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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-06-03 Daily Xml
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STATUTES AMENDMENT (ASSAULTS ON POLICE) BILL

Introduction and First Reading

The Hon. R.L. BROKENSHIRE (16:29): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. R.L. BROKENSHIRE (16:29): I move:

That this bill be now read a second time.

The Hon. R.L. BROKENSHIRE: I rise today to introduce legislation that is close to my own heart and that of the police who, I know, are sick and tired of being assaulted in the course of their duties and then seeing offenders getting little or no penalty as a result. I know that some people in the community, and possibly even my own colleagues, would say, 'You were police minister for several years; why didn't you put this legislation forward then?' That is a reasonable question but, as all ministers will tell their colleagues, when you are a minister you never get to do everything that you would like to do; you are just simply not there long enough.

Referring to assaults on police (and assault generally), we are no orphans in this, as I will illustrate during the course of my remarks. In this state and, indeed, right across the nation and the world at the moment, no matter how hard police, parliaments, governments and the courts work, the fact is that, when it comes to assault and particularly serious assault, the trend is upwards. I have been concerned to see too many assaults and appalling attitudes displayed generally towards our men and women in the police force in South Australia.

First, I want to give some examples, and some of these examples are slightly different to the bill that I have just introduced, but I think they are important in painting a picture to help me gain support for this bill over the coming months. I want to give some examples and some background as to what is happening in other states. In New South Wales, proposals for minimum sentencing for police assaults began under their Labor government when, in September, the then police minister (the Hon. Michael Costa) responded with outrage to cases where a $50 fine was given to a drug dealer who assaulted a police officer executing a search warrant, and another man got a good behaviour bond for swinging an axe at an officer's head. In the latter case, the axe missed the officer by only centimetres.

Reports have further indicated that 'police have been spat on, run down, king hit, threatened with knives, kicked, beaten and forced to fight off attempts to use their own firearms on them'. The New South Wales government moved for a mandatory minimum 25 years' gaol for killing a police officer and sought sentencing guidelines for mandatory minimum penalties for other assaults on police. That was under the current Labor government.

The Northern Territory situation is interesting. In 2006 the Northern Territory opposition moved for mandatory minimum sentences for assaulting police. The regime they proposed was for a minimum six-month gaol term for lesser assault offences, up to a minimum five years' gaol for an assault that resulted in permanent grievous harm, as defined by territory legislation. I should point out that this is tougher than the measures I have proposed in this bill. I think it is fair to say, considering all the proposals seen across the nation from coalition and Labor governments, that Family First's bill is a very reasonable approach.

In Queensland in 2007, in response to the police union there reporting there had been 3,000 assaults on police in the preceding 18 months, the mandatory minimum proposed there was three months' imprisonment. That was perhaps the 'toe in the water' for what Family First proposes today.

Now let us look at a more detailed case study from Western Australia. The Western Australian police union stated, in an advertisement supporting similar legislation in the west—which I will come back to shortly—'How can they'—that is, the police—'protect us, if we don't protect them?' It was a pretty fair question asked by the Western Australian police union. The Western Australian Barnett coalition government was elected with a strong mandate to bring in mandatory minimum sentencing for assaults on police officers, a policy which has been the coalition's policy (and the right policy, in my view) in opposition there since 2004.

They took it to the 2005 election and, although they were not elected, they pressed on, and it was a prominent issue in the recent election campaign. The mandatory minimum sentencing on police assault policy was also, I note, a policy of Family First in Western Australia at the same election. In March 2009 the debate about assaults on police became a lot clearer when a jury cleared three men involved in a Joondalup pub brawl which left police officer Matthew Butcher paralysed and with brain damage and visual impairment. He had been headbutted during the brawl, which took place in the course of his work.

There is video footage of this incident. It is only because I want colleagues to see the seriousness of what happened and the unfair consequences that I tell members that there is video footage purporting to be taken of the whole incident, and I will give the website to any colleagues who want to see it. Viewers will be shocked by what they see, and there can be little doubt that police were being assaulted in this video, yet not one of the three was convicted of any physical assault charges at all. The mind boggles at how the jury and our legal system failed the police officers involved.

As a consequence of this, there was a massive protest on the steps of the Western Australian parliament on 17 March this year, following the jury's decision. The comments of the Western Australian police union reporting on that rally are worth repeating here, as follows:

It's time slippery lawyers stopped turning our courts into an expensive charade. Every police officer here today is well aware of the absurd legal holes in our system. These absurdities need to be plugged and plugged now. No more should we, as a society, put up with the free ride given to the drug and alcohol crazed offenders who nightly prowl our streets, and it's definitely time our very well paid magistrates and judges did their duty for a change.

Personally, I think those comments are equally applicable in South Australia as they are to Western Australia. I turn now to events that affect us here in this state. This state's Office of Crime Statistics and Reporting's most recent court data is from 2006. It is a little behind, frankly, in its reporting, and perhaps that is something our Attorney-General could look into. Perhaps it needs more resourcing but we should, as parliamentarians and a community generally, be able to get more recent data; nevertheless, I will talk about the data that is available. I will start with Supreme Court and District Court reporting data, because that is where you would expect to find charges as serious as assaulting a police officer.

There was just one case in that reporting year in the higher courts, with a person found guilty and given three months immediate gaol time. In the previous reporting year (2005) just one case in the superior courts resulted in a community service order. In 2004, there were just two cases with two suspended sentences of a year or less. In 2003, there was just one case with a 10 month suspended sentence.

I took honourable members to the superior courts first because for serious assaults on police that is where I would expect to find these offences. Yet, over that four-year period, for serious police assaults, only one offender out of the five charged saw gaol time and then for only three months.

I turn now to the Magistrates Court. In the most recent reporting year (2006) there were 379 cases. Of those, 201 people were convicted of assaulting police and received a penalty—which I will come to in a minute—and a further 17 were convicted with no further penalty. A further 61 were found guilty but had no conviction recorded. So, already, for police assaults prosecuted in the Magistrates Court, almost a third of cases have seen no penalty at all for the offender—one in three received no penalty. Assault police, go to court, walk out—no penalty.

Only about 10 per cent of cases for assaulting police that year resulted in imprisonment, and the average penalty for assaulting our police officers was 14 weeks—roughly three months imprisonment. I find it staggering to think that no police officer sustained serious injuries from being assaulted that year or over that time period. I have not laboured the point with honourable members by going back to the previous Magistrates Court's reporting years. Serious assaults ought to have been dealt with in the supreme and district courts. As members can see, there were just five cases in the most recent four reporting years, with only one serving gaol time for three months.

I understand, from my sources, that some 20 assaults a week are committed upon police officers. Other honourable members may have been out, from time to time, with police on a patrol. I have had that privilege. I see that they are now running this stuff on television, and it is pretty close to what happens in reality.

I want to paint a picture of one incident that has stuck in my mind. Police officers were called to a domestic dispute and by the time they arrived the female partner of the offender involved was able to get to her mother's place. We went there first and saw the shocking state that she was in. We got back in the police car and went to the home where the offender was located. The offender was right off his tree, full of drugs or alcohol, and as soon as he saw the police he raced to the kitchen. The police had to make a decision to either back off, cordon off the house or call for help. The guy might try to take his own life, and they would have to break through the door and go after him. On this occasion, the police made the decision to go in. As a result, they were able to get to the kitchen drawer at about the same time as the offender, who wanted to get a large kitchen knife.

Fortunately, on that occasion, the officer involved was not assaulted, but he came very close to it. Imagine what could have happened if the offender had picked up a large kitchen knife. That is the sort of thing that the police have to confront daily and, sometimes, several times in a shift. I believe that we as legislators need to remember this. We are really the only way forward for protecting our police officers. If we do not get the laws correct here, if we do not send the right message to our community that we as a parliament and as a community will not tolerate this sort of serious assault and attitude to our police, not only do we fail our police but I believe we also send a message out there that we are happy to see a further break down of society.

When 20 assaults a week are committed upon police officers (and that that figure was around 600 a year in 2001-02), it is considered to be a totally unacceptable level by all of us—me included, the government of the day and the opposition. The Police Journal reported in February that there have been about 900 assaults a year on average over the past 10 years—900 a year.

An example of the injustice that arises is a recent case of one of our own South Australian police officers, who had a beer bottle thrown in his face, requiring 60 stitches after receiving lacerations to his lips, face and shoulder.

My opinion is that, by any measure, when there is a serious assault like that against one of our police officers—that is, an assault causing serious harm, not just spitting at the person or grabbing their shirt and tearing it, or giving them a smack across the face—it is a very serious incident. It is an assault causing serious harm. And, guess what? That offender saw less than two years' goal time.

Another recent serious assault on a police officer left him unconscious, only to awake with no feeling or movement in his legs, and that was only recently reported in the media. Luckily, he recovered, but only after four days in hospital. The Police Association president in South Australia also noted in the February edition of the Police Journal that other dangers include offenders who drive stolen cars at police and ram police cars.

It is high time that a stop is put to the disregard for our police, which we are seeing amongst us. I admit that it is a select few, but that select few need a bit of select time behind bars to put a bit of select thought into what they are doing. It is only a select few in our community who would, frankly, be better behind bars than walking about with drugs or alcohol in their system, who think that they can down a police officer like Matthew Butcher, who was viciously attacked in Joondalup.

The bill that we have put up provides as follows in respect of the type of assault on a police officer: for a common assault, a minimum of six months and a maximum penalty of five years; recklessly causing harm, a minimum of six months and a maximum penalty of seven years; intentionally causing harm, nine months minimum and 13 years maximum; recklessly causing serious harm, one year minimum and 19 years maximum; and intentionally causing serious harm (where they actually clearly intend to hurt an officer in a serious way), two years minimum with a maximum of 25 years—if, and we hope it never happens, they do something like take the life of an officer. In most cases the maximum penalty is simply that which already applies for causing harm and common assault offences; it is already there. As the bill title suggests, it is the minima that are most important. More importantly, the minima cannot be suspended sentences but, rather, sentences that must be served in gaol.

I want to make it clear that the changes to section 20 of the Criminal Law Consolidation Act regarding assaults require harm to arise; that is, a mandatory minimum penalty does not apply to spitting at a police officer or pointing a gun at them—or anything like that—unless harm arises. In the old legal language the minimum penalty applies only to assault occasioning harm, not common assaults on police.

I am prepared for the arguments of civil libertarians and others about this bill. In fact, while I have had some good support in our office for this bill, civil libertarians have been contacting me, as well as some people who, whilst they did not leave their name, have probably already been incarcerated and have an unacceptable attitude towards our police officers, anyway. I am ready for all those people who do not like police officers to line up to oppose this bill.

Family First makes no apology for supporting our law enforcement officers with tough legislation. I say this legislation is tough and uncompromising, and it will get the message out there to the hundreds of people who think it is okay to go out, get stoned and then assault police officers. It is not okay, in our opinion, and a stint in gaol awaits them if they do so. I believe that is what the community expects and wants.

I believe that if this bill is passed by our parliament the mere fact that it becomes law will make a lot of these people think again before they potentially ruin the life—and I do not say that in a light-hearted way—of men and women at the front line who are protecting us on a daily basis and ensuring that the beautiful community in which we live—the sort of life we take for granted with safety, fun and enjoyment that people do not get in a lot of nations—continues to deliver that lifestyle. We have police officers who are prepared to put their life on the line in a worst case scenario to give us those opportunities.

We must remember that police officers, too, have families. We all know police officers, or we all have friends who are police officers or who know police officers and their families. Those officers suffer greatly when they are assaulted on the job, and I have seen how they suffer not only physical but also psychological harm. Unfortunately, in worst case scenarios I have seen marriages break up, and members should think about this. Police officers kiss their husband or wife goodbye in the morning and say goodbye to their kids and go out on patrol. A phone call is received or another officer drops around to say, 'Your husband (or wife) has been seriously assaulted and is in hospital and in a serious way.'

There are not many workplaces where that would happen. We do not want to see anyone injured, but the difference is that the risk is so much higher for these people. They may have had a good Sunday, gone to the local tavern with their family and enjoyed a meal, or watched sport at home with their kids, and on Monday, after a few hours on patrol, their life is a wreck. Their marriages break up, their income suffers and psychological problems set in. Sometimes they can never do the job again—all because some thug has no regard for the law and no regard for the officers whom we support with funding to ensure that we have a safe community.

This is the only point where I will get political, but it is something about which I am passionate and which I want to reinforce. If the government in the future would like to introduce this same bill or something similar in the House of Assembly, Family First will support it. Family First will let the government take the bill forward and we will give credit to the government for that. I would love to see that. I would love to see absolute bipartisanship on this matter; it is important that we get bipartisanship on it.

Civil libertarians and those with an attitude will say, 'The cops are doing all right. They have some laws at the moment. They sign up for this. They know that they might have a situation where something goes wrong, but we didn't force them into the job.' People will say all that, but I say to those people: get out in the real world and look at what is happening when the police are in an emergency situation, with a split second—and that is all they have—in which to make a decision that may keep us safe but possibly ruin their future.

I want to highlight the fact that the Rann government has cut injured workers' entitlements with changes to WorkCover. After 13 weeks off work due to injury, an officer's pay can be cut to 90 per cent. Another 13 weeks later, that officer's pay can be cut to 80 per cent. It is hard enough to heal quickly from a physical injury, let alone a mental injury. It is severe mental injury at times, and we do not know what it is doing to their brain the next time they get back into a police car or the next time they are called to a domestic violence incident, a pub brawl or a situation where people are coming at them. We do not know what this does to them. They may not be ready for work for a long period. Why should they have their salaries cut?

I have had to debate this in the justice system with people who are clinical politicians, as I call them, rather than practical politicians (including even colleagues in the same party at the time) and point out that judges and magistrates are human beings, just as we are. What is wrong with us as a parliament—as legislators on behalf of our community—setting tighter parameters for the courts in certain instances and giving better guidance to the magistrates and the judges?

By and large, I congratulate them on their difficult work, but there seems to be this message always coming from the hierarchy of the legal system: how dare members of parliament set minimum mandatory sentencing? That is our right, because we are here democratically to mirror the majority thought in the decision making process of our community, not to make a decision that gives the authorities so much autonomy. We do not see them capitalising.

We come in here with good intentions and say, 'We are going to increase the penalty.' We think, 'Gee, that's good,' and we go home that night and say, 'Well, we have made it safer today, haven't we.' Then an incident occurs and we pick up the paper and read about the judgment that has been handed down by a magistrate or judge and we think, 'How come that person got off so lightly?' Well, it is because we did not set enough parameters.

We already have minimum mandatory sentencing in a couple of instances—murder and driving with a blood alcohol level of over .08 per cent—so why should we not start to send a better message to the community and support the 4,000 plus men and women who are out there 24 hours a day, seven days a week, looking after us?

I will finish on this point, which I find interesting. I want to congratulate Labor in Western Australia, which is now in opposition. Whilst it would not take up the cause in government, once the coalition in Western Australia introduced its bill opposition members tried to have nurses, firefighters and teachers included in it. So, they supported its intent. The now Labor opposition, which was previously in government, had an opportunity when the coalition introduced the bill to get the law through. Labor members saw that they were right and wanted to add other provisions. They also wanted a judge to determine whether the harm was serious or not, and they wanted the prosecution guidelines included in the act. With respect to that point, I am pleased to see that they woke up.

I have not done that in this bill. I am open to the consideration of some other bill that supports other people in these kinds of situations, but I have specifically introduced this bill for assaults on police because, whatever vocation someone may have, that is the one with the biggest risk of injury, both physical and mental, or even loss of life, and none of us wants to see that with respect to the police.

I ask all my colleagues to have a close look at this bill. I look forward to their contributions and, on behalf of South Australian policemen and policewomen, I trust that we will see this bill pass in a bipartisan way through both chambers. I commend the bill to the council.

Debate adjourned on motion of Hon. I.K. Hunter.

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