Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Bill

Second Reading

Section 6 of the Summary Offences Act, which relates to hindering police or resisting arrest, has been raised as being transferred to the Criminal Law Consolidation Act. This is PASA's request, and this is one of the areas in relation to which the Commissioner of Police has differed from the police union.

SAPOL have reasonably supported the retention of resist and hinder under section 6 of the Summary Offences Act. They have recognised that a line needs to be drawn between behaviour that amounts to frustration of the exercise of police authority, like hindering police and resisting arrest, and something more calculated and harmful, like assault. Suffice to say we have accepted the advice of the Commissioner of Police on that matter.

On secondary sentencing, the government has supported this request of the Police Association. The proposal is supported by the Commissioner of Police. It is fair to say that, as I will refer to later, the Law Society raises some question about the necessity for this; nevertheless, it is a reinforcement, an extension, of a provision under our secondary sentencing law which PASA has sought and, if it does nothing else to advance the matters to be taken into account by a sentencing judge, it does re-alert the attention of the judiciary to this important secondary sentencing principle.

PASA had called for an amendment of the secondary sentencing purposes in section 4 to include the need to protect police, other law enforcement and emergency services workers when performing their duties. As I said, we say that is inherent in it. That is an obvious purpose, otherwise it would not be there. But we have added it in, and we note that at least the alerting of this issue is reinforced.

Then there is the creation of a new offence, and here the Police Association called for a new offence with substantially increased penalties for assaults against police, law enforcement and emergency workers, and healthcare workers. From South Australia Police's assessment, the Criminal Law Consolidation Act already recognises assaults against police, prison officers and other law enforcement officers as aggravated. Instead, SAPOL subsequently proposed a new offence relating to bodily fluid offences.

The commissioner is particularly concerned about spitting offences and, although data has not shown a breakdown of the types of assaults sentenced upon in the courts, the government has proactively supported a new offence for bodily fluids, which covers a broad group of emergency service workers and front-line officers.

In the course of considering penalties as a deterrent, which is the thrust of the police union's argument for a new offence with a much greater penalty, the police commissioner has said this is an issue which has not been addressed and he sought a particular new offence for bodily fluid offences. In this regard, we have listened to both. I have spoken to the Police Association representative, Mr Mark Carroll, on several occasions after receiving his correspondence in January, and we have extended the penalties on existing laws. After further discussion, we have extended them further. Most importantly, we have taken up the initiative of the Commissioner of Police and advanced the new offence relating to bodily fluid transmission.

In relation to the expansion of aggravated offences to other workers, only the government's bill covers all front-line emergency workers, including Community Corrections officers, police officers, unsworn police officers, firefighters, emergency medical staff, regional and trauma doctors and nurses, ambulance officers and front-line volunteers. The government bill also allows for these groups to be expanded through regulations. Why have we been able to do this? I suggest, quite simply, because we have taken the time and given the attention to ensure that we consult with all the relevant parties.

Mr Odenwalder: Did you stick the ambulance in?

The Hon. V.A. CHAPMAN: Read the bill—of course it is in it. Consultation was very important for us. For example, we met with the Australian Medical Association, and I think the then president elect, who is now president, indicated an area that we had not canvassed—that is, the harrowing work and vulnerability of doctors, usually general practitioners, who need to go to some roadside trauma that is very remote from an hospital emergency department to deal with accident victims.

Whilst we might, in the comfort of urban living, see the obvious need to protect those working in emergency department circumstances in our metropolitan hospitals, we need to think a little bit outside the square in this parliament and remember that there are people on the front line, even on a roadside, having to deal with these matters. This is the value of consulting with those professionals who work with them. It was through those consultations that we learned that bodily fluids, including vomit, should be considered.

The psychiatrists who provided submissions to us indicated that vomit was a matter in their daily work that needed to be considered. Probably like most members of the house, I took the view that it would probably be very difficult to vomit voluntarily, that it would be an act triggered by another bodily function and that therefore it was unlikely someone would say, 'I'm going to vomit over this person. I will just proceed to do so.'

In fact, again by consultation, what has been explained to us is that someone may vomit, but unfortunately some of our front-line people are exposed to the person placing their hand in it and then attempting to smear it over the front-line worker. Obviously, that is behaviour that, if deliberate, is completely unacceptable. Again, we do not recognise the significance of this or the frequency of it occurring unless we actually speak to people at the front-line services.

The valuable advice given by the Australian Nursing and Midwifery Federation was also quite illuminating. They put a case to us that all nurses anywhere, any time, should be able to be the subject of this type of legislation, but for the reasons explained, and I think this is consistent with the opposition as well, the cohort we are attempting to deal with here is those who are at front-line services.

It is fair to say that for some personnel it is a daily occurrence; others, perhaps in a quiet suburban practice, might not be exposed to the same risks. Some police officers, for example, whether they are working in the local police station, travelling around doing traffic duty or, of course, trying to deal with the arrest and detention of persons who are suspected felons, in any part of the spectrum, are regularly and frequently exposed to risk and for others, of course, it depends on the environment they are in.

One of the matters raised by the nurses federation was this question of being exposed to unruly behaviour. For example, a patient at a hospital might be quite compliant and accepting of advice and assistance, but there might be a very distressed or angry relative who is attending with the patient, who the nursing staff are having to manage as well as attending to the medical needs of the patient. I think it is always illuminating for all of us as members of parliament, no matter how experienced we think we are in matters, to go to the coalface and meet with those who represent people who on a daily basis expose themselves to risk for our benefit.

Finally, on the increase in the maximum penalties, although assaulting a police officer is an aggravated offence under the criminal law, an increase in the maximum penalties for those offences was supported by the government in amendments before the house, and they will be dealt with in committee. Although across the country the legislative schemes for offences committed to police vary, the government has brought South Australia in line with New South Wales, with the passage of this bill, as much as possible, as requested by the Police Association and supported by SAPOL. The new maximum penalty for a section 20 police assault will now be seven years' imprisonment with the passage of this bill.

Further, can I bring to the attention of the parliament the submission received from the Law Society of South Australia. I should say that I am no longer a member of the Law Society of South Australia, but I remain a member of the South Australian Bar Association; I just place that on the record. In relation to this matter, yesterday I received quite a lengthy submission from Ms Amy Nikolovski, who is the President of the Law Society of South Australia. She sets out a very different approach in relation to how we manage the protection via the criminal law of our emergency and front-line workers. I quote:

The Society does not condone assaults on police officers and/or other frontline emergency workers. These people play an important role in our community and it is understood their occupations place them in a position of vulnerability. As such, this is reflected in the criminal law in South Australia under a number of existing provisions. While the Society appreciates the need to deter this type of behaviour, it considers that the legislative mechanisms to deal with these types of offences are already in place.

They go on to make comments about various aspects of the bill in relation to the new initiatives, namely, the further offence involving use of human biological material. Can I try and, I hope respectfully paraphrase their position because, like that of most lawyers it is pretty long. Firstly, in relation to an amendment to section 5AA, which is the aggravated offences provision, in short, the effect of the amendment to section 5AA(1)(k), they say, 'appears to clarify that an aggravated offence would apply whether the victim working in a prescribed occupation, was working on a paid or volunteer basis'. But they generally otherwise see that as really an unnecessary extension.

In relation to the increase in penalties, they make a pretty valid point that there are significant numbers of other provisions under the Criminal Law Consolidation Act that make provision for serious assault against one of the emergency workers: section 19(2), making unlawful threats to cause harm; section 20, which is the assault that has been frequently traversed in this debate; section 24(2), recklessly causing harm; and section 29(3), acts endangering life or creating risk of serious harm, where an act or omission is likely to cause harm.

Obviously, the society acknowledges that there is significant pressure from some in the community for stronger stances to be taken in respect of assaults on police and emergency workers, but, in particular, the very valid submissions put to us via the Police Association and the Commissioner of Police and then added to by other emergency worker representative bodies. In short, on this aspect the Law Society takes the view that the current law already provides for higher penalties than the basic offence and, therefore, raises the obvious: apply it.

If you really want to press for more serious penalties, then charge people and prosecute people and seek the conviction of people who are already covered by that. There are a huge number. During the time I have been in the parliament, I remember a special offence, for example, that was introduced to provide a 10-year sentence if you shoot presumably in the direction of a police officer. You do not have to hit or injure them; you just have to shoot. I did not oppose that at the time it came through the parliament.

I make the point that it is the type of thing added on to our criminal law which makes it a suite of different laws which provide very severe penalties. I referred to them in my second reading contribution, and I will not list all those matters. The society, as is their wont, have identified what they see as a drafting error in clause 8, in particular the use of the words 'unlawful threats', which should, in their view, read 'causing harm'. I will have our people attend to that, if that is correct. I thank them for bringing that to our attention.

On the question of the offence involving the use of human biological material against emergency workers, and this is the creation of the new offence where a person spits at, throws or otherwise applies blood, saliva, semen, faeces or urine (and we are about to add vomit) towards a prescribed emergency worker in the course of their duty, it is proposed that will carry a five-year sentence.

In their submission, the Law Society very strongly take the view that, by virtue of a penalty, this is excessive. I think they have made the point throughout their submission, which is probably unnecessary anyway, that it is excessive. They refer to a case that I think is worth reporting to the parliament, and I suppose it always highlights where we need to take into account the advice of those who are actually out there doing these jobs and bringing to our attention where we might inadvertently be introducing laws that might be unreasonably severe, especially in relation to penalty. I will read this as a direct quote:

The Society notes the case of R v Wilson [2016] SASCFC 139 which involved an appeal of a sentence with respect to spitting at a police officer on the grounds it was manifestly excessive. In this case, the defendant while on the floor of a police cell spat and his spittle hit the lower trouser legs of the police officer. A charge was laid under section 6(1) of the Summary Offences Act and a sentence of 12 months imprisonment given.

The appeal was upheld by the Chief Justice on the basis that a term of imprisonment, which is half the maximum penalty for the offence of assaulting police, is unreasonably severe when one appreciates the overall circumstances of the offending in this case (i.e. there was no danger of any significant insult given the spit was not directed at a bodily area sensitive to the transmission of infectious disease). The 12-month sentence was reduced to eight weeks on appeal.

This case demonstrates the appropriateness of this type of offence being captured under the existing legislative provisions in particular, section 6(1) of the Summary Offences Act and allowing the Court to determine on the facts of the case an appropriate penalty. These issues are further discussed below.

I will not go any further, but I will explain that the Law Society had also raised the question of expanding the definition of human biological material to include vomit. I think I addressed their proposition that vomiting normally occurs involuntarily earlier in my response of the circumstance where it can be applied, or attempt to be applied, to the person via, perhaps, their hand.

On the repeal of section 6(1) of the Summary Offences Act, we ourselves have raised the benefit of retaining the hinder and resist positions, and we maintain that position. They go further to say that it is an important option that is available and highlight some aspects, which include the question of the police prosecutor's capacity to negotiate in relation to these matters.

When the Police Association raised with us the question of abolishing any police bail, I said to Mr Carroll at the time, 'Well, look, it's your members who actually are the ones doing the investigation and may be arresting the party in those circumstances, and they are the ones who are granting bail. If you think that there's a problem with that, where they have assaulted a police officer, then I think you need to speak to your members about the approach that they are taking in relation to these cases in granting bail if it is so offensive, or there is such a danger, as a result of there being an assault on a police officer.'

I can see that through the discussion on the development of this bill that aspect seems to have been abandoned. Frankly, it is for good reason. We do need to give the police, even when one of their own has been hurt or assaulted, the power to make the decision to grant police bail bearing in mind that, in relation to police bail—which is the right to give the person the right to leave custody and then remain on bail until they are called to court to deal with their matter—they always have the opportunity to keep the person in custody and then take them before a court, where the party might apply for court bail. In any event, I think the foolishness of progressing down that line seems to have been identified during the course of our discussions, and I note that that has been abandoned.

Going back to the Law Society's submission, on the Sentencing Act they make the very reasonable point that the secondary sentencing principles that are outlined are really not added to any further. It is unnecessary as a deterrent, as it is already a secondary sentencing purpose. I do not think I need to detail that any further.

Another case they bring to our attention is one that I think is worth at least advising the house about because I suppose it raises the obvious circumstance where people do silly things but they might be under the duress of their own mental ill health. The Law Society reports this:

In the recent case of Police v Dodd—

which is a Magistrates Court matter of 30 April 2019—

Magistrate Forrest chose not to impose a sentence of imprisonment on a defendant for assaulting a nurse. The Magistrate took into account the facts of the case, in particular the serious mental health issues of the defendant. There are a number of reasons why sentences of imprisonment are not imposed, or not imposed to the extent that might be expected on a face of a matter. In the view of the Society, these reasons do not reflect any deficiencies with respect to the current legislation that require amendment. They simply reflect the complex nature of offending and why it is appropriate for the Court to have a broad discretion to take into account the individual circumstances of each case and sentence accordingly.

I want to add for clarification that we are not talking about someone who is unfit to plead; that is, they have a cognitive impairment sufficient that they are unable to understand the seriousness of their conduct and therefore avoid conviction altogether. Those people have an avenue of being dealt with for their support and treatment in a different highway, I suppose.

I think every member of this house would appreciate, as a local member, the significant level of mental health issues in our community and how from time to time they do impede the reasonable conduct of our citizens. To conclude, the Law Society states:

The current legislative framework recognises assaults against police officers and emergency workers as being serious in nature and they are subject to higher penalties. In our view the measures proposed by the Bill are unlikely to achieve their objective in changing behaviour. However, they are likely to have a disproportionate effect on Aboriginal people, as well as those with mental health and/or substance abuse issues, who are already overrepresented in the criminal justice system.

That is the position of the Law Society. We respect it. I appreciate their advice. If they are right on the drafting matter, we will remedy it. But it is fair to say that the government have taken the view that we need to send a refreshed message to the judiciary and to the prosecutors, whether they are police prosecutors or the DPP, as independent as they may be. Judges and prosecutors are independent of interference from the executive, but they do need to receive a powerful refresher from the parliament, and that is what this bill will do. I am proud to say that it is this government who is progressing it.