The Crimes Legislation Amendment (Assaults on Frontline Emergency and Health Workers) Bill 2022 has been introduced to, and passed, the lower house in the NSW Parliament. According to The Hon Stephanie (Steph) Cook, NSW Minister for Emergency Services and Resilience, the Bill, if passed will ‘provide greater protection for emergency workers, including all volunteers.’ It will create ‘new criminal offences for assaulting frontline emergency workers, bringing them into line with acts of violence against NSW Police officers’.
What the Bill will do, if passed, is
- Amend the Crimes Act 1900 (NSW) s 58 so that the offence of assaulting, resisting or wilfully obstructing any ‘constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff’ acting in the execution of their duty is removed from that section.
- Add a new Division 8A headed ‘Assaults etc against law enforcement officers and frontline emergency and health workers’.
- Division 8A will have specific offences against police officers (s 60A(1AA)) and other law enforcement officers (ss 60A(1A), (2A), (3A); 60AB, 60AC).
- The Division will also contain offences for a person who ‘hinders or obstructs, or incites another person to hinder or obstruct’ or ‘assaults, throws a missile at, stalks, harasses or intimidates’, a frontline emergency worker (s 60AD).
- There will be equivalent offences against a frontline health worker (s 60AE).
For the purposes of the Bill, a frontline emergency worker is defined as:
(a) a member of an emergency services organisation, within the meaning of the State Emergency and Rescue Management Act 1989 other than the Ambulance Service of NSW and the NSW Police Force, who provides emergency or rescue services, or
(b) a person employed within either of the following while the person is undertaking firefighting activities—
(i) the National Parks and Wildlife Service,
(ii) the NSW Forestry Corporation.
Members of the police force don’t need to be included in this definition as they are covered by the offences against police. Ambulance officers don’t need to be included here as they are covered by the offences against frontline health workers. Frontline health workers are
(a) a person employed or otherwise engaged to provide medical or other health treatment to patients—
(i) in a hospital, or
(ii) in a health institution under the control of a local health district or statutory health corporation under the Health Services Act 1997, or
(b) a member of the Ambulance Service of NSW,
(c) a person employed or otherwise engaged by the St John Ambulance Australia (NSW) who, in that capacity, provides medical care, or
(d) a member of Hatzolah who, in that capacity, provides medical care, or
(e) a person who is employed or otherwise engaged to provide community first responder services,
(f) a person employed or otherwise engaged to provide community health services,
(g) pharmacy staff [including a pharmacist and a pharmacy assistant]
(h) a person employed or otherwise engaged to provide security services—
(i) in a hospital, or
(ii) in a health institution under the control of a local health district or statutory health corporation under the Health Services Act 1997.
The maximum penalties will be; for the offence of
- hinder, obstruct, or incite another person to hinder or obstruct, a frontline emergency worker or frontline health worker – Imprisonment for 12 months or a fine of 20 penalty units or both(s 60AD(1); 60AE(1));
- assault, throw a missile at, stalk, harass or intimidate a frontline emergency worker or frontline health worker without causing actual bodily harm – Imprisonment for 5 years (s 60AD(2); 60AE(2));
- during a public disorder event, assault, throw a missile at, stalk, harass or intimidate a frontline emergency worker or frontline health worker – Imprisonment for 7 years (s 60AD(3); 60AE(3));
- assault of a frontline emergency worker or frontline health worker causing actual bodily harm – Imprisonment for 7 years (s 60AD(4); 60AE(4));
- during a public disorder event, assault of a frontline emergency worker or frontline health worker causing actual bodily harm – Imprisonment for 9 years (s 60AD(5); 60AE(5));
- wounding a frontline emergency worker or frontline health worker or recklessly causing grievous bodily harm – Imprisonment for 12 years (s 60AD(6); 60AE(6));
- during a public disorder event, wounding a frontline emergency worker or frontline health worker or recklessly causing grievous bodily harm – Imprisonment for 14 years (s 60AD(7); 60AE(7)).
The offences are also made out if the worker is not actually on duty but the offender is motivated by the fact that the person is a frontline emergency worker or frontline health worker or ‘as a consequence of, or in retaliation for, actions undertaken by the frontline emergency worker [or frontline health worker] in the course of the worker’s duty’ (s 60AD(8); 60AE(8)).
Notwithstanding the high penalties provided for in the Act, these offences can be tried summarily (ie before a Magistrate, not a judge and jury) (Schedule 2, amendments to the Criminal Procedure Act 1986 (NSW)). Where a case is heard by a Magistrate, the maximum possible penalty is 2 years imprisonment (Criminal Procedure Act 1986 (NSW) ss 267 and 268).
The Bill will also repeal the following sections:
- Fire and Rescue NSW Act 1989 s 35‘Obstruction of fire fighters or other personnel’;
- Health Services Act 1997 s 67J ‘Obstruction of and violence against ambulance officers’;
- Rural Fires Act 1997 s 42 ‘Obstruction etc of Commissioner and other members of Service’; and
- State Emergency Service Act 1989 s 24 ‘Offence to obstruct Commissioner or emergency officer’.
The conduct currently prohibited by those sections will be covered by the new offences so it is unnecessary to leave them in those Acts.
Will the Bill pass?
There have been earlier Bills – the Crimes Amendment (Assault of Emergency Service Workers) Bill 2019 and the Crimes Amendment (Assault of Emergency Services Workers—3 Strikes Sentencing) Bill 2020 – these were all private members’ Bills and went no-where. This Bill is a government Bill under the management of the Attorney-General. Further it introduces reforms recommended by the Sentencing Council so it is supported by an inquiry process (see NSW Parliamentary Debates, Legislative Assembly, 10 August 2022, p. 9 (Mark Speakman, Attorney General). With that background it is more likely to make it way through the Parliament. It has already passed the Legislative Assembly and been introduced to the Legislative Council. Presumably the government will try to get it through before the State election due in 2023.
Will it protect frontline workers?
That is a more controversial question. Adding new offences and higher penalties can have little protective effect – they are the ambulance at the bottom of the cliff rather than the fence at the top – the penalties are only applicable after the offence has been committed that is after the person has been hindered, obstructed, assaulted or wounded. In that sense the criminal law is always retrospective and not protective. As Mahoney J said in Kable v DPP (1995) 36 NSWLR 374
One of the essential purposes of the criminal law, if not its fundamental purpose, is to protect men and women against violence. There is, it has been suggested, a gap in the protection which traditionally the criminal law affords. The gap lies in the prevention of violence, as distinct from the punishment of violence after it has been committed.
A principle of sentencing is the concept of general deterrence, that is the idea that the penalty will send a message to others to think twice about their actions. The effect is somewhat limited as people don’t really determine whether or not they’ll commit a crime on a cost/benefit analysis, particularly those that may be drug affected, mentally disturbed or lashing out in a fight or flight reaction to something that is happening beyond their control and to them or their loved ones. But the penalties do communicate a message albeit indirectly and one few people hear (as most people won’t know what the maximum penalty of any offence they may commit is). But, as Mr Speakman said:
This bill recognises the vital role these workers have in our community. It makes clear that assaulting them is not only reprehensible but also will attract serious criminal punishment. Acts of violence on emergency services workers and frontline workers in the course of their duties are unacceptable. Those who perpetuate disgraceful acts of violence on these dedicated individuals should face stringent consequences
Another problem with creating offences where the sentence depends on the category of the victim is that those not included will wonder why their life or safety is not considered equally valuable. In this case a clear omission is workers from interstate who may be in NSW and they are not included in the relevant definitions. But others may also be excluded eg those providing community support but not health care – think the Salvation Army and the like.
It is likely that this Bill will pass through parliament and become law. Only sometime after then will we be able to see whether it has any effect on protecting emergency and health workers.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.