CRIMINAL LAW (FORENSIC PROCEDURES) (BLOOD TESTING FOR DISEASES) AMENDMENT BILL 14 October 2014

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:42): I rise to speak as the lead speaker on this matter for the opposition and indicate that we will be supporting this bill. However, we are of the view that, in essence, the relief which is being offered under this bill to the members of the South Australian police force ought also be available to other persons who work in emergency services circumstances, and I will come to the detail of that shortly.

I understood that a copy of the amendments that were proposed to expand the application of the entitlements under this bill had been tabled. I certainly authorised them to be. In any event, I will make sure that a copy is immediately provided to minister Piccolo, who tabled the bill and who I assume has formal carriage of the matter. I will ascertain where it is. So that nobody is caught by surprise in this regard, I will explain in the second reading contribution our objectives in relation to dealing with this matter in the principal bill, plus the amendments that we propose.  

The bill was introduced by minister Piccolo on 2 July 2014. If he is not formally responsible for the bill and it is in fact the Attorney-General's bill, I will make sure that he also has a copy of the amendments. In short, the bill amends the Criminal Law (Forensic Procedures) Act to require an offender who bites or spits at a police officer to undertake a blood test for an infectious disease. Members would be aware that we have the Criminal Law (Forensic Procedures) Act 2007, which sets out a series of protections and provisions for the carrying out of forensic procedures when evidence is obtained relevant to the investigation of criminal offences. It also makes provision for a DNA database system  

As I am sure members can well imagine, with the advance of technology and procedures in this important area of detection for the purposes of investigating criminal activity, we have needed to make clear not only what is to happen with data that is collated for the purposes of forensic assessment but also what procedures are to be undertaken during the course of collating that material and to ensure that there is a clear set of rules as to who gets access to the material that is collected and how it might be stored and made available to others.  

For a lot of reasons, we have fairly strict laws to deal with this information. Obviously, it has to be kept secure—and we understand that—for it to be kept pristine for its ultimate use in evidence, prosecutions, trials and the like. What this act currently does is also set out some fairly strict rules in relation to in what circumstances a person is able to have forensic material harvested from them, and that is what is really being amended here today.  

Obviously, we have moved from a circumstance where physical evidence that is found at crime scenes is collected, kept secure and made available for inspection and testing; that is one thing. What has become clear in recent decades is the important information that can be obtained from human beings, whether by way of fingerprinting or the profiling of DNA. In the course of its application and usefulness in the detection
of crime and subsequent prosecution of the guilty, and indeed exclusion of the innocent, this is an important area.  

Coupled with the importance of successful prosecutions and the like is the importance of ensuring that strict rules are to be applied to those who are required to make themselves available for either fingerprinting or testing, especially in circumstances where they do not consent to the provision of that material and/or are either too young or not of sufficient soundness of mind to be able to consent on their own behalf to the provision of certain material.  

We also have circumstances where the justification varies for the level of invasion to a person for the collation and harvesting of material. For example, to seek that someone make themselves available for fingerprinting and for identification purposes, either as a suspect or to identify the person who has been detained for the purpose of just even working out who they are, is one level. If there is a refusal to cooperate in that regard, one could imagine that any imposition of ink on someone's fingers would be far less invasive than other procedures to take that evidence.  

For example, in order of intrusiveness, it could probably go from taking a hair sample, which might hurt a bit if you are having your hair plucked out, to requiring that saliva be swabbed, usually from the mouth area, or that blood be taken. If blood is to be taken with a needle, for example, to assist, again, in identification or for DNA sampling, then one starts to get into fairly intrusive procedures.  

The police have a job to do and they need to be able to have as much assistance as possible to detect the guilty, to identify if there has been a crime scene or if there have been victims and the like, but because of the level of intrusiveness of procedures that can now occur for the purposes of assisting in this regard we have developed a fairly severe structure to protect both privacy and against unnecessary intervention or intrusion into a person's space and/or their body—and it is something to be protected.  

As I am sure would be known to most members here (some perhaps not because they are probably a bit too young), in the early 1980s the world was gripped with the prospect that persons who contracted HIV might develop an AIDS condition which left their immune system subject to conditions which could, and often did in those days, lead to death. It was certainly a great concern, as the contracting of the HIV virus and its explosion into the full-blown AIDS condition sent a shudder up people's spines, a bit like the current Ebola circumstance where, not surprisingly, we become very concerned if someone contracts a deadly disease.  

In all the circumstances that prevail, usually the desire of health officials and governments and the like is to ensure there is not unnecessary alarm in the community but that there is a management of the circumstance and that best practices are implemented to protect the general public. As a public health issue, these become very important and, unsurprisingly, usually take precedence when these things develop.  

As these pandemics or epidemics or, in any event, threats develop, in this instance with a virus, what we find is that various treatments are developed over the following decades and, thankfully, this occurred in relation to the AIDS epidemic, as it was
known. Fortunately now, they are at such a sophisticated level that it enables us to have considerable hope, with justification, for those who are in that area and who are vulnerable to what 30 years ago would otherwise have been a sentence of death. We are able to give them targeted treatment, medication that is very effective and, with that support, we are able to save a lot of lives—not 'we' personally but, of course, our health officials.  

Coupled with that is the knowledge that comes with the development of this type of circumstance about ensuring that we are better able to identify how the spread of a disease can occur. In that instance, for example, it took a few years to realise that giving blood transfusions to people with blood that had not been screened for the purposes of identifying AIDS had catastrophic consequences, not only in terms of the spread of the disease but in taking the lives of children and those who had gone in for medical treatment in emergencies. The inadvertent provision of contaminated blood took away their life, so we had to learn a lot in relation to how we managed that. 

But also during the course of that we had to learn a lot about how we managed the privacy of those who were carrying the virus. The reason for that particularly was that within the envelope of what you could describe as public hysteria about it originally, and certainly once there were issues in relation to the capacity for contamination through bodily fluids and the like, those who were carriers were under enormous pressure, firstly, to disclose it, particularly to a partner with whom they were having an intimate relationship, and to ensure that they were responsible in making every effort that neither their organs nor blood would be made available.  

In fact, structures were eventually set up to ensure that there was such efficient screening of blood collection in this state, and I think across the board in Australia, that it would prevent what would have been a tragic situation for those who contracted it. Within that envelope, as I say, not only did those who were carriers have the obligation of some disclosure to their partner by virtue of the public expecting it but also it challenged all the rules we had set up about confidentiality of information. What obligation would a doctor have who was treating a patient who was carrying the virus? What obligation would they have to advise the patient about their circumstances? I seek leave to continue my remarks. 

Adjourned debate on second reading (resumed on motion).  

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:17): As I was saying before the luncheon adjournment, there had been the development of a number of procedures to detect and identify if someone had a condition. I used the HIV-infection example, the exposure to full-blown AIDS and, in early years, certain death. Having had a health response to what became a very public matter, from that we developed new guidelines and had to work out what doctors should do in a circumstance where they had a patient who was already diagnosed as being a carrier, namely, what obligations and responsibilities they would have towards a sexual partner, what the medical practitioner's obligation would be to their patient, and, in light of patient confidentiality, what responsibility medical advisers had to inform the spouse or sexual partner of a patient if in fact that partner was also a patient.  

All these things became significant during this very critical health issue that South Australians faced and in fact which was replicated around the world. With that, of course, came probably the inevitable concern that, if one were a carrier of this virus, there would be all sorts of consequences to their employment, to their capacity to be able to establish a relationship with someone else, and for their exposure to work colleagues, consequences that perhaps now on reflection would seem unreasonable.  

There would be a resistance to somebody joining a local football team if they were a carrier, there might be concern by workplace colleagues of being infected if they had to undertake work practices where there was some potential for the exposure of bodily fluids, and, of course inevitably, there is the fear of entering into an intimate relationship with someone who is a carrier.  

As a consequence, we again end up in a situation where we have to set up a whole lot of parameters about how we protect people in that situation from unfair exclusion, from inappropriate denial of opportunities for employment and the like. It became very important for a carrier to have some confidence that there would be confidentiality surrounding their status. It could have had direct implications on family relationships, potential social interaction and, of course, current and future work opportunities.  

I hope that, in identifying this, it is an illustration of the significance of how something would have, on the face of it, an emerging and then emergency public component for the need to then look past the direct protection and urgent response that one has, and needs to have, in dealing with a public health issue of how you best protect those who might be unfairly treated as a result.  

Obtaining a sample of someone's blood for the purposes of testing, or otherwise, in a circumstance where it is non-consensual obviously conjures up a fairly intrusive process and may be quite distressing and disturbing for the person involved, especially if there is identification of a condition that they do not want disclosed. On the other hand, this bill now brings to our focus and attention the need to protect police officers in a circumstance where, during the course of their duties, they are undertaking work to protect members of the public and apprehend offenders and the like. They have a dangerous occupation at times, and they certainly are exposed in the line of duty on a regular basis. The risks that they are exposed to include, obviously, potential contamination if they are brought into contact with the bodily fluids of someone who is carrying an infectious disease. So, what do we do about that?  

The bill before us was presented on the basis that SAPOL requested the government to consider introducing a requirement for an offender to undertake a blood test. That is, in the event that someone from the public, who has committed or is suspected of committing certain offences, bites or spits on a police officer, they are required to undertake a blood test for infectious diseases. It is compulsory, and it is to be taken even if the offender's consent is not forthcoming.  

The threshold for the application of this rule requiring the offender to effectively submit to the blood testing requires that there has to be a reasonable suspicion that a police officer has been assaulted or that the offender has committed other specified offences of violence. These include assaults, causing harm, serious harm, likely to cause harm, endanger life, riot, affray and violent disorder. 

From my recollection, the bill is drafted in the alternative, but we can deal with that in committee. As I said, the government was asked to provide this remedy as an extra support to SAPOL. It was translated into a commitment from the government at the time of the 2014 election that they would introduce this measure. Members may well be aware that currently, as I understand it, if a SAPOL officer comes into contact with an offender and they consider that they have been at risk or exposed to contracting a communicable disease as a result of some transfer of bodily fluids, then that officer is able to have blood testing themselves, I assume at the cost of the department and not at his or her expense.  

They are offered this opportunity to go and have a blood test to be able to see whether they have a live virus or a contaminating organism, identifying that they have some infectious disease. Of course, the problem with that is that at the time of testing, depending on the time that has elapsed since the apparent act of contamination, it may not show up. Effectively, it may take some weeks for a full and clear assessment to be undertaken to ensure that the officer either has the disease or in fact is cleared from having any contamination.  

It is a sad fact of life that the capacity to be able to test whether the infection has occurred is over a sustained period. Understandably, during that time (it may take some weeks) there would be a period of anxiety on the part of the police officer to await their fate with the result when it came through. This is not uncommon. Obviously we have issues in relation to people who screen for tuberculosis when they come into our country. Of course, they are not supposed to be carrying infectious diseases, but sometimes applicants are not aware of it and a time period has to elapse before they can be fully cleared.  

As I said, even the recent African Ebola situation, which is tragic by all means, appears to be coming up—at least the fear of it, and suspected cases of it in different parts of the world—and there have certainly been deaths by the thousands already. It does create a real dilemma when there cannot be an instant assessment, or at least an assessment with an instant result.  

The situation at the moment is that, while the police officer may have an anxious period of waiting, SAPOL says it would be fairer that, in certain circumstances, the offender should be obliged to be tested straightaway because he or she may be already a carrier of the virus or the infectious disease material, which could put everyone's mind at rest, or enable the person who may be the victim of receiving this contamination the opportunity to immediately seek treatment, and so on.  

That all sounds fine. Again, we look back at this question of balancing the interests of public health, in this case the interests of some police officers who are victims of contamination (apparently between 250 and 300 a year are in this category of being spat on or bitten) in circumstances of some melee, and they are exposed to this agonising, sometimes, wait.  

The purpose, of course, is to then look at, on balance, whether it is appropriate that we give this right to take a sample from an offender in the interests of the health of police officers. There has, in fact, been quite a bit of comment made about this process. During the course of the briefing, if I can at least refer to that in the first
instance, Mr David Plater from the Attorney-General's Department has provided a briefing on this matter in July, and I thank him for that, where he outlined, somewhat more succinctly than I have today, the details of the purpose of the legislation and how it would be put into operation and in what circumstances.  

I am advised, and I place on the record, that a number of health organisations were consulted, which included the Australian Federation of AIDS Organisations, Hepatitis SA and the Australasian Society for HIV Medicine. I understand those three put in some responses. There was a general acceptance, I am told, of the process being imposed in these circumstances for the benefit of police officers. That may be so, and I have no reason to suggest that that is otherwise. However, I was interested to note that I received a response from the Aboriginal Legal Rights Movement and they have expressed some concern, in particular in respect of new section 20B(1) which authorises the taking of samples of blood but does not specify how this is to be done or by whom, and, in their view, and I quote from their proposal:  

It should specify that it can only be done by a medical practitioner or a nurse practitioner. The bill should also specify conditions of safety, with proper forensic procedure and safety protocols, for example, to ensure that the suspect is not him or herself contaminated by a dirty needle.  

They also make the point that the bill, in their view, has retrospective application and that should not be so. I had not considered that aspect but I do note in the bill that it is proposed that there will be a provision under proposed amended section 58, which is under clause 11 of the bill, that there will be provision for regulations for:  

the carrying out of forensic procedures under Part 2 Division 4, the testing of forensic material obtained by such forensic procedures for communicable diseases (including by prohibiting the carrying out of tests of a specified kind) and the communication of the results of such testing to the Commissioner of Police; and  

So, there is provision in there for the regulations to set out some procedure. The explanation to that clause specifically says that it has been designed to enable regulations to be made in respect of the operation of this new regime.  

I have to say that it does not ever give me a lot of comfort in the debates on these matters when we are asked just to hope, I suppose, that the regulations that follow (because we are never shown a draft of them) are going to be comprehensive, are going to be adequate and are going to be appropriate. To some degree, we rely on the government's indication that, I suppose in line with the rest of the act, there will be rules to provide for that. I would certainly be hoping that the Attorney makes clear in his response, or at least in committee, that tests will be undertaken by appropriate parties who are trained and that there be appropriate testing of that.  

Again, because we are talking about a communicable disease and all the negative connotations that go with that, certainly whatever rules surround the communication of the information to the offender after they have been tested I think also need to be appropriate, taking into account that one cannot be completely insensitive to the fact that the publication of material or the keeping of the data on that should each be carefully assessed.  

The Law Society of South Australia has made a number of comments. As I am sure would not have escaped the attention of the Attorney, on 18 August the President of the Law Society, Mr Morry Bailes, published an opinion piece in The Advertiser setting out his support for there to be legislation as is before us and suggesting that it was meritorious and ought be supported. He declared his personal interest in the area, particularly as he had acted for a number of police officers in his career and was a legal representative for the Police Association of South Australia. Even within that envelope, he made it very clear that he felt that there was a need for this, and that we needed to protect those who seek to protect us, for all the reasons that have been outlined today.  

Formally, though, in the Law Society's submission they do make the following comments, and I place them on the record because the government is yet to set the rules in regulatory form as to how some of this process is going to operate and we want to be clear that the sentiments of this are taken into account. I quote as follows:  

State authorised invasive procedures should be limited to those occasions where they are necessary (eg, for the proper investigation of a serious offence). Therefore Parliament should always be slow to introduce mandatory forensic procedures such as those proposed in the Bill.  

The Society is not best placed to comment on whether the proposed amendments are necessary, or highly desirable, for the proper treatment and wellbeing of police officers at risk, although they do appear to be. From a legal perspective the Bill appears to contain the appropriate safeguards against misuse of the biological material. Our concern is to ensure that the biological material obtained under the proposed provision cannot be relied upon for the purpose of any criminal proceedings or investigations.  

From a medical perspective, the President-Elect of the Australasian Society of HIV Medicine recently wrote to the Society expressing concern about the Bill on the basis that the mandatory forensic procedures will not, or are unlikely to, have the effect of materially minimising the health risk to police officers.  

A copy of the letter dated 1 September 2014 was enclosed, and that was under the hand of the president, Morry Bailes, dated 7 October 2014.  

The ASHM letter of 1 September 2014, provided by Professor Mark Boyd, reaffirms their commitment to doing what is necessary to support the protection of police officers but raises the fact that the legislation from their perspective could ultimately run contrary to the purpose of what ill is to be provided. They state:  

Hepatitis C and HIV cannot be transmitted through contact with saliva such as spitting. It is vital that police officers who are put at actual risk of exposure to HIV are managed quickly, professionally and in line with the best clinical practice including availability of post-exposure prophylaxis (whatever that is specifically). National guidelines around post-exposure prophylaxis exist and are based on goldstandard practice to protect anyone who has been placed in a position where they may have contracted a blood borne virus.  

This proposed legislation would confuse the current best practices and standards within the South Australian jurisdiction and result in misunderstandings of risks, increased anxiety amongst officers and the public and ultimately potentially put officers and their families at greater risk.  

It then goes on to say that the association has developed a booklet for police, entitled Police and Blood-Borne Viruses, which is available online and which was developed by clinicians across Australia, and they see that as the gold standard tool for helping police evaluate their risk. They take a different approach to this. Rather than
concentrating on the offender and having a compulsory testing procedure undertaken on them in the hopeful expectation that that would provide a prompt identification of real risk or otherwise, in fact the victim (the police officer in that circumstance) may well not be actually following procedure for themselves to have immediate testing, assessment or treatment and therefore are putting themselves at risk.  

In other words, you rely on the other person being tested, and that still may not ultimately relieve the concern of the police officer because, of course, if the test is undertaken on the offender and identified to be positive, it still does not mean that the police officer has contracted the condition, and they would still have to obviously go through that test. They do not see it as being necessarily the answer to the problem and urge continued adherence to what they describe as 'gold standard procedure' to be undertaken by someone who thinks that they are at risk of having been contaminated in that way (and they kindly sent me a little booklet which makes a very interesting read), but to a large degree we have to rely on those who provide the medical expertise and testing in this area.  

One can only hope that, if this legislation is passed in the expectation that it might provide some relief from anxiety to a police officer—the ill that it is proposed to cure— at the very least police officers will be encouraged to continue to follow the guidelines of the medical professionals and make sure they do not leave this as some kind of substitute to prompt attention to their own health and wellbeing. I am a little concerned that we have not had some of that material from the government; there was no indication that there was a problem.  

I made some inquiry of the police minister's office in Western Australia. We did not have any material come back directly from them, but I did have an opportunity to speak to a senior police officer in the forensic division in Western Australia and my recollection is that they have forensic procedures legislation from 2008. From reading my own notes I cannot identify exactly where they were at in that regard, but my understanding is that their procedures for the taking of blood for DNA identification purposes relate to protected people, including children and unconscious people, and I referred to that earlier. I am not sure at this point whether they have an implemented process to provide for the remedy to police officers that is referred to in this bill. Obviously, we will watch that with interest.  

The opposition, however, take the view that it is reasonable for this legislation to pass on balance. Again, as I say, it is a balancing act. The thing we raise is the question of whether, in fact, there are other people in our community who are equally deserving of some protection. As I say, this is protection against the anxiety and the delay of assessment of identification of any contamination and, if so, who are they.  

Some years ago we canvassed the importance of protection and special recognition in our criminal law sentencing in circumstances where the offence that is committed is aggravated as a result of the particular features of the victim. This is not new. We have already made provision in our legislation to essentially allow for harder sentencing if the victim is a little child, an aged person or someone with a disability, because the general view of the community is that it is bad enough that you might cause some injury or assault to a general person in the public, but if they are in that vulnerable category then it should be treated more harshly. 

We already have a process where certain circumstances, particularly surrounding the victim, enable the court to impose a greater penalty when sentencing. In the course of those debates for the purposes of sentencing, it was seen as reasonable that we have provision for higher penalties in our Criminal Law Consolidation Act. Accordingly, we passed some amendments to that act to provide that conduct towards another could be treated as an aggravated offence if:  

...the victim was, at the time of the offence, engaged in a prescribed occupation or employment and the offender committed the offence knowing that the victim was then engaged in an occupation or employment and knowing the nature of the occupation or employment;  

The 'prescribed occupations' are defined in that act to include: emergency workers; doctors, nurses or midwives in a hospital; or assistants to each of the above. One of the more common areas that was considered to need some attention was when somebody who might be working, for example, in a hospital emergency department— they might be health worker, nurse or allied assistant—comes to the aid of a prospective patient who may be in a very agitated state and effectively wreaks havoc in the emergency department when the health professional attempts to assist that person.  

Obviously, if we were to take that example and disturbance or injury was caused to one of the health professionals during the course of this behaviour, in a circumstance where the person providing the service was in that prescribed occupation and the victim knew that they were, and they were actually in the course of undertaking their duty (i.e., the victim is there, they are fully lucid, they are cross or angry, and the nurse is standing there in a uniform, is clearly identified as being a nurse and is attempting to undertake a procedure to administer medication or trying to assist the patient in those circumstances), it was felt appropriate that there be a higher penalty if someone were to strike out.  

I am sure most members here would be familiar with those sorts of circumstances, where someone may behave badly, to say the least, often increase their own distress and cause distress and upset to others, and may in fact inflict a wound of some kind on the others around them, whether they be other patients or workers. It is the people who are working in the prescribed occupation (i.e., a nurse in that situation) who are entitled to have some extra penalty added to the offender, because that person is putting his or her life at risk to provide a service to that person.  

When we talked about the extension of the law in this area, it also meant that, if the person attending the emergency department had a psychiatric disorder and clearly did not know what they were doing, or was under the severe influence of a drug and was not able to form any capacity to conduct themselves in an orderly manner, and certainly not be able to form an intention to cause some injury or attack on the prescribed worker, then they would not be in that category. They may, in fact, be treated entirely differently through the sentencing procedure there. In any event, they had to have those three elements to qualify for some extra penalty.  

The government introduced the legislation, which we supported because we felt it was reasonable that someone who, in the course of their duties, has to help people and there is every likelihood, especially in the health area, that they will be dealing with people who are distressed, angry, upset or disturbed and they are going to be
vulnerable to and at risk of the disorderly conduct of that person, that they should have some recognition in this way. Whether it is just police officers, just health workers, just ambulance workers or just someone who is acting in some protective manner (i.e., through the SES, CFS or MFS) in an emergency situation where the party that is being rescued, supported or who aid is being rendered to becomes hostile or angry or retaliates in some way then, again, they should have this recognition in the statute when it comes to sentencing.  

As I say, the government may have thought at that stage, when it introduced this legislation, that it was reasonable that if police officers are in those circumstances, which of course they are from time to time—it is part of their charter to undertake to protect the community—then they are exposed to that risk but it is also reasonable that we give the same recognition to those in emergency work, and the prescribed occupations were provided for in that. We have previously considered, as a parliament, the importance of recognising the risk that people in the emergency world expose themselves to in order to carry out their responsibilities and duties in their chosen profession. They undertake a service which, across the board, is something that I hope continues to be valued by the community. I certainly value it and I think most members here would agree that these people often put their lives on the line for us. They are certainly exposing themselves to risk situations, and that includes being exposed to the risk of infection of a disease which could render them very ill or catastrophically so.  

The purpose, therefore, of introducing an amendment to this bill is to give the same right to someone who is bitten or spat at during the course of their duties by someone who is not necessarily committing an offence but who may be reacting unreasonably or may be so frightened by the situation that they act in a manner which causes harm to the health or emergency services worker. Another classic example is when people are distressed or disturbed at the sight of a fire at a residence. Sadly, all too often, either other family members, children, pets, or valuable property even, are left or trapped within premises. Emergency workers will attempt to calm a distraught parent, for example, or the owner of a pet who is desperate to re-enter an area of danger in an attempt to rescue something or someone who is precious to them.  

They, again, are exposed in a situation where, in the raw attempt and distress of that person, they are of course vulnerable to being spat on, bitten and worse. At this time, we on this side of the house feel that it is important that that be recognised. We are certainly hopeful that the government will equally respect the fact that this needs to be considered, as they in fact presented to us for approval in respect of sentencing that similarly in this way they should have some benefit.  

The Law Society have also indicated and floated the idea that is it is not unreasonable that favourable consideration is given to other personnel such as the emergency services, medical practitioners and the like, and they even went so far as to say that correctional services officers perhaps should be involved in that. We are hopeful that the government will support an amendment to include an extension of this.  

I am now advised that the amendment has been tabled and that it will seek to extend to effectively this class of emergency services providers, which are to be defined as including the representatives from: CFS, MFS, State Emergency Service, SA
Ambulance Service, St John Ambulance Service, Surf Life Saving, a body or organisation that is a member of Volunteer Marine Rescue, or the accident or emergency department of a hospital. We have not sought to include in this provision for correctional services personnel; there may be a case to consider that as well.  

It has been a long time since I have looked at this issue, but it is my brief understanding that certain practices obviously operate within prisons which enable, I suppose, the disclosure and recording of people who may be carrying a communicable or infectious disease and so therefore the risk is known to the extent of the population of those who are resident at a facility and is known to the correctional services officers. If that is not the case, then there may well be an argument that they may need to have some assistance in this regard.  

The reason we have raised it is that we are not saying that this just happens to anyone at any time, but it has to be in a circumstance of undertaking emergency work. Emergency is also defined in our amendment as:  

an event that causes or threatens to cause—  

(a) the death of, or injury or other damage to the health of, any person; or 

(b) the destruction of, or damage to, property; or 

(c) a disruption to essential services or to services usually enjoyed by the community; or 

(d) harm to the environment, or to flora or fauna  

Again, we have not suggested this is an at-large position, but that we have it in specific circumstances and that it is to be clearly defined as only applicable to emergency service providers as defined.  

I was going to make some other reference to correctional services officers within the confines of a prison, but the only circumstance where I would see them as being exposed to the risk is in a riot situation in a prison. Given the protest the government has identified for police officers, it could also be just a rally of some kind. In any event, there is a much more severely restricted and regimental operation of rules in the prison environment, and there are already other offences that could probably deal with that.  

However, we are looking at the question of who should have the right to compel somebody to give some blood, or a swab from their mouth, or a hair sample, to be taken forcibly if necessary, for the purposes of identifying a potential risk of infection, in exchange for providing more comfort and a quicker assessment and result to someone who has legitimately undertaken their lawful duties to assist others. The answer to that question is: police officers, plus known personnel who are undertaking emergency work in the health and emergency services area. As I say, we hope the government will be sympathetic to our presentation in that regard.  

In the event that it is the government's view that on the face of it it sounds alright, but they do not want to pay for it—that is, they do not want to have to have the expense of it—can I say this: we have been through a very painful era of debate during which we were asked to consider the change of rules for compensation applications when a metropolitan fire officer contracts cancer, within an certain category of cancers. Initially, it was not painful; it was quite reasonable to look at it and say that there is sufficient data to suggest that these six cancers, as distinct from whole lot of others,
have an identified significant nexus to the exposure of smoke and other carcinogens and that there should be a reversal of the onus of proof in dealing with these applications.  

We said, yes, on the face of it that is reasonable. The logical extension is to ask about others working in the management of fire or chemical spills, cleaning up road accidents, or assisting in circumstances where there is smoke or a matter that is presumably carcinogenic, which then exposes them to the risk of developing cancer. When we raised the question of extending it to Country Fire Service personnel, there was just great resistance from the government, and it seemed to be entirely based on the financial pain of the government if they were exposed to that risk.  

It beggars belief that they would take out a group, who they say deserves our support—and we agree that they should be recognised in that circumstance—and then exclude another group of people who line up for the same risks and have the same exposure and, what is more, do not even get paid to do it. To me it is unconscionable that we have such an exclusionary approach, and that is the most recent example that springs to mind. When it suits the government, and it is free—for example, increasing penalties for aggravated factors to be taken into account in sentencing—they are happy to say, 'Fine, let all the other emergency workers come in,' but when it comes to a cost they get very selective about who gets in and who gets excluded.  

The Attorney may take the view, 'We've got to be responsible with the money that we provide for certain things.' I simply say that it would be fairer not to single out a certain group with exclusive access to a benefit or a privilege in a circumstance when others are going to be excluded. In any event, the government in this instance has not indicated that they want to exclude other emergency services people. I certainly hope that they are not motivated in some way to do so, that they will welcome this amendment and that they will give it consideration. In light of it being tabled late, to the extent that we are now dealing with this today, the government may wish to get some advice on the matter and we can consider it between the houses. However, we would certainly want some indication from the Attorney that this would be given favourable consideration.  

I give the Attorney the benefit of the doubt on that, but it seems clear from our own consultations, on the indications that have been given to me, that this has been an aspect which has been presented to the government and which has not been taken up; that is, it has been raised with them and, for some reason known only to them, they have not thought this was a good idea. I do not doubt for one moment that the police department came up with the idea, obviously as they should, to present ideas and proposals to protect and promote the welfare of their own membership.  

If the government are not going to support this, having been alert to it and having considered the importance of other emergency professions in other circumstances in the time I have been here in the parliament, I would be looking for some explanation from them as to why they are not prepared to do so. I hope I have sufficiently explained for the benefit of the Attorney the amendments I will be proposing and, with that, I leave that as my second reading contribution.