really convince me that there are some very special circumstances.' What are they? Well they could be all sorts of things. It may be that they are caring for a young child and they are breastfeeding or something.

There can be lots of circumstances where, if coupled together and that magistrate is satisfied that there are exceptional circumstances, they can then get bail. This bill is simply adding into the category of there being a presumption against bail and you have to show special circumstances for this temporary period. I hope that has made it clearer.

Ms BEDFORD: Yes, sort of. It is assisting magistrates to magistrate, basically. The case has been put to me of perhaps an 80-year-old person who might be taken away by an ambulance worker, for instance, and not understanding why. They could have dementia, who knows, and they strike out. Your bill is going to catch that person, surely, rather than leave it to the magistrate to use their discretion. You admit that your bill is immediately going to put that 80-year-old person with dementia away?

The Hon. V.A. CHAPMAN: I am advised that your adviser asked the specific question in the briefing, and so I will try to place it on the record for you because he asked what constitutes 'special circumstance'. Just in the last answer I was saying that it could be a number of different things, including the age of the person who is being charged. He was asking, in order to justify release on bail, what was likely to occur in relation to an 80 year old who assaults an ambulance worker. Should they be granted bail?

The advice I have received, which I understand he has been given but I will repeat, is that the court takes a wide approach in determining any special circumstances, and an applicant will need to demonstrate that he or she does not pose a risk which parliament had contemplated in reversing the presumption of bail.

In the case suggested, the man may not be charged under section 20AA with assaulting an emergency officer unless it can be established that he knew that the person was an emergency officer—often they have to be in uniform, for example, to show that they are—as he would have the defence available to him in section 20AA(5). Assuming knowledge can be established, the court would have regard to the applicant's age, the seriousness of the offence and any medical condition he might have, such as dementia, which might cause him to suffer any unintended hardship or injustice whilst being imprisoned, in determining whether the applicant has established special circumstances in considering whether to grant bail.

That is the advice I have received and I understand your adviser had received. In any event, age and obviously the circumstances of his health can be presented to the magistrate. With that, the magistrate might need to be satisfied that he has a permanent place of residence and that he is prepared to sign a bond that he is going to stay within the South Australian jurisdiction. I am just adding these at this point, but all those things are taken into account by the magistrate in determining that. If the police prosecutor or the DPP opposes bail—which they can—then obviously those arguments have to be made and they have to be able to present that for a decision by the magistrate and/or judge.

One person did ask me, although I do not think it was in the briefings (it might have been on radio) what happens if the declaration of a state emergency ceases in the operation of this. I gave an example of when somebody might be arrested on Friday, the application for bail comes on Monday and, meanwhile, on Sunday morning there has been a cessation of the declaration and so the reverse onus of bail changes. Having being kept in custody, he then can apply back to the court to revoke the circumstance to enable the bail to take place because the law has changed—automatically.

Mr Odenwalder: On the Sunday morning?

The Hon. V.A. CHAPMAN: No, on the Monday. I have given an example of Friday to Monday: there has been a change in the meantime, he has been kept in custody, but he now says, 'This has changed, the declaration has finished, the operation of this bill lapses and it discontinues,' so he is back into the category of being in the presumption of bail. He can then go back to the court and say, 'I now want to be let out because I am no longer in this category. This law no longer applies.'

Ms BEDFORD: One last question: so you are satisfied that this is not a sledgehammer rather than a nutcracker?

The Hon. V.A. CHAPMAN: I am satisfied that it is a very small nutcracker, and it is almost like a plastic one. It is like a disposable one that only lasts for a certain time. It is designed to be for a temporary period and severe enough to deal with this particular cohort of offenders, covering abuse and misconduct toward front-line workers in addition to the issue of serious criminal trespass. We are not talking about all other offences; we are just talking about those that the police commissioner has identified as critical to this area but most likely to be a problem for him.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:09): I move:

That this bill be now read a third time.

I place on the record my appreciation to both the Commissioner of Police as the State Coordinator for the work he is doing, and to my advisers during the course of the development of this bill, and particularly Kelly who has been here today. We have called upon these services in the Attorney-General's Department at all hours of the day and night and over weekends, and I appreciate their continued support to address the emergency that we are facing. I also conclude by thanking other speakers and the opposition for supporting the bill.

Bill read a third time and passed.