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House of Assembly - Fifty-Third Parliament, First Session (53-1)
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Bills

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

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:17): As I was saying before the luncheon adjournment, there had been the development of a number of procedures to detect and identify if someone had a condition. I used the HIV-infection example, the exposure to full-blown AIDS and, in early years, certain death. Having had a health response to what became a very public matter, from that we developed new guidelines and had to work out what doctors should do in a circumstance where they had a patient who was already diagnosed as being a carrier, namely, what obligations and responsibilities they would have towards a sexual partner, what the medical practitioner's obligation would be to their patient, and, in light of patient confidentiality, what responsibility medical advisers had to inform the spouse or sexual partner of a patient if in fact that partner was also a patient.

All these things became significant during this very critical health issue that South Australians faced and in fact which was replicated around the world. With that, of course, came probably the inevitable concern that, if one were a carrier of this virus, there would be all sorts of consequences to their employment, to their capacity to be able to establish a relationship with someone else, and for their exposure to work colleagues, consequences that perhaps now on reflection would seem unreasonable.

There would be a resistance to somebody joining a local football team if they were a carrier, there might be concern by workplace colleagues of being infected if they had to undertake work practices where there was some potential for the exposure of bodily fluids, and, of course inevitably, there is the fear of entering into an intimate relationship with someone who is a carrier.

As a consequence, we again end up in a situation where we have to set up a whole lot of parameters about how we protect people in that situation from unfair exclusion, from inappropriate denial of opportunities for employment and the like. It became very important for a carrier to have some confidence that there would be confidentiality surrounding their status. It could have had direct implications on family relationships, potential social interaction and, of course, current and future work opportunities.

I hope that, in identifying this, it is an illustration of the significance of how something would have, on the face of it, an emerging and then emergency public component for the need to then look past the direct protection and urgent response that one has, and needs to have, in dealing with a public health issue of how you best protect those who might be unfairly treated as a result.

Obtaining a sample of someone's blood for the purposes of testing, or otherwise, in a circumstance where it is non-consensual obviously conjures up a fairly intrusive process and may be quite distressing and disturbing for the person involved, especially if there is identification of a condition that they do not want disclosed. On the other hand, this bill now brings to our focus and attention the need to protect police officers in a circumstance where, during the course of their duties, they are undertaking work to protect members of the public and apprehend offenders and the like. They have a dangerous occupation at times, and they certainly are exposed in the line of duty on a regular basis. The risks that they are exposed to include, obviously, potential contamination if they are brought into contact with the bodily fluids of someone who is carrying an infectious disease. So, what do we do about that?

The bill before us was presented on the basis that SAPOL requested the government to consider introducing a requirement for an offender to undertake a blood test. That is, in the event that someone from the public, who has committed or is suspected of committing certain offences, bites or spits on a police officer, they are required to undertake a blood test for infectious diseases. It is compulsory, and it is to be taken even if the offender's consent is not forthcoming.

The threshold for the application of this rule requiring the offender to effectively submit to the blood testing requires that there has to be a reasonable suspicion that a police officer has been assaulted or that the offender has committed other specified offences of violence. These include assaults, causing harm, serious harm, likely to cause harm, endanger life, riot, affray and violent disorder.

From my recollection, the bill is drafted in the alternative, but we can deal with that in committee. As I said, the government was asked to provide this remedy as an extra support to SAPOL. It was translated into a commitment from the government at the time of the 2014 election that they would introduce this measure. Members may well be aware that currently, as I understand it, if a SAPOL officer comes into contact with an offender and they consider that they have been at risk or exposed to contracting a communicable disease as a result of some transfer of bodily fluids, then that officer is able to have blood testing themselves, I assume at the cost of the department and not at his or her expense.

They are offered this opportunity to go and have a blood test to be able to see whether they have a live virus or a contaminating organism, identifying that they have some infectious disease. Of course, the problem with that is that at the time of testing, depending on the time that has elapsed since the apparent act of contamination, it may not show up. Effectively, it may take some weeks for a full and clear assessment to be undertaken to ensure that the officer either has the disease or in fact is cleared from having any contamination.

It is a sad fact of life that the capacity to be able to test whether the infection has occurred is over a sustained period. Understandably, during that time (it may take some weeks) there would be a period of anxiety on the part of the police officer to await their fate with the result when it came through. This is not uncommon. Obviously we have issues in relation to people who screen for tuberculosis when they come into our country. Of course, they are not supposed to be carrying infectious diseases, but sometimes applicants are not aware of it and a time period has to elapse before they can be fully cleared.

As I said, even the recent African Ebola situation, which is tragic by all means, appears to be coming up—at least the fear of it, and suspected cases of it in different parts of the world—and there have certainly been deaths by the thousands already. It does create a real dilemma when there cannot be an instant assessment, or at least an assessment with an instant result.

The situation at the moment is that, while the police officer may have an anxious period of waiting, SAPOL says it would be fairer that, in certain circumstances, the offender should be obliged to be tested straightaway because he or she may be already a carrier of the virus or the infectious disease material, which could put everyone's mind at rest, or enable the person who may be the victim of receiving this contamination the opportunity to immediately seek treatment, and so on.

That all sounds fine. Again, we look back at this question of balancing the interests of public health, in this case the interests of some police officers who are victims of contamination (apparently between 250 and 300 a year are in this category of being spat on or bitten) in circumstances of some melee, and they are exposed to this agonising, sometimes, wait.

The purpose, of course, is to then look at, on balance, whether it is appropriate that we give this right to take a sample from an offender in the interests of the health of police officers. There has, in fact, been quite a bit of comment made about this process. During the course of the briefing, if I can at least refer to that in the first instance, Mr David Plater from the Attorney-General's Department has provided a briefing on this matter in July, and I thank him for that, where he outlined, somewhat more succinctly than I have today, the details of the purpose of the legislation and how it would be put into operation and in what circumstances.

I am advised, and I place on the record, that a number of health organisations were consulted, which included the Australian Federation of AIDS Organisations, Hepatitis SA and the Australasian Society for HIV Medicine. I understand those three put in some responses. There was a general acceptance, I am told, of the process being imposed in these circumstances for the benefit of police officers. That may be so, and I have no reason to suggest that that is otherwise.

However, I was interested to note that I received a response from the Aboriginal Legal Rights Movement and they have expressed some concern, in particular in respect of new section 20B(1) which authorises the taking of samples of blood but does not specify how this is to be done or by whom, and, in their view, and I quote from their proposal:

It should specify that it can only be done by a medical practitioner or a nurse practitioner. The bill should also specify conditions of safety, with proper forensic procedure and safety protocols, for example, to ensure that the suspect is not him or herself contaminated by a dirty needle.

They also make the point that the bill, in their view, has retrospective application and that should not be so. I had not considered that aspect but I do note in the bill that it is proposed that there will be a provision under proposed amended section 58, which is under clause 11 of the bill, that there will be provision for regulations for:

the carrying out of forensic procedures under Part 2 Division 4, the testing of forensic material obtained by such forensic procedures for communicable diseases (including by prohibiting the carrying out of tests of a specified kind) and the communication of the results of such testing to the Commissioner of Police; and

So, there is provision in there for the regulations to set out some procedure. The explanation to that clause specifically says that it has been designed to enable regulations to be made in respect of the operation of this new regime.

I have to say that it does not ever give me a lot of comfort in the debates on these matters when we are asked just to hope, I suppose, that the regulations that follow (because we are never shown a draft of them) are going to be comprehensive, are going to be adequate and are going to be appropriate. To some degree, we rely on the government's indication that, I suppose in line with the rest of the act, there will be rules to provide for that. I would certainly be hoping that the Attorney makes clear in his response, or at least in committee, that tests will be undertaken by appropriate parties who are trained and that there be appropriate testing of that.

Again, because we are talking about a communicable disease and all the negative connotations that go with that, certainly whatever rules surround the communication of the information to the offender after they have been tested I think also need to be appropriate, taking into account that one cannot be completely insensitive to the fact that the publication of material or the keeping of the data on that should each be carefully assessed.

The Law Society of South Australia has made a number of comments. As I am sure would not have escaped the attention of the Attorney, on 18 August the President of the Law Society, Mr Morry Bailes, published an opinion piece in The Advertiser setting out his support for there to be legislation as is before us and suggesting that it was meritorious and ought be supported. He declared his personal interest in the area, particularly as he had acted for a number of police officers in his career and was a legal representative for the Police Association of South Australia. Even within that envelope, he made it very clear that he felt that there was a need for this, and that we needed to protect those who seek to protect us, for all the reasons that have been outlined today.

Formally, though, in the Law Society's submission they do make the following comments, and I place them on the record because the government is yet to set the rules in regulatory form as to how some of this process is going to operate and we want to be clear that the sentiments of this are taken into account. I quote as follows:

State authorised invasive procedures should be limited to those occasions where they are necessary (eg, for the proper investigation of a serious offence). Therefore Parliament should always be slow to introduce mandatory forensic procedures such as those proposed in the Bill.

The Society is not best placed to comment on whether the proposed amendments are necessary, or highly desirable, for the proper treatment and wellbeing of police officers at risk, although they do appear to be. From a legal perspective the Bill appears to contain the appropriate safeguards against misuse of the biological material. Our concern is to ensure that the biological material obtained under the proposed provision cannot be relied upon for the purpose of any criminal proceedings or investigations.

From a medical perspective, the President-Elect of the Australasian Society of HIV Medicine recently wrote to the Society expressing concern about the Bill on the basis that the mandatory forensic procedures will not, or are unlikely to, have the effect of materially minimising the health risk to police officers.

A copy of the letter dated 1 September 2014 was enclosed, and that was under the hand of the president, Morry Bailes, dated 7 October 2014.

The ASHM letter of 1 September 2014, provided by Professor Mark Boyd, reaffirms their commitment to doing what is necessary to support the protection of police officers but raises the fact that the legislation from their perspective could ultimately run contrary to the purpose of what ill is to be provided. They state:

Hepatitis C and HIV cannot be transmitted through contact with saliva such as spitting. It is vital that police officers who are put at actual risk of exposure to HIV are managed quickly, professionally and in line with the best clinical practice including availability of post-exposure prophylaxis (whatever that is specifically). National guidelines around post-exposure prophylaxis exist and are based on gold-standard practice to protect anyone who has been placed in a position where they may have contracted a blood borne virus.

This proposed legislation would confuse the current best practices and standards within the South Australian jurisdiction and result in misunderstandings of risks, increased anxiety amongst officers and the public and ultimately potentially put officers and their families at greater risk.

It then goes on to say that the association has developed a booklet for police, entitled Police and Blood-Borne Viruses, which is available online and which was developed by clinicians across Australia, and they see that as the gold standard tool for helping police evaluate their risk. They take a different approach to this. Rather than concentrating on the offender and having a compulsory testing procedure undertaken on them in the hopeful expectation that that would provide a prompt identification of real risk or otherwise, in fact the victim (the police officer in that circumstance) may well not be actually following procedure for themselves to have immediate testing, assessment or treatment and therefore are putting themselves at risk.

In other words, you rely on the other person being tested, and that still may not ultimately relieve the concern of the police officer because, of course, if the test is undertaken on the offender and identified to be positive, it still does not mean that the police officer has contracted the condition, and they would still have to obviously go through that test. They do not see it as being necessarily the answer to the problem and urge continued adherence to what they describe as 'gold standard procedure' to be undertaken by someone who thinks that they are at risk of having been contaminated in that way (and they kindly sent me a little booklet which makes a very interesting read), but to a large degree we have to rely on those who provide the medical expertise and testing in this area.

One can only hope that, if this legislation is passed in the expectation that it might provide some relief from anxiety to a police officer—the ill that it is proposed to cure—at the very least police officers will be encouraged to continue to follow the guidelines of the medical professionals and make sure they do not leave this as some kind of substitute to prompt attention to their own health and wellbeing. I am a little concerned that we have not had some of that material from the government; there was no indication that there was a problem.

I made some inquiry of the police minister's office in Western Australia. We did not have any material come back directly from them, but I did have an opportunity to speak to a senior police officer in the forensic division in Western Australia and my recollection is that they have forensic procedures legislation from 2008. From reading my own notes I cannot identify exactly where they were at in that regard, but my understanding is that their procedures for the taking of blood for DNA identification purposes relate to protected people, including children and unconscious people, and I referred to that earlier. I am not sure at this point whether they have an implemented process to provide for the remedy to police officers that is referred to in this bill. Obviously, we will watch that with interest.

The opposition, however, take the view that it is reasonable for this legislation to pass on balance. Again, as I say, it is a balancing act. The thing we raise is the question of whether, in fact, there are other people in our community who are equally deserving of some protection. As I say, this is protection against the anxiety and the delay of assessment of identification of any contamination and, if so, who are they.

Some years ago we canvassed the importance of protection and special recognition in our criminal law sentencing in circumstances where the offence that is committed is aggravated as a result of the particular features of the victim. This is not new. We have already made provision in our legislation to essentially allow for harder sentencing if the victim is a little child, an aged person or someone with a disability, because the general view of the community is that it is bad enough that you might cause some injury or assault to a general person in the public, but if they are in that vulnerable category then it should be treated more harshly.

We already have a process where certain circumstances, particularly surrounding the victim, enable the court to impose a greater penalty when sentencing. In the course of those debates for the purposes of sentencing, it was seen as reasonable that we have provision for higher penalties in our Criminal Law Consolidation Act. Accordingly, we passed some amendments to that act to provide that conduct towards another could be treated as an aggravated offence if:

...the victim was, at the time of the offence, engaged in a prescribed occupation or employment and the offender committed the offence knowing that the victim was then engaged in an occupation or employment and knowing the nature of the occupation or employment;

The 'prescribed occupations' are defined in that act to include: emergency workers; doctors, nurses or midwives in a hospital; or assistants to each of the above. One of the more common areas that was considered to need some attention was when somebody who might be working, for example, in a hospital emergency department—they might be health worker, nurse or allied assistant—comes to the aid of a prospective patient who may be in a very agitated state and effectively wreaks havoc in the emergency department when the health professional attempts to assist that person.

Obviously, if we were to take that example and disturbance or injury was caused to one of the health professionals during the course of this behaviour, in a circumstance where the person providing the service was in that prescribed occupation and the victim knew that they were, and they were actually in the course of undertaking their duty (i.e., the victim is there, they are fully lucid, they are cross or angry, and the nurse is standing there in a uniform, is clearly identified as being a nurse and is attempting to undertake a procedure to administer medication or trying to assist the patient in those circumstances), it was felt appropriate that there be a higher penalty if someone were to strike out.

I am sure most members here would be familiar with those sorts of circumstances, where someone may behave badly, to say the least, often increase their own distress and cause distress and upset to others, and may in fact inflict a wound of some kind on the others around them, whether they be other patients or workers. It is the people who are working in the prescribed occupation (i.e., a nurse in that situation) who are entitled to have some extra penalty added to the offender, because that person is putting his or her life at risk to provide a service to that person.

When we talked about the extension of the law in this area, it also meant that, if the person attending the emergency department had a psychiatric disorder and clearly did not know what they were doing, or was under the severe influence of a drug and was not able to form any capacity to conduct themselves in an orderly manner, and certainly not be able to form an intention to cause some injury or attack on the prescribed worker, then they would not be in that category. They may, in fact, be treated entirely differently through the sentencing procedure there. In any event, they had to have those three elements to qualify for some extra penalty.

The government introduced the legislation, which we supported because we felt it was reasonable that someone who, in the course of their duties, has to help people and there is every likelihood, especially in the health area, that they will be dealing with people who are distressed, angry, upset or disturbed and they are going to be vulnerable to and at risk of the disorderly conduct of that person, that they should have some recognition in this way. Whether it is just police officers, just health workers, just ambulance workers or just someone who is acting in some protective manner (i.e., through the SES, CFS or MFS) in an emergency situation where the party that is being rescued, supported or who aid is being rendered to becomes hostile or angry or retaliates in some way then, again, they should have this recognition in the statute when it comes to sentencing.

As I say, the government may have thought at that stage, when it introduced this legislation, that it was reasonable that if police officers are in those circumstances, which of course they are from time to time—it is part of their charter to undertake to protect the community—then they are exposed to that risk but it is also reasonable that we give the same recognition to those in emergency work, and the prescribed occupations were provided for in that.

We have previously considered, as a parliament, the importance of recognising the risk that people in the emergency world expose themselves to in order to carry out their responsibilities and duties in their chosen profession. They undertake a service which, across the board, is something that I hope continues to be valued by the community. I certainly value it and I think most members here would agree that these people often put their lives on the line for us. They are certainly exposing themselves to risk situations, and that includes being exposed to the risk of infection of a disease which could render them very ill or catastrophically so.

The purpose, therefore, of introducing an amendment to this bill is to give the same right to someone who is bitten or spat at during the course of their duties by someone who is not necessarily committing an offence but who may be reacting unreasonably or may be so frightened by the situation that they act in a manner which causes harm to the health or emergency services worker. Another classic example is when people are distressed or disturbed at the sight of a fire at a residence. Sadly, all too often, either other family members, children, pets, or valuable property even, are left or trapped within premises. Emergency workers will attempt to calm a distraught parent, for example, or the owner of a pet who is desperate to re-enter an area of danger in an attempt to rescue something or someone who is precious to them.

They, again, are exposed in a situation where, in the raw attempt and distress of that person, they are of course vulnerable to being spat on, bitten and worse. At this time, we on this side of the house feel that it is important that that be recognised. We are certainly hopeful that the government will equally respect the fact that this needs to be considered, as they in fact presented to us for approval in respect of sentencing that similarly in this way they should have some benefit.

The Law Society have also indicated and floated the idea that is it is not unreasonable that favourable consideration is given to other personnel such as the emergency services, medical practitioners and the like, and they even went so far as to say that correctional services officers perhaps should be involved in that. We are hopeful that the government will support an amendment to include an extension of this.

I am now advised that the amendment has been tabled and that it will seek to extend to effectively this class of emergency services providers, which are to be defined as including the representatives from: CFS, MFS, State Emergency Service, SA Ambulance Service, St John Ambulance Service, Surf Life Saving, a body or organisation that is a member of Volunteer Marine Rescue, or the accident or emergency department of a hospital. We have not sought to include in this provision for correctional services personnel; there may be a case to consider that as well.

It has been a long time since I have looked at this issue, but it is my brief understanding that certain practices obviously operate within prisons which enable, I suppose, the disclosure and recording of people who may be carrying a communicable or infectious disease and so therefore the risk is known to the extent of the population of those who are resident at a facility and is known to the correctional services officers. If that is not the case, then there may well be an argument that they may need to have some assistance in this regard.

The reason we have raised it is that we are not saying that this just happens to anyone at any time, but it has to be in a circumstance of undertaking emergency work. Emergency is also defined in our amendment as:

an event that causes or threatens to cause—

(a) the death of, or injury or other damage to the health of, any person; or

(b) the destruction of, or damage to, property; or

(c) a disruption to essential services or to services usually enjoyed by the community; or

(d) harm to the environment, or to flora or fauna

Again, we have not suggested this is an at-large position, but that we have it in specific circumstances and that it is to be clearly defined as only applicable to emergency service providers as defined.

I was going to make some other reference to correctional services officers within the confines of a prison, but the only circumstance where I would see them as being exposed to the risk is in a riot situation in a prison. Given the protest the government has identified for police officers, it could also be just a rally of some kind. In any event, there is a much more severely restricted and regimental operation of rules in the prison environment, and there are already other offences that could probably deal with that.

However, we are looking at the question of who should have the right to compel somebody to give some blood, or a swab from their mouth, or a hair sample, to be taken forcibly if necessary, for the purposes of identifying a potential risk of infection, in exchange for providing more comfort and a quicker assessment and result to someone who has legitimately undertaken their lawful duties to assist others. The answer to that question is: police officers, plus known personnel who are undertaking emergency work in the health and emergency services area. As I say, we hope the government will be sympathetic to our presentation in that regard.

In the event that it is the government's view that on the face of it it sounds alright, but they do not want to pay for it—that is, they do not want to have to have the expense of it—can I say this: we have been through a very painful era of debate during which we were asked to consider the change of rules for compensation applications when a metropolitan fire officer contracts cancer, within an certain category of cancers. Initially, it was not painful; it was quite reasonable to look at it and say that there is sufficient data to suggest that these six cancers, as distinct from whole lot of others, have an identified significant nexus to the exposure of smoke and other carcinogens and that there should be a reversal of the onus of proof in dealing with these applications.

We said, yes, on the face of it that is reasonable. The logical extension is to ask about others working in the management of fire or chemical spills, cleaning up road accidents, or assisting in circumstances where there is smoke or a matter that is presumably carcinogenic, which then exposes them to the risk of developing cancer. When we raised the question of extending it to Country Fire Service personnel, there was just great resistance from the government, and it seemed to be entirely based on the financial pain of the government if they were exposed to that risk.

It beggars belief that they would take out a group, who they say deserves our support—and we agree that they should be recognised in that circumstance—and then exclude another group of people who line up for the same risks and have the same exposure and, what is more, do not even get paid to do it. To me it is unconscionable that we have such an exclusionary approach, and that is the most recent example that springs to mind. When it suits the government, and it is free—for example, increasing penalties for aggravated factors to be taken into account in sentencing—they are happy to say, 'Fine, let all the other emergency workers come in,' but when it comes to a cost they get very selective about who gets in and who gets excluded.

The Attorney may take the view, 'We've got to be responsible with the money that we provide for certain things.' I simply say that it would be fairer not to single out a certain group with exclusive access to a benefit or a privilege in a circumstance when others are going to be excluded. In any event, the government in this instance has not indicated that they want to exclude other emergency services people. I certainly hope that they are not motivated in some way to do so, that they will welcome this amendment and that they will give it consideration. In light of it being tabled late, to the extent that we are now dealing with this today, the government may wish to get some advice on the matter and we can consider it between the houses. However, we would certainly want some indication from the Attorney that this would be given favourable consideration.

I give the Attorney the benefit of the doubt on that, but it seems clear from our own consultations, on the indications that have been given to me, that this has been an aspect which has been presented to the government and which has not been taken up; that is, it has been raised with them and, for some reason known only to them, they have not thought this was a good idea. I do not doubt for one moment that the police department came up with the idea, obviously as they should, to present ideas and proposals to protect and promote the welfare of their own membership.

If the government are not going to support this, having been alert to it and having considered the importance of other emergency professions in other circumstances in the time I have been here in the parliament, I would be looking for some explanation from them as to why they are not prepared to do so. I hope I have sufficiently explained for the benefit of the Attorney the amendments I will be proposing and, with that, I leave that as my second reading contribution.

Mr PEDERICK (Hammond) (17:12): I rise, too, to support the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill 2014. As the member for Bragg alluded to, we will be supporting the bill but seeking some amendment to protect other people in the front line of emergency services, who obviously have contact with many hundreds and thousands of people out in the field.

This bill amends the Criminal Law (Forensic Procedures) Act 2008 to require an offender who bites or spits at a police officer to undertake a blood test for infectious diseases. I think this is something that is needed. I note an article that was put out in 2011 by the Australia New Zealand Policing Advisory Agency about police and blood-borne viruses, so people have been onto this for a while and it has certainly been out there in the field for several years. I will make some comments about that document later on in my contribution.

In regard to the threshold of whether or not someone will be tested, it requires a reasonable suspicion that a police officer has been assaulted or that the offender has committed other specified offences of violence. These include assaults, causing harm, serious harm, are likely to cause harm, endanger life, riot, affray and violent disorder—the top end of violent offences.

I think the issue has been where officers in the field, if they think they have copped a spray, literally, and had someone spit at them, have to wait several months to see how the test goes. If you can test the offender almost immediately, it takes away a lot of that worry and angst from those many able police officers who serve us in this state.

I note that the Aboriginal Legal Rights Movement suggests that the sample should only be taken by a medical or nursing practitioner, and they are also concerned about protocols for proper forensic procedures. It is noted that there have been media reports recording the President of the Law Society of South Australia supporting the legislation and inviting extension to other emergency workers.

I think this is apt, and I note that the shadow attorney-general (the member for Bragg) has flagged amendments in regard to emergency services providers, which will include members of the South Australian Country Fire Service, which affects many members on this side of the house, and I note my interest and that I am one. It also includes the South Australian Metropolitan Fire Service, the South Australian State Emergency Service, the South Australian Ambulance Service, the St John Ambulance (South Australia) Inc., Surf Life Saving South Australia or a body or organisation that is a member of Volunteer Marine Rescue or the accident and emergency department of a hospital. The member for Bragg has given a very authoritative approach to this bill and a very good description of things that can and do happen in the field.

Like the member for Bragg, I think this should be expanded to other people at the front line of our emergency response. I live in a country area and we have CFS crash rescue tenders at Tailem Bend and Coonalpyn. We have CFS units at Ki Ki and Coomandook that work under the Coomandook banner, and they also locally have a 9,000-litre tanker. There are also units throughout the electorate, and at Murray Bridge there is the MFS, SES, and marine rescue—the whole gamut of emergency services.

Right throughout our electorates and the state, there are many thousands of these people; some are paid and, obviously, in the volunteer sections—and I think of the CFS, in particular—many are not paid. So, any little benefits that we can give them to afford them some peace of mind out in the field I think we as a parliament should be doing to our utmost ability.

It is no secret—it is well known—that, with the emergency services levy increases, a lot of our emergency personnel are feeling like they have been kicked in the guts by the present government, and there is talk that they may not turn up to events. I hope they still do—I really and sincerely do.

I have had events at my place, and we had a massive fire about 8½ years ago, just before I got elected, and I know I have mentioned it in this place before. I got up in the morning to find out that a bloke from South-East further down near Avenue Range was in charge of a strike team that had come up. It is heartening to see them assist us in our time of need, as our groups do to help out people in need. They send out strike teams to support them in the field. We saw some terrible fires over the last summer up around Port Pirie, through the Hills and right throughout the state. Let us hope that we do not have too many. There will be some—there always are—and let us hope we can get onto them and that our emergency services personnel all act.

I do feel for them because they have been getting their emergency services levy bills recently and some have not just doubled. I know one of mine tripled, and some have gone up sixfold. It is a huge increase—600 per cent—for people to have to stomach knowing that, when they are called, they will more than likely still get out and work as volunteers, especially in the fire sector with the Country Fire Service.

In regard to what happens currently with the South Australian police, blood testing is offered to any officer who has had contact with an offender's bodily fluids and is therefore at risk of having been exposed to or contracted a communicable disease. There is currently, however, no obligation on an offender to be tested, and that is what this bill seeks to amend. This legislation is the result of a government commitment coming into the election.

As I indicated earlier, the specified offences are assault or resisting a police officer; assault and assault causing harm; causing harm; causing serious harm; doing acts likely to cause harm, serious harm or endanger life; riot; affray; and violent disorder. I note that this bill and the amendments with it allow other specified offences to be added by regulation, so I welcome that.

I note also that, if the bill does come into operation as an act, it provides that an offender can only be required to undertake a blood test upon the authorisation, to be recorded in writing, of a senior police officer, being an officer of or above the rank of inspector. I certainly think this is something that we need.

I will refer to parts of this document, Police and Blood-Borne Viruses, which was put together by the Australia New Zealand Policing Advisory Agency. As it states, and is obvious to everyone, police workers can be exposed to people's blood or bodily fluids in the course of their work. There has been a study conducted where police, after healthcare workers, were found to be the second most frequent occupational group affected.

I think that is a significant point that we need to note. Police actually rank just below healthcare workers so, as per the amendments of the member for Bragg, we need to take healthcare workers into account. Too many times we hear about things that happen in emergency departments where people might be having seizures or coming out of some drug situation, and they have a crack at the people who are trying to assist them and potentially save their life. It is obvious from this study alone that they are at the front line and cop more of a percentage of these attacks and the likelihood of infection than police. I am not trying to take away from the good work of the police.

There are three major blood-borne viruses: hepatitis B (HBV), hepatitis C (HCV) and human immunodeficiency virus (HIV). These are different viruses but can all be transmitted by blood. HBV and HIV can also be transmitted by other bodily fluids. Many people with HBV and HCV and some people with HIV are unaware that they have been infected and may unknowingly pass the virus on to others. All these infections can be prevented. They can all be treated but, if left untreated, they can lead to serious health problems.

The prevalence of these diseases is noted: an estimated 162,000 people in Australia are chronically infected with HBV; an estimated 217,000 people in Australia are chronically infected with HCV; and an estimated 20,171 people in Australia are living with HIV infection. All of these can be transmitted with blood to blood contact but it is noted in regard to HBV that saliva in the mouth and eyes, and bites that break the skin can transmit hepatitis B. That is certainly one disease that is relevant to this legislation.

A quote from this report states that all police should consider hepatitis B vaccination as a means of protecting themselves and others, both personally and professionally, and I am sure a lot are doing it. I am also sure that a lot of people who work in emergency departments and other emergency sectors are probably doing that already, but I do not have those numbers.

In discussing further things that can be done after exposure, there is post-exposure prophylaxis or PEP, which is a medication taken after exposure to a BBV to reduce the risk of infection. Obviously a health professional is needed to assess the risk of infection to determine the need for a PEP but it is not available for HCV.

It is noted, though, that, if police officers have been fully vaccinated for hepatitis B, a PEP is not required, and a blood test to confirm immunity may be recommended. So there are things that can be done afterwards, and these are the protocols that have been used in the past. It is certainly interesting to note in this document about blood-borne viruses that people in the field are well aware of the risks to the police force. As I noted earlier in my contribution, even this document states that health workers top the list, and they certainly should be included in the amendments to this legislation so they can have the same protection.

If we are going to afford it to our very vital police force, our emergency services need the same support. I think we should give the same support to all our emergency services, whether it is the Metropolitan Fire Service, State Emergency Service, Country Fire Service or marine fire services, all our ambulance workers and all people in the field of emergency contact who, when they get to a scene, cannot spend very long at all assessing the danger to themselves, which I know for a fact they do, but they also need to treat people and save their lives.

Sometimes they are dealing with people who may be coming out of a drug episode or something and are obviously not in their normal frame of mind, and all sorts of things can happen and things can get a bit out of control. I think the more we can do for these vital people who help society every day of the week, no matter what time of the day or night, the better, and I think we have an obligation, a moral obligation, as a parliament to do so. I commend the bill. I think it is a step in the right direction and I hope the government takes note of our amendments.

Mr TARZIA (Hartley) (17:29): I also rise to support the bill preferably with the amendment which the diligent member for Bragg has proposed. However, I will support the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill 2014, with or without the amendment.

I have a sister who is a nurse who works in an Adelaide hospital and who is on the front line. Seeing what she does, it is quite bizarre that the government would isolate this bill to solely the police. The government has failed to consider other emergency providers in this bill and I am so pleased that the hardworking member for Bragg has taken the step to propose this amendment, because why should we isolate the bill to solely the police? Who are we to say that members of the Country Fire Service, the Metropolitan Fire Service, the State Emergency Service, the SA Ambulance Service, St John Ambulance Service, as well as Surf Life Saving South Australia and such organisations, or parts of those groups, are not to be protected through this kind of law? It is absolutely imperative that in this house we support the amendment of the member for Bragg because it is about protecting those who put themselves at risk for the community. So, I rise to support the bill.

I fully support the thrust of any bill that seeks to protect our emergency services personnel from people who spit or bite at them. I am sure we all have friends who are in this line of work and it is important that we protect them, where possible, as much as we can. The police in this state do a fantastic job to keep our streets safe from violent offenders and it is always important that we protect them as much as possible. I believe that when there is a reasonable suspicion and a police officer has been violently assaulted discretion should allow that a suspect should be tested without his or her consent. It is vital to protect the safety of our officers and we have heard examples of where these officers have to intervene in the course of duty.

The deputy leader has proposed a number of what I would call common-sense amendments to the bill that will protect all emergency services personnel who may come into contact with an offender that engages in biting or spitting behaviour. It is important that especially blood testing of an offender be applicable to these men and women in the course of their duties. The emergency services—particularly the nursing and medical staff—come into contact with violent offenders almost on a daily basis. We have heard examples of where there are other issues that might arise: someone may have a seizure, or someone may be under the influence of alcohol or drugs and perhaps not have control of their movements. It is important that we consider these instances and that we protect our men and women who perform these duties against these sorts of offenders.

It is ridiculous to think that a police officer might have the discretion under the act to compel an alleged offender to undergo a blood test but other emergency services staff do not have this discretion. It is absolutely outrageous. I understand, as we have heard, that the Law Society supports this position and I wholeheartedly support the intent of the government in the bill but it will be much better with the amendments proposed by the deputy leader.

I note that this currently does not apply to any other Australian jurisdiction and it would be a great thing that South Australia should lead the way in this area. I note that in Western Australia legislation is being considered, and I acknowledge the good work that they have commenced over there. I commend the bill to the house. I reiterate that we should not isolate the bill to just the police. Why extend it to emergency workers in one area and not the other? We need to get on board and we need to support the amendments of the member for Bragg. I commend the bill to the house.

Mr TRELOAR (Flinders) (17:34): I rise today to support the bill and also support the amendments proposed by the member for Bragg. The bill before us today is the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill 2014. The bill was introduced by the government way back in July and it looks to amend the Criminal Law Act of 2008 to require an offender who bites or spits at a police officer to undertake a blood test for infectious diseases.

In this day and age, infectious diseases are prevalent in our society. The member for Hammond has highlighted three in particular: hepatitis B, hepatitis C, and also HIV, which can lead of course to AIDS. Bearing in mind that there is another one quite literally on our doorstep, given that we live in a world today where international travel is relatively easy and relatively cheap. I speak, of course, about the Ebola virus, which has become evident once again in West Africa, as it does from time to time. This is another disease which is transmitted through bodily fluids, and God forbid it ever becomes an epidemic. These are the sorts of disease that we are looking to deal with here.

We are looking to protect police officers in particular, and that is the intent of the bill. Of course, our police officers are at the very front line of law enforcement in this state, and they are quite likely, in the course of their business, to be exposed to often dangerous and violent people who may be in all sorts of mental states and often take action against those officers who are trying to enforce the law.

With our amendments, we are also looking to include other emergency services and other emergency service providers, and emergency care workers such as nurses and medical practitioners who work in emergency departments in hospitals. I have to declare an interest here, because my brother-in-law is a policeman, and my wife works as a nurse. I know full well that these people are exposed to threats to their safety and wellbeing each and every day.

There is a threshold that is contained within this bill, and that threshold requires a reasonable suspicion that the police officer has been assaulted or that the offender has committed 'other specified offences of violence'. These include assaults, causing harm, serious harm, that are likely to cause harm, endanger life, riot, affray and violent disorder. That covers a fair gambit, of course, but all of those misdemeanours are likely to be committed upon those who are in the front line of emergency services and law and order enforcement.

The bill fulfils a state election commitment made by the government leading up to the 2014 state election, and, as we have indicated, we are supporting the bill. We think it is a good bill; we would like to see it extended a little bit. Of course, we are setting the precedent in South Australia. No other jurisdiction in Australia, as I understand it, has legislation of this sort. So, I commend the government for leading the way, and I commend the member for Bragg for the work that she has done on this bill and with her amendments.

The current situation is that SAPOL provides blood testing to any officer who has had contact with an offender's bodily fluids and is therefore at risk of being exposed to or contracting a communicable disease. That is all well and good, but that testing regime often takes some time for results to come back, and part of that is the fact that some of these diseases take a while to incubate and become evident. If we can go to the source of the problem immediately, then that not necessarily gives some comfort, but at least gives some knowledge to those police officers and other emergency service providers who are exposed. There is currently no obligation for the offender to be tested, and the primary intent of this bill is to make that obligation.

The government claims that approximately 700 police officers are assaulted in the line of duty each and every year and up to half of them are bitten or spat on. I do not know what the world is coming to, but that is the sort of behaviour that our front-line officers are exposed to in a world where late night violence appears to be more prevalent.

I do not have figures in front of me but, certainly, it is the general consensus of the broader community that late nights are often marred by alcohol and drug-fuelled violence and our police and emergency services workers are called upon not just to deal with that violence but to protect the community and, at the same time, are putting themselves (sometimes) at risk. The blood testing of an offender would identify the risk immediately. Otherwise, as I have indicated, it may take many weeks for the infection to become evident.

The specified offences contained within the bill are those regarding assault or resisting a police officer, assault and assault causing harm, causing harm, causing serious harm, doing acts likely to cause harm, serious harm or endanger life, riot or affray. These amendments allow other specified offences to be added by regulation as they become evident.

The bill also provides that an offender can only be required to undertake a blood test upon the authorisation (to be recorded in writing) of a senior police officer; that is, an officer of some authority of or above the rank of inspector. So, the authority is given and the offender is required to take the blood test. I think it is a move in the right direction. I think it is a sensible move to protect our police officers and, with the amendments that I hope the government considers very seriously and supports also, it gives some comfort and protection to our other front-line workers. We support the bill and I congratulate all members for the work they have done on this and the contributions they have made so far.

Dr McFETRIDGE (Morphett) (17:42): I rise to not only be a part of the opposition's contribution in supporting this legislation but also to strongly support the amendments introduced by the member for Bragg, the deputy leader. I am surprised that we have to introduce this sort of legislation in 2014. One would have thought that if you were a police officer and you have been assaulted, you have been bitten, there is a serious risk of disease. Nowadays, with the types of people that police officers are encountering and having to restrain, being spat on, bitten or otherwise assaulted is something that is, unfortunately, an occupational hazard.

That hazard should have been recognised a long time ago. It should have been dealt with, with modern forensic procedures, so that a police officer, their family and friends, in fact the whole community, should be assured that they are offered the best protection we can from a communicable disease that is going to be transmitted by a person they are apprehending, detaining or otherwise interacting with. It is unbelievable that people would resort to biting and spitting at police officers anyway, but they obviously do. We have heard from other members of the number of police officers who are bitten and spat on. It is a very low act.

This legislation is sensible. It is late in coming, in my opinion, but we will take it and we will support it. Can I also say that, having had the experience in the Country Fire Service of attending lots of stressful incidents and road accidents—particularly road accidents—where people are affected by drugs and are intoxicated, they sometimes react in ways that are very aggressive indeed. The expansion of the prescribed professions to the South Australian Country Fire Service, the Metropolitan Fire Service, the South Australian State Emergency Service, the SA Ambulance Service (and I will talk about that in a minute), St John Ambulance (and the volunteers there do a wonderful job), surf-lifesaving and the marine rescue volunteers as well, plus our doctors, nurses and other staff in our hospitals, all need similar protection.

They should not need it but they do need it. They need to have the confidence that, if they are assaulted, bitten, spat on, or if bodily fluids are transferred in some other way, they can have that person tested for a range of diseases, whether it is anything from hepatitis to AIDS or to many of the other diseases that are transmissible by bodily fluids. I notice the member for Flinders mentioned Ebola, and that could become a real issue. We know the violence that went on in Africa when people were trying to inform and educate people there.

We need to make sure that everybody is going to be treated fairly. I note that we do not include prison officers, and I am not sure whether they are already included or whether prisoners can undergo this type of forensic testing if they bite, spit on or otherwise transfer bodily fluids to corrections officers. Perhaps that is something else we could introduce in here, if it is not in the bill; I cannot see it.

It is important that we do our best to show the people we trust with our lives—whether they are emergency service workers in the fire services or other rescue services, whether they are the thousands of volunteers on the beach who may have to give mouth-to-mouth to somebody or apply other form of rescue techniques, or whether they are police officers—100 per cent support in everything they do so that we can have a decent society and that the people who resort to biting, spitting or otherwise inflicting the transfer of bodily fluids onto an emergency services worker know that they will be tested and held accountable for transmitting a communicable disease.

I am sure that everybody in this place is aware of the lifelong repercussions of some of these diseases. It is not just AIDS; it is hepatitis and so many other diseases out there, and to be contaminated, to contract them or become infected, and then to suffer the lifelong consequences, is something we should never underestimate.

There is nothing worse than a family having to say farewell to their loved ones when they go off to work in emergency services. I can remember my father going off each morning, and we would all wave to dad as he left, knowing that he would be facing danger. Sometimes he did come back burnt, banged around and bandaged because he was doing his job, and sometimes he told us about some of the people he encountered in trying to do his job, but he was not bitten or spat on, to my knowledge.

My nephew, who is now in the MFS and who was also an ambo, has related stories to me about when he has had to go out and restrain particularly mentally ill people who have been very violent or people affected by alcohol or drugs who act in a violent way, so not just police officers but also other emergency services workers deserve to be covered by this legislation. To do this now and to get it through this place and passed through the other place so that it comes into law as soon as possible is something I strongly support.

I will not hold the house up any longer, other than to say that I thank all the emergency services workers for the work they do in South Australia, and that is everybody: our police, our fireys, our rescue workers, and of course all our volunteers. Without them, the state would not be what it is. It would not be one of the best places in the world to live. It would not be the state we all love to stand in here and talk about and wear our hearts on our sleeves and be very parochial about. If we do not continue to make these changes, such as those in this legislation, we deserve to be questioned on that. It is a good move, it is an overdue move, and I strongly support the move.

Debate adjourned on motion of Mr Gardner.


At 17:49 the house adjourned until Wednesday 15 October 2014 at 11:00.



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