Bills

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

Second Reading

Adjourned debate on second reading.

(Continued from 20 June 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (11:02): I rise today to support parts of this bill but also to inform the chamber that we intend to move amendments, as we moved amendments as the Labor opposition in the House of Assembly. This bill is a weak and inadequate response to the very genuine concern of our police and emergency services workers. The opposition have been in constant dialogue with the Police Association of South Australia and other groups about tougher laws to protect police, ambulance workers and other emergency services workers. The Attorney's bill, the government bill, as it stands:

creates a new offence in the Criminal Law Consolidation Act 1935, where a person who spits at or throws or otherwise applies blood, saliva, semen, faeces or urine on a prescribed emergency worker in the course of their duties;

establishes the maximum penalty for this new offence at four years' imprisonment, or five years if there is harm caused to the victim;

consequentially amends the Criminal Law (Forensic Procedures) Act 2004 to enable blood samples to be taken from these offenders;

includes employees in youth training centres in the existing aggravated offence provisions of the Criminal Law Consolidation Act, which currently include offences against a police officer, prison officer or other law enforcement officer;

explicitly includes volunteers in the definition of prescribed workers;

increases the maximum penalty for all unlawful threat and assault offences, in which this is an aggravating factor, by one year;

amends the Sentencing Act 2017, so that when a court is sentencing an offender for an offence, the court must take into account in setting the penalty the need to protect police and other emergency services workers; and

repeals the assault police offence in section 6(1) of the Summary Offences Act.

This bill fails, because rather than create a standalone specific offence for assault on our police and prescribed workers it merely increases by one year the maximum penalties for unlawful threat and assault on officers in which the victim is a prescribed worker. This bill marginally increases certain penalties, but it does not in any way address the sentencing for these types of assaults.

The opposition will therefore be introducing amendments which reflect the measures that have been discussed with the Police Association of South Australia, the ambulance union and other groups, all of which have expressed a need that we in opposition recognise. What our amendments go to is creating specific offences in the Criminal Law Consolidation Act to deal with assaults against police and emergency services workers, with tougher penalties, including much higher penalties for criminals who injure police while hindering or resisting arrest. Our amendments amend section 96 of the Sentencing Act to make assaults against police and emergency services workers a designated offence, thus ensuring anyone who has received a suspended sentence cannot have their sentence suspended again.

The amendments clarify the list of occupations to be covered by these new provisions. This list is not exhaustive but brings together the consultation we have done as well as the consultation reported to the lower house by the Attorney-General and in media coverage on this issue. Importantly, it goes a step further than the Attorney's formulation in that it includes all persons, whether a medical practitioner, nurse, security officer or otherwise, performing duties in a hospital, as defined by the Health Care Act 2008, rather than just those in an emergency department. This is an amendment that sections of the healthcare community have been calling for and is a sensible amendment to the bill for anyone who seeks to protect front-line workers.

Criminals who injure police, ambulance workers, and emergency workers when they are trying to do their jobs, protecting, serving, helping and treating members of the public, should feel the full force of the law. The law must be strong enough to deter others who think that they will just get away with just a slap on the wrist. Unamended, the bill before us is a weak bill. It is inadequate, and it has been roundly condemned since the day it was introduced to the lower house.

The Attorney-General, as has been her way in a number of areas, has rushed to play catch-up on this issue after months of inaction and disinterest and has introduced a bill which is weak and entirely unfit for purpose. The Labor opposition will be introducing amendments and commend our amendments to the chamber to make sure that those who protect us get the protections they need.

The Hon. T.A. FRANKS (11:07): I rise on behalf of the Greens to support, with some reservations, the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill 2019. This bill creates a new offence under the Criminal Law Consolidation Act where a person spits at or throws or otherwise applies blood, saliva, semen, vomit, faeces or urine on a prescribed emergency worker in the course of their duties. That has a maximum penalty of four years' imprisonment, or five years if harm is caused to the victim.

This has been introduced as a standalone offence, but it can also be applied to offences committed against people not working in emergency services. A prescribed emergency worker is defined to mean a paid worker or a volunteer who is a police officer; prison officer; youth training centre officer; a member of the SA Ambulance Service, the Country Fire Service, the Metropolitan Fire Service or the State Emergency Service; a law enforcement officer; or a person as prescribed in the legislation's regulations.

The bill will also amend the existing provisions of the Criminal Law Consolidation Act in respect of certain workers who are victims of aggravated offending. The act provides that some offences have a basic form and an aggravated form where the maximum penalty is significantly greater than that of the basic form of the offence. The bill will also amend the Sentencing Act 2017 so that when a court is sentencing an offender for the offence, the court must take into account in setting the penalty the need to protect our police and other emergency services workers. Currently, the courts must consider the safety of the community paramount to other sentencing considerations, and that aspect will not change.

The Law Society have raised, quite rightly, concerns relating to some of the provisions of this bill, particularly the penalty structure of and the need for the new offence. The amendments to the Sentencing Act and the removal of section 6(1) of the Summary Offences Act are unnecessary, contend the Law Society, and should be reconsidered. The Greens have some sympathy for this case, but we can also understand that the numbers are here and present for the support of this legislation. So we will ensure that the legislation is the fairest that it can be.

The Law Society states that in their view the measures proposed by the bill are unlikely to actually achieve their objective in changing behaviour. That is yet to be tested. However, they are likely to have a disproportionate effect on Aboriginal people, and the Greens are most concerned, with that contention by the Law Society and the ALRM, to ensure that this legislation does not in fact impact on the most marginalised and vulnerable members of our community, the most disempowered, so we will be watching carefully to see the implementation with regard to those aspects. Our other concerns also extend to those with substance abuse or mental health issues, and how they will be treated with regard to these issues.

The Law Society is quite technically correct: much of what is in this bill already exists. However, it is the government's aim through this legislation to encourage more appropriate charging and better consideration by the courts of the actual nature of assault that occurs but also to send a very strong message that we do, in this parliament and from the government and the opposition in particular, support our police and emergency services workers.

The Greens wholeheartedly support that intent. We have grave concerns, as I say, with regard to people who may have mental health issues, who are Aboriginal, who are perhaps homeless or on the street. In those sort of situations we need to ensure that these types of protections, these quite right protections, will not adversely disadvantage those particular vulnerable groups. We will be watching carefully to ensure that happens into the future, but today we will support the good intentions of both the government and the opposition to ensure that, where our emergency services workers, where our police, are on the job, where nurses are on the job, where, as the SA-Best amendment will provide for, our RSPCA investigators are doing the job of law enforcement with regard to the protections under the Animal Welfare Act, those workers who protect us are rightly protected.

With those few words, we will be participating actively in the committee stage of this bill. We reserve our right at the third reading to see where the bill strikes a balance, but at this point we welcome the debate, we encourage the strong signal to the community that we protect our police and emergency services workers, our ambos, our nurses, our RSPCA inspectors alike, and give them the support that they are crying out for.

The Hon. F. PANGALLO (11:12): I rise to speak in support of the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill 2019, inclusive of the amendments that Labor and I will be moving. This is an important bill to better protect the state's police, emergency services workers, law enforcement officers, corrections officers, staff in training centres, front-line health workers and emergency services like the MFS, CFS and SES, who should be able to perform their vital and valued duties without fear of being assaulted or attacked while doing so.

Parliament needs to make it clear that no-one is to lay a hand on any of these prescribed emergency services workers or, if they do, they will face the full wrath of the law. It is arguable, as indeed the Law Society of South Australia has submitted, that some of the offences in this bill already exist in the Summary Offences Act 1953, but it is SA-Best's view that the current legislation has been shown time and again to be completely inadequate. We need to do a lot better in terms of personnel to be covered, charges able to be laid and maximum penalties to be applied.

We also need to do a lot better in terms of workers' compensation coverage for our injured emergency service personnel, specifically those who have suffered psychological as well as physical effects of threats made to them and attacks made upon them. I will soon be introducing a private members' bill to address the serious defects in recognising and compensating post-traumatic stress disorder, now acknowledged as very prevalent in emergency services workers and first responders, but that is for another day.

Today, I want to make it abundantly clear that the bill, while covering police officers, is not only intended to cover offences against police but to afford the same protections and provisions to our courageous ambulance officers, paramedics, nurses and doctors, and the SES, MFS and CFS first responders. They all selflessly serve as paid staff—some as volunteers—on the front lines in the most highly charged and dangerous environments. The job is hard enough without offenders thinking that emergency workers are soft targets.

These workers need to know that when they go to work, they are not going to be threatened, assaulted or injured, but that if they are, then prosecutions and the courts are able to deal with the offenders with appropriate charges, penalties commensurate with the crime and sentences that both reflect the seriousness of this offending and act as a deterrent to that very offending.

Importantly, the bill better responds to the increasing numbers of assaults against police and other prescribed emergency services workers. In 2017, there were approximately 771 assaults against police alone, many of these involving weapons. This morning's media tells us that there have been nine scares involving weapons at South Australian hospital emergency rooms in this year alone. The Australian Nursing and Midwifery Federation of SA tells us that its members are experiencing increasingly violent incidents at the coalface and at the bedside.

Whilst there is a need for more protections and preventative measures, this bill better articulates the community's expectation that the courts will apply penalties that reflect contemporary community values and standards and sends a very strong message of deterrence to would-be offenders.

These prescribed emergency workers—and my amendment also includes inspectors, like RSPCA staff enforcing the Animal Welfare Act in the list of prescribed emergency personnel—whether volunteers or paid staff should not be subjected to the repulsive actions covered under the new use of human biological materials offences contained in the bill. I believe these comprehensive provisions cover the field for now.

It is pleasing to see that the bill before us in the Legislative Council, and Labor's amendments, have been revised during its passage through the House of Assembly, such that we now have an improved and more comprehensive definition of prescribed emergency services workers and higher penalties than the House of Assembly version. While the list of prescribed emergency workers in section 20AA can still be added to the regulations, we are, as we expressed in this place only yesterday, not content to leave this kind of critical detail to subordinate legislation.

We know only too well from the current attempts by the government to water down the Gayle's Law legislation by way of regulations what a risk leaving the detail to regulations devised by this government can be. On the other hand, I welcome the inclusion of new offences for use of human biological material against any person and that 'harm' means physical and mental harm in this bill. I also believe that the new section providing for alternate verdicts if the higher threshold of section 20AA is not achievable gives the courts a very sensible safety net.

As we all know, setting maximum penalties in legislation is often something of an academic exercise, with the Police Association expressing its frustration about the lenient sentences handed down by the courts to offenders convicted of threatening, assaulting, resisting and hindering police. Certainly, the recent case of Police v Dodd and the experiences of police officer Sergeant Jason Smith illustrate that offenders can, and often seem to, get off lightly. In the case of Dodd, he was found to be mentally unfit to plead. In the case of Matthew Wright, who viciously attacked Sergeant Smith and his partner, Matthew McCarthy, he received a suspended sentence of just 12 months, when the maximum penalty for aggravated assault causing harm was 13 years.

Then there was the horrific vision of an off-duty policeman who went back on duty to deal with a group of young vandals in the city. He was brutally kicked, punched and knocked to the ground. The main offender received an 18-month sentence. Is it any wonder the public sometimes loses faith in our criminal justice system when lenient sentences like that are handed out?

As Mark Carroll of the South Australian Police Association points out, the current laws are tantamount to a free pass system. We see offenders walk blithely out of courtrooms while the cops they have attacked languish with serious injuries. This morning's media featured a story about a veteran paramedic, Amanda Martin, who has been assaulted three times while doing her job with the South Australian Ambulance Service. The remarkable thing to me is that Ms Martin and the SAPOL officers I have referred to are still on the job, such is their commitment and dedication to the community they serve.

While the courts need to have some discretion, these cases show that it is often very hard to reconcile the actual sentence given to the maximum penalty applicable. The Labor amendments generally provide for higher penalties than the government's provisions and are strongly advocated for by the Police Association. With controversial sentencing discounts available to offenders, an issue currently up for debate with serious offenders, the penalties applied by the courts can often seem disproportionate to the offence, so we will be supporting the Labor amendments in this respect. We also refer to the Labor provision that covers a person performing duties in any area of a hospital, not just the ED as in the government bill. We know that violent patients do not confine their offending behaviour to the ED of hospitals.

Finally, the Labor amendments deal with hinder and resist offences in a much more practical and effective manner than they have been in the Summary Offences Act 1953 alone, creating a new offence of 'hinder police and/or resist arrest' in this act if harm is caused. The Supreme Court case of Faehrmann v Edwards in 1986 illustrated how an offender could successfully argue that their actions were merely 'resist arrest' rather than assault.

The maximum penalty of 10 years in this bill is sufficiently high to send a very strong message to offenders that these offences are not those we would expect suspended sentences or good behaviour bonds to apply to. Indeed, the Labor amendment to schedule 1 appropriately prohibits suspension of imprisonment. However, more serious offences and higher penalties for hinder police and resist if causing harm need to be balanced with the appropriate evidentiary obligations and burdens of proof. I will be calling for the mandatory wearing and operating of lapel and dashboard CCTV to protect emergency workers and the public. As I have often said, those who have nothing to hide have nothing to fear from CCTV.

Every day, our emergency services workers get up at all hours of the day and night, leaving their family and loved ones to deal with difficult and dangerous circumstances, and individuals who are often at their very worst. We rely on them to be first and second responders to road fatalities, dangerous emergencies, personal crises, domestic violence incidents, suicides, murders, abhorrent child protection matters and sexual assaults, just to name a few. We expect them to be professional and effective in our hour of need and in high-risk emotionally charged situations, where they often put themselves in harm's way to keep us safe.

As a parliament, we need to make sure that we provide them with protections commensurate with those that these dedicated and committed emergency services workers provide us. With those comments, I commend the bill to the Legislative Council.

The Hon. J.A. DARLEY (11:25): I rise to speak on the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill. The bill proposes a number of changes to the Criminal Law Consolidation Act, the most significant being the introduction of an offence for attacking an emergency worker with human biological material. The bill also outlines who is considered to be an emergency worker for the purposes of this clause.

I understand that, currently, if an emergency worker were to be attacked with human biological material, the perpetrator could still be charged with an existing offence under either the Criminal Law Consolidation Act or the Summary Offences Act. However, the government wants to make it clear that attacking emergency workers with human biological material is not acceptable and so have moved his amendment to send a message. Not only would passing this bill send a message to the community that this type of behaviour is not to be tolerated, but I am told it is often useful for prosecutors to have a separate specific offence to prosecute on. I also understand that having a separate offence eases the burden on the courts when considering the matter and also during sentencing.

Last week, I was shocked to hear that a nurse had been stabbed in the neck while on a break at the Lyell McEwin Hospital. Whilst this was not an attack using human biological material, emergency workers across the board are facing increasingly violent and creative attacks against them. They are merely people trying to do their job, and it is not right that they face contracting a communicable disease because they have been attacked while doing their job.

The opposition have filed a number of amendments that insert further separate offences for harming an emergency worker, for being reckless in a way that then causes harm to an emergency worker and for assaulting an emergency worker. Importantly, there is also an offence for causing harm while resisting or hindering a police officer while they are acting in the course of their duties. Again, these are already offences under existing legislation; however, I understand that these new offences have been listed again partly to send a message to the community about the severity of attacking emergency workers and also because of the lobbying of stakeholders, in particular the Police Association.

These are the people representing those at the coalface, and I think, in this instance, it is important that we listen to them, so I indicate that I will be supporting the opposition's amendments. It is important that, as a parliament, we send a message about the standards that the community expects of everyone and that there are appropriate sentences available for those who do not abide by those standards. I support the second reading of the bill.

Debate adjourned on motion of Hon. D.G.E. Hood.