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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (POLICE) BILL

Committee Stage

In committee.

(Continued from 26 September 2013.)

Clause 9.

The Hon. S.G. WADE: I would like to draw members' attention to the fact that I will not be moving [Wade-1], as [Wade-2] is the updated version of that set. I move:

Amendment No 1 [Wade–2]—

Page 6, line 10 [clause 9, inserted section 41B(2)]—Delete 'may' and substitute 'will'

There are two amendments but, basically, one is consequential on the other. The bill proposes that a member of SAPOL may be required to undergo alcohol and drug testing in any of the following circumstances:

for cadets and officers, following a critical incident, that is, where a person is killed or suffers bodily injury while detained by SAPOL, or where a firearm or taser is discharged, or where physical force is used;

following high-risk driving as defined in the police operational code;

where there is a reasonable cause to believe recent consumption of alcohol or drugs is noticed while on duty; or

where a police officer applies for a classified position, such as special tasks and rescue group, major crash, surveillance team, witness protection or a position on the APY lands.

A person who is applying to join SAPOL may also be required to submit to a drug and alcohol test.

SAPOL advise that, following a serious incident, it is already common for police officers to volunteer to be tested for alcohol and drugs to avoid any potential issues in the future. A drug for this purpose is defined under the Controlled Substances Act and details of the procedures relating to testing are determined in regulations.

I would ask the committee to note that other jurisdictions do provide for alcohol and drug testing of police officers, and they do so in the following circumstances. In New South Wales, it is mandatory in certain circumstances and there is random testing of any on-duty police officer, with approximately one in three officers being randomly tested each year. In Victoria, there is mandatory testing in certain circumstances and random testing of police officers in high-risk units. In Queensland, there is mandatory testing in certain circumstances and there has been ongoing consideration of random testing. In Western Australia, there is mandatory alcohol and/or drug testing in certain circumstances and the same situation applies in Tasmania.

The opposition's view is that, in the circumstances named in clause 9 and more specifically proposed in section 41B(2), these tests should be mandatory unless it is not possible to do so in the particular circumstances. It should not simply be discretionary for these tests to be conducted. Accordingly, the amendment I have moved would replace the word 'may' with 'will'.

I refer members, in considering amendment No. 1, to consider amendment No. 2 because that provides the commissioner with the ability to determine that specified members or cadets should not undergo testing because it was not warranted for that incident. The second amendment is proposed in response to concerns raised with the opposition following consultation with the Police Association. The association expressed concern that some operations may involve a large number of officers in a range of roles, such as STAR Force, forward tactical and LSA commanders and their assisting staff, police cordons, traffic control, negotiators, crime scenes, CIB investigators, psychologists, dog handlers and welfare officers.

It is possible that proposed section 41B(2)(a) may be interpreted to say that all officers involved in an operation where a critical incident occurred would need to be tested, as opposed to those who were actually directly involved. In fact, we intend that the provision should apply only to those directly involved. We would suggest that the opposition amendment not merely raises the expectation towards mandatory; it also provides an appropriate focus in the testing. We do not need every person who has anything to do with the case to be tested; it is those who may be directly involved.

The opposition considers that these are reasonable amendments that promote accountability for making it the default position that officers directly involved should be tested, whilst limiting any unnecessary inconvenience and expense by allowing the commissioner to focus the testing.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The government acknowledges that compulsory testing does exist in some other organisations and industries. Equally, in many industries testing is done on a random basis or, if it is as a result of an incident (perhaps an industrial accident, for example), only one or two persons need to be tested (for example, the actual plant operators involved perhaps).

For example, drug and alcohol testing is a requirement within the Rail Safety National Law Act 2012; however, its provisions merely require a rail safety worker to submit to a drug and alcohol test at the request of an authorised officer. In the event of a major incident occurring, which might involve many rail safety workers, the authorised officer can simply limit testing to those workers deemed appropriate. No compulsory testing applies; it is left to the discretion of an authorised officer.

Perhaps I can give you an example, if this amendment were to be successful, of the sorts of unintended circumstances it could result in; say, for instance, a siege is an example of a police action. Police instructions and procedures regarding the handling of operations such as these are comprehensive and require close adherence in an endeavour to ensure the safest possible outcome for police, the offender, victims and obviously any of the public who might be affected.

Consequently, many people can be involved: the special task force and rescue police at the immediate scene; forward tactical and local service areas commanders and their assisting staff; general police concerned with cordoning off and containing outer perimeters at the greater siege scene; specialist officers, including negotiators, crime scene forensic investigators, criminal investigators, psychologists, dog handlers, welfare personnel, general support staff. All of these police officers will be considered, if this amendment goes through, to be directly involved in a critical incident, as provided in section 41B(2)(a) of the bill.

Arguably, also having direct involvement, even though not at the immediate scene or environment, could be an overhead helicopter crew and police, communication centre personnel, for instance. If a person is killed or seriously injured at the siege, the imperative, in the proposed amendment, will oblige all of these people to be drug and alcohol tested. It may very often be unnecessary, impractical, inappropriate and not in the intended spirit of the bill to have all of the abovementioned people tested for every incident. By retaining the option 'may' in the bill the commissioner can provide flexible instructions that will better determine who should be tested, determine it on relevance and a case-by-case basis.

Another scenario in this category would be a search for an escapee or an offender in remote bushland. In total, several hundred police may be involved to varying degrees. If the proposed amendment were enacted and the pursued person was ultimately killed or seriously injured, all persons involved in the search regardless of their proximity to the offender's eventual death or injury would be compelled by this amendment to undergo drug and alcohol testing. This is not considered necessary. It is considered to result in potentially inefficient practices, ineffective practices and very expensive practices.

The Hon. S.G. WADE: With all due respect, I thought the minister's comments were perhaps more relevant to the original set of the amendments rather than the current set.

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: No, sorry; no, I am not trying to mislead. What I mean is that if I understand the minister's argument correctly, she is concerned that the mandatory testing catches a whole range of officers who are not directly involved in the operations. Our view is, and it may be that the minister still takes the view even with our revised amendment, that it still catches too many people. However, our view is that [Wade-2] 2 addresses the particular mischief the minister is referring to, which is that on a broad interpretation because it was mandatory and the provision would catch a whole series of officers who are not directly involved, therefore it is not appropriate that they be tested.

With that particular mischief in mind, the opposition developed [Wade-2] 2. I appreciate I am not moving that now but they are related amendments and I think they cannot be understood one without the other. The only reason we believe it is reasonable to move [Wade-2] 1, and therefore make it mandatory, is that [Wade-2] 2 provides a new subsection (3) which would allow the commissioner to determine in the case of an involvement in a critical incident that the involvement of a specified member or cadet (or a member or cadet of a specified class) is such that drug and alcohol testing is not warranted. In relation to subsection (b) it says that in any event mandatory testing would not be required if it were not possible in the particular circumstances to conduct the testing in accordance with the regulations. So we believe that putting the discretion in the hands of the commissioner, if you like, to identify the focus means that it is appropriate that we provide mandatory testing.

The minister quite rightly said that mandatory testing is not used in all circumstances and all industries, but I remind members of the point I made in my comments in moving the amendment. In almost every state of Australia there is mandatory testing of police. To suggest that mandatory testing is inappropriate in the police sector is not consistent with the legislative regimes in other jurisdictions. I actually think it supports police and the community's confidence in the police if it is mandatory, then in terms of those who are directly involved there are no questions asked and the testing would occur.

In that sense it makes it easier for the police officer's superiors to implement testing because there is not a question about whether there is any implication of wrongdoing or doubt on the part of those superior officers. They just say this is what is required by the legislation. As I said the commissioner can provide a focus, but for those who are directly involved there is no inappropriate or negative imputation by them being asked to submit to testing. I believe this supports community confidence in the police force. It supports appropriate management support. Our discussions with the Police Association were that they were much more comfortable with amendment 2 [2] rather than amendment 1 [2], but I appreciate that the Police Association does not speak for the police.

In any event, we would urge the council to look favourably on our amendment. My view is that it already provides the commissioner the power to provide the focus in terms of the testing to make it practical and not cost prohibitive. If there is an opportunity to empower the commissioner in a better way to provide that focus we would certainly be open to that, but we do believe that it is appropriate and helpful for the police for this element to be mandatory.

The Hon. G.E. GAGO: I thank the honourable member for his additional explanation. I have a question, which is: what is the difference between determining 'not warranted' and 'may'? It would seem that 'not warranted' is a discretionary component of the commissioner to determine if testing should be applied or not, which is exactly what 'may' does, it provides a discretionary component for the commissioner. So, can the honourable member explain what the benefit of 'not warranted' versus 'may' might be?

The Hon. S.G. WADE: In my simplistic world I see this as another version of 'opt in' or 'opt out'. Our amendment would have a mandatory condition with the capacity for the commissioner to exclude, if you like, an opt-out arrangement, whereas the government's proposal, which is to say 'may', means that you opt in. Basically, nobody will get tested unless the commissioner, or the relevant authority, insists that they should. We think it is better to start from the mandatory testing perspective and for the commissioner to exercise his discretion, rather than go the other way. Let me stress again: every other state and territory has mandatory testing. Sorry, let me clarify that: a number of other states have mandatory testing.

The Hon. R.L. BROKENSHIRE: Sorry to the shadow attorney-general but I have just come back from a pair so I did not quite catch what he said.

The Hon. S.G. Wade: I could do a quick re-state, if you like.

The Hon. R.L. BROKENSHIRE: Yes. You did mention something about PASA. This is part of an enterprise bargaining agreement arrangement, I understand, so it was signed off by the government and the Police Association as part of the trade-offs that occur when you do an EB. I am just wondering what you said about the Police Association, for a start.

The Hon. S.G. WADE: The honourable member is taunting me to raise questions as to whether it is appropriate that industrial agreement between the police union and the police authorities should dictate what this parliament legislates in relation to how critical incidents should be managed. My view is very much that the accountability framework for the police is an appropriate area to be determined by the parliament and not by industrial negotiation. Having said that, I appreciate that right around Australia the EB arrangements were legislated, and we are not opposing this bill, we accept that we are going to do that in this context.

The shadow minister for police took the view and effectively persuaded our party that this was a limited suggestion to strengthen the bill. The honourable member may not have heard my comments when I said that the Police Association was not comfortable with our original proposal, they thought that it would catch far too many police officers who were not directly involved in an incident. The minister, in her comments, rightly pointed out that it would be costly and cumbersome to cast the net too wide. We humbly submit to the committee that our [Wade-2] 2 addresses that mischief by giving the commissioner the discretion to exclude officers where testing is not warranted.

As I was just suggesting to the minister, the mandatory testing with an opportunity to exclude officers who are not directly involved is a better approach than the carte blanche, 'We may do it, we may not.' I think it actually makes it easier for the police and management to say to officers, 'Well, you were directly involved. We are required to take drug and alcohol.' It avoids any imputation in relation to those officers, and our provision provides a focus whereby those who are not directly involved need not be tested.

The Hon. T.A. FRANKS: I would like to rise on behalf of the Greens and express our concerns that the amendment put forward by the opposition, in broadening, opens up the ability for there to be repercussions should an officer not be tested and then the courts hear a particular matter and that is raised. That was certainly a concern the Police Association raised with the Greens. Could the opposition respond to that concern?

The Hon. S.G. WADE: The shadow minister, Dan van Holst Pellekaan, the member for Stuart, did the detailed negotiations with the Police Association. That is not an issue that was raised with me, but my understanding is that the Police Association is comfortable with the current amendment in its revised form. That is my understanding; if I am advised otherwise, I will let the council know as soon as possible.

The Hon. R.L. BROKENSHIRE: I have just a point of clarification to the Leader of the Government handling the bill. I can understand the intent of the opposition, and I want to put on the public record that I, for one, and Family First would never just suggest that, because there is an enterprise bargaining agreement between a government, the parliament should rubber stamp. I would never suggest that. Notwithstanding that, I just made that comment on the public record because this is ratifying an agreement. The parliament can change it if it wants, but this is an improvement to what we have currently. I think we all agree with that.

My question to the Leader of the Government is: if this clause went through and was supported, would it have unintended consequences—where there is an incident initially in an area and the police are involved but then, as a result of that, there is a search for stolen goods kilometres away from that incident—and it may be even days later—and they are looking for particular evidence? Would that have the impact of actually wrapping all those officers in a search party into having to be tested?

The Hon. G.E. GAGO: You are asking the question of the impact of the Hon. Stephen Wade's amendment. The advice I have received is, no, it is unlikely, but really it is a question that is probably better asked of the Hon. Stephen Wade. It is his amendment. He obviously has an intention in terms of what it should and should not capture, but the advice I have received is that, no, it is unlikely.

The Hon. S.G. WADE: I just make the point that it is at the commissioner's discretion. If there is an implication in the circumstances that an officer may need to be tested, the commissioner can exercise their discretion, but I do not disagree with the minister's answer that, no, probably not.

The committee divided on the amendment:

AYES (9)
Bressington, A. Dawkins, J.S.L. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Vincent, K.L. Wade, S.G. (teller)
NOES (12)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Franks, T.A. Gago, G.E. (teller) Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Maher, K.J.
Parnell, M. Wortley, R.P. Zollo, C.

Majority of 3 for the noes.

Amendment thus negatived.

The ACTING CHAIR (Hon. G.A. Kandelaars): The Hon. Stephen Wade has amendment No. 2 to clause 9.

The Hon. S.G. WADE: That amendment is related to the one that was not supported by the committee, so I will not be moving it.

Clause passed.

Clauses 10 to 14 passed.

New clause 14A.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–1]—

Page 9, after line 33—Insert:

14A—Substitution of section 65

Section 65—delete the section and substitute:

65—Protection from liability for members of SA Police

(1) 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.

(2) A liability that would, but for subsection (1), lie against a member of SA Police lies instead against the Crown.

(3) A person (the injured person) who suffers injury, loss or damage as a result of the act or omission of a member of SA Police may not sue the member personally unless—

(a) it is clear from the circumstances of the case that the immunity conferred by subsection (1) does not extend to the case; or

(b) the injured person brings an action in the first instance against the Crown but the Crown then disputes, in a defence filed to the action, that it is liable for the act or omission of the member.

(4) Where a question arises as to whether the immunity conferred by subsection (1) extends to the case and the member of SA Police claims to come within the immunity so conferred, the burden of proving that the act or omission was dishonest lies on the party seeking to establish the personal liability of the member.

(5) If a member of SA Police is sued personally for an act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act or any other Act or law—

(a) unless the Crown is alleging that the member is personally liable for the act or omission—the Crown must represent the member; or

(b) if the Crown does not represent the member and the member is found by the court not to have acted dishonestly—the Crown must indemnify the member for legal costs properly incurred by the member (but not exceeding 80 per cent of the Supreme Court scale of costs applying at the time the case is determined).

This amendment was circulated to colleagues on 26 September and is intended to incorporate the protections for police officers that already exist for firefighters in the Fire and Emergency Services Act 2005, for public servants in the Public Sector Act 2009, and for firefighters in Queensland in their Fire and Rescue Services Act 1990. It will provide the protection that I believe our police officers need to be able to act fearlessly in the performance of their duties without concern about potential litigation or prosecution for what they believe is the lawful exercise of their duties.

There was some material from the Law Society and also an opinion on that and on this amendment from the Hon. Marie Shaw QC which I trust colleagues have had a chance to have a look at. I am happy to speak more on this, if needed, when I sum up, but I would appreciate support from colleagues.

Clearly, if an officer is involved in a criminal activity in the course of their duty then they would not be eligible for this support, but where they are honestly going about their business and exercising or discharging their business, I strongly believe, and have for some time, that they should be able to get support. There have been occasions in the past when officers have done everything correctly and ended up having to defend themselves because a perpetrator tried them on. That can be quite a financial cost to them and their family and put a lot of stress upon their family unnecessarily.

As I say, for similar purposes and reasons, our firefighters and public servants have this protection, as they do in Queensland, so I would ask for support for this amendment.

The Hon. G.E. GAGO: The government rises to support this amendment. Essentially, whilst there are some differences, SAPOL maintains a view that it will create confusion. In particular and generally, there is inconsistent wording—words such as 'civil' and 'criminal liabilities', 'sue' and 'action' are used—and it is SAPOL's suggestion that one term should be used throughout. It is proposed that 'action' be the term that is most appropriate.

Secondly, and more specifically, SAPOL does not see the need to have 65(3)(a) at all in the amendment. This gives rise to an interlocutory-type dispute from the outset, with both sides saying that it is clear that the persons named acted/did not act honestly in the exercise of their duty. Removal of this section would then put onus on the Crown to come to a position as to whether they would be prepared to represent the members. If they decided not to represent, then it would bring into play 65(5)(b).

Thirdly, 65(4) again provides for pre-trial dispute over the honest actions or not of the member, and it seems that if this section is applied a person would be required to prove their case one way or another before the commencement of any trial.

Again, it is SAPOL's view that if 65(3)(a) were to be removed, then this section would become redundant. Ultimately, SAPOL is not philosophically opposed to the amendment; however, the wording, as I have outlined, they believe is unclear. However, in its current form, they are advising that the amendment should not adversely impact on operational policing, and therefore can be supported.

The Hon. S.G. WADE: I would certainly be interested in the minister's clarification in perhaps a subsequent contribution to the consideration of this amendment as to whether the government is intending in the House of Assembly to suggest alternative amendments that reflect some of the issues that SAPOL has raised, but I understood, from the spirit of the minister's remarks, that the government in principle supports the protection offered by the Hon. Robert Brokenshire's amendment.

On the opposition's behalf I rise, too, to indicate that the opposition supports the principle and intent of the honourable member's amendment. We believe it is very important to support police in their duty. Police, after all, put themselves in a situation of putting their physical safety and well-being at risk in the pursuit of promoting the physical safety and well-being of the wider community. We do not believe it is appropriate that in doing that police should be at risk of losing their house or facing other legal proceedings.

I also think it is in the community's interest to provide some assurance to the police. Police work in an incredibly complex environment: they work under pressure, have to make decisions in an instant, situations can be often highly unpredictable, and often they have to make very significant decisions that might relate to complex areas of law and complex areas of fact, without the benefit of on-tap advice, whether that be legal or technical advice.

There is a strong public interest in supporting police to act to honestly, to act reasonably, but in so doing to give them the confidence that they can err on the side of acting. I would hate to think that, faced with a public safety situation, there was any suggestion that the police were being held back by a concern that they may be putting themselves or their family and their family's property in jeopardy. It is that sort of spirit that led this parliament to support the Fire and Emergency Services Act, in particular section 127, which, as the honourable member says, is directly analogous to this provision. As the honourable member said, there is also comparable Queensland legislation.

The honourable member appropriately referred to the advice provided to honourable members by Marie Shaw QC. I thought it might be useful to put a couple of her statements on the record, because I think they make clear that this is not the parliament suggesting that police should somehow be exempt from the rule of law, but rather that the law should be applied to police in the context of their particular circumstances. Allow me to quote her:

1. As already remarked, section 127 above was introduced and has been in operation for a number of years without any adverse impact upon operational performance, and community perceptions of operational performance.

The proposed amendment does not grant a special privilege to break the law. To the contrary, it provides a police officer with an exemption from liability in limited and prescribed circumstances, namely only where the police officer acts honestly in the exercise or purported exercise of a power or duty recognised by law. If he is not acting honestly and not in the exercise or purported exercise of a power, function or duty conferred or imposed by law, he remains liable to criminal prosecution.

2. Secondly, for any member of the public or for any other entity who may suffer loss or damage as a result of an honest but erroneous exercise of a police officer's powers or duties, the citizen retains the ability to have recourse against the State (as in the Crown) to obtain precisely the same redress that would have been obtained if the police officer had criminal liability proven against [them].

Later in the advice, the QC highlights that:

b. Police remain accountable for honest but incorrect or excessive exercises of power. There are other legislative provisions that provide an avenue for complaint, prosecution, punishment and even dismissal for police conduct that does not fall within the limited circumstances prescribed in the proposed amendment. I refer to the legislation that governs the appointment, the code of conduct and disciplinary processes for police officers under the Police Act 1998 and the Police (Complaints and Disciplinary Proceedings) Act 1985.

c. Hence, the police have always been and will remain accountable for conduct that may constitute an honest act or omission but nevertheless breaches the police Code of Conduct.

In citing that advice, the opposition reiterates its commitment to the principle of the amendment. We welcome the government withdrawing its longstanding opposition to providing protection of this ilk. This amendment will, if you like, make it clear that the parliament wants to provide more assurance to police officers. It may well be that we need to update police accountability provisions in the context of this new statutory provision, but we support the amendment and look forward to it being further considered by the parliament.

New clause inserted.

Remaining clauses (15 to 21), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (12:43): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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