COVID-19 Emergency Response (Bail) Amendment Bill

Second Reading

I am pleased to introduce the COVID-19 Emergency Response (Bail) Amendment Bill 2020. The bill seeks to protect prescribed workers, including front-line emergency workers, hospital workers and others employed in retrieval medicine, through amendment to the recently passed COVID-19 Emergency Response Act 2020. The bill also promotes general community safety as it seeks to protect private property from intrusion.

Section 10 of the Bail Act 1985 currently provides that if an eligible person applies for bail, the bail authority should release the offender on bail having regard to a number of different factors. Accordingly, in most cases there is a presumption that bail should be granted. The presumption of bail is reversed in particular circumstances which are set out in section 10A creating a presumption against bail. This section provides that bail is not to be granted to a prescribed applicant unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail.

A prescribed person is someone who has committed a particular class of offences and therefore does not have the presumption of bail. Members would be aware that one of the prescribed parties already in that list is a person who is a member of serious and organised crime and has offences in that regard.

What constitutes a prescribed applicant will be temporarily broadened during the COVID-19 pandemic by clause 3 of the bill to include those charged with the following offences: firstly, serious criminal trespass in residential and non-residential premises and criminal trespass in a place of residence; and secondly, any offence against the person that is aggravated due to the victim falling into the category of a person who was acting in the course of a prescribed occupation on a paid or voluntary basis for the purpose of section 5AA(1)(ka) of the Criminal Law Consolidation Act 1935 and the victim was acting in the course of their duties.

This includes emergency workers, those employed to perform duties in a hospital, and those employed in retrieval medicine—that is, medical practitioners, nurses, midwives, security officers or otherwise—and medical or other health professionals attending out of hours, on an unscheduled callout or assessing, stabilising or treating a person at the scene of an accident or other emergency in a rural area. It also includes passenger transport workers, police support workers, court security officers, bailiffs under the South Australian Civil and Administrative Tribunal Act 2013, protective security officers, and inspectors under the Animal Welfare Act 1985.

Thirdly, an offence against either section 20AA or 20AB of the Criminal Law Consolidation Act 1935 provides for causing harm to or assaulting certain emergency workers, and the further offence involving the use of human biological material. Members will note that was frequently referred to as the spitting and biting provisions.

The COVID-19 pandemic has placed property, particularly commercial and small business premises, at greater risk of exposure to crime due to the necessary policy of requiring people to remain at home as much as possible. South Australia Police have recently stated that there has been a spike of 28 per cent in non-residential break-ins compared with the same period last year—that is, 1 February to 20 April—where businesses have needed to close their doors during the virus.

The Commissioner of Police who is, of course, our State Coordinator under the State Emergency Management provisions, noted that we are now seeing businesses that are unattended and not being managed in a way that they were previously, and therefore at a higher vulnerability. As a result, the presumption of bail is to be temporarily reversed for those who commit serious criminal trespass in residential and non-residential premises and criminal trespass in residential premises in order to protect public safety, which includes private property.

Further, the safety of emergency service and front-line personnel is paramount. In light of the current enforceable restrictions placed against the community, front-line emergency service workers may encounter members of the public who do not accept these restrictions. The imposition of specific bail conditions that protect these workers—for example, by preventing offenders from contacting emergency services workers such as medical practitioners—is at the discretion of the court.

Instead of relying on the imposition of such conditions to ensure their safety during this time, the bill makes it clear that the presumption should be against bail in these circumstances. To ensure that these provisions only operate for the period already agreed to by the parliament, these amendments are to schedule 2 of the COVID-19 Emergency Response Act 2020 and will therefore only operate while that act operates. This aligns with the request of the State Coordinator for these changes to be only in operation for the period of COVID-19.

That act will expire on either the day on which the relevant declarations relating to the outbreak of COVID-19 within South Australia have ceased, provided that I am satisfied that there is no present intention to make further declarations, or six months from commencement of the act, whichever is the earlier. The government is focused on the safety of all South Australians and is taking decisive steps to stop the spread of COVID-19 in SA. Like all measures, we are acting on the advice provided by experts, including the State Coordinator, the Commissioner of Police.

As shown through swift action, such as the introduction and passage of the COVID-19 Emergency Response Act, we have seen remarkable results so far in our South Australian fight against the COVID-19 pandemic. I commend the bill to members and I propose to insert a copy of the explanation of clauses.

In concluding, I want to thank in advance members of the opposition for indicating their cooperation in the consideration of this matter in an expedited way. Again, we are not in normal circumstances. We do not ask for there to be consideration except in these types of situations of emergency, but we do appreciate their cooperation and understand that we are bridging a process not just in time for the consideration of the parliament but, indeed, in direct response to the submission to me from the Commissioner of Police on 9 April, that we deal with this matter.

There are some other matters in his list which he has been advised we are looking at for the May sitting of the parliament but they will, as best we can, go through the normal consultation process. I can say quite clearly that this has not been a matter that has gone through any extensive consultation, but certainly we have received advice from the police commissioner and the Crown Solicitor's Office to ensure that we are doing all this properly, of course, as well as Legislative Services and parliamentary counsel, both of which are attached to myself as Attorney-General. It has limited consultation for the reasons already stated, but I commend the bill to the house.

The DEPUTY SPEAKER: Attorney, are you seeking leave to insert the explanation of clauses?

The Hon. V.A. CHAPMAN: Yes.

Leave granted.



Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal.

Part 2—Amendment of COVID-19 Emergency Response Act 2020

3—Amendment of Schedule 2—Temporary modification of particular State laws

This clause amends the Schedule of temporary modifications of particular State laws to include temporary modifications to section 10A of the Bail Act 1985. The temporary modifications specify a number of additional offences against the Criminal Law Consolidation Act 1935 that will attract the presumption against bail during the COVID-19 period.


The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:17): I thank the member for Elizabeth for his contribution and of course the member for Heysen for his erudite contribution as well. A number of issues were raised during the course of this consultation, brief and abridged as it has been. Can I just place on the record some information that I have received, which has come from the Attorney-General's Department but, as I understand, largely relates to information provided by SAPOL.

Firstly, in relation to consultation on the bill, as I indicated, the usual suspects have not been consulted. We did send—by email, I think—copies of the bill last Friday to the Chief Magistrate, Chief Judge of the District Court, Chief Justice, the state courts coordinator, the Aboriginal Legal Rights Movement (ALRM), the Legal Services Commission, the Law Society and the South Australian Bar Association. I am not expecting for one moment that any of them were able to necessarily digest and have an opportunity to advise on this. They were really provided as a matter of courtesy.

Although it is a very short bill, it still requires some consideration for obvious reasons. Most particularly, this is a very short-term bill that is proposed. I have explained the reason we have done that. A question that was otherwise asked was: is there a criminal trespass offence, a non-residential offence, that has not been included in the bail bill? I am advised that there is only a serious criminal trespass offence in the Criminal Law Consolidation Act (CLCA) for non-residential premises. There is no similar offence to 'Criminal trespass—places of residence' as set out in section 170A of the non-residential premises in the CLCA.

A further question was: what is the rationale for including residential premises in the bill and not just non-residential premises? The information I have been provided is that SAPOL requested these amendments; indeed, I was just rechecking my 9 April memo from the police commissioner as to making provision to help achieve a greater level of public safety during the emergency other than through reliance on strict bail conditions alone.

Can I add to that by saying that, although we do not have some of the data that has been sought, the question was asked: is there any information about who is committing the serious criminal trespass in non-residential buildings, and is it the same people reoffending? SAPOL has advised that it is currently running Operation Hurricane II, which probably the member for Elizabeth is more familiar with than I am, but I have lots of operations, of course.

This operation, I am advised, is aimed at reducing volume crime, including serious criminal trespass. The SAPOL intelligence function constantly looks at crime trends, and in this case has identified several instances where recidivist offenders have been involved in recent crime series, including serious criminal trespass on commercial premises. SAPOL cannot, however, provide an exact number on how many offenders are reoffending.

The next question was: why were the offences under section 5AA(1)(ka) included in the bill as it appears that the offence in section 20AA would adequately cover all those references in section 5AA(1)(ka)? The answer, I am advised, is that the offences that refer to section 5AA(1)(ka) of the CLCA and section 20AA are two different groups of offences. It was decided that there needed to be reference to both groups to ensure full coverage of offences against emergency workers in the bail bill. One relates to assault and the second relates to bodily fluids; and I hope that, when he has a look at that, the member can fully appreciate that.

The only other matter, which I think is a reasonable question, relates to any data of residential—that is, home invasion—as such for the purposes of causing looting, or damage or indeed even worse: if somebody is present in the home, that is, the family is sleeping or something of that nature. These types of examples carry different levels of penalty. But what is most important is that, at the moment, we do not have any extra data of increased serious criminal trespass into residential properties, but I do not think it would be unreasonable to take into account a number of things.

First, pretty much everyone has been confined to living in their own premises to the extent that our movement has been significantly restricted. For those who are not involved in occupations that are continuing, that is, employment or voluntary service, there is a large cohort of people, especially over the age of 70 years, who have been strongly advised to remain at home.

Obviously, as the Premier has outlined today, we have a much greater level of capacity and opportunity to go out, shop, have medical treatment, go to the local park, walk on the beach, take the dog for six walks a day, whatever we are doing to keep sane during this period, but also there are a large number of people who are still undertaking employment. I think that it is not unreasonable to extrapolate from that that obviously there are not a lot of empty houses that are the usual dwelling place of residents in South Australia.

But it is also not unreasonable to take into account that we have a lot of other homes that are empty other than for the purposes of seasonal or holiday occupation. As the member is aware, there has been a very strong recommendation from the State Coordinator that those of us living in our homes not go out to country regions during Easter particularly, and school holidays, and that we, for the want of a better description, holiday at home, and that we try to ensure as best we can that we minimise the transmission into regional areas.

With the Easter period in particular having come and gone and during which there has been an enormous amount of goodwill and compliance with this request, we have not moved to anywhere near the level of restriction or shutdown that has been experienced in other states. But it does leave a number of properties vulnerable, and if there was ever an example of where that has actually happened, can I use the most recent bushfire circumstances in South Australia where houses are damaged or destroyed, property is left vulnerable and unsecured and in which there is no occupant to be able to assist in the security in relation to that property.

Unfortunately, properties have been accessed, particularly in relation to farm areas, and there has been occasional looting. More concerning, really, is that even when the new fencing materials arrive and they are put on the side of the road, sometimes people just come along and help themselves. These types of terrible situations—whether it is a bushfire or COVID-19—bring out the best in people and sometimes they bring out the worst. That is a very real and recent experience that leaves me in no shadow of doubt that the police commissioner's advice in relation to this issue for this period of protection is worthy of our consideration and support. On that basis, I thank members for their indication that they will do so.

Bill read a second time.