Legislative Council: Wednesday, September 27, 2023


Legislative Review Committee: Police (Police Security Officers) Amendment Regulations 2022

The Hon. I. PNEVMATIKOS (15:59): I move:

That the report of the committee, on the inquiry into the Police (Police Security Officers) Amendment Regulations 2022, be noted.

The report of the Legislative Review Committee that accompanied the Police (Police Security Officers) Amendment Regulations 2022 advised that these regulations were drafted to support a transition from protective security officers to police security officers, also known as PSOs.

As part of the reforms, PSOs can be assigned additional duties and are granted increased powers when conducting those additional duties. The committee found that the regulations raised a number of concerns against the committee's scrutiny principles. One of the committee's scrutiny principles is whether adequate consultation occurred in relation to a legislative instrument. The committee found the consultation undertaken by SAPOL before enacting the regulations to be inadequate, as it did not include any bodies that represent members of the public who might be impacted by the regulations.

To understand the possible impact upon the public, the committee sought and received the views of the Law Society of South Australia, the Legal Services Commission of South Australia and the Aboriginal Legal Rights Movement. These organisations provided oral and written evidence expressing concerns about the Police (Police Security Officers) Amendment Regulations 2022.

Another of the committee's scrutiny principles is whether an instrument unduly trespasses on personal rights and liberties. The regulations extend to PSOs who perform additional duties, the same powers as police officers, including the power of arrest. At the same time, when a PSO makes an arrest, the regulations suspend the rights otherwise required to be provided to an arrestee, until the arrestee is delivered into the custody of a police officer.

These arrest rights are set out in section 79A of the Summary Offences Act and include the right to a phone call, the right to a solicitor, the right to an interpreter and the right to remain silent. The witnesses advised that these are fundamental rights which have been recognised by the common law for centuries. Mr James Marsh, Special Counsel and President of the Law Society, advised the committee: 'It is difficult to overstate the importance of a person being provided with these rights at the time of arrest.'

The witnesses objected to PSOs, who received limited training, having the same powers as police officers. They were strongly opposed to PSOs being empowered to make arrests, but were most concerned that those being deprived of their liberty are being denied their fundamental legal rights.

As part of its scrutiny function, the committee also considered whether a legislative instrument is made in accordance with its enabling act and whether it contains matters more appropriate for parliamentary enactment. The witnesses argued, as a result of the inquiry, that these regulations are beyond what was envisaged by parliament in enacting the Police Act 1998. They stated that the Police Act does not extend power to the executive government to grant arrest rights to PSOs and that it is not appropriate for the executive to remove fundamental personal rights through regulations. The Law Society further advised that the intention of the Police Act is that additional duties for PSOs are able to be enabled by regulation, which are made public and overseen by the parliament.

However, the police commissioner has set out additional duties for PSOs in a special order that is not a public document. The Law Society expressed concern that the commissioner can at any time declare further additional duties in another special order without the knowledge of the public or the parliament. The witnesses expressed concern about the significant additional duties set out in the special order and the powers granted to PSOs, given that PSOs receive far less training than police officers.

The additional duties bestowed upon PSOs include transporting vulnerable children under the guardianship of the Department for Child Protection; guarding crime scenes and exhibit property, which can consist of large amounts of illicit drugs or firearms; and arresting and transporting young people without being required to inform them of their right to have someone present to represent their interests while being questioned.

The witnesses are of the view that the regulations are beyond power and improper. They also raised concerns that the regulations create conflict in the legislation, are vague and can lead to confusion and uncertainty and increased litigation and delays in the court. The committee agrees with the views of the witnesses who provided evidence before the committee on these regulations. Therefore, the committee recommends that the Police (Police Security Officers) Amendment Regulations 2022 be disallowed.

The committee would like to express its appreciation to the Law Society, the Legal Services Commission and the Aboriginal Legal Rights Movement for the evidence they provided in relation to this inquiry. I would like to thank also the other members of the Legislative Review Committee for their work on this matter. In the House of Assembly, I thank Mr John Fulbrook MP, the member for Playford; Mr Sam Telfer MP, the member for Flinders; and Mr Tony Piccolo MP, the member for Light. In this place, I would like to thank the Hon. Connie Bonaros MLC and the Hon. Nicola Centofanti MLC. In addition, I would like to thank the committee secretary, Mr Matt Balfour, and the committee's research officer, Ms Maureen Affleck, for their assistance with the inquiry and their report.

Debate adjourned on motion of Hon. L.A. Henderson.