HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Member Index
House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
2018-07-31 Daily Xml
Contents
Pdf Xml

Bills

Terrorism (Police Powers) (Use of Force) Amendment Bill

Committee Stage

In committee.

Clause 1.

Mr ODENWALDER: Can I just clarify from the outset that there are four clauses; does it limit me to three questions on clause 4? It is quite a long clause.

The ACTING CHAIR (Mr Pederick): That is the standard practice.

Mr ODENWALDER: And you are a generous man, though, Mr Acting Chair.

The ACTING CHAIR (Mr Pederick): I will do what I can. It may help if you have some friends assisting you.

Mr ODENWALDER: Certainly. I will not trouble the committee or the Attorney very long with this. Clearly, there has been consultation with SAPOL over the preparation of this bill; I wonder if the Attorney could go over whether there has been consultation with the Police Association and any other agencies. What was the outcome of that consultation?

The Hon. V.A. CHAPMAN: My understanding is that SAPOL was the only agency consulted. If SAPOL, in the course of their deliberations, consulted with their union, then of course that is entirely a matter for them. Having said that, from time to time we do receive submissions from the Police Association in respect of matters they consider pertinent to their members, as the association responsible for the benefits and policy matters surrounding their membership, but on this occasion the best I have is that a member from our office spoke to PASA about the bill. Otherwise, they were not formally consulted before the draft was prepared.

Mr ODENWALDER: Thank you, Attorney. Is it your understanding then from that brief interaction with PASA that they are supportive of the measures in this bill?

The Hon. V.A. CHAPMAN: Yes, I am advised that the conversation that our office—that is, the ministerial office—had with PASA was in respect specifically of the anonymity issue. I can say to the member that this was a matter that was raised in general terms by PASA prior to the state election and that we, on behalf the Liberal Party at that stage, conveyed our position in relation to a number of aspects relating to that. When this bill specifically came about, I think at the time the Clavell coronial inquiry, for example, was a hot issue and the question of anonymity that was sought by the police officer was a matter in the public arena, so it is not unreasonable that the matter be raised, and I thank my adviser for doing so.

Mr ODENWALDER: I was not intending to harp on about this, but during that conversation on the issue of anonymity was it in relation to the bill, or was it in general? I understand, as you alluded to, that PASA have explored anonymity in other areas, not just in relation to this legislation, so I wonder if you could expand on that and let us know what plans there are to perhaps offer PASA members anonymity on any other occasion.

The Hon. V.A. CHAPMAN: The issue that was raised in relation to the bill, in consultation with them, was to alert them to the fact that the bill was progressing. They, and my recollection is, the Commissioner of Police both had indicated that the anonymity issue was a matter for them. So, in the context of terrorism activity, strictly on that basis, it is in the bill.

The CHAIR: Is that all you have on that one, Member for Elizabeth?

Mr ODENWALDER: Yes.

The CHAIR: Member for Elizabeth, you asked a question earlier about how many questions you can ask per clause. I may have some leniency. We will see how we are going when we get to that last clause. I note it has three large subclauses, so we will see how we go.

Mr ODENWALDER: I appreciate that.

Clause passed.

Clause 2 passed.

Clause 3.

Mr ODENWALDER: I understand that in relation to the rest of the bill the Commissioner of Police is essentially the person who issues the declaration, and in some cases it is the deputy commissioner—I understand that. It includes a person appointed as Acting Deputy Commissioner of Police. I am wondering if you have any advice about how far down the chain that can go before a police officer is no longer able to issue a declaration, if you understand my question.

The Hon. V.A. CHAPMAN: I would have to go back to the original act and perhaps get that answered, but it is certainly at a very high level, and for obvious reasons. We are giving very special powers, if the parliament approves the bill, in exceptional circumstances—in a terrorist circumstance—and someone at the top of the chain needs to make that decision. We all know that there can be circumstances, and usually in emergency matters we ensure that there is a capacity to delegate, especially if the commissioner is deceased, unavailable, whatever, at the time, and then we make provision, of course, for someone at a senior level. But this is not a constable: this is at the very high level, in the sense of seniority in the force, for reasons which I think would be evident to the member.

Mr ODENWALDER: Thank you; I appreciate the answer. On the definition of terrorist act and the terrorist act declaration, we did discuss this last week in relation to the member for Enfield's contribution as well about the fact that we have to refer back through the legislation, back to the Commonwealth Criminal Code. I understand the Attorney's reasons for wanting to keep that definition within the Commonwealth Criminal Code so that we can work with other jurisdictions to make sure that we are all singing the same song sheet, so to speak. I do understand that in relation to the terrorist act itself.

During the course of the public debates, at least, last year, and, I understand, the conversations between the police and the then government, there was a suggestion that some other types of incidents might be able to be included in similar legislation to this—for instance, in relation to criminal liability and anonymity. I think that some of the suggestions were particularly high-risk domestic violence incidents, where there are sieges, where someone's death could be considered imminent, but it may be beyond the individual police officer's understanding of their authority to make that particular call at that particular time.

I am wondering if the Attorney has given any thought to or had any discussions with SAPOL or anyone else about those types of incidents, or any other types of incidents that may be included in legislation that is similar to this, and giving police better protections and anonymity.

The Hon. V.A. CHAPMAN: The first matter—because I think there were two questions and I am happy to answer them both, of course—is the definition of a terrorist act or ultimately what is being considered here in the terrorist act declaration context. As I explained last time, there is a significant amount of legislation, and it is considered preferable that we have some consistency in definition. Terrorists, if they enter Australia, are hardly likely to be impeded by imaginary boundaries, in the sense of traversing Australia, so we do, in dealing with this emerging issue for Australia, want to get it right, learn from other countries and, obviously in this case, ensure some consistency.

'Terrorist act' is not defined. Our principal act, which is our Terrorism (Police Powers) Act 2005, provides that a terrorist act has the same meaning as part 5.3 of the Commonwealth Criminal Code, except that it does not include a terrorist act comprised of a threat, so consistency is the basis for this. Furthermore, the Commissioner of Police would sit on a number of national groups related to counterterrorism and would be well versed in what is considered to be a terrorist act under the Commonwealth Criminal Code.

I also note that, under the 2004 Intergovernmental Agreement on Counter-Terrorism Laws, the commonwealth must consult with the states and territories and obtain the agreement of a majority of other parties, including at least four states, before amending part 3 of the Criminal Code. So that it is clear, section 100.1 of part 5.3 of the Criminal Code defines a terrorist act. I will read this out and put it in Hansard. It is reasonably long, but I think it is important and I committed to do so on the last occasion. Terrorist act means:

…an action or threat of action where:

(a) the action falls within subsection (2) and does not fall within subsection (3); and

(b) the action is done or the threat is made with the intention of advancing a political, religious or ideological cause; and

(c) the action is done or the threat is made with the intention of:

(i) coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country, or of part of a State, Territory or foreign country; or

(ii) intimidating the public or a section of the public.

Subsection (2) provides:

(2) Action falls within this subsection if it:

(a) causes serious harm that is physical harm to a person; or

(b) causes serious damage to property; or

(c) causes a person's death; or

(d) endangers a person's life, other than the life of the person taking the action; or

(e) creates a serious risk to the health or safety of the public or a section of the public; or

(f) seriously interferes with, seriously disrupts, or destroys, an electronic system including, but not limited to:

(i) an information system; or

(ii) a telecommunications system; or

(iii) a financial system; or

(iv) a system used for the delivery of essential government services; or

(v) a system used for, or by, an essential public utility; or

(vi) a system used for, or by, a transport system.

(3) Action falls within this subsection if it:

(a) is advocacy, protest, dissent or industrial action; and

(b) is not intended:

(i) to cause serious harm that is physical harm to a person; or

(ii) to cause a person's death; or

(iii) to endanger the life of a person, other than the person taking the action; or

(iv) to create a serious risk to the health or safety of the public or a section of the public.

The other matter that the member for Enfield raised in his contribution is what happens if a declaration is made and it is later found that it had not been validly made; i.e. where it is found not to have met the threshold of a terrorist act. I think it is fair to say that, although I think that would be an extremely rare occurrence, the protections offered by the bill do not simply vanish in that situation. New section 27B(4) provides:

(4) If a court finds that a purported terrorist act declaration was not validly made, this section continues to apply to any action taken by a police officer before the finding as if it were a valid declaration.

As the member might know, we have a number of protections in our legislation—and not just for police who are likely to be adversely affected if this were not here—as well as in other legislation, which essentially allows for the substance of the law, even if the form was not carried through to dotting all the i's and crossing every t. Otherwise, we would have the absurdity of protections and laws not applying simply because a form had not been filled out correctly, or the like. This is not a unique piece of legislation. In this instance, it is important for us to extend the criminal protection in this legislation as well as ensure that it is followed up.

The second matter relates to the criminal liability protections being broadened to protect police in other circumstances. This bill does not do that; as I have said, it is specifically defined to deal with a declared terrorist act. That is the intention of the government and it is not intended to go further.

One of the situations that was recently canvassed arose out of the incident at Tailem Bend in which a STAR Group officer ultimately killed a person who had, for five or six hours, been involved in a siege in a rural part of that area. I am just relying on media reports at the moment in respect of that; however, there was an inquest in relation to that incident. The person involved, Mr Kuskoff, was ultimately shot dead and there was a coronial inquiry that investigated that matter.

I think it is fair to say that we all appreciate that STAR Group officers have a very significant area of responsibility and are often in high-risk situations. The member for Hammond referred to a circumstance where one of our most distinguished police officers, Mr Derrick McManus, had been the victim, in relation to his undertaking his duty as a police officer in such a squad that has that heightened area of responsibility and significant increase in risk.

We can think of situations in South Australia where that is applied: to calm a domestic circumstance, if possible; to exercise a raid where there might be known weapons already there, perhaps to protect a stash of drugs or something of that nature; or, of course, to arrest and detain someone who is either a known felon or a suspect in a serious matter. In each of these situations, we have seen innocent people sometimes tragically get hurt, police officers at risk, and the assailant and/or the suspect sometimes become a victim as well. We have considered those matters as being quite distinguishable from a terrorist act. They are risky; there is no question about that.

I think the justification for a lot of our terrorist legislation, which I suppose extends beyond the normal civil protections of individuals, is the assumption that a terrorist is likely to have a mindset where they have no care for their own life or the lives of others and/or they wish to indiscriminately cause harm or death to others and/or property damage. As the definition highlights, they are so obsessed with some religious or ideological pursuit that they are prepared to sacrifice for that and, if it causes damage or death to others, it is of no consequence to them. They are so intent on doing this that they are not in a position to be talked down and/or calmed for the purposes of considering some other option.

It is fair to say that, in a domestic circumstance where there might have been some relationship with the people who are being held hostage and there may be a continuing familial relationship with children and the like, there are trained and skilled negotiators in the STAR Group, other members of the police force and other professionals who are called upon to attempt to calm the situation, secure it, protect those who might be held at gunpoint or at knifepoint, and have a different outcome in order to save not only the lives of those who might be immediately threatened but also the lives of those who are threatening that action.

It is a very different situation, and we have not had an enormous amount of consultation in relation to this. Certainly, I personally have spoken to a number of people who work in the domestic violence area. So far, none of them has said to me, 'We need to have terrorist act declaration circumstances to protect police officers in these situations because we are concerned that they are not undertaking their job under the duress of this anonymity blanket not being provided.' I hope that makes that as clear as possible. The answer is no.

Mr ODENWALDER: Just for clarity, I was asking more about the attachment of criminal liability rather than anonymity. The Tailem Bend situation with the STAR Group officer was about anonymity, as you say. That was about naming the police officer, and that was successfully challenged. My question was about criminal liability and whether any thought had been given to other situations where, in simple terms, a police officer may have to make a decision earlier than is the case in normal self-defence provisions in order to prevent an imminent death or an expected or likely death.

The Hon. V.A. CHAPMAN: The answer is no. Firstly, this bill does not apply to anything outside a terrorist act declaration in respect of anonymity. Of course, the police can apply in the courts to have protection in this regard if they think there is a sufficient case to do so. However, the areas in which I think it is fair to say that there has been an acceptance of continued anonymity of police are this area of terrorism and, secondly, investigations into serious and organised crime.

They are the only two areas that I am aware of to date where the envelope of protection has been extended for police officers in respect of anonymity. Criminal liability is already there in the self-defence provisions but, again, a new structure—that is, a declaration process where the police commissioner has the power to identify a siege situation and issue a declaration, and all the powers come to it—has not been advanced by the government in this bill.

Clause passed.

Clause 4.

Mr ODENWALDER: The declaration may be issued by the commissioner, the deputy commissioner, whoever it is, either orally or in written form. Does the written declaration need to go into any reasons why the declaration has been issued, or is it simply a declaration? Is there a form that it takes?

The Hon. V.A. CHAPMAN: I will clarify this if it is not right, but my understanding is that it is simply to issue the declaration. There is no obligation to publish reasons. If it is issued orally, there has to be a written follow-up, but, for obvious reasons, that is a recording of the matter. However, in emergency circumstances, obviously we have to accept that it may be necessary to issue the declaration orally. Just to be absolutely clear, the member raised the question of the rank of the senior officer. It is only in the principal act the commissioner and/or deputy commissioner.

Mr Odenwalder: Or a person who is acting commissioner.

The Hon. V.A. CHAPMAN: Or a person acting. That is right: they absorb all the powers. There is no other lower rank.

Mr ODENWALDER: Since the Attorney went back to that, who can be appointed as Acting Deputy Commissioner of Police?

The Hon. V.A. CHAPMAN: Well, usually—

Mr Odenwalder interjecting:

The Hon. V.A. CHAPMAN: We can have a look at that. In terms of the commissioner, there is an appointment, and it is a statutory officer position. It has a special position, obviously by appointment, which ultimately goes through a process I think to this parliament for consideration of candidates and so on. That is a matter ultimately that the Governor signs off on. Of course, it has a statutory base in the Police Act of 1995, or thereabouts; I cannot remember exactly the year. I am not sure what rank the member had before he came into this house, but I do not think it would quite qualify to enable you to moonlight with an opportunity to make a terrorist declaration.

Mr ODENWALDER: I appreciate the Attorney's indulgence. I do understand that it would not go down very far in the ranks. Regarding the written declaration or, indeed, any declaration, does it assume an active time frame? There is provision for it to be revoked at some point, but is there a time frame in which that declaration applies?

The Hon. V.A. CHAPMAN: Until it is revoked, so exactly from the time it is issued, orally or in writing, across to the time that it is revoked. Obviously, there is not a specific time frame on that, otherwise the terrorists would soon learn what that is and say, 'Okay, we'll keep this siege going for three days if that is the time limit.'

Mr ODENWALDER: I understand. I just wonder whether there is an imperative for the commissioner to actively revoke the order.

The Hon. V.A. Chapman: Yes.

Mr ODENWALDER: You have answered the question yes, so that is fine. I am sorry if I have missed this somewhere, but is the revocation either oral or in writing as well?

The Hon. V.A. CHAPMAN: I understand it is, but I will just refer the member to page 3 of the bill. New subsection (6) provides that the declaration may be made orally or by instrument in writing, etc., but then as soon as practicable. That is the matter we just discussed. New subsection (7) provides:

The Commissioner of Police may at any time revoke a terrorist act…and must do so if no further police response is required in respect of the incident.

New subsection (8) is about who may be able to revoke a declaration.

Mr ODENWALDER: New clause 27B(4) provides, 'If a court finds that a purported terrorist act declaration was not validly made,' etc. What does that refer to? How could a declaration not be validly made? What situation do you envision there?

The Hon. V.A. CHAPMAN: The decision of the acting police commissioner or deputy commissioner to issue the declaration obviously relies on certain thresholds of the circumstance being satisfied, and you see the long definition I read out that is in the commonwealth statute book, so a number of these things have to have occurred. In the event that a subsequent court were to determine that the declaration was invalidly made because there had been a failure to identify that there was any real threat, or identify that there was anyone hurt—all the things that are listed in that—then a court may make that determination that the declaration was never valid in the first place.

As I have said, there is also protection in this bill to ensure that, even if a judge subsequently says, 'There really was a flaw in the declaration being made, and in future this is the area that needs to be addressed,' and they set out the flesh on the bones. We make legislation here, and sometimes it happens, and it is also very helpful for us—and, in this case, for future commissioners—to have some indication of what would be satisfactory, or what would cover the threshold test, and have some guide from the judiciary. The protection is there even if a judge says, 'This declaration was invalid for reasons A, B or C.'

Mr ODENWALDER: That protection then applies to the police officer who has been involved in the incident, who fires the gun, as the Attorney says. What protection does it afford the person who makes the declaration? Is that a stupid question?

The Hon. V.A. CHAPMAN: No. The commissioner or deputy commissioner or acting commissioner who made a decision that was subsequently ruled to have been inadequate for the purposes of making that declaration may desire to give some explanation as to why he or she still progressed and may accept the advice of a judge and say, 'Yes, perhaps in those circumstances it wasn't necessary,' and would learn from it. I suppose the consequences of these things and the seriousness of the outcome would somewhat reflect on decisions made.

If I were to give some analogy, the Lindt cafe siege is exactly the situation where, outside the heat of the circumstance—in that case, in a coronial inquiry—the coroner made a number of determinations about the actions that were taken by the relevant law enforcement agencies in that siege. It is fair to say that there were not necessarily criticisms but concerns raised about the delay in entering the cafe and whether, in fact, if it had been earlier or by a different method of entry that one or two of the people who were murdered by the person in that instance would have survived.

It is all very well in the cold light of day for coroners or other people to make the assessments of what would be the ideal. In the heat of the moment in these circumstances it is not always that simple. When the Premier of New South Wales, Gladys Berejiklian, acted to protect the police officers in New South Wales in circumstances that were a terrorist declaration process, and brought forward this model into New South Wales that we are addressing today, she did so—and members might like to read her contribution in the New South Wales parliament—to make it absolutely clear that in circumstances where there is a declaration they ought to have that protection. That is what she did: she made clear in respect of the criminal liability, and that is what we are doing.

As I said, we thank people who do this work, especially coroners, because it obviously assists with how to deal with incidents in that clear light of day and to know that they are learning as to how they might best address matters. I place this on the record: what we do not want to see is a situation where our police force is brought into disrepute because there are allegations of a trigger-happy officer essentially gunning someone down when there should have been a much better assessment of the risk.

If I were to use an example outside Australia, it would be the death of a young Australian woman who was gunned down by a police officer in the United States when she walked out of her home, having called the police for assistance. She had a mobile phone in her hand, and within minutes of the police arriving she was gunned down and murdered—I say the word 'murdered'—on the spot. It was a deliberate shooting of that young woman, and I think anybody in the general community would say that is not acceptable behaviour. They will untangle that in the United States, as to what happens with that police officer and whether in fact the senior person at the scene had authorised it, or whether there had been appropriate circumstances to do it.

There are always fine lines, especially where there might be perceived risks by the officer in question, who could say, 'I thought she had a gun; I didn't know what she had in her hand,' 'I jumped ahead to try to protect myself and other police officers,' or, 'I was the first in line.' I do not know what the explanation is, but the general public wants to know that police officers are there to protect them and, where necessary, in extreme circumstances and under a declaration, shoot to kill that offender or suspect, either in self-defence or to protect others. I think that is the standard the general community expects, and I think that is the standard the parliament should maintain.

Mr ODENWALDER: I turn now to new section 27C, if my indulgence continues?

The ACTING CHAIR (Mr Pederick): Yes, you are there until I pull you up, sir.

Mr ODENWALDER: I assure you I am nearly there; I have made a commitment to the member for Lee. New section 27C(1)(c) is about who is present in the court when a person who is potentially granted anonymity is giving evidence, etc., and provides:

(c) a person who, in the opinion of the court, should be allowed to be present.

I am wondering whom the Attorney envisions that might be, or is that a standard clause in these types of bills?

The Hon. V.A. CHAPMAN: I advise that new section 27C is there to provide an alternate. The question is: once the anonymity is granted, then how is this thing going to work? How does the court get its evidence to actually progress the prosecution or whatever needs to be dealt with? As such, someone else who may have witnessed the same event is covered, I think, under paragraph (a). Paragraph (b) I think relates to another support person, who may even be a spouse I suppose.

Paragraph (c) is in line with what we have considered in other legislation where we allow people to give evidence in another room. Sometimes it is children, sometimes it is victims of serious offences, and sometimes it is someone with a disability. We now have a whole suite of new laws to deal with who might be able to accompany the person and/or give evidence as to what that person has said.

I would expect, but I cannot be certain here, for the court to be able to progress the matter, if there was no other police officer or witness, or no other person or persons, there may be a counsellor or someone who has dealt with the person who has been involved in the siege. The person may be either emotionally or physically severely injured and may need to have someone who can, I suppose, translate the information to the court.

The objective here is to make sure that you are doing everything you possibly can to retain the anonymity of the police officer. I will perhaps jump ahead of myself there. If it was a red-headed female police officer, and that were known, it might narrow down the number of people who might be able to be identified by terrorists and weaken the whole concept of having anonymity provided. I hope I am not offending any red-headed female police officers. I am just referring purely to the number of them who may be in the police. I am assuming for the moment that there are probably more blondes and brunettes than redheads, but I might be wrong.

Mr Mullighan interjecting:

The Hon. V.A. CHAPMAN: That's right. They may have the sort of Mullighan look, which is a combination of it all: a bit of redhead, a bit of blonde and a bit of whatever. In any event, I make the point that it is really important that, if we are going to have the anonymity protection, which is what we want in this circumstance, we have to make sure that we do not impede the capacity for what their evidence would be to assist the court in an effective prosecution. That is the whole basis of that piece of legislation that is proposed.

Mr ODENWALDER: Moving on to subclause (4), again, I think situations like this are probably covered in other types of legislation, so this should be easy for the Attorney to answer. Obviously, the concern arises that these fines are presumably easy to enforce within South Australia, but of course, as always, you get the problem of interstate publications, overseas publications and then the online repeating of that on social media or just on the online news sites. I wonder what provision can be made for that within this bill, and if these penalties apply, for instance, to social media editors, so to speak.

The Hon. V.A. CHAPMAN: Publishing is on anything, anywhere. The difficulty always is how you trace some of the social media evidence to sustain a prosecution in respect of this, to then fine someone $10,000 or, if it is a corporate, $120,000. That is something we all face in relation to publication. Instagrams, I am told, come offline fairly quickly, automatically.

Mr Odenwalder interjecting:

The Hon. V.A. CHAPMAN: Snapchat is another perfect one, yes. I even remember that one from some other bill that I was helpfully advised on. But here is the problem: you have to quickly download, photograph or screenshot it to actually preserve the evidence—that is the first thing. Secondly, you have to work out who put it up there and whether they were using a false name or means by which they have accessed somebody else's equipment to download it. All those things are complicated. Quite obviously, the most vulnerable in this area for immediate attention would be those who are in the general media. It is a very clear instruction that they cannot reveal that.

Because this is not a new type of law, this question of publication is well versed in relation to children's matters. Sometimes the line is blurred where a relative—not the father or mother of the child but some other relative such as an uncle or a distant cousin—may still have the capacity to identify who we are talking about. People need to be on alert that this is not just a question of saying that the name of police officer X, who is in the STAR Group or in the special terrorist squad, is to be kept anonymous but anything around him or her that would cause his or her identity to be revealed.

Mr ODENWALDER: I move now to new section 27C(5), which talks about police officers not consenting to publication of material. The Supreme Court may make an order, which I understand; that is fair enough when it is to insist in the investigation of the offence. I am just wondering about paragraph (b) 'in the public interest'. I imagine this is also a fairly well-worn legal principle, but can the Attorney indicate for the sake of the record what sort of public interest may be served by naming a police officer in this situation?

The Hon. V.A. CHAPMAN: It is a fairly well-worn sort of process to the extent of the circumstances in which you can publish the limitations on it and the appeal process if you are not happy with decisions that are made. That is pretty straightforward, I think.

In relation to the investigation of the matter, all I can think of immediately is a police officer who had not wanted their name to be identified and it was suggested that it should be because they needed to be located for their own protection or for public interest to alert to others if they needed to be alert to try to find the person in question. I do not know. I am really just indicating that there clearly could be situations where there would need to be a process to say, 'We need to remove that protection.' It may be in the interests of the actual police officer that he or she be protected and so we need to find them quickly. That is all I can think of immediately. It is not a new process. It is one where obviously we have suppression orders and we have a whole body of law that relates to those orders.

The ACTING CHAIR (Mr Pederick): Member for Elizabeth, I am not sure how many more questions you have. We have been pretty lenient.

Mr ODENWALDER: You have been.

The ACTING CHAIR (Mr Pederick): If you could wrap it up in two or three, that would be good.

Mr ODENWALDER: I really appreciate it, sir. I will, if I can, just go back to new section 27B where it refers to criminal liability. We talked about criminal liability quite a lot. I just want to clarify the police officer's exposure to civil liability in these cases. On your understanding, is this already covered in the civil liability provisions in the Police Act, or have I just answered my own question? I refer particularly to perhaps third parties who are injured or killed as well as the terrorist, the target, if there are third parties injured or killed?

The Hon. V.A. CHAPMAN: Yes, that is currently covered by section 65 of the Police Act, which provides:

A member of SA Police does not incur any civil or criminal liability for an honest act or omission in the exercise or discharge, or the purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law.

To be absolutely clear about this, it would be absurd in most circumstances—I cannot even think of any exception to this—where the alleged terrorist comes back and says, 'How dare you? You shot me in the foot. I have to use crutches for the rest of my life. I'm going to sue you because you had no right to do that. There was no threat,' etc. Apart from the declaration in that situation, that may be laughable.

But where it could be really difficult is where that person has come into the shop or cafe and put someone else at risk and the police officer has omitted to immediately act—and it might have been quite legitimate not to act in those circumstances—and the suspect shoots the shop assistant in the foot, and the shop assistant says to the police, 'You failed to protect me adequately. I am now walking around with crutches. I am going to sue you. You should have acted to protect me.' The provisions under section 65 are there for good reason, and I think the member would fully understand that. We are not in any way attempting to detract from that.

Mr ODENWALDER: I have a very quick follow-up to that. Just for clarity, does the criminal liability that the police officer does not incur in all these situations apply across the board once the declaration has been made—for instance, where a third party has been injured or killed? For example, if a baby gets in the way, or some innocent bystander is killed, or, as in the case of the Lindt siege, someone innocent is injured. Under all these circumstances, is the police officer immune from criminal liability?

The Hon. V.A. CHAPMAN: Yes. I will give you the specific clause, which outlines the only qualifications. They have to be responding to the incident and they have to be acting in good faith. Another example might be an incident in a street, where people are looking through a shop window, and there is a chase down the street and the police are trying to apprehend the people involved. They go into some other shop or bank or parliament, or whatever, and just shoot someone else while they are there and it is later identified that they were not acting in response to the incident but just going in and using the opportunity to bump off somebody they did not like. Let's not laugh about this: war is the greatest opportunity to actually murder people you do not like—business colleagues, your wife, you name it.

The best time to get away with murder is during a war because people are concentrated on the conflict and the commitment and energy is resourced for that purpose. The capacity for civilian management back home is not always the priority. It is a very valid point that one cannot use a situation, even in this instance, if a police officer thought, 'While we are here, we are in a dodgy part of town,' which would not be in Adelaide, of course: this would be in Melbourne or Sydney, 'we just might deal with a few people who we think are doing some drug dealing down here while we are at it'. That will not be acceptable.

I think the member fully understands what we are trying to protect here. In those circumstances, death or injury to a bystander or a person who is the subject of the siege, who has been held against their will, tragically, sometimes they are casualties, and sometimes they die or are injured as a result of a police bullet. We accept that, because in these exceptional circumstances we are saying that, under the veil of the commissioner's declaration, they have to be able to have this protection.

The ACTING CHAIR (Mr Pederick): Do you have one more, member for Elizabeth?

Mr ODENWALDER: No, I do not, but I would like to place on the record my appreciation of your staff and the AGD staff for a very comprehensive briefing.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (11:54): I move:

That this bill be now read a third time.

In moving the third reading, I would like to place on the record my appreciation of the opposition's support of the bill. I hope that it is rarely ever utilised or there is any need to have it utilised, but I think it is fair to say that, when we see the radicalisation of youth, which is something that is not limited by borders, fortunately the major incidents of terrorism, in respect of a real and present danger or threat or bombing or sieges, have largely occurred interstate, although one of our considered speakers—I think the member for Finniss—actually gave us a little potted history of terrorist attacks since the early 1900s that have occurred in Australia. We have to accept that there are circumstances in which this will be called upon. I certainly hope that it is rare.

Bill read a third time and passed.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT