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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-09-12 Daily Xml
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STATUTES AMENDMENT (POLICE) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 25 July 2013.)

The Hon. S.G. WADE (16:40): I rise on behalf of the Liberal opposition to indicate our support for the passage of the Statutes Amendment (Police) Bill 2013. On 19 June, the Minister for Police, the Hon. Michael O'Brien, introduced this bill in the other place. It enshrines aspects of the South Australia Police Enterprise Agreement 2007 in legislation. This is despite the agreement being ratified on 17 January 2008 by the Industrial Relations Commission of South Australia and thereby already having legal force.

The bill seeks to amend the Police Act 1988 and its regulations, the Police (Complaints and Disciplinary Proceedings) Act 1985 and the Public Intoxication Act 1984, with the intention of enshrining some aspects of the enterprise agreement between the Department of the Premier and Cabinet, South Australia Police and the Police Association. These amendments will ensure that officers are fit to perform their work and they do not compromise their own safety, that of their fellow officers and members of the public.

A number of miscellaneous amendments are included in the bill to address and identify difficulties and shortcomings in the administration of the Police Act. These include giving the police commissioner the flexibility to amend probationary periods for probationary officers when appropriate, allowing the Commissioner of Police to suspend the powers of officers who are absent from duty for extended periods of time and improving rights to review for unsuccessful job applicants. These amendments seem sound, from the opposition's perspective, and we support them.

It is important to acknowledge that this bill will make amendments to sections 59 and 61 of the Police Act to enable the police commissioner to verbally appoint special constables in terms of declared emergencies under the Emergency Management Act 2004. Amendment to section 4 of the Public Intoxication Act 1984, creates a new police position known as the 'responsible officer' who will have the responsibility for managing persons in custody in police cells.

By amending section 46 of the Police (Complaints and Disciplinary Proceedings) Act 1985, this bill will establish a right of appeal to the Administrative and Disciplinary Division of the District Court for officers who have been subject to an order from the Commissioner of Police as a consequence of being found guilty of any state, territory or commonwealth law. The opposition supports these aspects of the bill.

A major emphasis of the bill relates to the introduction of on-duty drug and alcohol testing of police officers, community constables and cadets in specific circumstances. A key outcome of the enterprise agreement was that all parties:

...agree to support the introduction of legislation that enables targeted and mandatory alcohol and drug testing of police officers in certain circumstances in support of the provisions of the act.

This agreement was reached despite there being no in-depth or ongoing research available to suggest the extent of the use of illicit drugs or abuse of prescription drugs by police in South Australia. A drug for this purpose is defined under the Controlled Substances Act and this was agreed in the enterprise agreement. It is noteworthy that most other Australian jurisdictions have legislation to permit the drug and alcohol testing of police.

In this bill there are no provisions for the random testing of officers, as is the case in New South Wales, or the Victorian approach of providing for random testing in the context of high risk police units. The government has preferred to adopt the model of specifying the actual circumstances where testing can occur. The bill specifies the circumstances in which a member of the South Australia Police or cadets may be required to undergo drug and alcohol testing at the direction of the commissioner.

These are as follows: (1) where there is a reasonable suspicion that a drug has been used or alcohol consumed; (2) where a defined critical incident has occurred involving death or serious injury; (3) following high risk driving; (4) where a police officer applies for a designated classified position; and (5) where a person is applying to join SAPOL.

In the other place, the opposition filed two amendments to the bill and one of those was moved. The amendment moved was to amend section 41B(2) of the bill to remove the words 'may be required to undergo testing' and replace them with 'will undergo testing unless not possible to do so'. This amendment was moved in order to avoid doubt that alcohol and drug testing will happen in the prescribed circumstances.

The reason the word is 'may' rather than 'will', I am told, is to provide for times when operationally it will not be practically possible to undergo testing in all of these circumstances. The opposition accepts that explanation but would still rather see the bill make it clear that SAPOL officers under those circumstances will be required to undergo drug and alcohol testing unless it is very clearly not possible in the circumstances.

The government chose not to accept either of the opposition amendments in the other place, citing the reason for its inability to accept these amendments that the bill flows out of an enterprise bargaining agreement between the government, the Police Association and the South Australia Police. It was argued that it was already a lengthy and reportedly torturous process.

Personally, as a parliamentarian, I am uncomfortable with commonwealth-state ministerial council decisions which bind the parliament. I am concerned about external agreements determining the shape of legislation, so it would hardly surprise members that I am uncomfortable that this parliament is being told that it cannot legislate to make what we might regard an improvement to the bill because it would contradict an enterprise bargaining agreement.

I would particularly assert that given the fact that the opposition amendment does not in any way want to change what we understand was the intent. The intent was that testing would be undertaken whenever possible. Our amendment makes it explicit that it will be undertaken whenever possible. I believe that it is a sensible amendment and I am disappointed with the government's response. I reiterate that the opposition supports this bill. We intend to reconsider these aspects of the bill and we look forward to the committee stage.

The Hon. T.A. FRANKS (16:48): I rise on behalf of the Greens to indicate that we will be supporting the Statutes Amendment (Police) Bill, No. 170 on the Notice Paper. I will not labour the history of the bill because the opposition has done that admirably. The bill amends the Police Act 1998 to provide the legislative infrastructure for the management and control of SAPOL. It also addresses a number of issues identified during the internal review by SAPOL that could not be rectified administratively.

These amendments include an amendment to the Police (Complaints and Disciplinary Proceedings) Act 1985 regarding appeals and minor complementary amendments to the Public Intoxication Act 1984 to create the new position of a responsible officer with responsibility for managing persons in custody in police cells. The chief amendments we will focus on in this bill relate to the new emphasis on drug and alcohol testing of police.

While most jurisdictions have legislated to permit the drug and alcohol testing of police, South Australia is not pursuing a model of random testing but is indeed adopting a model specifying the actual circumstances where testing can occur. These circumstances include when a person applies to join the force, following a high risk episode of driving, when a police officer applies for a designated classification position, and where there is reasonable suspicion that a drug has been used or alcohol consumed, or indeed—and this is one of the areas I wish to focus on—where a defined critical incident has occurred involving death or serious injury.

Certainly those were the topic of questions that I asked in my briefing, and I thank the minister and his officers for the briefing from his office, but also I thank the Police Association for their time in responding to my questions about this bill. The bill, as it stands, will ensure that there is drug and alcohol testing in those particular critical incidences where a firearm or a taser has been used.

I have asked the government to indicate whether or not the use of capsicum spray would also potentially be included in this bill and to provide this council with the number of times capsicum spray—and I will not try to say the scientific name of capsicum spray because it is way too difficult—has been employed in the last three financial years. I will put on record the grave concerns that many organisations hold—and certainly that Amnesty International holds—about the use of capsicum spray. It can cause not only serious harm but also death, so it is not something to be treated lightly.

Further to that, I asked the government also if they could provide this council with information about the number of times that tasers have been discharged in this last financial year. I can inform the council about the following calendar years: in 2010 there were eight episodes when a taser was employed once and an additional one where it was used twice; in 2011 that had increased to 12 situations where it was used once and two cases within that where it was used twice. I would like to see the figures given that we have not had this technology for a significant period of time but already there is an increase in its use.

However, I commend SAPOL and I have been assured by both the former and the current commissioner that the technologies South Australia has adopted with regard to taser use to ensure that we have audiovisual recording where a device is employed are paramount and part of the procedures of our police force. I note that there has been one incident—and I received this information under freedom of information—where the audiovisual recording had not worked in those cases that I have just outlined.

The response I was given by the department at the time was that that taser had been sent to Taser International to determine what had caused the fault but that no additional information was available at that stage in May 2002. So, I ask the minister if we could be provided with an update about what had caused the fault in the audiovisual recording of that particular device at that time. Further, with the amendments that have been foreshadowed by the opposition, we will be looking to have further information about the wording. We have had advice from the Police Association that it could have unforeseen consequences, and we will certainly be looking to the government and the opposition to put their case on those particular scenarios.

I also flag that the Police Association has indicated that there may be possible amendments here in this bill to ensure that officers who find themselves having to face the courts in the course of their duty, but without the commissioner ensuring that both their case and their costs are defended and the Police Association having to stump up not only their costs but also run the defence of those officers, are not left high and dry in the future and that the Police Association is not left footing the bill for SAPOL employees.

With that, we look forward to the committee stage of the debate for those particular amendments and further information and ask the government if they could be prompt with their responses to the questions that I have raised.

Debate adjourned on motion of Hon. R.P. Wortley.

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