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

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2018.)

The Hon. R.I. LUCAS (Treasurer) (15:44): I understand that no-one else is intending to speak to the second reading, so on behalf of the government I thank honourable members for their contributions and for their indication of support for the bill.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. K.J. MAHER: The bill allows for declarations to be made by a person who is appointed as Acting Deputy Commissioner of Police. Essentially, how far down the chain of command would this ability extend, that is, down to what rank could someone be the Acting Deputy Commissioner of Police and therefore able to make this declaration? Is there a limit to how far, potentially, down the chain of command that could go?

The Hon. R.I. LUCAS: My advice is that it essentially goes down to the level or rank of assistant commissioner.

The Hon. K.J. MAHER: I thank the minister for his very precise and easy answer to that question. When the declaration is issued, will it be necessary for reasons to be provided?

The Hon. R.I. LUCAS: My advice is that, essentially, it is left to the discretion of police, so it might include reasons but it does not have to include reasons.

The Hon. K.J. MAHER: I thank the honourable member for his answer. Where a declaration is made in writing, where does that go, essentially? Who is the declaration in writing presented to, and is some sort of register kept of all such declarations?

The Hon. R.I. LUCAS: My advice is that that would be left to the discretion of the commissioner again. The commissioner would have to determine which particular police officers in what particular section of the police force needed to be advised of the declaration, and he has discretion in relation to doing so. My advice is that there would be annual reporting of the number of directions.

The Hon. K.J. MAHER: My final question on clause 1 is: how may a terrorist act declaration be revoked: in writing, orally or both, and does it need to be revoked in the same way in which it was made?

The Hon. R.I. LUCAS: I am advised that the legislation does not specify and so it is likely that both options would be open to the commissioner: in writing or orally.

The Hon. M.C. PARNELL: The Attorney-General made it clear that this bill is a direct response to the Coroner's finding in New South Wales in relation to the Lindt cafe siege. Are there any examples that the minister can provide where South Australian police officers have behaved in a manner that was unnecessarily restrictive in dealing with an incident or where South Australian police officers got into trouble with the criminal law for overreaching their powers? In other words, is there any South Australian example, either similar to or vaguely relevant to the Lindt cafe situation, that shows a need for this bill in this state?

The Hon. R.I. LUCAS: My advice is, no, we have not been provided with advice of any such circumstances in South Australia along the lines that the honourable member has raised.

The Hon. M.C. PARNELL: I thank the minister for his response. In my second reading speech I went through some of the paragraphs of the Coroner's findings. He spent a fair bit of time talking about how the police had powers, they just did not know they had the powers, and he talks about the failure to properly educate front-line officers as to the extent of their powers. My question is: did the government consider improved education responses rather than legislative reform?

The Hon. R.I. LUCAS: It will not surprise the honourable member to know that all good governments and oppositions consider a range of alternatives before they ultimately determine their policy option. I would be stunned if the Greens were not similarly inclined: that they would consider all policy options and then settle on their particular policy option.

My advice is that, whilst the honourable member has referred to some aspects of the Coroner's considerations, I have been referred by my adviser to recommendation 24 which, after having considered all of those options, the actual recommendation was, 'Use of force in terrorist incidents'. The Coroner said:

I recommend that the Minister for Police consider whether the provisions of the Terrorism (Police Powers) Act 2002 should be amended to ensure that police officers have sufficient legal protection to respond to terrorist incidents in a manner most likely to minimise the risk to members of the public.

The Hon. M.C. PARNELL: I do not propose to ask further questions at clause 1 but just put on the record that the Greens will be opposing this bill, as we have in Western Australia and New South Wales.

The Hon. F. PANGALLO: The definition of terrorism or terrorist act, we know what the broad one is in the modern context of today, but acts of terror can take many forms, as we have seen in the past. We have had siege situations in the city. We had a famous one in Rundle Street many years ago; we had one in the Riverland, where a police officer was shot several times and it took hours for that officer to be rescued; we had one on the corner of Hindley Street and Rundle Mall. Again, people were terrified. Do you have a definition of a terror act?

The Hon. R.I. LUCAS: You should not have asked for this. I have a three-page answer that has been prepared. I was hoping you were not going to ask. A similar question was evidently asked in another place by another member.

Definition of a terrorist act: the bill does not define 'terrorist act'. Section 2 of the Terrorism (Police Powers) Act 2005, which is being amended by this bill, provides that a terrorist act has the same meaning as in part 5.3 of the Commonwealth Criminal Code except that it does not include a terrorist act comprised of a threat.

This approach is consistent with the other suite of terrorism legislation on the South Australian statutes books such as the Terrorism (Commonwealth Powers) Act 2002, Terrorism (Surface Transport Security) Act 2011 and the Terrorism (Preventative Detention) Act 2005. It ensures that a consistent definition of 'terrorist act' applies across all jurisdictions. Furthermore, the Commissioner of Police would sit on a number of national groups related to counterterrorism and would be well versed in what is considered to be a terrorist act under the Commonwealth Criminal Code.

I would also note that, under the 2004 Intergovernmental Agreement on Counterterrorism Laws, the commonwealth must consult with states and territories and obtain the agreement of a majority of other parties, including at least four states before amending part 5.3 of the Criminal Code. So that it is clear, section 100.1 of part 5.3 of the Criminal Code defines a 'terrorist act' as:

…an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

Subsection (2) provides that action falls within this subsection if:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person’s death; or

(d) endangers a person’s life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

Subsection (3) provides that action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person’s death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

A concern was also raised in the lower house member's contribution about what happens if a declaration is made and later found to have not been validly made; that is, where it was found to have not met the threshold of a terrorist act. Although I think this would be an extremely rare occurrence, the protections offered by the bill do not simply vanish in that situation. Section 27B(4) provides that, if a court finds that a purported terrorist act declaration was not validly made, the protections in section 27B continue to apply to any action taken by a police officer before the finding, as if it were a valid declaration.

Clause passed.

Clause 2.

The Hon. F. PANGALLO: We do not have any other questions. I will just say here that we will support the remainder of the bill.

The CHAIR: Leader of the Opposition, when you said, 'Two,' was that clause 2? I think you mean part 2. Clause 3?

The Hon. K.J. MAHER: I just have one more question and I might ask it with the—

The CHAIR: I do not mind when you are going to ask it, I just—

The Hon. K.J. MAHER: I will ask it now and then we can put them all together. In terms when a declaration is made, under what circumstances would a terrorist act declaration be taken not to have been validly made? Under what circumstances would, if a declaration has been made, it be taken that it was not validly made?

The Hon. R.I. LUCAS: As much as I would like to assist the member, I am just not in a position with my adviser to countenance the sort of hypothetical position that the member has outlined. However, what I did in the tail end of the answer to the question of the Hon. Mr Pangallo was indicate that, in the event that it was found to have not been validly made, then the protections still apply. I read onto the record the government's advice in relation to that.

Clause passed.

Remaining clauses (3 and 4) and title passed.

Bill reported without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:02): I move:

That this bill be now read a third time.

Bill read a third time and passed.