Bills

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

Committee Stage

In committee (resumed on motion).

Clause 7.

The Hon. R.I. LUCAS: When we reported progress just prior to the lunch break, the Leader of the Opposition had moved his amendment and I think concluded his explanation. I propose to respond with the government's position on that amendment and, when called upon by you as Chair of the committee, I will formally move the government's amendment and speak briefly to that. At the outset, I propose to respond on behalf of the government to the Leader of the Opposition's amendment.

I thank the honourable member for his interest in the bill and the amendment that he has moved, but indicate that the government opposes the amendment he has moved for the reason that a substantially similar amendment was opposed when unsuccessfully moved by the opposition in the House of Assembly. While this amendment adopts part of the government's new biological materials offence, its main purpose is to introduce new provisions for offences against prescribed emergency workers despite the Criminal Law Consolidation Act already providing such protections for police and emergency services workers throughout.

Save for one small departure, the honourable member's definition of prescribed emergency worker is the same as the government's, except that the honourable member's definition would apply to a doctor, nurse, security officer and other worker in a hospital workplace, whereas the government's definition would apply when these workers are assaulted in an accident or emergency department of a hospital. These are clearly areas of greater risk than a hospital's general wards and are in line with the government's commitment to protect front-line emergency workers.

I would like to reiterate that the honourable member's amendment does not create new offences or substantially increase penalties, and in that regard is unnecessary. There are already offences in the statute books for intentionally or recklessly causing harm to a police officer and a broad range of other emergency services workers, and there are existing offences for assaulting police. The Law Society, when commenting on the government's bill, noted the following:

The Society does not condone assaults on police officers and/or other frontline and emergency workers. These people play an important role in our community and it is understood their occupations place them in a position of vulnerability. As such, this is reflected in the criminal law in South Australia under a number of existing provisions. While the Society appreciates the need to deter the type of behaviour, it considers that the legislative mechanisms to deal with these types of offences are already in place.

The same conclusion can be drawn from the amendments proposed by the opposition, especially in that there is no creation of new offences, simply the shifting and reiteration of laws which currently exist. For example, section 20 of the Criminal Law Consolidation Act contains an offence of assault. In this bill, the government would increase the maximum penalty where a police or other emergency services worker is assaulted to five years' imprisonment, which is the same as the honourable member's proposed maximum penalty for this offence. Where such a worker is harmed as a result of the assault, the maximum penalty in the bill is seven years' imprisonment.

There are also offences in sections 23 and 24 of the Criminal Law Consolidation Act where harm or serious harm is caused to a person. Where a police officer or an emergency services worker is harmed or seriously harmed, there are already significant penalties. The maximum penalty for recklessly causing harm or serious harm to such workers is currently seven years' and 19 years' imprisonment respectively. This bill will increase the penalty for recklessly causing harm to such workers from seven years to eight years. The honourable member's proposed maximum penalty for recklessly causing harm to these workers, or doing so while resisting or hindering police, is 10 years' imprisonment.

The existing penalties for intentionally causing harm or serious harm where the victim is a police officer or emergency services worker are 13 years and 25 years respectively. The honourable member's proposed maximum penalty for intentionally causing harm to these workers is 15 years. This is only an example of the existing offences that a person can be charged with where the victim is a police officer or emergency services worker, or in fact any other person in the community.

Other offences include conduct such as making unlawful threats or engaging in acts likely to cause harm or endanger life. Where the victim is a police officer or other emergency services worker, it is an aggravating circumstance and the offender, if convicted, already faces significantly greater penalties than if any other person in the community were the victim.

The government believes the member's amendment is deficient in that, unlike the government's bill, it does not contain definitions of retrieval medicine or rural area. Due to the uncertainty surrounding these terms, the lack of definition in the amendment may cause difficulties for prosecutors and see the throwing out of charges on the grounds that the court is not satisfied that a relevant alleged victim was performing duties in retrieval medicine or was in a rural area at the time.

It is for those reasons that the government opposes the amendment, but I am advised that there is a majority of members in this chamber who are likely, when they speak, to support the Labor Party's (the opposition) amendment. If indeed that is the case, I will not be proposing to divide the council on the issue.

The Hon. K.J. MAHER: I seek leave to withdraw my amendment and then to re-move it in an amended form that incorporates the Hon. Frank Pangallo's amendment.

Leave granted; amendment withdrawn.

The Hon. R.I. Lucas: Can we get a copy of what you are doing?

The Hon. K.J. MAHER: I will explain it very clearly. You will have it all in front of you. What I am doing, Mr Chairman, is moving the amendment standing in my name, amendment No. 1 [Maher-1], but inserting into subclause (9), after paragraph (j), a paragraph (ja) to provide 'an inspector within the meaning of the Animal Welfare Act 1985; or'. So, in effect, I am moving the same amendment as it stands, but with the incorporation of the Hon. Frank Pangallo's amendment, which is amendment No. 1 [Pangallo–1], into the list in my amendment. Accordingly, I now move my amendment in the amended form as follows:

Amendment No 1 [Maher–1]—

Page 4, line 3 to page 5, line 35 [clause 7, inserted section 20AA]—Delete inserted section 20AA and substitute:

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

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

Maximum penalty: Imprisonment for 15 years.

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

Maximum penalty: Imprisonment for 10 years.

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

Maximum penalty: Imprisonment for 5 years.

(4) A person who hinders or resists a police officer acting in the course of official duties, and, in so doing, causes harm to the officer, is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

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

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

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

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

(9) In this section—

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

harm has the same meaning as in Division 7A;

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

prescribed emergency worker means—

(a) a police officer; or

(b) a prison officer; or

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

(d) an employee in a training centre (within the meaning of the Youth Justice Administration Act 2016); or

(e) a person (whether a medical practitioner, nurse, security officer or otherwise) performing duties in a hospital; or

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

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

(h) a member of the SA Ambulance Service Inc; or

(i) a member of SAMFS, SACFS or SASES; or

(j) a law enforcement officer; or

(ja) an inspector within the meaning of the Animal Welfare Act 1985; or

(k) any other person engaged in an occupation or employment prescribed by the regulations for the purposes of section 5AA(1)(ka); or

(l) any other person prescribed by the regulations for the purposes of this paragraph,

whether acting in a paid or voluntary capacity, but does not include a person, or person of a class, declared by the regulations to be excluded from the ambit of this definition.

The CHAIR: The committee has given leave. Treasurer, it's technically tidier. I assume the Hon. Mr Pangallo is happy with that?

The Hon. F. PANGALLO: Yes, I am; thank you, Chair.

The CHAIR: Even although the Leader of the Opposition is incorporating your amendment into his amendment, do you wish to speak, for the benefit of the council, on your reasons behind wanting to incorporate the Animal Welfare Act.

The Hon. F. PANGALLO: Only that we feel it is important to include inspectors who are with the RSPCA. They are considered law enforcement officers and could also encounter situations that could be confronting for them, so we are of the belief that they should be included in that list.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to support the opposition's amendment, as amended on the floor. It will come as no surprise to members of this council, and indeed to the original mover of the suggestion, that the Greens will strongly support the inclusion of the RSPCA inspectors, because it is also in the contents of a private members' bill that I have before this place.

I did so at the behest of my consultations with the RSPCA. Their inspectors, who are charged with police-like responsibilities of enforcing and protecting animals in this state under the Animal Welfare Act, are confronted with some very dangerous situations in which they are not possibly but absolutely subjected to violence, harassment and intimidation. They should be afforded the very protections that we are now extending to other similar workers, that is, those who protect us and those who work in situations that are very stressful but where they go in when others leave. That includes, of course, the CFS, the MFS and the SES, many of whom are volunteers and should be afforded these protections. On that, the Greens will be supporting the opposition's new amendment.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 4, line 40 and 41 [clause 7, inserted section 20AA(5), definition of human biological material]—Delete 'means blood, saliva, semen, faeces, urine or vomit' and substitute:

means—

(a) blood, saliva, semen, faeces, urine or vomit; or

(b) any other material prescribed by the regulations;

This first and second amendments in this set are functionally identical. I take the opportunity to speak to them together. This amendment allows the definition of 'human biological material' to be expanded by regulations. It applies to the offence against prescribed emergency workers. By definition, the bill encompasses all biological materials that can be currently anticipated as being used in these types of assaults. This amendment will allow the government to act quickly by regulation, should it become necessary in the future to extend the definition to biological materials that cannot be presently anticipated.

The CHAIR: The question I am going to put is that all words down to but excluding 'human biological material' on page 4 stand as printed. If you support the Leader of the Opposition, you vote no; if you support the Treasurer, you vote yes. Does any honourable member require any clarity?

The Hon. K.J. MAHER: Yes. Just for the sake of clarity, when you say 'Leader of the Opposition', do you mean that that is the Leader of the Opposition's amendment with the Pangallo amendment incorporated?

The CHAIR: Yes, but you are the mover of the motion. You own the motion; it is yours.

Question resolved in the negative.

The CHAIR: I now have to put a similar question on all the words down to 'human biological material', for the sake of completeness. I put the question that all the remaining words inserted by section 20AA stand as printed. Again, if you voted one particular way last time, I would be fairly confident you will be voting the same way again, so I put that question.

Question resolved in the negative.

The CHAIR: In essence, we have removed all that clause. Now I have to put the question that the amendment moved by the Hon. K.J. Maher to insert new section 20AA be agreed to. Does any honourable member require clarity?

The Hon. R.I. LUCAS: I understand that particular provision, but my understanding, on advice from the Attorney-General's office, was that the amendment on human biological material was likely to be supported by members of the crossbench, and I am not sure about the Labor Party. We are about to vote and we accept the majority are going to support the amended motion from the Hon. Mr Maher, but I am assuming the way that this has now been constructed, unless I either seek leave to recommit—or, assuming my understanding of the crossbenchers' position was correct, either recommit or I can move to amend once this—

The CHAIR: I think we are past that point. We have to recommit.

The Hon. R.I. LUCAS: It might be worthwhile for members of the crossbench: I have been advised by the Attorney-General's advisers that the amendment that we have for the definition of human biological material allows, as I said when I spoke to the amendment, other as yet unknown biological material to be prescribed by regulation in the future, and the members of the crossbench at the very least were supporting that. If that is the case, then I will propose we recommit at the end of the committee stage to allow what is about to happen to be further amended to include that new definition. But it would be worthwhile if the advice I have is either confirmed by the Hon. Mr Pangallo and the Hon. Ms Franks, if that is a correct reflection of their views or not.

The Hon. T.A. FRANKS: The Greens do support a more flexible interpretation of human biological material into the future under regulation in this act, should it pass today or this week, and so certainly will support that recommittal.

The Hon. K.J. MAHER: I rise to say that, even though we are not on that clause and we have passed that, we will not object to the recommittal and will not stand in the way of that and, in fact, support that.

The CHAIR: I am in the hands of the committee but a course of action could be that I put the motion that the new 20AA is inserted and then, if you wish, I could report progress and then come back straight down into committee.

The Hon. R.I. LUCAS: I am happy to recommit at the end. You do not believe, Mr Chairman, on your advice that, once this has passed, I can further amend it from the floor?

The CHAIR: No, I have clarified that, and no.

The Hon. R.I. LUCAS: Alright, well I will recommit at the end of the committee.

The CHAIR: I put the question that amendment No. 1 [Maher-1] as amended on the floor be agreed to.

The Hon. K.J. Maher's amendment as amended carried.

The CHAIR: We are still on clause 7 and we come to amendment No. 2 [Treasurer-1], which is identical to the similar provision.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 6, line 18 and 19 [clause 7, inserted section 20AB(4), definition of human biological material]—Delete 'means blood, saliva, semen, faeces, urine or vomit' and substitute:

means—

(a) blood, saliva, semen, faeces, urine or vomit; or

(b) any other material prescribed by the regulations.

As I indicated when I moved amendment No.1, there were two amendments which do basically the same thing. We are going to recommit the first one because we have an indication that everyone supports amendment No. 1. I may as well move amendment No. 2 standing in my name for exactly the same reason as I indicated before.

Amendment carried; clause as amended passed.

Clauses 8 and 9 passed.

Schedule.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 7, line 16 [Schedule 1, Part 1, clause 1, inserted paragraph (ab)]—After '1935' insert:

where harm is caused to a prescribed emergency worker

This amends schedule 1 to place in, after 'an offence against section 20AA of the Criminal Law Consolidation Act 1935', 'where harm is caused to a prescribed emergency worker'. Of course, that will be prescribed. It allows offences to be classed as prescribed serious offences as part of the Criminal Law (Forensic Procedures) Act to allow blood to be taken.

The Hon. R.I. LUCAS: The government sees this as consequential on an earlier vote that we lost and we do not propose to reprosecute the case.

The Hon. T.A. FRANKS: Can the opposition explain for what purposes this amendment is required?

The Hon. K.J. MAHER: In widening the provisions of the previous amendment that was successful, it allows blood to be taken for everything that is included in that provision and not just what was in the previous provision, so I agree with the Treasurer that it is in effect consequential because we have widened the provisions in the previous amendment.

The Hon. T.A. FRANKS: For what purposes is the blood being taken?

The Hon. K.J. MAHER: For the provisions, as I understand it, to be applied from the successful passage of the previous amendment, so everything that was included in there.

The Hon. T.A. FRANKS: On this, we are curious in this state, in that we have public health awareness of how HIV is transmitted in this state, but in certain instances we treat particular instances as possible to transmit HIV when they are simply not, and those include the saliva provisions where then testing is undertaken for HIV. Can both the government and opposition please clarify their positions on whether or not they support continued misinformation on public health, with specific regard to the transmission of HIV/AIDS?

The Hon. K.J. MAHER: The opposition does not support misinformation on public health.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Maher–1]—

Page 7, lines 20 to 25 [Schedule 1, Part 2, clause 2, inserted paragraph (da)]—Delete inserted paragraph (da) and substitute:

(da) to deter the defendant and others in the community from harming or assaulting prescribed emergency workers (within the meaning of section 20AA of the Criminal Law Consolidation Act 1935) acting in the course of official duties;

This amendment is related to but not consequential, as the health minister might say, to the successful passage of the first amendment. It would not have been moved if the first amendment was not successful. This amendment amends the government's provision about making deterrence a secondary sentencing purpose so that it applies specifically to the offences in the provisions created by the first amendment.

The Hon. R.I. LUCAS: On behalf of the government, the government agrees. We do not see this as directly consequential, but I am ever the pragmatist and I know it is highly unlikely that I have got the numbers, so I do not intend to pursue opposition to it.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Maher–1]—

Page 7, after line 25—Insert:

2A—Amendment of section 96—Suspension of imprisonment on defendant entering into bond

Section 96(9), definition of designated offence—after paragraph (g) insert:

(ga) an offence against section 20AA(1), (2) or (4);

I think this amendment is probably closer to consequential than the last one and very similar to the first one. Again, it is contingent on the passage of the first amendment that was moved. It relates to the definition of a 'designated offence' against section 20AA of the Criminal Law Consolidation Act.

The Hon. R.I. LUCAS: The government agrees that it is consequential on an earlier vote that the government lost.

Amendment carried; schedule as amended passed.

Title passed.

Bill recommitted.

Clause 7.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 4, line 40 and 41 [clause 7, inserted section 20AA(5), definition of human biological material]—Delete 'means blood, saliva, semen, faeces, urine or vomit' and substitute:

means—

(a) blood, saliva, semen, faeces, urine or vomit; or

(b) any other material prescribed by the regulations;

Amendment carried; clause as further amended passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (15:48): I move:

That this bill be now read a third time.

Bill read a third time and passed.