Bills

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

Second Reading

Adjourned debate on second reading.

(Continued from 11 November 2014.)

Members interjecting:

The PRESIDENT: Order! I do not think the Hon. Mr Brokenshire needs any help from the Hon. Mr Maher. I call the Hon. Mr Brokenshire.

The Hon. R.L. BROKENSHIRE (16:07): I thank you for your protection, sir; I do get misled by the Hon. Mr Maher at times. I rise to speak on the Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Bill 2014. With great surprise to the government, I advise the government that Family First will be supporting this bill, because this bill makes sense—that is why we are supporting it—unlike some of their other bills.

Approximately 700 police officers are assaulted each year in the line of duty. Between 250 to 350 of these assaults involve officers being spat on and/or bitten. Currently, SAPOL officers who come into contact with offenders' bodily fluids are offered blood tests. There is, however, no current obligation for the offender to be tested. I can remember one circumstance in particular where a very committed police officer was bitten and had to go through the agony, with his family, for several months, because the allegation was that the offender who bit the police officer had hepatitis and obviously there was a possibility that that had been passed on. That officer was a friend of mine and I could see firsthand the stress and trauma to him and his wife and children.

This bill, which I understand is strongly supported by the Police Association of South Australia—and I am very proud to be wearing their blue and gold tie today—requires that an offender who is reasonably suspected of having assaulted police, who has spat at, or bitten police officers, undertake blood tests for infectious diseases, but only where the police officer was likely to be exposed to the offender's bodily fluids.

For example, an offender injured as a result of a crime and who did not attack police, but where police came into contact with their blood, would warrant testing without an assault on police. Testing can be required whether the person is in lawful custody or not, and I strongly support that because time is of the essence, as I just highlighted, for families to be put at ease, or otherwise to have correct medical procedures put in place.

Specified offences against police officers include assault or resisting a police officer, assault and assault causing harm, endanger life, riot, affray, violent disorder and any other, as determined by regulation. A senior police officer being of, or above, the rank of inspector can authorise testing, and it can be carried out on a person whether they are in lawful custody or not. Whoever drafted this particular piece of legislation in the bureaucracy has done quite a good job, and I commend the relevant minister for bringing this into the parliament. As I said, I commend PASA for their ongoing representation of their officers. Having been out on some police patrols—

The Hon. S.G. Wade: As a guest.

The Hon. R.L. BROKENSHIRE: As a guest; as either a member of parliament or as the minister; that was the only capacity—praise the Lord—in which I went with the police on patrol, but the fact of the matter is that I am very concerned about the lack of respect for police from some citizens these days, and the fact that assaults of the nature I just have described are becoming more prevalent.

I still believe that we need to do something about that, and at another time I will look to reintroduce—probably when we are not going to be prorogued so that I am not wasting my time—a bill to toughen the sentencing and have serious minimum mandatory sentencing for those people who assault police officers, just like they do in Western Australia. To get back to this matter, the Hon. Mr McLachlan has some amendments, and [MacLachlan-1] expands upon offences to include testing of people who engage in offences against the following providers of services:

CFS, MFS, SES; SA Ambulance Service and St John;

Surf Lifesaving and Volunteer Marine Rescue;

accident and emergency departments in hospitals;

medical practitioners, nurses or midwives in hospitals and those assisting or providing service to a medical practitioner, nurse or midwife in a hospital, for example, an orderly; and

police officers.

The Hon. Mr Darley in [Darley-1] has also included an amendment to look at licensed security agents. In other words, what is happening, as is often the case, is that this chamber, the Legislative Council, is adding to the government bill proactively to ensure we get the best-possible outcomes for all South Australians with respect to this issue as, indeed, we do relevant to other issues. I hope that the government will not do what they often do, and that is say, 'Oh well, no, we're not going to look at these amendments because they are McLachlan amendments or Darley amendments, or Brokenshire amendments'—whatever they are. They should be looking at them on merit, and that means we end up with better legislation.

I want to put on the public record at this point in time—contrary to what the Premier often says—that this council hardly ever, in the six years I have been here, completely blocks legislation. In fact, I think it is true and fair to say that, wherever we possibly can, this council will support the legislation of the government of the day, and has historically done that.

However, it is a house of review; it does have a right to amend and long may it—where the circumstances are required—have the right to block legislation. Otherwise, as I said yesterday and I will continue to say as long as I have breath, we will end up with a dictatorship, and South Australians do not want a dictatorship.

I put on the record that I see this bill as of particular importance to police. The reason for that is because, at the end of the day, unless you are a military officer—in fact from a state point of view—the only agency where you have no choice but to go in wherever the danger may be is when you are a police officer. In all other circumstances you have a right to at least step back and do everything you can to protect yourself. However, there are certain circumstances and times when a police officer does not have that choice. Clearly, we have to support the police with this legislation. Particularly given the Hon. Mr McLachlan's profound legal background and intelligence, and the reasons why he has had the wisdom to put these amendments forward, I can see the merit in it.

Ambulance officers are a classic now because at times they actually have to go out with the police. In fact, they know that in certain streets and at certain addresses they are called to that they have to radio through and have police escort them there. That is a sad situation. Mr Phil Palmer, the head of the ambulance union, only recently said that he was very concerned about the safety and wellbeing of his ambulance officers.

Spitting is, sadly, becoming a common occurrence for ambulance officers. As the Leader of Government Business would well know, as a renowned senior nurse, as I understand, prior to coming into parliament and prior to taking on a role as union rep in nursing, you can, through bodily fluids, contaminate an innocent person.

With those few remarks, again I say that Family First have deliberated intensely on the bill and we support the government with its bill and congratulate them but we also advise the house that we see merit in what the Hon. Mr McLachlan and the Hon. Mr Darley want to see happen to the bill. I have to deliberate slightly more on the Hon. Mr Darley' amendment but, at this point in time, we are leaning towards supporting it and we will be supporting the Hon. Mr McLachlan's amendments.

The Hon. A.L. McLACHLAN (16:17): I rise to set out the opposition's position in respect of this bill. The Liberal Party is supportive of what this bill is attempting to achieve but, as has been indicated by the previous speaker the Hon. Mr Brokenshire, we will be seeking some amendments to broaden its application.

The bill amends the Criminal Law (Forensic Procedures) Act 2007 to require an offender who bites or spits at a police officer to undertake a blood test in order to determine whether there has been a transition of an infectious disease. The threshold for when the offender is to be tested is whether there is a reasonable suspicion the police officer has been assaulted or that the offender has committed other specified offences of violence.

We acknowledge that the specified offences of violence include at this stage, assault, causing harm, endanger life, riot and other specified offences. We also note that the bill provides that an offender can only be required to undertake a blood test upon authorisation in writing by a senior police officer of or above the rank of inspector.

We further acknowledge that the government, by introducing this bill, is seeking to fulfil one of its election promises. At the same time, the Liberal Party is mindful and sympathetic to the view expressed by the Law Society in relation to this bill, that the parliament should always be slow to introduce mandatory forensic procedures. Further, it is our understanding that there is no other state that has this type of legislation. We must always be alert in this chamber to anything that might reduce the rights of our citizens without proper cause. We are all, in this place, the guardians of our people's liberty.

We also acknowledge the submissions we received that were outlined by other members in this place. These submissions were ones that questioned the scientific basis that gave rise to grounds which justify legislative change. The Liberal Party has weighed up these issues carefully and in this instance believe that, on balance, police officers should have the opportunity to receive some comfort in circumstances where they may have been exposed to an infectious disease. We also acknowledge that they may not always have the benefit, even with the test, of having their mind put at rest.

Our police officers are often asked, on our behalf, the parliament and the community, to carry out dangerous and difficult work. Being exposed to the risk of infection, however small, would, without doubt, weigh heavily on their mind, and we think there should be an opportunity, in these circumstances, for them to have their mind and the minds of their families put at rest if possible.

The Liberal Party takes comfort from the provisions of the bill that restrict the purposes for which the testing can be used, and the fact that the samples will be destroyed afterwards. We are also cognisant of the limited circumstances which give rise to the operation of the regime. Without these provisions I suspect we would not have found these amendments satisfactory. In our view they would not have been an adequate balance between the rights of the individual and the rights of the state.

However, the Liberal opposition finds it curious that the bill provides only for tests when a police officer has been put at risk, and this is why we have tabled amendments which broaden the class of individuals who will have the benefit of these tests. I should declare to the chamber a conflict of interest in relation to this: one of the organisations is St John Ambulance Australia, of which I am a member and, until mid-December, a board member.

In the view of the Liberal opposition, restricting it to the police puts them into a special class, and I acknowledge the comments of the Hon. Mr Brokenshire that they are always instructed that they have no choice but to be at an incident. However, volunteers such as those in the classes in the amendments I will be moving in the committee stage have the choice to volunteer only at the start of their day or the start of their duty.

They cannot determine when or where they will face challenging circumstances where they may be at risk of infection. We believe we should protect not just the police force but also those who are carrying out important community work. It is also our understanding, from certain data, that certain health workers themselves face a greater frequency of risk than police officers. This is our motivation for broadening the class.

We are still giving consideration to the amendments put forward by the Hon. John Darley in relation to licensed security agents. We will need to deliberate further on that, although it is my inclination—and probably the party's inclination this stage—that we may not be able to support those. However, this will depend on further consultation. The Liberal opposition will support the passing of the second reading of this bill, and will be seeking amendments as outlined in those that have been filed in my name.

The Hon. T.T. NGO (16:23): I rise today to speak on this bill, and I concur on many of the points that the Hon. Mr McLachlan just outlined in his second reading speech. Our police officers work extremely hard every day to protect South Australians and our communities, and if there is something we can do to ease the anxiety they may feel after potential exposure to a transmittable disease then we should do so. I know the government is always looking for ways to make their jobs safer.

Currently, police officers can get tested for blood-borne diseases if they come into contact with blood during the course of their duties and there is a risk they may have contracted a transmittable disease. It may take three to six months for some diseases to show up in the blood test results.

This bill seeks to enable a senior police officer to require a person who is suspected of an assault causing harm, serious harm or committing an act that endangers the life of a police officer, or other crimes against a police officer that are prescribed by regulation, to undergo testing for diseases transmittable through bodily fluid if it is likely that the police officer came into contact with the bodily fluid. This aims to ease the anxiety that police officers may suffer while waiting for test results for diseases transmitted through bodily fluid.

Recently there has been a lot of media attention on incidents where police officers and other emergency services workers have been spat upon. Last year, police reported 111 splitting incidents. Police officers are concerned about contracting a disease from being spat upon or assaulted. This concern is shared by many South Australians. Spitting on anyone, let alone our police force, is unacceptable. Those who do so can and should be charged with assault.

Having said that, I am also concerned by the commonly held misconceptions about the transmission of certain diseases, including HIV, hepatitis B and hepatitis C. It is important that we do not further these misconceptions. In July this year I had the privilege of launching an event called Love Your Liver for World Hepatitis Day, which was run by Hepatitis SA and Relationships Australia SA. The aim of the event was to increase awareness of the issues associated with hepatitis B amongst leaders and members of communities, high priority populations.

As a person of Asian origin, I am told that I am in a high-risk group. In my previous role as an advisor to the Minister for Health, I had the opportunity to visit these organisations, including Positive Life SA, which some honourable members have visited, and I know the Hon. Tammy Franks has. They are great NGOs, providing important services around these diseases to our community, especially to minority groups and ethnic communities.

I must add that I have received similar advice from health professionals and NGOs at my office. It is important for the community to know that if a person contracts HIV or hepatitis C, there is a window period where it will not show up in a blood test. If for example a person suspected of committing an offence contracted HIV or hepatitis C within, say, the last couple of weeks, it is highly unlikely that they will test positive to those diseases. This is because the window period that police officers currently have to wait for a final test result is the same as for everyone else in the community.

Hearing that an offender did not test positive for HIV or hepatitis C may give a police officer a false sense of security. They may, upon hearing this, decide not to undergo more blood tests. Precautions should be taken to prevent the possible spread of infection, especially following a significant exposure. This means living the next three to six months as if the officer may have contracted the bloodborne virus. During this window period I am told that the officer should practise safe sex; avoid pregnancy; refrain from donating blood, semen or organs; and avoid sharing razors, toothbrushes or nail clippers and files as a trace amount of blood may be on them.

Regardless of offender testing, police officers who potentially have been exposed to a bloodborne disease should still undergo a risk assessment by a health professional. This is critical as, depending on the outcome of the risk assessment, the health professional may determine that the officer should undergo prophylaxis treatment, which can prevent HIV and hepatitis B.

I am in favour of this bill as another measure to ease the anxiety of our police during this window period while they wait for their blood test to come back. As I previously outlined, given the inconvenience that officers and their families suffer while waiting, not to mention the stress they suffer, if this bill provides our officers and their families with peace of mind and allows them to remain positive while they wait three to six months to get their final blood test result, then I fully support this bill.

Debate adjourned on motion of Hon. T.J. Stephens.