Bills

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

Second Reading

Adjourned debate on second reading.

(Continued from 2 August 2018.)

The PRESIDENT: Leader of the Opposition.

The Hon. K.J. MAHER (Leader of the Opposition) (17:01): Mr President, I thank you for letting me speak again. It is very generous of you.

The Hon. T.J. Stephens: Try not to stretch the indulgence any further.

The Hon. K.J. MAHER: And I also thank the Hon. Terry Stephens, president in waiting. Do I have to get permission from both the President and the president in waiting to speak? I am happy to do that in the future.

The PRESIDENT: You are trying the friendship, Leader of the Opposition.

The Hon. K.J. MAHER: Thank you for your friendship, Mr President.

The PRESIDENT: The chamber awaits your comments on this bill.

The Hon. K.J. MAHER: I rise to indicate Labor's support for this bill, and I indicate that I will be the lead speaker in handling the bill for the opposition in this place. The issue at the heart of this bill is an important one and one which we take very seriously. For this reason, I believe it is important that we strike a bipartisan position on this legislation, and that is what we will seek to do. Both Labor and the Liberal Party have been supportive of similar legislation previously, before the election, and I am pleased to indicate support, although there will be a few questions.

The primary purpose of this bill is to give certainty. Our police officers, who put themselves on the line every day to protect Australians, have to make some of the toughest possible decisions under trying circumstances. In those circumstances any uncertainty can make the difference between life and death. We saw this in the Lindt cafe siege, the incident which sparked this call for legislative change in New South Wales.

There, two officers had the hostage taker in their sights but did not act because they were not sure whether he constituted an imminent threat. Now, it has been noted that it is entirely possible their actions would have been in line with the law as it stands, but the fact remains that they did not know for sure. It is that lack of clarity which this bill aims to correct.

Some in the media have labelled this 'shoot to kill' legislation, which is somewhat misleading. Officers already do have considerable power to stop a threat, and they are given a detailed matrix of possible responses, from de-escalation to lethal force. Obviously, peaceful solutions will always be preferred, and this bill does not stand in the way of those. It simply acknowledges that there will be times where lethal force is necessary in order to halt a greater loss and provides a restricted framework in which it will be legally protected. It is not a new power but rather a limited extension of existing powers. In essence, it is about recognising the changing face of terrorism.

That is also the reason behind the anonymity provisions, which require a court to be empty before any police officer is identified and prevents the name or image from being published unless either they consent or the Supreme Court requires it. This is a necessary part of the bill to protect officers not only against criminal liability but from the threat of revenge or intimidation by others from any terrorist group targeted under this legislation. The opposition would not support this bill unless it believed that these two provisions together were robust enough to protect police officers dealing with terrorist acts.

Ultimately, the bill allows for the police commissioner to declare an incident a terrorist attack, a term which is already defined in federal legislation. There is also an argument, which I understand the police were in favour of last year, to include situations outside of the narrowly-drawn terrorist act definition. The most common example of this would be in the case of high-level domestic abuse. Where this turns into a siege, that may create a situation much like that of a terrorist threat, and where there may be a high risk of danger that does not fall under the typical picture of imminent threat.

I understand that for special forces responding to sieges, there is some protection awarded already and that may be something worth looking into again in light of these new recommendations. However, as I have stated, that is a matter for another day. We will not be making further amendments to this bill. As a protection for those in the community who are tasked with making the most difficult decisions imaginable, we will be supporting this bill.

The Hon. J.A. DARLEY (17:05): I rise in support of this bill, which will provide protection from criminal liability for police officers who use force in relation to a terrorist incident. This protection will extend to the use of lethal force. In order for this protection to apply, it must be in relation to a terrorist act or declaration made by the Commissioner of Police; however, the protection does not apply if actions were taken by an officer in contravention of orders made by the officer in charge of the response to the terrorist act. The bill also includes provisions for the identity of the police officer to be kept confidential.

I know this was a matter of particular importance to the Police Association of South Australia. It is a pity that we now live in a day and age where these measures are necessary; however, it is important that the police are given the right tools and are confident in the knowledge that they will be protected if they are required to take forcible action in order to protect the community. I hope that we will not have an incident in South Australia which means that the provisions within this bill would have to be used, but it will be some comfort for those who are on the front line that they will be protected from criminal liability. With that, I support the bill.

The Hon. M.C. PARNELL (17:07): This bill mirrors legislation that has already passed in New South Wales and Western Australia, and it arises out of the coronial inquiry into the Lindt cafe siege in Sydney in May 2017. It has been dubbed interstate as the 'shoot to kill bill'. The bill provides for the police commissioner or an assistant commissioner to make a declaration that an incident is a terrorism incident and that results in special protection being offered to SAPOL officers who are taking action in these situations. It protects them from criminal liability, and there are a number of exceptions built in. I note in the second paragraph of the minister's second reading speech, he says:

This Bill is the culmination of longstanding Liberal Policy, which the former Minister for Police suggested was not necessary and not required.

It is interesting to see that the Labor opposition has now had a change of heart. I will put on the record that they were right the first time, that this bill was not necessary and not required. How have I come to that conclusion? I have come to that conclusion by reading the Coroner's report into the Lindt cafe siege. When you go to the source material and you have a look at what the Coroner said, you get a very different picture to what we are being led to believe is the pressing situation that needs law reform. In the Coroner's report, entitled 'State Coroner of New South Wales Inquest into the deaths arising from the Lindt Cafe siege findings and recommendations', dated May 2017, the Coroner says:

31. In my view, the relevant legal principles meant that the police (including the snipers) had lawful authority to use lethal force against Monis from an early stage of the siege. I have reached that conclusion having regard to all the circumstances, in particular Monis' wielding of the shotgun and claim to have an IED [improvised explosive device], his threats, his claimed allegiance to IS [Islamic State], his unwillingness to negotiate and the continuing unlawful deprivation of the hostages' liberty.

He goes on to say that he can understand why the police were unclear as to what their powers were. Ultimately, he says it was not the problem with the law; it was the problem with how you train the police and how you explain to them what their powers are. The Coroner goes on to quote the Johnsons, the family of one of the victims of the siege, and says:

33. The Johnson family submitted that police training in the use of force does not appear to align with the legal framework. They submitted that police applied a threshold much higher than is required by law.

Ultimately, I think that is the problem at the heart of this bill. The Coroner concludes:

44. The snipers and the police commanders believed that police did not have lawful authority to shoot...That belief was an unduly restrictive view of their powers…

In other words, the Coroner said that the police had the powers but did not understand what they were. He goes on to say that the special powers in relation to the right to use force could be more clearly defined, but that is as much a recommendation for defining that in the training provided to police officers as it is in the law. I think there is a serious problem with the bill in that it misunderstands the basis of the Coroner's findings. His number one finding in his summary of conclusions at paragraph 119 was:

i. The police would have been lawfully justified in shooting Monis from soon after the siege commenced.

They did not need extra powers; they did not know what their powers were. They could have shot him early on. I am not for one minute making light of the awful situation the police were put in. It was a situation of life and death. They did not really know what was happening in the cafe. Their intelligence was incomplete, there were innocent hostages, and there was a person who was clearly dangerous, mad and willing to kill.

I am not for one minute making light of that awful situation; however, I think our responsibility in this parliament is to be guided by facts and a sober assessment of the evidence. We should not leap to the conclusion that the problem must be legislative—a lack of police powers—and therefore we must step in and pass new laws. I think, in some way, this plays into the hands of terrorists. As we know, creating a climate of fear in society is one of the main things they are trying to do.

When parliaments leap to pass special laws, I think it just reinforces to the community that we should be fearful and afraid, and it is inviting us to accept that our police do not have the powers they in fact already have. I do not think this legislation is necessary. I think the Labor Party's assessment last year was correct.

I do not doubt that the bill has the support of the majority of members in the chamber, and it is not something that I am going to divide over. I just want to put on the record that I would invite members to go back to primary sources, look at exactly what happened in the Lindt cafe siege and read the Coroner's report. I think you will conclude, as the Greens have done, that this legislation is not necessary. We will not be supporting it.

The Hon. C. BONAROS (17:13): I know I am not listed to speak on this, but I would just like to indicate for the record our in-principle support for the bill, or at least the second reading of the bill. In light of some of the comments made by the Hon. Mark Parnell, we may look at it further, but we will certainly be supporting the bill at the second reading stage.

The Hon. D.G.E. HOOD (17:14): I rise to indicate my support for this bill, which is yet another fulfillment of the Marshall Liberal government's election commitments to provide greater certainty for police in the use of lethal force. It is of course just one initiative that is part of its comprehensive strategy to keep our community safe from the threat of terrorism, including undertaking an audit of all major public places and events to maximise security, additional training for our police officers and security guards, developing an effective anti-terrorism communication plan and increasing the use of community constables to enhance engagement with communities identified as being at risk.

It is unfortunate that our society has evolved in such a manner that we would need to regard terrorism as a very real threat, and it is certainly something we all hope we will never be confronted with. However, we do of course have a responsibility to ensure clear protocols are in place in preparation for worst-case scenarios.

As it stands, South Australian police officers are permitted to use firearms and lethal force by a series of general orders. The state government is now seeking to afford police greater latitude to engage in lethal force in the context of an officially declared terrorist incident, similar to those introduced in New South Wales in the wake of the Lindt cafe siege.

The Commissioner of Police or, in their absence, the Deputy Commissioner of Police, would be required to make such a declaration in writing, or orally in urgent circumstances, with written confirmation to be presented as soon as practically possible. Authorised police action that is subsequently undertaken involving force, including lethal force, will not incur any criminal liability if it is deemed reasonably necessary, as a police officer perceived it to be, and neither should it.

It is important to note that these protections would not apply if the action of a police officer is in direct contravention of orders issued by the officer in charge, or if it was not done in good faith. As per SAPOL's request, there is also provision for the identity of any officers who utilise force to remain concealed, unless they provide consent or if a publication order is made by the Supreme Court.

I had the privilege of presenting an award on behalf of the Minister for Police three or four weeks ago now at the South Australia Police constable development program graduation ceremony. At the event I had the opportunity to speak to a number of the graduates, and I found it truly remarkable how these impressive, typically young men and women (although not exclusively young, most were quite young) would selflessly choose to dedicate themselves to ensuring the safety of our communities by putting their own lives at risk to protect the rest of the community.

The very least we can do as legislators is to offer whatever support we can to ensure that, when in the line of duty and running towards danger, when most would be retreating, they would never need to second-guess their trained and instinctive responses when executing what they consider to be the best course of action in the most unimaginably challenging circumstances. These are things police face on an all too regular basis, unfortunately.

I therefore trust these proposed measures receive multipartisan support. It seems that the opposition will support the legislation, which is encouraging, and I believe that to be in the best interests of all South Australians. I strongly support the bill.

Debate adjourned on motion of Hon. I.K. Hunter.