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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (POLICE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 19 June 2013.)

Mr VAN HOLST PELLEKAAN (Stuart) (16:57): It is my pleasure to rise on behalf of the opposition and speak on the bill in front of us, the Statutes Amendment (Police) Bill 2013. Let me say at the outset that we have no intention of opposing the bill. I do have some questions to ask, primarily by way of clarification, just to be sure that everybody fully understands what is going on. I have also filed two amendments, which I hope the minister has received and the government has had a look at. They are very straightforward. My intention is to move only one of the amendments that have been filed, and I will come to that a little bit later on.

What I would like to say, in the time that I have available, is that it is unusual to have so much of what is, essentially, a workplace agreement in a piece of legislation. I fully understand the importance and the unusual nature of police, their work, their responsibilities and, in fact, their obligations to the state as well. I understand that there is a connection there, but I would like the minister to address in his closing remarks and/or the committee stage, whichever he prefers, his exact understanding of why so much of what would in any other public service work agreement essentially come outside of legislation, outside of an act, a bill and outside of regulations.

The current act does address much of police responsibilities, and that is very important and appropriate, but it does not go into the sort of detail that we are dealing with here in this act.

For the benefit of the house and for the benefit of people who might actually be having a look at Hansard, I will touch on a few of the key things with regard to police responsibilities that are in the act, because I suspect that the broader community underestimates the roles and the responsibilities that our sworn police officers have to our state. Obviously, their primary function to be out there in the community preventing crime, ideally, and apprehending criminals when necessary is out there, but section 5 of the current act provides:

The purpose of SA Police is to reassure and protect the community in relation to crime and disorder by the provision of services to—

(a) uphold the law; and

(b) preserve the peace; and

(c) prevent crime; and

(d) assist the public in emergency situations; and

(e) co-ordinate and manage responses to emergencies; and

(f) regulate road use and prevent vehicle collisions.

That all seems pretty straightforward, of course, but it is perhaps an oversight of the community quite often that the very first responsibility is to reassure and protect the community. I think that is probably not recognised as a very important part of their role as often as it should be. In sections 6 and 7 the act talks about very important matters, as far as I am concerned:

Subject to this Act and any written directions of the Minister, the Commissioner is responsible for the control and management...

So, subject to written directions of the minister, the commissioner is in charge of everything, so that is quite an important thing. Section 7, though, provides:

No Ministerial direction may be given to the Commissioner in relation to the appointment, transfer, remuneration, discipline or termination of a particular person.

The reason I read them out for the house is because the combination of those two things, sections 6 and 7, are quite relevant to this act, which includes so much of what essentially is industrial relations. Section 28 of the current act provides:

It is a condition of appointment as an officer below the rank of Assistant Commissioner—

So, not assistant, not deputy and not the commissioner—

that the officer is to meet performance standards as set from time to time by the Commissioner.

Now, what we are seeing here, again, is not necessarily a problem, but I would like the minister to give us his understanding of why it is here. A lot of those things are now included in the bill and the regulations that will follow on from the bill. Section 37 of the current Police Act is titled 'Code of conduct'. This code of conduct is something that is referred to many times in the bill and provides:

The Governor may, by regulation, establish a Code of Conduct for the maintenance of professional standards by members of S.A. Police and police cadets.

That certainly is quite appropriate, but there is also section 38, 'Report and investigation of breach of Code', section 39, 'Charge for breach of Code', section 40, 'Orders for punishment following offence or charge', and it goes on. I will not hold the house up too much with that, but there are clearly areas of this bill that link to the act, and there are areas that do not link to the existing act.

I ask the minister quite earnestly to just give us his understanding of how he, SAPOL and the Police Association (because they are obviously a very important and vital partner in these negotiations) have decided what is in the bill, what is in the regulations and what will remain in what would be code of conduct or other employment conditions.

I am advised by SAPOL, the minister, the minister's advisers and also by the Police Association of South Australia that what is in this bill has been agreed by all those parties. No doubt, any of those parties perhaps would have liked to achieve a bit more, but I am assured by both parties that they are comfortable and they agree with what is in the bill.

I did ask the minister's adviser when he was telling me that the Police Association had received written confirmation of agreements that would end up being in the regulations, but unfortunately those regulations had not been written yet and not been drafted and so they could not be seen.

I was given a commitment by one of the minister's advisers that I would get a copy of that written confirmation. Unfortunately, it has not been possible for the minister to provide that. I am still not sure exactly why, but I do have it on the authority of the Police Association that they are comfortable that everything in the bill is okay with them. No doubt they would have liked to achieve more on behalf of their members. I take the minister, his staff and the Police Association at their word on that very important point.

I would just like to step through what are, from my perspective, the key things—certainly not everything, but the key things—that come to light out of this bill. Probably the most significant one is what is contained in sections 37 and 41. As part of the South Australia enterprise agreement 2011, it was agreed between Department of the Premier and Cabinet, South Australia Police and the Police Association of SA that all parties would support the introduction of legislation that enables mandatory alcohol and drug testing in certain circumstances.

I am sure that everybody involved, and the public at large, would think that was good. The purpose of drug and alcohol testing for police officers is to ensure that officers are fit to perform their work and also not compromise their own safety and the safety of fellow officers and members of the public. The government's bill proposes that alcohol and drug testing be permitted only in certain circumstances and makes no provision for random testing. The bill proposes that a member of SAPOL may be required to undergo alcohol and drug testing for any of the following circumstances (and this applies to cadets and officers):

following a critical incident, defined as an incident where a person is killed or suffers bodily injury while detained by police, or where a firearm or taser is discharged, or where physical force is used. This seems pretty straightforward; it is a good description of a critical incident;

following high-risk driving, as is defined in the police operational guide;

where there is a reasonable cause to believe recent consumption of alcohol or drugs—not just a suspicion of use, but a reasonable cause to believe—has occurred; and, lastly

a police officer applies for a classified position such as a special task and rescue group position, major crash, surveillance team, witness protection, or a position on the APY lands.

A person who is applying to join SAPOL will also be required to submit drug and alcohol tests. That seems pretty straightforward. When we get to the committee stage, minister, I will move an amendment. I will move only the first amendment that I have filed. Essentially, that is to propose that we change the suggestion that members of SAPOL may be required to undergo alcohol and drug testing under those certain circumstances to say that they will be required.

In the briefing that I had from SAPOL and the minister's staff, I asked why it is 'may' rather than 'will' under those circumstances. It was explained to me that there may well be times were operationally it is just not practically possible to do that. I accept that explanation, but I and the opposition would still much rather that the bill, and potentially the new law, made it very clear that SAPOL officers under those circumstances will be required to undergo drug and alcohol testing and also, very, very clearly, unless it is not possible.

Minister, in relation to the two amendments I have filed, I have a strong preference to just file the first one, which still leaves it up to the commissioner's discretion. The commissioner still then has some discretion to delve into the issues and explain, in any circumstance, why on that occasion it may not have been possible. If the government does not agree to that, then I will move the second amendment as well, which takes it outside of solely the clause that gives the commissioner the discretion. Lastly, on this section relating to drug and alcohol testing, a drug for this purpose is defined under the Controlled Substances Act and details of procedures relating to the testing will be determined in the regulations. Again that is detail that I understand that the PASA and SAPOL have come to agreement on.

It might also be interesting for the house and people who follow this debate to know what happens with regard to drug and alcohol testing in other jurisdictions. To the best of my knowledge, in New South Wales there is mandatory testing in certain circumstances and random testing for any off-duty police officer, and approximately one in three officers are tested randomly each year.

I have had discussion with the President of the PASA, Mr Mark Carroll, and he has explained to me some of the difficulties that random testing can provide, so I am certainly not pushing for that. This is purely by way of comparison. In Victoria, there is mandatory testing in certain circumstances and random testing of police officers in high-risk units. In Queensland, there is mandatory testing in certain circumstances and there has been ongoing consideration of random testing, but no current proposal exists.

In WA, there is mandatory alcohol and/or drug testing in certain circumstances. In Tasmania, there is mandatory alcohol and/or drug testing in certain circumstances and, in the AFP, it is much broader—as and when directed by an approved person. I would be very comfortable if SAPOL were to fit into that description of other states by exactly what is described in the bill except with the change that they 'will be tested' rather than that they 'may be tested' under those certain circumstances.

Another important aspect of this bill is flexibility with regard to probationary periods and that relates to section 27. There is no provision in the current act for the commissioner to amend the probationary period for a probationary constable, or immediately following the promotion of the officer to a new rank. This may be appropriate if a probationary officer is absent from duty other than for recreation leave.

This amendment will provide the commissioner the flexibility to extend the probationary period for an officer who is absent from duty, providing him or her with additional time to fulfil any outstanding probationary obligations. I think that makes great sense; it gives good flexibility. There are numerous reasons why an officer may need to be off duty for an extended period during his or her probationary period and I think it makes sense to have the option to extend the probationary period in those circumstances.

Of course, we would all be reminded of the very unfortunate situation where, recently, Probationary Constable Tung Tran was very seriously injured in the line of duty. Quite clearly, through no fault of his own, he was not able to complete his duties as a police officer in the time allocated for probation, and there are many other far more pleasant reasons why that might be an appropriate amendment as well. I certainly have no hesitation.

Appeals in respect of discipline are dealt with in section 46. Under current legislation the police commissioner has the authority to impose a punishment on an officer found in breach of the police code of conduct or found guilty of an offence against a state, territory or commonwealth law. Surprisingly—and good on SAPOL and PASA for changing this—currently an officer has a right of appeal if he or she has breached the code of conduct but no right of appeal exists for an officer found guilty of an offence against any state, territory or commonwealth law. This really just tidies it up and gives that right of appeal under both those circumstances, so I think that is very appropriate.

Another key aspect of this bill relates to section 67, concerning suspension of the powers of the police officer when absent for extended periods. Again, I think this is really good common sense. It is similar to the option to extend a probationary period. When police are sworn in, they are granted certain powers and responsibilities which exist even if they are off duty or absent from work. This remains the case even if the officer is absent for an extended period due to physical or mental disability.

It does make great sense that if an officer is off duty for an extended period of time due to physical or mental disability and, potentially, some other reasons as well, that some of the powers that that officer has should be suspended. That is not necessarily in any way a criticism of that officer either. It might just be completely appropriate for that purpose that the powers and the responsibilities that that officer has be suspended, because it is important not to forget the responsibilities that officers have even when off duty, and it might be quite burdensome for them to bear those responsibilities as much as the powers that they have when away from work.

Regarding sections 59 and 61, verbal appointment of special constables, minister, I will have a couple of questions in committee so that I can understand the detail about this. Essentially this is saying that currently the commissioner can authorise a special constable in writing. Quite understandably, in practice, it may not always be sensible or even possible to do it in writing, and it gives the verbal authority to do that followed by written confirmation later. We can all imagine situations where it may not be quite possible for the commissioner to put pen to paper before the support of that extra person may well be required. Minister, I will ask a couple of questions in committee about the detail regarding situations such as how do you transmit the commissioner's verbal authority, etc., and that sort of thing later on, but I certainly support that aspect of the bill.

Moving on to some of the things which are more about industrial relations, enterprise bargaining or workplace agreements (whatever the right term is), section 55, right of review by unsuccessful applicants when the position is not filled. Under the current legislation when a member of SAPOL wins a position of promotion, the selection decision is published in the Gazette. Any officer who also applied for that position and was unsuccessful can ask to explore the reasons why, but if the position was not filled, if none of the applying officers was considered to be appropriate for that position, right now it is not possible for any of them to essentially inquire as to why they were unsuccessful. This part of the bill gives that opportunity, even if the position is not filled, and I think that makes good sense. Transparency in one situation is quite as appropriate as transparency in another.

Section 7, suspension without pay, again is about workplace conditions but it does have some very sensible operational connections. Under the current legislation, the commissioner has the authority to suspend an officer's appointment including his or her remuneration; however, remuneration may not be withheld for more than three months. No doubt that was a safeguard put in to protect officers but I think we would all understand that there are occasions where that is a safeguard that might actually be far too advantageous to an officer. This is not about saying that withholding of remuneration must be extended but it certainly has that option.

The amendment seeks to allow the commissioner to withhold the remuneration for more than three months if the person has been committed for trial for a serious offence or the person has been found guilty of a serious offence, or the person has admitted or been found guilty of a breach of the police code of conduct where the most likely outcome is termination of the person's appointment. A serious offence means an offence that is punishable by imprisonment of two years or more.

Minister, I ask you to put on the record that if remuneration is suspended for any of these reasons, for three or more months—less than three months, more than four months, that is not the point—but the person is actually found not guilty that their remuneration would be repaid. Whether you choose to put that in your closing comments or deal with it in committee, I would be comfortable either way, but I would like you to address that.

Moving on to the public intoxication issues and the responsible officer, in this bill there is a change to the responsible person for the Public Intoxication Act, which is currently the police station officer in charge. We would all understand that in some situations it is quite appropriate and quite easy to implement that the officer in charge fulfils all the obligations of a responsible person, but certainly there would be plenty of times where that would not be possible. So, essentially, this amendment allows the officer in charge to have an additional person. It is not instead of, as I understand it, but there can be, under the Public Intoxication Act, an additional responsible person to help with matters that fall to the police in police stations under the Public Intoxication Act.

Minister, as I said, the opposition is certainly not opposing this. I will have some questions to ask you in committee. For me, most of this is very straightforward. I appreciate the fact that your office and SAPOL officers, Assistant Commissioner Neil Smith and Detective Superintendent Scott Duval, came and gave that briefing. There was a mix-up with regard to written confirmation that was going to be provided, but certainly your office, SAPOL and the president of the Police Association have confirmed that you agree, so I cannot ask for better than that anyway. I will just wind up there and, as I said, I will move one of my filed amendments when we get to the committee stage.

Mr PEGLER (Mount Gambier) (17:21): I will be very brief and just intimate that I will be supporting this bill; it is a step in the right direction. It quite surprised me that there was a process for drug and alcohol testing of police. You see that in most workforces nowadays, and I would have thought that, with the police and the situations that they often find themselves in, we would already have had in place a process for drug and alcohol testing. I certainly support that.

I also support the circumstances for testing rather than just having random testing. I think this is important in relation to any person who is applying to join SAPOL, or a police officer applying for a designated classified position, or following high risk driving incidents, or where a defined critical incident has occurred involving a death or serious injury, and also where there is reasonable suspicion of drugs or alcohol being consumed by that officer. I certainly support that rather than a random testing position. I also support the other parts of the bill, particularly on the probation periods and also the promotional aspects of the bill. I will be supporting the bill.

The Hon. M.F. O'BRIEN (Napier—Minister for Finance, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (17:23): I will be reasonably brief. We the government will not be accepting either of the amendments. The reason for our inability to accept either of the amendments, particularly the first of the amendments, is that this legislation—and the opposition spokesperson alluded to it—is essentially about industrial relations. This bill flows out of an enterprise bargaining agreement that was struck in 2007. One of the central points of the enterprise bargaining agreement was that there be drug and alcohol testing.

Since 2007, I think it probably would be fair to say that there has been lengthy if not tortuous progress towards the content of the bill before us. That has involved SAPOL, that has involved the government and it has also involved the police association.

We start with an EBA in 2007 that broadly defines where we want to end up today. We worked through the process, we get into the house, general concurrence on the part of the three parties and we then have brought in at extremely short notice—in fact, when I came into the chamber I did not have the amendments in front of me, so at the very last moment—two amendments introduced that I believe will be broadly unacceptable to the parties that struck the enterprise bargaining agreement. For that reason, we will not be accepting either of the amendments. So with that indication, I conclude my remarks.

Bill read a second time.

Committee Stage

In committee.

Clause 1 to 8 passed.

Clause 9.

Mr VAN HOLST PELLEKAAN: Clause 9, going down to line 25, paragraph (d), talks about critical incidents. Paragraph (d) is 'as a result of alleged police action'. Can you just clarify what that would mean and give some examples please?

The Hon. M.F. O'BRIEN: That is a coverall to ensure that no action, or alleged action, by a police officer is not covered. Paragraphs (a), (b) and (c) are quite specific, so we thought we would include (d) just to ensure that there was nothing that escaped the net. If it does not fall into (a), (b) and (c) and it involves a police officer, it is picked up.

Mr VAN HOLST PELLEKAAN: It is meant to cover any other possibility then?

The Hon. M.F. O'BRIEN: Yes, it is basically an insurance clause, if you like.

Mr VAN HOLST PELLEKAAN: I move:

Page 6, line 10 [clause 9, inserted section 41B(2)]—Delete 'may' and substitute 'will'

I will not take too long because we have both put our perspectives forward. I appreciate that the minister has said that he feels bound to keep the proposed changes to the act exactly in line with what, presumably, his predecessor, SAPOL and PASA agreed a couple of years ago. I feel bound to try and improve the bill as much as possible. I understand the reality that it may not be possible to do drug or alcohol testing on every single occasion that fits the criteria when it would be required, but I am not comfortable with just leaving it at may happen. So if there is a critical incident; or if there is a driving situation; or if there is any one of those other categories, it might happen.

I think it would be wrong to have it any other way than to make it very clear that it will happen, unless it is not possible. That is what this amendment does. I think to say, 'Well, because on occasion, very, very rarely it might not be possible, so we will just leave it at may' is not appropriate. I think it is far more appropriate to say it will happen unless not possible. So I feel very strongly about this amendment and so I move it.

The Hon. M.F. O'BRIEN: As I indicated, the government will not be accepting the amendment. If I could just give an example, we want to retain the discretion, and that discretion would be exercised by the commissioner. Just to go back to the previous page to the explanation or definition of 'critical incident', the member for Stuart sought explanation of paragraph (d). Looking at paragraph (c), critical incident is defined as an incident where a person is killed or suffers serious bodily injury 'in circumstances involving a police aircraft, motor vehicle, vessel or other mode of transport'.

Just by way of explanation and to indicate the reluctance of SAPOL, particularly the Police Association, and the government to accept the proposition, if a single-engine police aircraft suffered catastrophic engine failure and crash landed and one or two of the passengers were killed, our view is that it would be unacceptable to subject the pilot of that aircraft to a drug or alcohol test, because there would be an inference that in some way the pilot was responsible for the crash.

After an investigation had been carried out by the Civil Aviation Authority which determined that it was clearly a mechanical failure, to then subject the pilot (who has already been through an extremely traumatic set of circumstances) to the further tribulation of having to effectively go on trial, if you like, and be held in some way responsible for the mechanical failure by way of being subject to a drug or alcohol test, we believe is unreasonable, unfair and unjust.

So our view is that the act should allow discretion on the part of the police commissioner to determine those incidents in which it is clear that the police officer could be in no way, shape or form, held responsible for a particular set of events and outcomes. For that reason, we want the flexibility to remain for the commissioner to be the final determinant as to whether a drug and alcohol test is conducted.

Ms CHAPMAN: I rise to indicate my support for the amendment and I am happy to ask the mover of the amendment a question. I would firstly like to make this point: the 'critical incident' under the proposed bill is in very select circumstances, and I think it is worthy of consideration of the mover's amendment to insist that this be required except in certain circumstances as he has outlined in his amendment. The section provides:

critical incident means an incident where a person is killed or suffers serious bodily injury—

(a) while detained by a member of SA Police; or

(b) as a result of the discharge of a firearm or an electronic control device; or

(c) in circumstances involving a police aircraft, motor vehicle, vessel or other mode of transport; or

(d) as a result of alleged police action;

Probably the most common of these, of course, is high-speed chases where, tragically, sometimes either a member of the public or a police officer is injured or killed. I think it is an important advance to actually have the test because, first, say there is an aircraft failure and some mechanical failure, as has been suggested, let us eliminate any allegation of human error as a result of being in some intoxicated state. That, to me, is important.

The other thing I draw attention to the house in considering this amendment is that I help to represent in the parliament people who work for the government in other areas of responsibility in what I call high risk circumstances. The police are obviously at the forefront of many difficult situations in public administration, management and law enforcement, but also we have Metropolitan Fire Service officers who are often in critical circumstances and particularly have to use high speed vehicles to fulfil their duties, etc. There are some 400-odd people employed by the government as train and tram operators and signallers and they, too, have obligations to deal with the public and sometimes machinery and equipment where the public and their own colleagues can be put at risk.

They, for example, in the latter category, are subject to mandatory random testing for blood alcohol content. It is a condition of their employment. They have certainly never put any submission to me to shirk from it. Indeed, in more recent legislation, we canvassed this question of what should happen with the results of those tests, particularly when they are positive.

It is not unusual, as I am sure the member for Stuart would have already pointed out to the house, that people in employment situations where they are going to put either members of the public or their colleagues at risk, in the public or private world, have as a condition of their employment that they be subject to drug and alcohol testing. For the police, I do not think there should be any exception.

I commend the amendment to the house and also say that, whilst I am still puzzled as to the reason for the legislative endorsement of this EB agreement, when I pick up a bill like this, it smacks to me of some party wanting to have some legislative protection because there is a lack of trust somewhere in the system. I am not suggesting that is the minister. I make the point that, when people come coupled with a brief or a request to ask for legislative endorsement, it is because one party does not trust another. I am not here to make any judgement as to who that would be but it seems pretty clear to me that this rather extraordinary legislative endorsement of an EB agreement shines the light on the concern that at least one or more of the parties has. Nevertheless, we will otherwise support the bill.

Mr PEGLER: I indicate that I will be supporting this amendment. I believe that there should be clear direction. The minister's example of an air crash I think is not a really good example because it is my belief that, whenever there is an air crash, particularly if it involves the death of somebody, the pilot is automatically tested for both drugs and alcohol. That is my understanding. I will be supporting this amendment.

The Hon. R.B. SUCH: Likewise, I support this amendment. I think 'may' is wishy-washy and weak and 'will' has a bit more backbone in it and, short of saying 'must', I think this is the next best option.

Mr VAN HOLST PELLEKAAN: I appreciate the comments of my colleagues. I agree in particular with what the member for Mount Gambier said. He really beat me to it. I am sure that it would be quite normal for the pilot of a plane, in the example that you gave, if he were well enough to do so, to submit to drug and/or alcohol testing. I am sure that would be the case in the commercial world. I cannot think why it would not be the case for police. I am sure it would be the case in the private world, if it was a private pilot flying friends or family around.

As the member for Bragg says, and I know for a fact that this happens, samples can be taken from a driver or pilot or somebody in the situation who, unfortunately, has passed away. So, I cannot accept that that is a good reason not to support the amendment. I understand what you said to begin with about supporting the government's commitment to PASA, but it is my job and it is the opposition's job to try to improve this bill.

As the member for Fisher said, 'may' is wishy-washy, 'will' is quite clear, quite correct, quite appropriate and in line with community expectations. I point out that the simple change of one word does not remove the part that talks about the directions of the commissioner. So, if amended, this clause would read:

A member of SA Police or a police cadet will be required to undergo drug and alcohol testing, in accordance with orders or directions of the Commissioner, in any of the following circumstances:

So, the commissioner's judgement is still very involved in this. I think that the community at large, and I think SAPOL officers, if I try to put myself into their shoes, would say, 'We would be much more comfortable for it to say, "will submit to the test under the direction of the commissioner" rather than "may submit to a test under the direction of the commissioner"', because I think it is much clearer, it is much more direct and, in fact, it is much fairer in the fact that no officers can receive any preferential treatment from any commissioner under any circumstances.

I am not suggesting for a second that the current commissioner would do that, but no officer could say, 'Well, you let that one off but you made that person have a test.' So, I think, for many reasons, we should proceed with this amendment. I ask you to reconsider. I think that 'will be required to undergo alcohol and drug testing' under these circumstances is exactly what the community and the public of South Australia would expect.

The committee divided on the amendment:

AYES (19)
Brock, G.G. Chapman, V.A. Gardner, J.A.W.
Goldsworthy, M.R. Griffiths, S.P. Hamilton-Smith, M.L.J.
Marshall, S.S. McFetridge, D. Pederick, A.S.
Pegler, D.W. Pengilly, M. Pisoni, D.G.
Redmond, I.M. Sanderson, R. Such, R.B.
Treloar, P.A. van Holst Pellekaan, D.C. (teller) Venning, I.H.
Whetstone, T.J.
NOES (23)
Atkinson, M.J. Bedford, F.E. Bettison, Z.L.
Bignell, L.W.K. Breuer, L.R. Caica, P.
Close, S.E. Conlon, P.F. Fox, C.C.
Geraghty, R.K. Hill, J.D. Kenyon, T.R.
Key, S.W. Koutsantonis, A. O'Brien, M.F. (teller)
Odenwalder, L.K. Piccolo, A. Portolesi, G.
Rankine, J.M. Rau, J.R. Sibbons, A.J.
Thompson, M.G. Vlahos, L.A.
PAIRS (4)
Evans, I.F. Weatherill, J.W.
Williams, M.R. Snelling, J.J.

Majority of 4 for the noes.

Amendment thus negatived; clause passed.

Clauses 10 and 11 passed.

Clause 12.

The Hon. R.B. SUCH: This focuses mainly on promotion, but I have a general question arising out of my personal experience with a matter. When I asked what happened to a police officer who admitted he broke the rules and falsified a document and what was the punishment, if any, I was told that it is a private work matter and no-one is entitled to know that. In relation to provisions in this bill, the matter of people being aware of what happens within the police force, whether it relates to misconduct or whatever, are we going to have a transparent system or one which shields people who break the law or do the wrong thing from scrutiny by the public and accountability?

The Hon. M.F. O'BRIEN: Member for Fisher, we are actually dealing with clause 12, dealing with a selection process. I would like to make a point and have it recorded in Hansard. In respect of this clause, the Police Association has requested that I indicate whether the amendment to section 55 of the act will allow an applicant a right of review where a determination of no selection has been made on an advertised position. I would like to indicate that an applicant would have a right of review under those circumstances.

The Hon. R.B. SUCH: I appreciate that this would probably have been more appropriate at an earlier clause. His Honour Timothy Anderson, in his judgement of a year or so ago, said that police are not obliged to follow general orders; there is no requirement that they do so. We are looking at the right of review and so on, but in the context of overall behaviour, can the minister assure the house that police officers are required to follow general orders? I am particularly concerned, following the judgement of His Honour Timothy Anderson, that they are not required to follow general orders, which in other words means they do not have to obey directions from the commissioner.

The Hon. M.F. O'BRIEN: The advice that I have been given is that police officers are compelled to follow direction and to follow orders as set out, but I will come back to you, if you have concerns. I will check that judgement and consult with the police commissioner to see whether we have got an issue in that regard. My instinct would be that a disciplined, functioning police force must follow the orders as they stand.

The Hon. R.B. SUCH: I have been concerned for some time at the processes within the police force for disciplining and dealing with members. I understand that it is normally conducted by a magistrate. I do not know whether that is still the practice, but what is the assurance that a police officer who is subject to discipline—whether it is minor misconduct or whatever—is dealt with in a fair and transparent manner? My understanding is that at the moment it is basically a secret process and no-one other than the people directly involved ever get to know about that process and whether or not the police officer is subject to a fair hearing and fair treatment.

The Hon. M.F. O'BRIEN: The process is carried out by a magistrate. I am informed that it is in a closed court for specific reasons, but I will establish with the police commissioner the basis for holding those hearings in camera. It has been put to me by the gentleman advising me on the bill that, on many occasions, there are issues relating to interactions with criminal elements that we do not want to get wide currency, but I will come back to you. That issue is not picked up in the bill. I know it is of concern to the member for Fisher, or he would not be raising it, and I will come back to him, but I do not think it is an impediment to the progress of the committee stage on the bill.

Clause passed.


[Sitting extended beyond 18:00 on motion of Hon. M.F. O'Brien]


Clause 13.

Mr VAN HOLST PELLEKAAN: Minister, this is one of the things that I alluded to in my second reading speech. Could you just talk through the practicalities of the appointment of a special constable? Under the current act, technically it can only take place with written authorisation from the commissioner. Under the bill, technically it can only take place with verbal authorisation from the commissioner. However, I am sure we can all think of circumstances where even that technicality under the bill would not give the flexibility required for real-world operational situations. Living and being very involved in a rural community as I am, I know that it is does happen that local police officers will ask for extra support from people they trust at times when they absolutely must have it. I am not suggesting that those occasions must be a special constable situation, and I can tell you that, living in a very small town in the Outback for seven years, I was called upon to help quite a few times and was more than happy to do so. I did not feel the need to get a badge or a star or be a special constable or anything like that, but that is the real world.

Ms Chapman interjecting:

The CHAIR: Do not interrupt the shadow minister, please.

Mr VAN HOLST PELLEKAAN: Thank you, chair. I am not talking about those situations where you just need some practical help, but there must also be times where you really need to ask somebody to do something that comes with some authority, and the designation of that person or those people as a special constable is required, but the commissioner is not on the phone. The commissioner might be away, and might be dealing with something else very pressing and just cannot get there. Can you talk us through what would happen in those situations if the bill is successful?

The Hon. M.F. O'BRIEN: Just by way of explanation, the appointment of special constables is a jealously guarded power, and the reason that the clause is in the bill is that the issue arose from a resolution made by the then named Australasian Police Minister's Council in 2005. At that meeting it was resolved that all jurisdictions would amend legislation to enable the oral appointment of special constables with confirmation in writing of the appointment to follow as soon as possible. Current South Australian legislation provides that appointments of special constables can only be by an instrument in writing.

The proposed amendment could be utilised in urgent circumstances where the Commissioner of Police might require assistance from another state or territory in an emergency-type situation where the policing needs exceed state resources—so, if we had to call the Victorians in to help with a particular situation or vice versa. Such circumstances would be events similar to the Victorian bushfires, Queensland floods or a large scale terrorist incident, so it really is very much designed to empower interstate police to come to our assistance and exercise the full gamut of responsibilities as they would as a sworn SAPOL officer.

Mr VAN HOLST PELLEKAAN: Thank you, minister. Even though it is verbal authorisation at the time, and that is quite practical, how is that recorded? Does it have to be directly from the commissioner to the officer on the scene who is essentially temporarily swearing in the special constable? Does it have to be direct to direct, or can the commissioner tell one of the assistant commissioners? Can you pass the message on? How does it actually happen and how is that verbal authorisation—understanding that it needs to be followed with written authorisation later—recorded as a safeguard for all concerned in case something goes wrong?

I will give you a hypothetical example: a CFS member, perhaps, from another state, is the only appropriate person to receive this authority. It is quite appropriate to be given to them, but somewhere along the way that CFS officer does the wrong thing—makes a mistake, does something silly, was not actually a CFS officer at all, just happened to have a yellow coat on—and something goes terribly wrong, an accident or potentially even a crime, then how would we look back? So, in that situation where the commissioner may or may not choose to follow up with the written authorisation that is meant to follow the verbal authorisation, how would we track some recording of exactly what verbal authorisation was given?

The Hon. M.F. O'BRIEN: As I explained, this was a decision that was taken at a national level to allow the deployment of interstate police in another state or in another jurisdiction. As I indicated, jealously guarded power is not something that is used on a frequent basis. The way that it would work is that the South Australian commissioner would indicate, for argument's sake, to the Victorian Commissioner of Police that he requires 20 Victorian police officers to assist with an incident in South Australia, and one would assume that Victorians would be of a mind to provide that particular resource.

The South Australian commissioner then would be supplied with a list from the Victorian commissioner of the names, ranks and other identifying information, probably badge numbers and the like, to the South Australian commissioner in writing. With the South Australian commissioner having that information in front of him, he would then issue the written authorisation. That is the way that it would happen in a practical sense. As for enlisting the services of the Country Fire Service, or the like, I doubt whether that would happen. This is something, as I indicated, that was insisted upon and that was an outcome of a national meeting of police ministers. It is a national agreement, and all other states probably have or will introduce at some stage mirroring legislation.

Mr VAN HOLST PELLEKAAN: Just to be really clear, you are saying that this is only to be used for interstate police officers coming into South Australia. It would not be used for army officers, Army Reserves, volunteer firefighters, professional MFS (or whatever they are called) from other states, or even from within South Australia, and it would not be used for ambulance officers. So, none of the range of people acting in a professional or a trained and appropriate volunteer capacity would ever be asked to become special constables; it would only be for interstate police officers?

The Hon. M.F. O'BRIEN: I say to the member for Stuart that it is highly unlikely. It could happen; it could happen that we call in the army, but it is highly unlikely. Our first recourse would be to the police resources of other states, where the officers are trained in policing. However, as I said, this was an outcome that was the result of deliberations by ministers at a national level. There was a requirement that all states introduce effectively mirroring legislation to enable the movement of interstate police forces around Australia as required. There is a provision in the existing act which is not as flexible, if you like, in that it requires immediate written authorisation.

This, we believe, is a more practical way of dealing with a request to, as I indicated, say, Victoria, where a phone call is made. The Victorian police accede to the request and they supply all the identifying information in regard to the police officers coming across the border. That is effectively part of the oral component of the amendment, and then that is followed up in writing by the commissioner basically appointing the Victorian officers, in this case, as special constables while they are in within South Australia.

Ms CHAPMAN: This question relates to the special constables. I do not specifically have any question as to the special oral appointment powers given in the Emergency Management Act 2004. I remember debating that act, and I do not doubt that there would be circumstances where an oral appointment would be desirable to be covered in the legislation, but for special constables themselves—because they have under section 9 of the current act provision for reasonable remuneration, clothing, uniforms and so on to be provided—when they are appointed do they have access to workers compensation as other police officers and cadets have during the period of their commission?

The Hon. M.F. O'BRIEN: I would have to get advice on that.

Ms CHAPMAN: Secondly, I am not sure how long we have had special constables. When I first read that part—which I have to say was today—I pictured them as the sort of hobby bobbies that they have in Britain, but I do not think they are, because from time to time they have been discussed and discounted in this state. Whilst I appreciate that in some circumstances police officers might be brought in from interstate for emergency situations, in the general context, are they used very often? How many have we actually appointed in the last 10 years? What has been the purpose of them? What is the usual time of appointment—and that may, of course, depend on the purpose of them being appointed? Do they continue to play some useful regular role in supporting our police services?

The Hon. M.F. O'BRIEN: My advice is that this happens quite infrequently but, as I mentioned, there was a resolve at the national level that in the event of emergency, rather than, say, swearing in members of the Country Fire Service as special constables, the preferred outcome would actually be to bring in trained professional police from interstate to perform on a short-term basis to deal with an emergency, rather than entrusting, if you like, CFS volunteers with a range of responsibilities that would be well beyond their training and their knowledge of the law. The intent is actually to further minimise calls on general members of the community to perform this particular function and to operate a little more like a federation and actually use the resources of other states to perform this role.

Ms CHAPMAN: Finally, in relation to the special constables, I would appreciate it if that information could be provided during the passage of this to the other place. I appreciate you do not have it at your fingertips and it may have only been one or two occasions in the 10 years in any event. Are the new provisions here, in respect of obligations for blood and alcohol testing, to apply to special constables if they are in one of the critical incidents that are referred to during the course of their commission?

The Hon. M.F. O'BRIEN: I am informed no. The simple answer is no, but I will come back with a reason as to why that decision has been made.

Clause passed.

Clauses 14 and 15 passed.

Clause 16.

Mr VAN HOLST PELLEKAAN: Minister, Clause 16 is about the suspension or revocation of remuneration under the act, and you might remember that in my second reading speech I asked if you would confirm for us whether or not if a person is found innocent of the charge or the breach of a code of conduct—or whatever the reason is for their remuneration being suspended—that they would be fully retrospectively repaid.

The Hon. M.F. O'BRIEN: Section 70 of the current act (which is not being amended by this bill) actually allows the commissioner to remunerate any pay foregone but it is at the commissioner's discretion. So we have not sought to amend that particular section.

Mr VAN HOLST PELLEKAAN: Is it up to the commissioner's discretion then to repay a portion of it or is it simply that he makes a decision to repay retrospectively or not to repay retrospectively? This becomes much more complicated now where it could potentially go on for years. Under the current act, it could go on for three months; if this bill is passed, it could potentially go on for years. So is it as simple as the commissioner saying that your pay is given back to you retrospectively for the whole time, or would he have the opportunity to make a judgement on part retrospective repayment?

The Hon. M.F. O'BRIEN: The current act, as I said, gives the commissioner discretion, but it also gives him discretion as to whether the payment is in full or in part.

Clause passed.

Clauses 17 and 18 passed.

Clause 19.

Mr VAN HOLST PELLEKAAN: Minister, clause 19, as you know, is about the officer in charge under the Public Intoxication Act. This is an area that would be covered by the regulations, which, of course, we have not seen but you, your staff, SAPOL and PASA have. Can you outline the responsibilities of the responsible officer and also any difference in the responsibilities of the proposed responsible officer under this bill compared with the responsibilities that the officer in charge currently has?

The Hon. M.F. O'BRIEN: This is quite a practical amendment in that, the way it has been described to me and the briefing that I have read, you would have a situation in a very large police station with the police cells at one end, if you like, of the police station. At the moment, the officer in charge, who may be at the other end of the police station basically performing administrative duties and concerned with the ongoing operation of SAPOL in that particular area, would be unable to supervise what is occurring in the police cells. The intention of appointing a responsible officer is to have somebody in close proximity to the cells, basically ensuring the wellbeing of the prisoners who are held in the police station.

Effectively, it is allowing a delegation of charges or responsibilities currently held by the officer in charge to a subordinate officer who would be the responsible officer, responsible for a particular set of responsibilities, and, largely, they would be in relation to the wellbeing of prisoners who are held in police cells.

Mr VAN HOLST PELLEKAAN: It can certainly also happen in a very small country station as well, where you might have potentially two officers and one cannot be there but the officer in charge cannot be there. It can happen in small town stations as well.

What I was really trying to get at is whether there is any difference between the responsibilities of the responsible person as proposed under this bill compared with the responsibilities that the officer in charge has under the Public Intoxication Act. Will they be exactly the same or will there be some responsibilities that the officer in charge, under the Public Intoxication Act, has that will stay at a higher level than this responsible person would have?

The Hon. M.F. O'BRIEN: The intent of the legislation is that the responsibilities of the officer in charge under the Public Intoxication Act will remain and the responsible officer will have to exercise those responsibilities on behalf of the officer in charge and report to the officer in charge, but the officer in charge, in large part, still has the responsibility for the exercising of the Public Intoxication Act.

Mr VAN HOLST PELLEKAAN: I am not talking about the responsibilities that the officer in charge has in his policing work more broadly in the station, just particularly those responsibilities he has under the Public Intoxication Act when they have somebody in custody whose welfare they are responsible for. Are you saying that at that level they are exactly the same, there will not be a difference in terms of what is presented here?

The Hon. M.F. O'BRIEN: Effectively, they will be one and the same. The responsible officer will be exercising the powers and ensuring that the responsibilities are carried out, but the responsibility for, ultimately, the actions of the subordinate will still reside with the officer in charge. The officer in charge still has this responsibility and in delegating it to the responsible officer there is no diminution, if you like, of the responsibilities. I do not know if that has given you much clarity.

Mr VAN HOLST PELLEKAAN: Thanks, minister, yes, it does. I do understand the situation. The reason for asking is not to be pedantic but, with regard to the responsibilities under the Public Intoxication Act, if they are not identical then you have not achieved anything because the officer in charge cannot be away because if he is away then it is not possible to fulfil the responsibility. That is really what I was getting at, but you have told me that they are the same with regard to the responsibility to the Public Intoxication Act and I appreciate that.

The Hon. M.F. O'BRIEN: And, member for Stuart, largely covering the particular circumstances that you have outlined where it is a small country police station staffed by two police officers and the responsible officer may be attending an accident, or whatever, under this arrangement the responsible officer will be performing the responsibilities of the officer in charge in the absence of the officer in charge.

Clause passed.

Remaining clauses (20 and 21), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. M.F. O'BRIEN (Napier—Minister for Finance, Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (18:28): I move:

That this bill be now read a third time.

Mr VAN HOLST PELLEKAAN (Stuart) (18:28): I would like to say again that I understand the minister's and the government's reasons for not accepting the amendment. I am very disappointed. I honestly believe—I know—that the amendment, if it had been accepted, would still allow the fact that when it is not possible to do drug and alcohol testing it would not be required, but in every other circumstance, if it is possible, it would have been required. I think that is very important. I think the public expects that officers will submit to drug and alcohol testing. I am told that very regularly in these circumstances currently they volunteer anyway, which would be the sensible thing to do if you were involved in some sort of high-risk incident or potentially an accident or something even more serious. I think I would and, minister, I think you would. You would say, 'Look, test me. I want to get rid of any doubt about me in that regard.' I am very disappointed; the opposition will consider how we respond to the fact that you have not accepted that amendment between the two houses.

I would also like to thank parliamentary counsel for the support that they gave with regard to drafting that pretty straightforward amendment. I do not think I challenged them too much. I would also like to put on record my thanks to Mr Kris Hanna, who is my staff member. He is very capable and very diligent and supports me extremely well in all these matters.

Bill read a third time and passed.

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