Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:38): Obtained leave and introduced a bill for an act to amend the Criminal Law (Forensic Procedures) Act 2007. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:39): I move:

That this bill be now read a second time.

I am pleased to introduce the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024. This bill delivers on an election commitment made by the government to compel offenders who bite or spit on our police officers or emergency workers to undergo blood testing for communicable diseases. The government has made it a priority to support frontline emergency workers who take on high-risk roles in order to keep the community safe. Police and emergency workers are all too often assaulted, bitten or spat upon in the course of their duties.

Section 20AA of the Criminal Law Consolidation Act 1935 now contains specific offences to deal with offenders who assault or cause harm to prescribed emergency workers acting in the course of their official duties. These attract high penalties, reflecting the seriousness in which the parliament deems this type of offending. As of 26 February this year, 2,711 defendants have been charged with assault or causing harm to emergency workers under those provisions since coming into operation towards the end of 2019.

This kind of antisocial behaviour is completely unacceptable and puts police and emergency workers at risk not only in terms of physical and psychological injury but also in relation to the transmission of communicable disease. When a person is exposed to bloodborne diseases, including HIV or hepatitis A or B, it can be some time before any infection becomes detectable in that person's blood. This period between exposure and possible detection, called the window period, can last several months.

Police and emergency workers who have been exposed to biological material in the course of their work may experience extreme levels of stress and anxiety during the window period because they do not know whether they have been exposed to a communicable disease. The intent of the election commitment reflected in this bill is to ensure that the affected worker has timely access to information about whether they have possibly even been exposed to a communicable disease should they wish to be so informed.

This bill builds on the existing provisions in division 4, part 2, of the Criminal Law (Forensic Procedures) Act 2007, which provide a mechanism for a senior police officer, referred to as the authorising officer, to authorise the taking of blood from the person who assaults a police officer or other emergency services worker.

Section 20B(1) of the act currently gives the authorising officer a discretion to authorise the taking of a blood sample from a person who is suspected of a prescribed serious offence if satisfied that it is likely that a person engaged in a prescribed employment came into contact with or was otherwise exposed to the suspect's biological material as a result of the suspected offence.

Relevant definitions, including 'prescribed serious offence' and 'prescribed employment' are contained in section 20A of the act. The bill deletes section 20B of the act and substitutes new section 20B, the key changes of which are contained in subsections (2) and (3). The remainder of new section 20B replicates the existing provisions.

Under new subsection 20B(2), if the person engaged in a prescribed employment requests the authorisation of blood testing within six months of the exposure and in a manner determined by the Commissioner of Police, the authorising officer must grant the request. The authorising officer must still be satisfied that the requirements in subsection (1) of section 20B are met before granting the authorisation. That is, the authorising officer must be satisfied that the person from whom the sample is to be taken is suspected of a prescribed serious offence and that, as a result of the suspected offending, the affected worker came into contact with or was exposed to the suspect's biological material.

Provided these conditions are met, the new subsection (2) provides that the authorising officer must authorise blood testing in accordance with the affected worker's request. However, under subsection (3), the changes in subsection (2) do not apply if the authorising officer knows that the person on whom the forensic procedure would be carried out is a protected person. A protected person is defined in the act as a child or any person physically or mentally incapable of understanding the nature and consequences of a forensic procedure.

The senior police officer would still retain the existing discretion to authorise the blood testing in cases where no request is made by the affected worker or where the authorising officer knows the suspect is a protected person.

The bill also makes changes to some of the definitions contained in section 20A of the act. Firstly, an authorisation under section 20B of the act may only be granted following contact with or exposure to biological material by a 'person in prescribed employment'. The bill amends the definition of 'prescribed employment' and the related definition of 'emergency work' in section 20A of the act to include additional categories of workers who perform emergency work or are at similarly high risk of being bitten or spat on.

Under the current provision the categories of work include police officers, certain hospital workers, including medical practitioners, nurses and midwives, correctional services workers and those employed in emergency work with the SA Ambulance Service, Country Fire Service, Metropolitan Fire Service, State Emergency Service, St John Ambulance, Surf Life Saving, Marine Rescue or the accident or emergency department of a hospital.

The bill extends the scope of these provisions to include all persons authorised to provide emergency and non-emergency ambulance services under sections 57 and 58 of the Health Care Act 2008, police security officers, health practitioners in hospitals and youth justice workers. The bill also provides a mechanism for further classes of workers to be prescribed by regulation, should the need arise.

The bill also makes amendments to the definition of a 'prescribed serious offence' to reflect changes made to the criminal law since the commencement of division 4, part 2, of the act. As I have outlined, an authorisation pursuant to section 20B of the act may only be made in respect of a person suspected of committing a prescribed serious offence. The bill expands the definition of 'prescribed serious offence' to include offences against sections 20AA and 20AB of the Criminal Law Consolidation Act, which were introduced in 2019. That is the offence of causing harm or assaulting a prescribed emergency worker and the offence of committing a prohibited act by intentionally causing human biological material to come in contact with another person.

Clause 5 amends section 28 of the act by adding a note to the foot of the section, which makes it clear that a forensic procedure authorised under part 2, division 4, of the act is, for the purposes of part 3 of the act, a suspect's procedure and therefore the special provisions in part 3 of division 2 apply when carrying out such a procedure.

I would like to thank the Police Association of South Australia for its tireless advocacy to improve the safety and wellbeing of its members and others affected by this issue, and for its contribution to the development of this bill. The government is making a concerted effort to improve the conditions for police and emergency services workers.

The 2022 state budget delivered on an election commitment by providing additional funding to SAPOL to purchase an additional 1,500 protective vests for our frontline police. We also established a task force to review and make recommendations on increasing the number of sworn officers and police security officers over the next 10 to 15 years, along with funding 189 police security officers in the 2023-24 state budget. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law (Forensic Procedures) Act 2007

3—Amendment of section 20A—Interpretation

This clause makes amendments to the definitions of emergency service provider, prescribed employment and prescribed serious offence for the purposes of the measure and consequentially deletes the definition of medical practitioner as it will no longer be necessary.

4—Substitution of section 20B

This clause substitutes section 20B of the Act as follows:

20B—Senior police officer may authorise taking of blood sample from certain persons

Proposed section 20B allows a person working in certain types of employment to make a request to a senior police officer to authorise a forensic procedure consisting of the taking of a blood sample from a person where they have come into contact with, or otherwise been exposed to, the biological material of the person as a result of an offence the person is suspected of committing, and makes related procedural provisions, including providing for circumstances where the senior police officer must authorise the forensic procedure.

5—Amendment of section 28—Application of Division

This clause amends section 28 by adding a note at the foot the section which makes it clear that a forensic procedure authorised under Part 2 Division 4 of the Act is, for the purposes of Part 3 of the Act, a suspects procedure, and therefore the provisions in Part 3 Division 2 apply when carrying out such a procedure.

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