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

Introduction and First 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) (15:38): Obtained leave and introduced a bill for an act to amend the Police Act 1998; the Police (Complaints and Disciplinary Proceedings) Act 1985; and the Public Intoxication Act 1984. Read a first time.

Second 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) (15:39): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Police Act 1998 and its Regulations provide the legislative infrastructure for the management and control of South Australia Police (SAPOL). This Bill now seeks to amend the Act by addressing a number of issues that were identified during an internal review by SAPOL, but which were unable to be rectified administratively. Also included in the Bill is an amendment to the Police (Complaints and Disciplinary Proceedings) Act 1985 regarding appeals, and minor complementary amendments to the Public Intoxication Act 1984.

Drug and Alcohol Testing of Police

A major emphasis in the Bill concerns the introduction of on-duty drug and alcohol testing of police officers, community constables and police cadets. Because such testing procedures cannot be effectively introduced by administrative means alone, significant additions to the Police Act and Regulations will be required.

As in any industry, SAPOL has the potential for alcohol and drug related problems to occur within its workplace. While the use of alcohol (as a legal substance) can form part of a community culture, extent of the use of illicit drugs or abuse of prescription drugs by police in South Australia is not known. No in-depth or ongoing research has been conducted in this regard, and it is stressed that there is no evidence to suggest that such a problem actually exists within SAPOL. Even so, it still behoves SAPOL as a statutory policing authority and responsible employer to ensure all possible endeavours are taken to prevent and deter its occurrence. SAPOL currently has in operation a comprehensive policy concerning alcohol and drugs in the workplace, but this is principally directed towards the health and welfare of its members and the standards expected of them. It does not provide an enforcement process and, until appropriate legislative authority is put in place, the effective ability to detect any actual substance abuse will be limited.

Alcohol and drug testing of police was one of the issues in the South Australia Police Enterprise Agreement 2007, between the Department of the Premier and Cabinet, SAPOL and the Police Association of South Australia. It was ratified on 17 January 2008 by the Industrial Relations Commission of South Australia. The wording of the agreement states that parties 'agree to support the introduction of legislation that enables targeted and mandatory alcohol and drug testing of police officers in certain circumstances in support of the provisions of the Act.' The agreement binds 'the Chief Executive Officer, Department of the Premier and Cabinet and the police officers, commissioned officers/officers of police, community constables and cadets' of SAPOL. Finalisation of the agreement now requires appropriate amendments to the Police Act and Regulations.

The use of alcohol or drugs by police officers can give rise to 3 main aspects of concern. Firstly, there is the matter of operational safety. Officers on duty under the influence of alcohol or drugs threaten to jeopardise the safety of themselves, their colleagues and the public. SAPOL is bound by occupational health and safety legislation to provide a safe working environment, and the use of these substances can severely compromise the operation of established safety standards. Secondly, the issue of integrity comes into question if alcohol or drugs are abused. In particular, the use of banned substances first requires their acquisition and, by so doing, the inherent contravention of the criminal law. This severely compromises an officer's position by making the officer vulnerable to further criminal influence and corruption. Personal use of drugs and involvement in the drug culture may also dissuade police from carrying out their expected drug enforcement responsibilities. Finally, the abuse of alcohol or some prescription drugs, or the use of illicit drugs, would be likely to damage the reputation of SAPOL and undermine public confidence. This Government is of the view that the ability to ascertain whether or not police officers are under the influence of alcohol or drugs is paramount to the proper management, control and operation of its police force.

It is noted that most other Australian jurisdictions have legislated to permit the drug and alcohol testing of police. While some have extended this to include random testing at any time or place, South Australia is not adopting such a position. Instead, it prefers the model of specifying the actual circumstances when testing can occur. Circumstances for such testing will include:

where there is a reasonable suspicion that a drug has been used or alcohol consumed;

where a defined critical incident has occurred involving death or serious injury (such incidents including the discharge of a firearm or while detained by a member of SAPOL);

following 'high risk' driving;

a police officer applying for a designated classified position;

a person applying to join SAPOL.

The types of drugs to which these proposals are to apply will be defined and refer to any substance that is a controlled drug under the Controlled Substances Act 1984.

Testing for a drug will involve a sample being taken of blood, urine or oral fluid. Testing for alcohol will be by breath analysis, using apparatus of a kind approved under the Road Traffic Act 1961.

The majority of actual testing processes, policies and other related aspects are to be contained either in the Police Regulations or addressed by internal directions from the Commissioner of Police. These will include:

prescribing procedures for drug and alcohol testing;

the authorisation of persons to conduct tests and operate necessary equipment;

collection, analysis and use of test samples and results;

evidentiary provisions to facilitate proof;

confidentiality of test results;

destruction of samples collected.

Other Amendments to the Police Act

A number of other miscellaneous amendments are included in the Bill to address difficulties and shortcomings that have been identified in the administration of the Police Act. These include, removing a legislative impediment in determining the length of probationary periods; addressing aspects involving punishment and appeal options; providing a right of review to an applicant for a prescribed promotional position when no selection has been made; and allowing the Commissioner of Police to suspend the powers of police officers who are absent from duty for extended periods by reason of, either physical or mental disability or illness, or approved leave.

The laws regarding the appointment of special constables will be extended to give the Commissioner of Police authority to make oral appointments during times of declared emergency. In such instances, confirmation of the appointment in writing must follow as soon as possible.

Three amendments are proposed to provisions relating to the Police Review Tribunal. These deal with the appointments of its presiding officers and the secretary to the Tribunal.

Amendment to the Police (Complaints and Disciplinary Proceedings) Act

The Commissioner has current authority to impose punishment on a member of the police force who has been found guilty of a breach of the police Code of Conduct. Similar authority also exists for the Commissioner to impose punishment on a police officer who has been found guilty of a law of any State, Territory or the Commonwealth. Pursuant to section 46 of the Police (Complaints and Disciplinary Proceedings) Act, a right of appeal exists for the former situation but not the latter. This amendment seeks to correct the apparent oversight.

Amendments to the Public Intoxication Act

A new police position of responsible officer under the Police Regulations is to be created with responsibility for managing persons in custody in police cells. The position will support, but remain distinct from, the current obligations of an officer in charge of a police station. Because the Public Intoxication Act contains a number of references to officer in charge of a police station in relation to the detention and handling of lawfully apprehended persons, the new position of responsible officer will also need to be recognised in that Act. Duties of the new position will relate to the admission and discharge of the detained person, and the giving of directions that are reasonably necessary for the purpose of detention.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Police Act 1998

4—Amendment of section 27—Probationary appointment

It is proposed to repeal current subsection (2) and substitute a new subsection that will provide the Commissioner of Police with the flexibility to be able to determine that the period of probationary service of a member of SA Police will not include the whole or part of any period during which the member (while on full or reduced pay) is absent from duty (other than on recreation leave) or performs limited duties. A probationary period will also not include (unless the Commissioner determines to the contrary) any period during which—

the member is absent from duty without pay; or

the member's appointment is suspended.

New subsection (7) substantially re-enacts the previous subsection (2) to provide that section 27 does not apply to the following appointments:

appointment as the Commissioner, the Deputy Commissioner or an Assistant Commissioner;

appointment for a term under Part 4 Division 1;

appointment of a member of SA Police to another position of the same rank as that held by the member immediately before the appointment to the other position;

appointment as a community constable.

However, there is a proviso that if the appointment of a member of SA Police to a position is on probation and the member is, during the probationary period, appointed to another position of the same rank, the period of probation carries over to that other appointment (and the provisions of this section (other than subsection (7)(c)) apply accordingly).

Other proposed amendments to this section are consequential.

5—Amendment of heading to Part 6

It is proposed to amend the heading to Part 6 to 'Conduct and discipline of police and police cadets' to better reflect its contents.

6—Insertion of heading to Part 6 Division 1

It is proposed to divide Part 6 into Divisions to accommodate proposed changes to the Part. Division 1 (comprising sections 37 to 41) is to be headed 'Code of Conduct'.

7—Amendment of section 37—Code of conduct

The proposed changes to section 37 will make it clear that the Code of Conduct established under the regulations may include provisions relating to drug and alcohol testing of members of SA Police and police cadets. Other amendments are consequential.

8—Amendment of section 40—Orders for punishment following offence or charge of breach of Code

It is proposed to amend section 40(1)(g) to enable the Commissioner to transfer a member of SA Police, as a disciplinary measure, to another position. Such a transfer may be for an indefinite period or specified term, and with or without a reduction in rank, seniority or remuneration. The current paragraph does not make provision for the period of time for which such transfer may occur.

9—Insertion of Part 6 Division 2

It is proposed to insert this new Division after current section 41. This Division will make provision for drug and alcohol testing of police and police cadets.

Division 2—Drug and alcohol testing of police, police cadets, etc

41A—Interpretation

This section contains definitions of words and phrases for the purposes of interpreting this Division. For example, a critical incident is defined as an incident where a person is killed or suffers serious bodily injury—

while detained by a member of SA Police, or while in police custody; or

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

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

as a result of alleged police action.

41B—Drug and alcohol testing of members and cadets

Subsection (1) of this section provides that a member of SA Police or a police cadet may, in accordance with this section, be required to do undergo drug and alcohol testing; that is, either or both of the following:

to submit to an alcotest or breath analysis, or both, for the purpose of testing for the presence of alcohol;

to provide a biological sample (that is, a sample of blood, urine or oral fluid) for the purpose of testing for the presence of alcohol or drugs.

Drug and alcohol testing, in accordance with orders or directions of the Commissioner, of a member of SA Police or a police cadet may occur in any of the following circumstances:

if the member or police cadet has, while on duty, been involved in a critical incident;

if the member or police cadet has, while on duty, engaged in driving that is classified by the Commissioner in orders as high risk;

if there is a reasonable cause to believe that the member or police cadet has recently consumed alcohol or used a drug;

if the member or police cadet is applying for a classified appointment or position.

41C—Drug and alcohol testing of applicants to SA Police

If a person who is not a member of SA Police or a police cadet is applying for appointment to SA Police or to become a police cadet, the person will, in accordance with orders or directions of the Commissioner, be required to do either or both of the following:

to submit to an alcotest or breath analysis, or both, for the purpose of testing for the presence of alcohol;

to provide a biological sample for the purpose of testing for the presence of alcohol or drugs.

41D—Procedures for drug and alcohol testing

This section makes provision for the Governor to make regulations for the purposes of this Division dealing with drug and alcohol testing and lists examples of what such regulations may deal with.

41E—Biological samples, test results, etc not to be used for other purposes

This section regulates the use of any biological sample or other forensic material taken, or the results of any drug and alcohol testing or analysis conducted, under this Division.

10—Insertion of heading to Part 6 Division 3

Division 3 (comprising sections 42 to 44) is to be headed 'Minor misconduct'.

11—Amendment of section 42—Minor misconduct

The proposed amendment to section 42(1) will give a member of SA Police or a police cadet suspected of a breach of the Code involving minor misconduct the option to have the matter dealt with by a hearing before the Police Disciplinary Tribunal, rather than through an informal inquiry under this section. Other amendments are consequential.

12—Amendment of section 55—Right of review

This amendment will require the Commissioner to publish in the Police Gazette notice of the selection decision (including notice that no selection has been made) following the conduct of a selection process in relation to a prescribed promotional position.

13—Substitution of section 59

59—Appointment of special constables

New section 59 makes provision for the Commissioner to appoint a special constable by instrument in writing or, if a declaration has been made under Part 4 Division 3 of the Emergency Management Act 2004, orally. If an appointment is made orally, it must be confirmed by the Commissioner by instrument in writing.

14—Amendment of section 61—Duties and powers of special constables

The amendments proposed to this section are related to the substitution of section 59.

15—Amendment of section 67—Divestment or suspension of powers

It is proposed to insert additional subsections that will allow the Commissioner to suspend all powers and authorities vested in a member of SA Police by or under this or any other Act or law during any extended period of leave or, if the member is on leave by reason only of physical or mental disability or illness of the member, until the suspension of the powers and authorities is revoked by the Commissioner.

16—Amendment of section 70—Suspension or revocation of suspension under Act or regulations

It is proposed to repeal current subsection (2) and substitute a new subsection that provides that, despite (current) subsection (1), remuneration may only be withheld under that subsection for more than 3 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 Code in respect of which the most probable outcome is termination of the person's appointment.

Other amendments are consequential.

17—Amendment of Schedule 1—Police Review Tribunal

These proposed amendments update the provisions relating to the constitution of the Tribunal and the office of Secretary to the Tribunal.

Part 3—Amendment of Police (Complaints and Disciplinary Proceedings) Act 1985

18—Amendment of section 46—Appeals in respect of discipline

The proposed amendment to section 46 will insert a new subsection to provide a process for designated officers (as defined in section 3(1) of the Act) to appeal to the Court against an order of the Commissioner made after the commencement of this subsection imposing punishment on the designated officer for having been found guilty of an offence against a law of this jurisdiction or another jurisdiction.

Part 4—Amendment of Public Intoxication Act 1984

19—Amendment of section 4—Interpretation

The proposed amendments to section 4 will insert a definition of responsible officer, in relation to a police station in the following terms:

(a) the police officer in charge of the police station; or

(b) if a police officer has, for the time being, been designated by the officer in charge of the police station as the officer with responsibility for persons accepted into custody at the police station—that officer.

20—Amendment of section 7—Apprehension of persons under the influence

21—Amendment of section 10—Custody of persons detained

The amendments proposed to sections 7 and 10 are consequential on the insertion of the definition of responsible officer.

Schedule 1—Transitional provisions

The Schedule contains provisions of a transitional nature.

Debate adjourned on motion of Ms Chapman.

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