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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-03-04 Daily Xml
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Bills

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

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2024.)

The Hon. H.M. GIROLAMO (Deputy Leader of the Opposition) (15:28): I rise in support of the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024 and indicate that I am the lead speaker for the opposition for this bill today. I also indicate that we will be supporting one of the Hon. Robert Simms' amendments to emphasise the purpose of the bill. While we oppose the amendment to limit the timeframe to solely within seven days, we will support the amendment with the added paragraph that allows up to six months for the request of authorisation where the seven-day timeframe is not appropriate. We will not be supporting the other amendments put forth by the Hon. Robert Simms and the Hon. Connie Bonaros.

In May 2019, under the Marshall Liberal government, the then Attorney-General introduced the Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill 2019 to create specific offences to deal with offenders who assault or cause harm to prescribed emergency workers acting in the course of their duties. As of February 2024, 2,711 defendants have been charged under this provision.

Police officers and emergency workers face constant uncertainty of aggression and violence in their line of duty. Biting and spitting are disturbing acts that are often carried out in the heat of the moment and can have life-changing consequences for those at the receiving end. While such acts cannot always be prevented, we can and must ensure that there are safeguards to address the consequences.

This bill would amend the Criminal Law (Forensic Procedures) Act 2007 to compel offenders who bite or spit on police officers or emergency workers to undergo blood testing for communicable diseases. Section 20A of the act provides a mechanism for a senior police officer to authorise the taking of blood where an offender assaults police officers or other emergency workers; this requires evidence of harm. This bill would expand upon this to ensure cases in which they are bitten or spat on are included, as such incidents carry a high risk of transmission of diseases.

Clause 3 expands the scope of emergency services workers to include police security officers, registered health practitioners and those employed under the Correctional Services Act 1982 and the Youth Justice Administration Act 2016. This ensures that all who serve in these vital roles are afforded equal protection.

Clause 3(4) and (5) remove the requirement that actual harm must have occurred for testing to be authorised, instead recognising that the risk of disease from biting and being spat on can be a significant harm in itself, one that can haunt a worker and their families long after the incident. Clause 4 replaces current section 20B with a new provision that mandates blood testing in prescribed circumstances when requested by an emergency worker.

The safety of police officers and emergency workers who dedicate their lives to protecting the community is of paramount importance, and we must ensure that we provide the support they require and ensure that they have the peace of mind to carry out their duties. The amendment bill will also send a strong message to those who would consider assaulting our frontline workers in such a degrading manner that their actions will not go unnoticed or without consequences. With that, we support the amendment bill.

The Hon. R.A. SIMMS (15:31): I rise to speak on the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024 on behalf of the Greens to indicate that we are not supportive of this bill. This bill is problematic, to say the least, and the Greens will be moving several amendments in an effort to try to fix what is a deeply flawed legislative approach. Indeed, I would argue that this is an example of populist politics at its worst, devoid of any evidence and, in effect, a policy-free-zone approach to what is a complex area.

Of course, the Greens support everybody's right to feel safe at work; this is vitally important. But the problem is that this bill does not actually achieve its purported aim; that is, of improving the safety of frontline workers. Indeed, if anything, this bill will actually create more anxiety among frontline workers.

The proposed reforms would compel offenders to undergo compulsory blood testing if an emergency worker has had any form of contact with biological material. Biological material is not defined by the bill and can be taken to mean anything, including saliva, faeces, urine, blood or semen. The bill's definition of emergency workers includes lifesavers, youth justice workers and health workers.

We recognise that this was an election promise made by the Labor Party, but this should not, in and of itself, be a reason to deliver a deeply flawed bill. This bill is not based on health advice or based on the science. Even worse, the bill will lead to an increased stigma for people who live with HIV AIDS and hepatitis.

Under the existing Criminal Law (Forensic Procedures) (Blood Testing for Diseases) Amendment Act 2015, senior police officers can already require a person to provide blood; however, there is a risk matrix applied to determine whether or not such an approach is necessary in the circumstances. This is a sensible approach, as we know, of course, that not all contact with biological material has any risk of transmission of a disease.

I was intrigued to hear the Hon. Heidi Girolamo say that there is a high risk of transmission of disease from saliva. This is certainly not the case. Indeed, a 2018 study reviewed over 30 years of scientific evidence and found that there is no risk of transmission of HIV through saliva, and the risk through biting is considered negligible at best.

At that time, there were no published cases of transmission of HIV by saliva, and the only cases where there had been any transmission was by biting and when the perpetrator had blood in their mouth at the time of the incident. We know after 40 years of HIV research that HIV is not transmitted by saliva and that contact with saliva does not create any risk or threat to an emergency worker.

I am deeply concerned about the potential for this bill to stigmatise people who are living with HIV and AIDS and to feed into those old fears that people had around transmission of this virus. The deeply flawed views were that HIV could be transmitted through saliva and that it was dangerous to kiss someone with HIV. It has taken decades and decades to move away from these falsehoods, and sadly the Labor Party, through this deeply flawed bill, are fanning the flames of prejudice once again. I really urge them to consider what they are doing here. I think this is a deeply dangerous and unhelpful approach that they are taking.

To implement public policy that suggests that there is some level of risk associated with saliva in this way has the potential to significantly increase misunderstanding about the risk of transmission in the community. We know that such misunderstanding leads to an increasing stigma for people living with HIV, many of whom have a viral load that is not detectable, due to modern medications.

What message do we send to our emergency workers if we tell them that the offender must be tested where there has been contact with biological material that cannot even transmit HIV? That emergency worker then has to live with the stress of worrying about whether they have contracted HIV when it is not even possible. Those emergency workers would not even be able to access post-exposure prophylaxis or PEP, and this is one of the elements that is really ridiculous about the legislative approach that the government is taking here.

Even if an emergency worker was spat on by somebody who tested positive to the HIV virus, under existing health protocols they would not be eligible to access PEP because there is no risk associated with saliva. What does the impacted worker do in that circumstance? They are going to have potentially three months of worry, because we know that it takes three months before you can potentially test positive to HIV should you have been exposed to the virus—three months of worry, when there is not a skerrick of evidence to suggest that they are at risk.

Health practitioners are required to consider the risk of prescribing PEP when they make this available. It is my understanding that neither a human bite nor saliva contact would make any worker eligible to access the medication. Regardless of all these issues, mandatory testing is also unnecessary. It is important that we note the statistics in terms of HIV, in particular within our community. In Australia, less than 0.01 per cent of the population is now living with HIV. That is approximately 29,000 people across the entire country. Of those 29,000, 95 per cent are now taking antiviral medication, which renders the virus untransmissible.

For those who are not great at doing the maths on the fly, that leaves potentially 1,450 people in the whole country who are likely at risk of transmission. The risk is so low, so if the government has any health advice that supports this bill I urge them to make it public, because I cannot understand how such an approach can be justified on the evidence.

The Greens have a long record of advocating for a science and evidence-based approach. In 2015, when a similar act was debated in this place, the Hon. Mark Parnell, my predecessor, stated, on behalf of the Greens, that he was concerned about invasive procedures such as blood testing, and there was a need for them to be limited to occasions where they are strictly necessary. I share that view. He also spoke about how neither HIV nor hepatitis can be transmitted by saliva—and, again, we restate that position today. The facts have not changed.

The Greens have continued to advocate for an evidence-based approach to this issue, and in 2016 you, Acting President, asked a question in this place about whether an evidenced-based approach was being used when requiring blood tests of offenders and how police were ensuring that any legislation was not adding to the stigma for people living with bloodborne viruses where the only contact was with saliva—a pertinent question to ask.

The then Minister for Police and Emergency Services, the Hon. Peter Malinauskas, now our Premier, responded to the question but did not address the fact that there is no risk associated with exposure to saliva with these bloodborne viruses. When a similar bill was considered in New South Wales, the Greens also highlighted their concerns.

Since this bill was first proposed some time ago, my office has been contacted by a number of stakeholder groups that have expressed their concerns about this approach. The South Australian Rainbow Advocacy Alliance (SARAA), for instance, is concerned that the bill has unintended consequences and that mandatory testing will further stigmatise people living with bloodborne viruses, including people with HIV. They additionally note that mandatory testing is not effective, nor an evidence-based approach to public health. SARAA has stated:

We recognise that policies to mandate blood testing for those who spit at or bite frontline emergency services workers are intended to protect emergency services workers from communicable diseases.

While SARAA supports keeping emergency workers safe, we're deeply concerned about the potential unintended consequences of such policies to further stigmatise vulnerable South Australians living with blood-borne viruses (BBVs) including people with Human Immunodeficiency Virus (HIV).

Given medical experts have firmly stated that mandatory testing for [blood-borne viruses] is not an effective or evidence-based approach to public health, SARAA is concerned that the risk of harm caused by this policy deeply outweighs the potential benefits.

The National Association of People with HIV Australia (NAPWHA) and Health Equity Matters have also come out against this bill and flagged the potential adverse consequences that could flow for people living with HIV but also for our health system more broadly. We should note that the Labor Party have made much of the fact that it was an election commitment. Well, their other election commitment was to end ramping, and we know how that has ended up. I do wonder how this mandatory blood testing approach could potentially contribute to the ramping crisis by further overburdening our health system.

In their briefings on this bill, the two organisations (that is, the National Association of People with HIV and Health Equity Matters) stated:

The Bill continues South Australia's flawed approach to Mandatory Disease Testing Laws.

The Bill proposes changes that will produce a dramatic increase in the number of Mandatory Disease Tests (MDT) that will take place in South Australia and the situations in which they will occur. MDT laws are already unnecessary, anti-scientific and, due to a lack of appropriate oversight and accountability, ripe for misuse.

By proposing to devolve decision making about when to test to non medical decision makers at the lowest levels of workplace hierarchies and by removing the discretion of Senior Police Officers not to order a test when one is not needed, the Bill proposes to exacerbate this situation. Tests will be ordered based on stigma and not on evidence based science. This puts emergency services workers at risk as well as the communities they serve and will exacerbate existing pressure on health services in South Australia.

I agree. Indeed, NAPWHA and Health Equity Matters have provided a submission that argues against this bill and have raised concerns about a number of the clauses. I will be raising some of these concerns with the Attorney at the committee stage.

While the Greens are not in favour of this bill, we will be moving several amendments in an effort to try to improve the legislation somewhat. We will seek to change the definition of 'biological material' to remove saliva, as the diseases that this bill purports to capture cannot be transmitted by saliva. Our amendments aim to ensure that the biological material of the offender must come into contact with the blood of the emergency worker before a test is ordered. Mere contact with unbroken skin or clothing is not likely to cause any transmission, and this will reduce the circumstances in which these tests will be ordered.

We also have amendments that consider the timeframe of the test related to the contact incident. There is no benefit that could flow from testing someone after seven days as the person may have potentially contracted a bloodborne virus after the contact incident in question. All this will do, potentially, is add further worry and anxiety to the worker. It may extend the duration of their worry that they may have been affected, even when this was not at all possible.

Finally, our amendments require the use of a risk matrix before any tests are ordered. This matrix will be determined by regulation, and in fact this is already the current practice when senior police officers determine whether or not a test is required. I note that SA-Best has an amendment to include workers in retail shopping centres, petrol stations and fast-food outlets. I think it is very clear, from our general concerns around this bill, that we will not be supporting that amendment.

I am concerned that, whilst the Greens are seeking to narrow the application of these laws, the Hon. Connie Bonaros' amendments will actually extend their application and extend the number of workers who will feel undue anxiety. In this case, it is most likely to be young workers, who may not understand that there is no risk profile associated with exposure to saliva. To put them in that position does not seem to make sense and, once we start expanding the number of workers that fall within the remit of these laws, has the potential to expand the level of stigma that I spoke of earlier.

To conclude, the Greens consider this bill to be deeply flawed. We will move amendments that we consider to be for the benefit of people living with bloodborne viruses but also for frontline workers. I want to put on the public record my disappointment in the Labor Party for the way they have approached this. It seems to me that this was a commitment that was made in the middle of an election campaign without any evidence. It is not supported by anyone in the health space and indeed has been roundly condemned by all of the advocacy groups in that space.

I would like to know what level of consultation the Labor Party adopted in developing this policy. I am keen to understand why such a poorly conceived concept would win the support of the opposition as well, who do not seem to be adopting a critical eye over what appears to be some sort of Labor Party brain fart that has not been given due consideration. I look forward to the committee stage, and I will be raising a number of questions on behalf of the Greens.

The Hon. J.S. LEE (15:48): I rise today to speak on the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024. This bill would make amendments to the Criminal Law (Forensic Procedures) Act 2007 to compel offenders who bite or spit on police officers or emergency workers to undergo blood testing for communicable diseases. In speaking to the bill, I want to express my thanks and support to all frontline emergency workers, who take on high-risk roles to protect and keep our community safe. Unfortunately, police and emergency workers are all too often harmed, assaulted, bitten or spat upon in the course of doing their day-to-day duties.

Antisocial behaviour that puts police and emergency workers at risk of transmission of communicable diseases that cause physical injury and also psychological harm is completely unacceptable, and this bill seeks to address these issues. It is important to note that there are already existing provisions in the act which provide a mechanism for a senior police officer to authorise a blood test from a person who assaults a police officer or other emergency services worker and where it is likely that they were exposed to the offender's biological material as a result.

One of the key elements of this bill is the inclusion of a provision that if the police officer or emergency services worker requests, within a set timeframe, that the offender undergoes a blood test, that procedure must be authorised. While the bill before us sets out that such a request must be made within six months of the incident, I understand the Hon. Robert Simms will be moving an amendment to alter this timeframe to within seven days of the incident.

I understand the government's intent with this bill is to provide reassurance for police officers and emergency services workers who may experience extreme stress or anxiety by ensuring that the affected workers have timely access to information about whether they have been exposed to bloodborne diseases. I believe the honourable member's amendments align with this intent and that a seven-day time period, unless there are extenuating circumstances, is reasonable.

The bill also makes changes to the existing definitions in the act to expand the scope of emergency workers captured, including police security officers, registered health professionals and youth justice workers. This will ensure that all those working in an environment where there is a high risk of being bitten or spat on will have the same access to this provision.

Finally, I note that there is a carve-out for a protected person, defined in the act as a child or any person physically or mentally incapable of understanding the nature and consequences of a forensic procedure. This is a sensible exemption that still retains the existing discretion. Our police and emergency services face challenging circumstances every day in the course of their duties and this bill aims to address some of the anxiety that can impact on their mental health and wellbeing.

With that, I indicate that I will be supporting the bill and I also indicate that I will oppose the amendment by the Hon. Connie Bonaros, but will closely consider the amendments proposed by the Hon. Robert Simms during the committee stage. With those remarks, I commend the bill.

The Hon. S.L. GAME (15:52): I rise briefly to support the government's Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill. The bill will expand on the much-needed support given to our police officers and emergency workers who have been exposed to communicable diseases in the course of their duties. Currently under the act, police officers and emergency services workers who have been assaulted can receive authorisation for offenders to take a blood sample to assist in the determination of any risk exposure. This is appropriate and necessary to support frontline workers regularly engaging in high-risk situations with volatile and aggressive clientele.

This bill expands the category of workers receiving this support to include all persons authorised to provide emergency and non-emergency ambulance services, police security officers, health practitioners in hospitals and youth justice workers. The bill also expands the definition of 'prescribed serious offences' to include causing harm or assaulting a prescribed emergency worker and intentionally causing human biological material to come in contact with another person.

Our frontline emergency workers are consistently confronted with ongoing risk to both their physical and psychological health without the added stress and anxiety of being exposed to communicable diseases. I commend the great work they do and fully recognise the need to alleviate the strain associated with the possibility of being infected with a life-changing disease due to the violent actions of another person.

I am also confident that the process for requesting and authorising blood samples provides enough safeguards to protect vulnerable individuals from unnecessary testing. With that, I will be providing my support for the bill and acknowledge the inherent risk associated with the work performed by prescribed workers under the proposed provisions.

The Hon. T.T. NGO (15:54): I rise to speak on the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024, which delivers on the government's election promise to mandate blood testing for individuals who spit on or bite police officers or other emergency personnel, when the affected worker requests a test. Currently, the authority to approve blood testing under section 20B is discretionary and based on internal policies and procedures within South Australia Police (SAPOL).

This bill will make it compulsory for a senior police officer to approve blood testing when an affected worker requests it within a six-month timeframe; however, the bill does maintain the exception that blood testing will not be mandatory if the suspect is a protected person, such as a child or individual who lacks the mental or physical capacity to understand the nature and consequences of a forensic procedure as defined in the act.

This bill significantly expands the group of workers eligible to request blood testing after potential exposure to biological materials like HIV and hepatitis. The expanded categories now include all authorised providers of ambulance services, both emergency and non-emergency, under sections 57 and 58 of the Health Care Act 2008; police security officers; training centre employees and youth justice officers; hospital employees who are registered health practitioners (previous eligibility was limited to nurses, midwives and doctors employed in hospitals); and any other employment category prescribed by regulation.

Police officers, paramedics, hospital staff and other frontline workers frequently face violent or aggressive behaviour in the course of their duties. We know that spitting or biting exposes them to serious infectious diseases such as HIV, hepatitis B and hepatitis C. Waiting months to confirm whether an exposure has resulted in an infection can cause severe anxiety and emotional distress for workers and their families. This bill allows affected workers to quickly determine if they have been exposed to a dangerous infection, enabling early intervention and medical treatments.

Additionally, blood testing authorisation under section 20B remains applicable only to those suspected of committing a prescribed serious offence. The bill updates the list of these offences and adds the following offences: causing harm to or assaulting a prescribed emergency worker, as outlined in section 20AA of the Criminal Law Consolidation Act; and committing a prohibited act by deliberately causing human biological material to come into contact with a person as per section 20AB of the Criminal Law Consolidation Act.

The bill also introduces a clarifying note in section 28 of the act. This states that forensic procedures authorised under section 20B qualify as a 'suspects procedure' under part 3 of the act. This amendment is in response to stakeholder feedback indicating uncertainty about the act's current interpretation. These amendments balance public health priorities with workplace safety, reinforcing the seriousness of such assaults while safeguarding those who serve in our community.

The Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024 sends a strong legal and ethical message that biting and spitting actions will be taken seriously and have immediate consequences. I therefore commend the bill to the chamber.

The Hon. R.P. WORTLEY (15:59): The Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024 fulfils the government's election commitment to compel people to undergo blood testing to detect communicable diseases if they spit on or bite police or other emergency workers and those prescribed workers request testing.

The bill builds on the existing provisions in sections 20A and 20B of the Criminal Law (Forensic Procedures) Act 2007, which provides a mechanism for a senior police officer to authorise the taking of a blood sample from a person who causes a police officer or other emergency services worker to potentially be exposed to biological materials through the commission of a prescribed serious offence, such as biting or spitting.

The power to authorise blood testing comes under 20B of the act and is currently discretionary. The considerations for determining whether to grant the authorisation are left to internal policies and procedures within the South Australian police force. The bill will make it mandatory for a senior police officer to authorise blood testing on the suspect where authorisation is requested by the affected worker within the designated timeframe of six months; however, it will not be mandatory for the senior police officer to authorise the procedure if they know that the suspect is a protected person. A protected person is defined in the act as a child or a person physically or mentally incapable of understanding the nature and consequences of a forensic procedure.

The bill broadens the categories of workers engaged in prescribed employment that may request blood testing following exposure to a biological material. The additional categories of workers include all authorised providers of emergency or non-emergency ambulance services in accordance with sections 57 and 58 of the Health Care Act 2008, rather than the current approach of naming some providers and not others; police security officers; training centre employees and youth justice officers; persons employed in a hospital as a registered health practitioner (rather than being limited to nurses, midwives and medical practitioners employed in a hospital); and any other employment of a kind prescribed by the regulations.

Further, an authorisation for blood testing under section 20B of the act may only be made in respect of a person suspected of committing a prescribed serious offence. The bill updates the list of the prescribed serious offences to reflect changes made to the criminal law since 20B was first introduced, in particular in adding the offences of causing harm to or assaulting a prescribed emergency worker contrary to section 20AA of the Criminal Law Consolidation Act and committing a prohibited act by intentionally causing human biological material to come into contact with another person, contrary to section 20AB of the Criminal Law Consolidation Act.

The bill inserts a note in section 28 of the act to make it clear that a forensic procedure authorised under section 20B of the act is a 'suspects procedure' for the purposes of part 3 after consultation with stakeholders revealed confusion regarding the current operation of the act. I support the bill.

The Hon. C. BONAROS (16:02): I rise to support the second reading of the Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024. The bill, as we have heard, seeks to provide a timely response for frontline workers—those in prescribed employment—in situations where they are exposed to the risk of communicable disease by individuals who bite or spit at them while they are performing their duties. It will require alleged offenders who engage in such conduct to be subject to blood testing for such communicable diseases.

As the bill stands the testing has to occur within six months of the incident, and I note that the Hon. Rob Simms has filed two amendments seeking to adjust this timeframe, with, I think it is fair to say, in my view, at least, the more preferable of the two providing for testing within seven days or, in extenuating circumstances, up to six months. I am open to the amendments that have been filed by the honourable member, and I will indicate what we do with those as we progress through the committee stage.

In terms of the bill, again prescribed employment we know includes police officers; police security officers; emergency services workers, both paid and voluntary; certain registered health practitioners; and others. There is also a regulation-making power allowing for further expansion of prescribed employment categories as needed.

While the intent of the legislation is clear, I also acknowledge that some stakeholder groups have raised particular concerns about the potential for stigmatisation, particularly regarding the perceived risk of transmission of certain diseases. I am certainly hopeful that we can work through at least some of those issues during the committee debate. It is important to clarify the actual risks involved. One of the issues that has been raised is HIV and the transmission or not through saliva, and those concerns I think deserve careful consideration. I expect they will be further scrutinised as we progress through this debate.

Beyond the current scope, I would like to draw attention to the experience of retail and fast-food workers, who also face significant risks in their roles. We have seen increased inappropriate behaviour towards such workers in recent times, and I have filed an amendment to expand the definition of 'prescribed worker' to include these workers. This was not done lightly, particularly taking into account the concerns that have been raised, but I guess it was done to reflect the alarming reality of what many in the retail and fast-food sectors endure.

The Shop, Distributive and Allied Employees' Association (SDA) reported in its 2023 No One Deserves a Serve campaign that 9 per cent of survey respondents indicated that they had been spat on while at work and 12.5 per cent reported being the victim of physical violence, and that is a figure that they say continues to grow. If we are legislating to protect frontline workers—and this is a debate we had during COVID as well—then we have to recognise that these workers are often just as exposed.

I note the government has indicated to me in discussions that it is not minded to support this amendment. The added pressure it would place on forensic testing services I think is the rationale for not supporting the amendment. That in itself highlights the significance of the issue for that cohort of workers in many respects because, as we know, this is not just about physical injuries. The psychological impact of these incidents can be profound on individuals and any worker who experiences violence or degrading conduct, such as being bitten or spat on, often suffers long-term trauma affecting their wellbeing.

I guess the question is: where does our duty begin and where does it end in terms of ensuring that all those workers who serve the public, whether they are doing so in the emergency service setting, the healthcare setting or the customer service setting, are adequately protected? With those points in mind, I look forward to the committee stage of the debate where I hope we engage in a few of these issues further, and I look forward to further explanations in relation to some of the amendments that will be moved, but overall indicate my support in principle for the bill, subject perhaps to some amendments.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:07): I thank honourable members who have contributed to the second reading debate. I appreciate that it has been foreshadowed that there will be some questions in committee, and I look forward to answering them. For the benefit of the committee stage that we are about to embark upon, I indicate what the government will do in relation to the amendments filed. In relation to the amendment filed by the Hon. Connie Bonaros, the government will not support that amendment.

In relation to the amendments filed by the Hon. Rob Simms, the government will not be supporting the five amendments in set 1. In set 2, the Hon. Robert Simms has two amendments filed. I indicate that the government will support both those amendments and will not support the amendments in set 3, one of which I think replicates very closely one of the amendments in set 2. With that, I look forward to the committee stage.

The council divided on the second reading:

Ayes 17

Noes 2

Majority 15

AYES

Bonaros, C. Bourke, E.S. El Dannawi, M.
Game, S.L. Girolamo, H.M. Hanson, J.E.
Henderson, L.A. Hood, B.R. Hood, D.G.E.
Hunter, I.K. Lee, J.S. Lensink, J.M.A.
Maher, K.J. (teller) Ngo, T.T. Pangallo, F.
Scriven, C.M. Wortley, R.P.

NOES

Franks, T.A. Simms, R.A. (teller)


Second reading thus carried; bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.A. SIMMS: To ease proceedings, I thought what I might do is just ask all my questions at clause 1 to perhaps make it a little bit easier for us to progress. A number of speakers on behalf of the government referenced the risks associated with saliva and biting with respect to acquiring bloodborne viruses. Can the minister provide any evidence that supports that assertion? In particular, will the government release any advice they may have obtained from SA Health in relation to the bill?

The Hon. K.J. MAHER: I thank the honourable member for his question. I would be surprised if the honourable member did not expect the government to say this, but, consistent with what we do in relation to similar questions regarding other bills and the releasing of advice, it is not the government's intention and it is not the usual practice of government to release the results of consultation or, necessarily, advice in relation to bills.

The Hon. R.A. SIMMS: Beyond this simply being an election promise, what is the demonstrated need for change to the law? Can the government indicate which stakeholders have advocated for the change?

The Hon. K.J. MAHER: I thank the honourable member for his question. Once again, despite the honourable member's very tricky attempts to have me be fooled into revealing what stakeholders there were or how the government has conducted its consultation, this is not something that governments typically do. The honourable member is right: it was an election commitment, and it was after representations and discussions with those representing, particularly, police officers that this policy came into effect and is now being enacted.

The Hon. R.A. SIMMS: Silence speaks volumes. What measures will the government put in place to protect people living with bloodborne diseases from further stigmatisation as a result of this bill? Is the government concerned about the potential for misinformation to spread as a result of this bill?

The Hon. K.J. MAHER: Certainly, that is not the intention of this bill. Labor governments through the decades and this government, particularly with some of the measures that we have passed—including outlawing conversion practices, and the Weatherill government in many of the initiatives that they have taken—have made significant steps. To stigmatise people is not the intention of this bill, and many of the actions that we have taken in other pieces of legislation and policy have, I think, demonstrated that Labor governments are keen to reduce stigmatisation.

The Hon. R.A. SIMMS: Does the minister not concede that a bill that is premised on the false belief that there is a risk of acquiring a bloodborne virus like HIV simply through exposure to saliva could fan misinformation about HIV transmission in our community? What steps will the government be taking to try to safeguard vulnerable people against that misinformation?

The Hon. K.J. MAHER: As I have said, that is certainly not the intention of this bill. The government will continue to take steps in a wide range of areas to safeguard vulnerable people and people from communities that can be wrongly stigmatised.

The Hon. R.A. SIMMS: How many more tests does the government anticipate will be undertaken as a result of this change? Is the minister confident that SA Health will be able to manage this, given the current pressures already faced by our health system?

The Hon. K.J. MAHER: I thank the honourable member. I do not have any figures as to what might be in the minds of people if they request these tests. Those figures obviously are something that is not known now but which will be borne out in the future.

The Hon. R.A. SIMMS: Is the minister confident that SA Pathology has the capacity to manage the increase in blood tests that may be required as a result of the legislation?

The Hon. K.J. MAHER: I thank the honourable member for his question. I am confident that government agencies will be able to meet the requirements that parliaments decide in terms of making their laws.

The Hon. R.A. SIMMS: Is the minister familiar with the case of Warren v Police of 2024? I understand that in that case there was consideration around whether an involuntary sneeze could be considered to intentionally cause human biological material to come into contact with another person. In that case I understand the judge determined that, whilst a sneeze was involuntary, the direction in which the sneeze was directed could be considered to be rarely involuntary. In other words, an individual may not be able to control whether or not they sneeze, but they do determine which way they direct the sneeze. Is the minister concerned that a sneeze could potentially be captured under this legislation?

The Hon. K.J. MAHER: I am not familiar with the case that the honourable member refers to, although my advice is that the contact needs to be as a result of a prescribed offence. So without anything else, just an involuntary sneeze, it would be difficult to see how that could be captured.

The Hon. C. BONAROS: Just before we get to the next point the Hon. Rob Simms might make, I want to expand on that one, if we could, a little. The reason for this is really to keep individuals safe from harm in the course of their employment. If that is the case, we know that this only kicks in where a suspected prescribed serious offence has been committed. What sorts of offences are we talking about when we talk about 'prescribed serious offences'?

The Hon. K.J. MAHER: I thank the honourable member for her question. Regarding the 'prescribed serious offence' as outlined in the Criminal Law (Forensic Procedures) Act 2007, division 4, section 20A in the interpretation section defines and lists the prescribed serious offences. I will not go through all of them, because they refer to the section of the Criminal Law Consolidation Act primarily, but they are offences such as ranges of assaults, acts endangering life, riot and violent disorder. They are the types of offences that are included.

The Hon. R.A. SIMMS: Yes, but my point was in relation to someone sneezing while they are being arrested, or spitting or coughing in that context. I am not disputing the application of this in relation to serious offences. I am keen to understand the rationale for identifying six months after the suspected offence occurred. Given there is no way to prove that the person already had the bloodborne virus at the time of contact, what is the reasoning for six months? Why not a shorter window?

The Hon. K.J. MAHER: I thank the honourable member for his question. The honourable member will be pleased to know, as I indicated in my second reading sum-up, that was how it was originally drafted but, upon being persuaded by the honourable member's amendment, we will be supporting the amendment that reduces that to seven days.

The Hon. R.A. SIMMS: I am very persuasive. After several months, the opportunity to take post-exposure action, including medication, has passed. What is the benefit to the emergency services worker of getting the offender to take a test, as opposed to just undertaking a test themselves?

The Hon. K.J. MAHER: My advice is that it is ineffective. The honourable member is right: there are periods where something will not become apparent for sometimes a number of months. The reason for the testing—and as we have said we have been persuaded by the honourable member to reduce that to seven days—is to find out immediately, so you do not have to wait up to that three months, or sometimes even more.

The Hon. R.A. SIMMS: What if a worker discovers that the person who has, say, spat on them or bitten them is in fact HIV positive? Would that worker be eligible for access to PEP, the post exposure prophylaxis, which is used in circumstances where there is a significant risk of transmission of the HIV virus?

The Hon. K.J. MAHER: I am advised that would be a wholly clinical decision, a clinical health decision about what the appropriate course of treatment would be.

The Hon. R.A. SIMMS: Under the current guidelines the circumstances in which the minister describes would not meet the criteria, someone would not be eligible for accessing PEP if someone with HIV has, say, spat on them, for instance. They just do not fit the criteria. Is the minister saying that the criteria will be revisited? How is that going to work in practical terms, and what benefit is there to a worker if they find out that they have been spat on by someone who is HIV positive if they do not then have access to the PEP?

The Hon. K.J. MAHER: I understand the honourable member's question, but that will be a clinical decision on what to do in those circumstances. Obviously, this will be a new procedure and it will be a matter for the clinical practitioners, they will decide what the course of action will be and what the guidelines will be in those situations.

The Hon. R.A. SIMMS: Will the government be providing additional psychological support to workers who may be under the misapprehension that they are at risk of acquiring the HIV virus or other bloodborne viruses?

The Hon. K.J. MAHER: They are clinical questions for clinicians to decide what support workers need.

The Hon. T.A. FRANKS: The minister would be well aware that there is a proactive psychosocial duty now in place. We are now putting workers in a position where they are being told they can contract a disease that is actually not able to be transmitted in the way that we are telling them, and there is forensic testing being done as a result. That worker may well believe, because of the government's laws, that they are indeed in danger of contracting these bloodborne viruses.

What information will be provided to a victim, who is also a worker, to assure them of the actual science here so that they are not unduly placed into stressful situations where their mental health may be quite seriously harmed?

The Hon. K.J. MAHER: That will be up to the PCBU, the person who is undertaking the business or undertaking, who does have a positive duty, under our work health and safety laws, to provide a safe workplace—which, as the honourable member correctly points out, now includes psychosocial hazards. That will be up to the individual workplace, to make sure that their workers are properly supported.

The Hon. T.A. FRANKS: Following that, how will the PCBU know that the bloodborne virus cannot be contracted in the way that the government laws now apparently believe it can, given that the law is based on a lie rather than science? Will the government provide pamphlets to say, 'We've got this law but actually you're in no danger from this particular transmission,' and provide the PCBUs with that pamphlet to be able to hand to their employees?

The Hon. K.J. MAHER: The existing requirements to provide a safe workplace will remain.

The Hon. C. BONAROS: I go back to the one of the rationales for this bill. It talks about a person being exposed to bloodborne diseases, including HIV or hepatitis A or B, and the time—what we call the window period, which can last several months—between exposure and possible detection. I ask this of the Attorney and hope he may have a response, or anyone else who might help: have concerns been raised about saliva that contains blood?

The Hon. K.J. MAHER: My advice is that we are not aware of that being addressed by a specific question. If there is a very specific scenario maybe we can provide—

The Hon. C. Bonaros: I am not aware of one: that is what I am asking.

The Hon. K.J. MAHER: I am not aware of that being specifically addressed.

The Hon. R.A. SIMMS: What measures will the government have in place to protect the privacy of the person who is being tested for the bloodborne virus? Given the emergency worker will be given information on the potential HIV status or potential health status of another individual and they will be able potentially to request this some time after exposure, how will the government ensure that sensitive information is being appropriately managed?

The Hon. K.J. MAHER: It is a good question. I am advised that, under section 50 of the act that this bill seeks to amend, there are confidentiality provisions in place. Of course, these sorts of tests can be ordered now; this is just varying the ways that they shall be ordered. The same confidentiality provisions that already apply for when tests are ordered, as the honourable member points out, pursuant to a risk matrix, will still apply to procedures under the act if it is amended.

The Hon. R.A. SIMMS: Just finally, I am still keen to understand: what is the rationale for this change in terms of moving us away from the existing regime? There is already a process in place with a risk matrix. Why the change?

The Hon. K.J. MAHER: I am happy to restate what I think I said at one of the first questions answered. As the honourable member pointed out, it was an election commitment, and it was a response to concerns raised from particular emergency services workers.

The Hon. R.A. SIMMS: Just finally—

The CHAIR: Is this the final final?

The Hon. R.A. SIMMS: This is the final final question. In making that election commitment, who exactly did the Labor Party consult with? Presumably, they did not pluck this out of thin air. Where did the idea come from, and on what evidence is it based?

The Hon. K.J. MAHER: I thank the honourable member for his invitation at the end of the proceedings, as he started. Similarly to governments typically not going through advice that is provided by those that are consulted with, oppositions tend not to, either. I thank him for his invitation once again but will not be providing the information in relation to the ins and outs of the who, what, where and when of consultation.

The Hon. C. BONAROS: Just on that, it is fair to say though that, at least insofar as this bill applies, police and emergency workers generally have been raising this for some time in terms of the concerns that they have around these laws. Without divulging anything that the Attorney cannot divulge, we are talking about frontline emergency workers. This is dealing with that cohort, so there are concerns that have been raised with government from those cohorts in relation to this issue.

The Hon. K.J. MAHER: I have already said that essentially that is the case, in response to a question from the Hon. Robert Simms earlier.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–1]—

Page 2, after line 10—Before subclause (1) insert:

(a1) Section 20A, definition of biological material—delete the definition and substitute:

biological material of a person means the person's—

(a) blood; or

(b) faeces; or

(c) urine; or

(d) sperm;

This amendment defines 'biological material' as blood, faeces, urine and sperm. The amendment removes saliva from the definition. As I indicated in my second reading contribution, there is no evidence that HIV can be transmitted by saliva. There is only a negligible chance when saliva comes into contact with a significant quantity of blood, the blood comes into contact with a mucous membrane or open wound and the viral load of the person who is HIV positive is not low. Again, that is considered very low. If an employer provides appropriate work-safe conditions, which includes vaccinations, then personnel could already be vaccinated against hepatitis. HIV is not transmittable by saliva, so there is no need to include saliva as a biological material.

The Hon. K.J. MAHER: As I indicated in my second reading summing-up speech, the government will not be supporting this amendment, but I do indicate, as I did before, we will be supporting, in the second set of the Hon. Robert Simms' amendments, amendment No. 1.

The Hon. C. BONAROS: Can I just ask the mover to repeat what he said in relation to hepatitis, specifically, not HIV?

The Hon. R.A. SIMMS: I am advised that if an employer provides appropriately safe workplaces, which includes vaccinations, then personnel can be immune to hepatitis—that is my advice—but that HIV of course is not transmittable.

The Hon. C. BONAROS: But if, for whatever reason, an individual were not to have such a vaccination, then excluding saliva could potentially have ramifications in terms of that test; we accept that, do we not?

The Hon. R.A. SIMMS: The workers that we are talking about are frontline responders and high-risk workers, so it would be my assumption that most of those would have access to the vaccination.

The Hon. C. BONAROS: I indicate for the record that I will not be supporting the amendment. I fully acknowledge the reasons for the amendment, and I fully acknowledge the balance that we are dealing with here and the concerns that have been raised, particularly in relation to HIV. I am not convinced, though, when it comes to other issues, particularly the one that I have just outlined, for instance.

I do not think there is any requirement for a police security officer or security personnel necessarily to have immunisations. I think there would be a cohort within the group that are captured that probably are not required to have an immunisation, and I think that they should be able to turn up to work without the expectation that this would occur to them. Whilst I appreciate what the honourable member is seeking to do, I am worried about the other issues that may be unintentionally captured as a result of doing that, and on that basis will not be supporting the amendment of the Hon. Robert Simms, [Simms-1] amendment No. 1.

Amendment negatived.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 3, after line 14 [clause 3(3), inserted definition of prescribed employment]—

After paragraph (g) insert:

(ga) employment in the provision of services in a retail store, shopping centre, petrol station or fast food outlet;

I will not repeat what I have already said during my second reading contribution. Effectively, this seeks to broaden the scope of individuals who are captured. I go back to the point that I made at the outset. I appreciate that there is a fine balancing act here, but ultimately we are talking about keeping individuals safe from individuals who are actually taking part in what is serious offending, and it is serious offending against frontline workers. We all accept that that sort of offending has no place anywhere, whether it be a hospital or a police station or anywhere else.

We have seen this week the sorts of incidents that have been reported in Rundle Mall. Where they involve this sort of behaviour, that is equally unacceptable. In terms of the purpose of the bill, we have said there is a window there—what we call the window period. It can last several months. You are expecting a person to wait several months before having any certainty about any biological matter that they have been exposed to. I do not think any of us accept that individuals should be taking part—and I am not suggesting that any of us are condoning that sort of behaviour in any way shape or form.

The point of the amendment is to extend that further and acknowledge that there are other workers who may very well be—perhaps not to the extent of emergency frontline workers—subject to the same sort of behaviour. I note again that even if that were to apply, it would be where there are cases of suspected serious offences. So we are not talking about every case; it is those where there are serious offences that someone is taking part in.

I would ask the Attorney to clarify whether there is any intention—I note there is a regulation-making power—to review the list and in what timeframe, and also whether there were discussions with security guards in relation to the application of these laws potentially to them.

The Hon. K.J. MAHER: I thank the honourable member for her question and for bringing this amendment forward. Whilst we acknowledge the intent of the honourable member's amendment, we will not be supporting what would be a very big expansion of not just the scheme as it is contemplated currently in the criminal law forensic procedures legislation. We have not had consultation with any of the groups mentioned by the honourable member as it was not our intention that it would be expanded in such a way.

The Hon. R.A. SIMMS: I indicate the Greens will not be supporting the amendment from the Hon. Connie Bonaros, but I do just want to put on the record that our decision not to support the amendment does not mean that we differ from the honourable member in terms of her respect for workers in the retail sector. They are vital, valued members of the workforce. We were reminded of that, of course, during COVID.

Might I say, the Greens absolutely condemn anybody in the community who is spitting on or biting a retail worker or our first responders. That behaviour is totally inappropriate, and I am sure all of us in the parliament agree with that proposition. The question here is around whether or not what is in effect quite an invasive procedure is justified by the evidence, and it is on that basis that we are critical of the proposed reform overall and, indeed, in that spirit, the expansion of this regime to retail workers.

Amendment negatived; clause passed.

Clause 4.

The Hon. R.A. SIMMS: I move:

Amendment No 1 [Simms–2]—

Page 3, after line 24 [clause 4, inserted section 20B]—Before subsection (1) insert:

(a1) The purpose of this section is to provide for the authorisation, in certain circumstances, of the carrying out of a forensic procedure on a person, consisting of the taking of a sample of blood from that person, for the purposes of testing for the presence of any communicable diseases which may be detected in blood.

This amendment clarifies the purpose of the section. As I indicated earlier, it is important that this section is clear about the intention of the legislation so that these laws are not misused.

Amendment carried.

The Hon. R.A. SIMMS: I move:

Amendment No 2 [Simms–1]—

Page 3, line 25 [clause 4, inserted section 20B(1)]—Delete 'A' and substitute 'Subject to this section, a'

Amendment negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 3 [Simms–1]—

Page 3, line 29 [clause 4, inserted section 20B(1)(b)]—After 'it is likely that' insert 'the blood of'

This amendment requires the authorising officer to consider if it was the blood of the person subject to the biological material that likely came into contact with the offender's biological material. The intention behind this is to ensure that there is an actual likelihood of transmission of a bloodborne virus. If a person gets another person's biological material in contact with their clothes or skin, there is, of course, very little prospect of transmission.

The Hon. K.J. MAHER: As I have indicated, we will not be supporting this amendment.

Amendment negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 4 [Simms–1]—

Page 3, line 33 [clause 4, inserted section 20B(2)]—Delete 'subsection (3)' and substitute 'subsections (3) and (3a)'

On my understanding this amendment is consequential to amendment No. 5. Amendment No. 5 requires a risk matrix to be used. We understand it is already the practice that a risk matrix is applied to determine whether a test is necessary, considering the likelihood of transmission. So this amendment makes that amendment possible.

Amendment negatived.

The Hon. R.A. SIMMS: I move:

Amendment No 2 [Simms–2]—

Page 3, lines 36 and 37 [clause 4, inserted section 20B(2)(a)]—Delete paragraph (a) and substitute:

(a) within—

(i) 7 days; or

(ii) if the authorising officer considers that the person engaged in prescribed employment did not have a reasonable opportunity to make the request within the period referred to in subparagraph (i) due to injury or other extenuating circumstances—such longer period, not exceeding 6 months, as the authorising officer considers appropriate in the circumstances,

after coming into contact with, or otherwise being exposed to, the biological material; and

This limits the amount of time within which tests can be requested to seven days or up to six months if an appropriate rationale can be provided.

The Hon. K.J. MAHER: As I indicated in my second reading summing-up and in answers to questions from the Hon. Robert Simms at clause 1 and for the benefit of the committee, particularly my colleagues behind me, we will be supporting this amendment.

Amendment carried.

The Hon. R.A. SIMMS: It was the intention to do them the other way round. That was what I indicated. That is fine, given I understand that other amendment was not going to have support in any case. But I did indicate my desire to do them in an alternative order.

The CHAIR: The final amendment is amendment No. 5 [Simms-1].

The Hon. R.A. SIMMS: I think this amendment is no longer required, because I referenced the risk matrix earlier.

Clause as amended passed.

Remaining clause (5) and title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (16:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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