Crimes Legislation Amendment Bill 2011 and Crimes ...€¦ · Crimes (Offences Against Police)...

S T A N DI N G C OM M I T T E E O N JU S T I C E AN D CO M M U NI TY

S A F ET Y

Crimes Legislation Amendment Bill 2011 and Crimes (Offences Against Police)

Amendment Bill 2012

J U N E 2 0 1 2

Report 12

C R I M E S L E G I S L A T I O N A M E N D M E N T B I L L 2 0 1 1 A N D C R I M E S ( O F F E N C E S A G A I N S T P O L I C E ) A M E N D M E N T B I L L 2 0 1 2

i

Committee membership

Mrs Vicki Dunne MLA Chair

Mr John Hargreaves MLA Deputy Chair

Ms Meredith Hunter MLA Member

Secretariat

Dr Brian Lloyd Secretary

Ms Lydia Chung Administration

Contact information

Telephone 02 6205 0137 Facsimile 02 6205 0432 Post GPO Box 1020, CANBERRA ACT 2601 Email [email protected] Website www.parliament.act.gov.au

mailto:[email protected]

http://www.parliament.act.gov.au/

S T A N D I N G C O M M I T T E E O N J U S T I C E A N D C O M M U N I T Y S A F E T Y

ii

Resolution of appointment

On 9 December 2008 the Legislative Assembly appointed a Standing Committee on Justice and Community Safety to perform the duties of a scrutiny of bills and subordinate legislation committee and examine matters related to community and individual rights, consumer rights, courts, police and emergency services, corrections including a prison, governance and industrial relations, administrative law, civil liberties and human rights, censorship, company law, law and order, criminal law, consumer affairs and regulatory services.1

Terms of reference

At its meeting on Thursday, 23 February 2012 the Assembly passed the following resolution:

That this Assembly refers the Crimes Legislation Amendment Bill 2011 and the Crimes (Offences Against Police) Amendment Bill 2012 to the Standing Committee on Justice and Community Safety for inquiry and report by 1 May 2012.2

At its meeting on Tuesday 1 May 2012 the Assembly passed the following resolution:

That the resolution of the Assembly of 23 February 2012, referring the Crimes Legislation Amendment Bill 2011 and the Crimes (Offences Against Police) Amendment Bill 2012 to the Standing Committee on Justice and Community Safety for inquiry and report, be amended by omitting the words “by 1 May 2012” and substituting “by the last sitting day in June 2012”.3

1 Legislative Assembly for the ACT, Minutes of Proceedings, 9 December 2008, pp.12–18. 2 Debates of the Legislative Assembly for the Australian Capital Territory, 23 February 2012, pp.787-791. 3 Debates of the Legislative Assembly for the Australian Capital Territory (Proof), 1 May 2012, p. 1677.


iii

TABLE OF CONTENTS

Committee membership ......................................................................................... i

Resolution of appointment ..................................................................................... ii

Terms of reference ................................................................................................ ii

R E C O M M E N D A T I O N S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . V

1 I N T R O D U C T I O N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background ......................................................................................................... 1

Conduct of the inquiry ........................................................................................ 1

Structure of the report ........................................................................................ 2

2 C R I M E S L E G I S L A T I O N A M E N D M E N T B I L L 2 0 1 1 . . . . . . . . . . 4

Description of the Bill .......................................................................................... 4

Genesis of the Bill ............................................................................................... 5

3 V I E W S O N T H E B I L L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8

ACT Government ...............................................................................................18

Government view on creating a specific offence .............................................25

AFPA ...................................................................................................................26

Law Society ........................................................................................................29

Australian Lawyers Alliance ..............................................................................36

ACT Bar Association ..........................................................................................41

Scrutiny Committee ...........................................................................................49

4 F U R T H E R C O N S I D E R A T I O N S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2

Human rights implications ................................................................................52

Jurisprudential basis ..........................................................................................57

5 C O M M I T T E E C O M M E N T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 4

Arguments in favour of the Bill changes to self-defence .................................64

Arguments against the Bill’s changes to self-defence .....................................64

Arguments in favour of clause 5 of the Bill ......................................................66

Arguments made against clause 5 ....................................................................66

Discussion ..........................................................................................................66

Whether the Bill should be supported ..............................................................68


iv

6 C R I M E S ( O F F E N C E S A G A I N S T P O L I C E ) A M E N D M E N T

B I L L 2 0 1 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 0

Description of the Bill .........................................................................................70

Opposition view .................................................................................................70

ACT Government view .......................................................................................72

AFPA ...................................................................................................................73

Other views ........................................................................................................75

Scrutiny Committee ...........................................................................................81

Committee comment .........................................................................................84

A P P E N D I X A : D I S S E N T I N G C O M M E N T S :

V I C K I D U N N E M L A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6

Introduction ........................................................................................................86

Need for further legislative response ...............................................................87

Conclusion ..........................................................................................................89

A P P E N D I X B : S U B M I S S I O N S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1

A P P E N D I X C : W I T N E S S E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 3


v

RECOMMENDATIONS

R E C O M M E N D A T I O N 1

5.22 The Committee recommends that the Crimes Legislation Amendment

Bill 2011 not be supported by the Assembly.


6.68 The Committee recommends that the Legislative Assembly not

support the Crimes (Offences Against Police) Amendment Bill 2012.


vi


1

1 I NT R O DU CT IO N

Background

1.1 As noted above, on Thursday, 23 February 2012 a motion was moved in the Assembly to refer the Crimes Legislation Amendment Bill 2011, a Government Bill, to the Committee for inquiry and report. During the ensuing debate an amendment was proposed which required the Committee to consider, in the same inquiry, an Opposition Bill, the Crimes (Offences Against Police) Amendment Bill 2012. The resolution thus amended was passed by the Assembly, with a reporting date of 1 May 2012.

Referral to Law Reform Advisory Council

1.2 In addition, on 21 February 2012 the Attorney-General referred the Crimes Legislation Amendment Bill 2011 to the Law Reform Advisory Council (LRAC) for inquiry ‘in order to draw on the extensive expertise of that advisory body’.4

Conduct of the inquiry

1.3 On 2 March 2012 the Committee wrote to a range of government and non-government agencies and organisations, inviting submissions to the inquiry, including:

the ACT Government;

ACT Policing;

the Legal Aid Commission;

the Human Rights Commission;

the Office of the Director of Public Prosecutions;

the ACT Law Society;

4 ACT Government, Submission No.2, p.5.

2 S T A N D I N G C O M M I T T E E O N J U S T I C E A N D C O M M U N I T Y S A F E T Y

the ACT Bar Association;

the Australian Lawyers Alliance;

the Australian Federal Police Association; and

the law schools at the Australian National University and the University of Canberra.

1.4 In response the Committee received six submissions, which are listed in Appendix B of this report.

1.5 On 4 April the Committee held a public hearing for the inquiry. Witnesses who appeared before the Committee at the hearing are listed in Appendix C of the report.

Structure of the report

1.6 This report considers the Crimes Legislation Amendment Bill 2011 and the Crimes (Offences Against Police) Amendment Bill 2012 in turn.

1.7 The first chapter is this introduction.

1.8 The second chapter, on the Government Bill, the Crimes Legislation Amendment Bill 2011:

provides a description of the Bill; and

considers the conditions which may have given rise to the Bill;

1.9 The third chapter considers views on the Crimes Legislation Amendment Bill 2011, specifically those of:

• the ACT Government;

• ACT Policing;

• the Australian Federal Police Association (AFPA);

• the ACT Law Society;

• the Australian Lawyers Alliance;

• and the ACT Bar Association; and

• the Scrutiny Committee.


3

1.10 The fourth chapter considers further legal considerations for the Crimes Legislation Amendment Bill 2011, specifically:

the human rights implications of the Bill; and

the jurisprudential basis for the Bill.

1.11 The fifth chapter presents Committee comment on the Bill.

1.12 The sixth chapter considers the Private Members Bill, the Crimes (Offences Against Police) Amendment Bill 2012. It provides a description of the Bill, and an account of the views of:

the Opposition, the Government, and the AFPA; and

the views of other contributors, including:

• ACT Policing;

• the ACT Law Society;

• the Australian Lawyers Alliance;

• the ACT Bar Association;

• the ACT Human Rights Commission; and

• the ‘Scrutiny Committee’ (that is, the Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills & Subordinate Legislation Committee)); and

Committee comment on the Bill.

1.13 Appendix A presents dissenting comments on the Crimes (Offences Against Police) Amendment Bill 2012 by Vicki Dunne MLA.


2 C R IM ES LEG I S LAT I ON AM EN DM ENT

B I LL 2011

Description of the Bill

2.1 The Crimes Legislation Amendment Bill 2011 makes two quite different changes. Clauses 4 and 6 would remove the defence, currently available to person charged of an assault on police, that the person used physical force because of a reasonable belief that they were subject to unlawful arrest.

2.2 Clause 4 of the Bill reads:

A plea of self-defence may not be raised in a proceeding for an offence against a law in force in the ACT, to which the Criminal Code does not apply, where the defendant believed on reasonable grounds that an act making up the offence was necessary to prevent or end the unlawful imprisonment of the defendant, or someone else, if—

(a) the imprisonment perceived as unlawful by the defendant was because of the defendant’s, or other person’s, restraint by a police officer; and

(b) it was reasonably clear that the person carrying out the restraint was a police officer.

2.3 Clauses 6 and 7 amend the Criminal Code 2002 in similar terms.

2.4 Clause 5 of the Bill seeks to amend the Crimes (Sentencing) Act 2005, to require judges to take into account if an offence involves:

a victim who, at the time of the offence, was providing a service to the public the nature of which exposed the victim to an increased risk of the offence or a similar offence.

2.5 Clause 5 gives examples of persons who may be in such a position: police officers; parking inspectors; nurses; members of the emergency services; and bus and taxi drivers.


5

2.6 The Explanatory Statement for the Bill gives the following account of the effect of clause 5:

In sentencing an offender, section 33(1)(d) of the Sentencing Act currently allows the court to consider the personal circumstances of any victim of the offence if those circumstances were known to the offender when the offence was committed. The amendment goes beyond this section as the defendant does not need to know of the victim’s occupation for the new section to apply.5

2.7 Regarding this, the Explanatory Statement goes on to state that:

Under the relevant considerations in section 33 the court will be able (although is not required) to consider whether the offender knew of the victim’s occupation at the time of the offence and take this into account in sentencing.6

Genesis of the Bill

2.8 In its public hearing of 4 April 2012, the Committee asked a number of questions about the conditions which had given rise to the Bill.

2.9 In seeking to these background elements for the introduction of the Bill, the Committee considered:

trends in assaults on police;

outcomes of criminal cases tried in the Courts;

a review of police powers currently underway; and

questions over the availability of section 147 of the Commonwealth Criminal Code 1995 for prosecuting assaults on police.

2.10 These are considered below.

5 Explanatory Statement, Crimes Legislation Amendment Bill 2011, p.7. 6 Explanatory Statement, Crimes Legislation Amendment Bill 2011, p.7.


Assaults on police

2.11 The Committee considered trends in assaults on police, and whether an increasing or severity of such assaults formed a basis for the Bill.

2.12 The Committee asked the Chief Police Officer, ACT Policing, (the CPO) to comment on trends on assaults on police. In particular it asked him to comment on the apparent increase reflected in Occupational Health and Safety (OH&S) statistics.

2.13 In response the CPO told the Committee that in the past six years the number of assaults on police in the ACT was relatively stable and had been ‘declining by small numbers’, although this had not yet been established as a ‘trend’.7 He told the Committee that this view was supported by an analysis of the OH&S statistics. There was a ‘small’ disparity between these information streams which he attributed to the fact that in ‘not all cases where police are subject of an assault will there be an arrest’.8

2.14 In practice, he told the Committee:

It may be, for example, an offender is taken into custody for a range of serious criminal offences and during the course of that action a police officer may be injured. We may not necessarily lay a charge of assaulting a police officer during that process for the sake of there are a whole range of serious criminal matters already that are being preferred.9

2.15 For such a situation, the CPO told the Committee, laying charges for assault on police may not represent a good result in ‘a dividend versus effort equation’.10

2.16 He told the Committee that ACT Policing had been conducting ‘some very stringent analysis on the OH&S stats’, and as a result had developed ‘a very good statistical compilation’ on ‘how injuries and assaults are occurring’.11 As

7 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.6. 8 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.6. 9 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.6. 10 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.6. 11 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7.


7

a result, ACT Policing would be making ‘slight adjustments’ to its operating methodology to ‘mitigate these incidences’.12

2.17 These changes included the use of the ‘conducted energy weapon’ or taser, which he acknowledged as controversial.13 However, there was ‘a very clear appreciation’, amongst ‘senior practitioners, sergeants out on the road’,14 that:

they have seen a marked reduction in the mobbing-type offences that I have spoken about previously and that there is an appreciable deterrent effect by the introduction of a taser into an operational situation.15

2.18 The CPO told the Committee that this was not necessarily the result of a ‘taser even being drawn or discharged’ but that the ‘appearance of a taser has, in the views of the sergeants, effected … a palpable deterrent effect’.16

2.19 He went on to say that ACT Policing would develop a more complete assessment of the use of tasers ‘during the full evaluation period in August’. He said this was one ‘example of one of the operational methodologies that we can introduce to try and reduce assaults’.17

Frequency and outcome of cases where self-defence is

raised

2.20 In its public hearing of 4 April the Committee asked the ACT Government whether there were particular court cases that had occasioned the development of the Bill. The Acting Senior Manager of the Legislation and Policy Branch, Justice and Community Safety Directorate, told the Committee that a ‘number of cases were relevant here’.18 In addition to a particular case for which the Committee had been provided a transcript,19 there had been:

12 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 13 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 14 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 15 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 16 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 17 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 18 Mr Martin, Transcript of Evidence, 4 April 2012, p.2. 19 Believed by the Committee to be a case concerning Danny Andrew Klobucar, initially heard in the

ACT Magistrates Court, (Magistrates Court Folder No.145459 and Folder No.146675, charges


other instances where similar questions about the applicability of the rule of self-defence have also been raised, where the operation of the law has addressed the issue in other ways.20

2.21 The Acting Senior Manager told the Committee that the ‘specific issue about the lawfulness of an arrest’ had ‘arisen in a number of cases in the ACT’ and it was those cases that had led the Police Powers Steering Committee ‘to be concerned about the continuing operation of the law in that way’.21

2.22 In a number of cases, he told the Committee, the ‘question of self-defence and the way that it arises in a criminal trial is something of an organic thing’. As a result, Acting Senior Manager told the Committee, the number of cases in which self-defence was under active consideration was greater than of specific references to it would give grounds to believe.22

2.23 In response, a Member of the Legislative Assembly who took part in the hearing made the following comment:

It strikes me as somewhat unusual that a live issue in a case might be one that is simply implied. The matter is not being discussed. There are plenty of matters that are not being discussed but none of those is usually implied. You seem to be suggesting that, because the vibe is one of self-defence, it becomes a live issue and they are the cases that you are relying on.23

2.24 In addition, the Committee asked the Attorney-General how many cases had failed ‘because self-defence had been raised’ as a defence in court. The Attorney told the Committee that he was not able to answer the question at the time and that he would take it as a Question on Notice.24

CC10/6152, CC10/6153 and others), and then in the ACT Supreme Court, Danny Andrew Klobucar v C of A, SC11/00743, ACT Supreme Court.

20 Mr Martin, Transcript of Evidence, 4 April 2012, p.2. 21 Mr Martin, Transcript of Evidence, 4 April 2012, p.2. The Police Powers Steering Committee is

referenced in Department of Justice and Community Safety, Review of police criminal investigative powers—discussion paper, April 2010, available at: http://www.justice.act.gov.au/resources/attachments/paper_PolicePowers_LPB_2010.pdf

22 Mr Martin, Transcript of Evidence, 4 April 2012, p.4. 23 Mr Rattenbury MLA, Transcript of Evidence, 4 April 2012, p.4. 24 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.4.

http://www.justice.act.gov.au/resources/attachments/paper_PolicePowers_LPB_2010.pdf


9

Review of police powers

2.25 In the course of the public hearing, the Committee asked a number of questions on how the Bill had emerged from the Government’s review of police powers.

2.26 In view of the apparent significance of the review for the Bill, the Committee asked the Attorney-General when the review of police powers would conclude. The Attorney told the Committee that the review was ‘ongoing’ and was ‘unlikely’ to be completed before the end of the ‘term of this Assembly’ in October 2012.25

2.27 Later in the hearing the Committee asked the ACT Law Society to comment on a connection between the development of the Bill and the ACT Government’s review of police powers, as the Law Society had been a participant in the review process.

2.28 The Society told the Committee that the proposals expressed in the Bill had been raised ‘right at the end of that process’ (that is, of the review) and that its emergence at this point had been a matter of some ‘surprise’.26 Asked whether the Society was able to comment on any discussion that took place regarding the proposal, why it had been put forward or the motivation behind it, the Society told the Committee:

No. It came late. There were discussions between various representatives. I do not recall what discussion took place within the committee itself. The bulk of the work of that committee was looking at the overarching question of police powers. It was not the focus of what we had initially come together to do. It was a little out of left field.27

2.29 The Committee asked similar questions of the ACT Bar Association, which responded by saying that it had not any part in the review of police powers.28

25 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.3. 26 Mr Gill, Transcript of Evidence, 4 April 2012, p.19. 27 Mr Gill, Transcript of Evidence, 4 April 2012, p.19. 28 Mr Walker, Transcript of Evidence, 4 April 2012, p.54.

1 0 S T A N D I N G C O M M I T T E E O N J U S T I C E A N D C O M M U N I T Y S A F E T Y

Use of section 147 of Criminal Code 1995 (Cwlth)

2.30 In the course of its public hearings the Committee heard, from a number of witnesses, that assaults on police in the ACT had previously been prosecuted via charges laid under section 147 of the Criminal Code 1995 (Cwlth). The use of these provisions seems to have been curtailed, with some conjecture as to why this was so.

AFPA

2.31 When the AFPA appeared in public hearings, it told the Committee that it attributed ‘the removal of access to the appropriate charge of assaulting a public official, being a law enforcement officer’ in the ACT to a ‘recent policy decision’ by ACT Director of Public Prosecutions (DPP). This had, the AFPA told the Committee ’already caused significant demoralisation throughout the police force in the ACT.29

2.32 On further questioning, the AFPA told the Committee that section 147 of the Commonwealth Criminal Code 1995, ‘Causing harm to Commonwealth public officials’, had previously been available where ACT police had been assaulted. It believed that this was no longer the case due to an ‘interpretation’ made by the DPP.30 The DPP had, the AFPA told the Committee, ‘given a directive not to use the charge’, and were ‘very reluctant’ to formulate charges under section 147.31

Resulting problems

2.33 The AFPA identified a number of problems stemming from this.

2.34 First, there was in its view a paucity of avenues through which charges could be laid where police were subject to assault.32

2.35 Second, this led to confusion where ACT Policing officers worked in cooperation with Australian Federal Police (AFP), such as during recent events

29 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.29. 30 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.30. 31 Mr Hunt-Sharman and Ms Smith, Transcript of Evidence, 4 April 2012, p.34. 32 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.29.


1 1

at the Aboriginal Tent Embassy, where police serving with the AFP would have recourse to section 147 while those serving with ACT Policing would not.33

2.36 Third, where charges were laid in connection with assaults on officers serving with ACT Policing, those charges were, according to the AFPA, being ‘downgraded’ to common assault or assault occasioning actual bodily harm.34

2.37 Fourth, this reportedly led to a loss of data, specifically, on assaults on ACT police.35

2.38 Fifth, the AFPA told the Committee, this ‘loss’ of data had OH&S implications in that it made it more difficult to advise police in the field about persons who had ‘the propensity to assault police’. It was normal practice to conduct ‘criminal history checks and other checks, including safety alert checks, in regard to a person’ before police approached them. However, loss of section 147 as an avenue for laying charges had resulted in ‘a crucial piece of operational safety intelligence’ not being available.36

Preferred solution

2.39 The AFPA’s preferred solution for these problems was that a specific offence of assaulting a police officer should be created in ACT law. It told the Committee that any:

confusion [could] be entirely eliminated … if the ACT were to pursue specific legislation related to law enforcement officers, that being the Federal Police, within the ACT. If we are not reliant upon commonwealth legislation, and given the arguments raised by the DPP as to why we should not be, it is entirely valid that the ACT should pursue independent legislation.37

33 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.29. 34 Ms Smith, Transcript of Evidence, 4 April 2012, p.34. 35 Ms Smith, Transcript of Evidence, 4 April 2012, p.34. 36 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.29. 37 Mr McMahon-Hogan, Transcript of Evidence, 4 April 2012, p.32.


2.40 Proposals for creating a specific offence for assaulting police in ACT law are discussed at greater length below.

Speculation on the DPP’s policy on section 147

2.41 During hearings a number of witnesses were asked to comment on the DPP’s stance on section 147 of the Commonwealth Criminal Code 1995.

2.42 The Act Law Society told the Committee that there had ‘been a change’ under the present Director of the DPP, resulting in it being ‘far less common’ for section 147 charge to be employed. Previously, it had been ‘relatively routine’.38

2.43 The Society told the Committee that there were differences in the relevant charges created under ACT and Commonwealth law in that the former were summary, while the latter were indictable. This had implications for whether charges were heard in the ACT Magistrates or Supreme Courts. In addition, ‘[once] the commonwealth offence is charged, if it goes to the Supreme Court, it requires a trial by jury’.39

2.44 The Australian Lawyers Alliance concurred with the Law Society on the implications for the ACT Courts of charges being laid under ACT or Commonwealth legislation. Its representative also told the Committee that the Commonwealth offence attracted a thirteen-year custodial sentence. This also brought with it significant implications for the ACT Court system:

I am of the view that the reason the DPP is reluctant to charge the existing offence is because if you are a commonwealth law enforcement officer and you cause harm to a public official, it is a 13-year offence. It is an indictable offence, and it can only be dealt with in the Magistrates Court if the defendant consents.40

2.45 The Alliance went on to say that:

The nature of a lot of the people who commit these offences, perhaps when they are drunk or out, may well be to cause as much grief to the

38 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, pp.20-21. 39 Mr Gill and Mr Kukulies-Smith, Transcript of Evidence 4 April 2012, pp.20-21. 40 Mr Whybrow, Transcript of Evidence 4 April 2012, pp.38-39.


1 3

system as possible and they are going to say, “I don’t consent to jurisdiction,” and we will have a lot of Supreme Court trials taken up with relatively minor offences. Nobody is suggesting that a police officer being assaulted is irrelevant or a minor matter, but in the scheme of things it would be relatively minor. That is my explanation as to why it is not being pursued so much. It is because the DPPs do not wish to have the superior courts clogged up with these matters.41

The DPP’s clarification

2.46 Following the hearing, the Committee wrote to the DPP asking for further clarification of its position on the use of section 147.42

ACT offences

2.47 In his response, the Director advised the Committee of ACT offences under which charges could be laid in the event of an assault on an ACT Policing officer. These included:

Common assault under section 26 of the Crimes Act 1900 (ACT) [penalty 2 years, summary];

Assault occasioning actual bodily harm under section 24 of the Crimes Act 1900 (ACT) [penalty 5 years, indictable, prosecution can elect summary];

Obstructing a Territory public official contrary to section 361 (1) of the Criminal Code 2002 (ACT) [penalty 2 years, summary]; and

There is also a minor offence of obstructing a territory public official under section 363 of the Criminal Code 2002 (ACT) [penalty 6 months, summary].43

41 Mr Whybrow, Transcript of Evidence, 4 April 2012, pp.38-39. 42 Provide date for letter** 43 DPP, Submission No.6, p.2. Thomson Reuters Legal Online Laws of Australia, in an article on

‘Summary offences’ defines the ‘essence of a summary or simple offence is that it is triable without a jury before a lower court, and that the judicial officer is the trier of fact.’ An article on ‘Indictable offences’ notes that the ‘hallmark of an indictable offence is that it is triable in a superior or higher court before a jury’, where it is also noted that the ‘main distinction between summary offences and indictable offences is that summary offences relate to less serious forms of criminal conduct.’


2.48 He noted by way of clarification that:

Under section 300 of the Criminal Code 2002, “territory public official” means “a person having public official functions for the Territory, or acting in a public official capacity for the Territory”, and includes “a police officer”.44

2.49 Commonwealth offences

2.50 In his letter, the Director also advised the Committee of applicable offences under Commonwealth law, which included:

Section 147.1 of the Criminal Code (Commonwealth) causing harm to a Commonwealth public official. The penalty if the Official is a Commonwealth law enforcement officer is thirteen years - which makes the offence an indictable only matter. However, the matter may be dealt with summarily with the consent of the defendant and the prosecutor.

Section 147.2 of the Criminal Code threatening to cause harm to a Commonwealth public official. The penalty if the Official is a Commonwealth law enforcement officer is imprisonment for nine years. This makes the matter indictable but able to be dealt with summarily pursuant to section 4J of the Crimes Act 1914 with the consent of the defendant and the prosecutor.

Section 149.1 of the Criminal Code makes it an offence to obstruct a Commonwealth public official, with a two year penalty. This makes the matter indictable but able to be dealt with summarily pursuant to section 4J of the Crimes Act 1914 with the consent of the defendant and the prosecutor.45

Differences between ACT and Commonwealth offences

2.51 The Director contrasted offences under the two regimes, ACT and Commonwealth. He said that there were ‘two major differences’.

44 Director of Public Prosecutions, Submission No.6, p.2. 45 DPP, Submission No.6, p.3.


1 5

2.52 The first difference was that:

the Territory offences of assault, assault occasioning actual bodily harm, and obstruction are either summary or at least able to be dealt with summarily on the election of the prosecutor, whereas the Commonwealth offences are able to be dealt with summarily only with the consent of the defendant.46

2.53 The implications of this were that:

if a Commonwealth offence is charged, it is in the hands of the defendant whether the matters will be dealt with in the Supreme Court. Often the allegations involved in these sorts of matters are straightforward (which is not to say they are not serious) and ideal to be dealt with by the Magistrates Court. If the defendant elects to have the matter committed to the Supreme Court, this burdens the lists of that court with matters that could be dealt with, far more speedily, in the Magistrates Court.47

2.54 The second difference was that:

the Commonwealth offences are quite complex in so far as the number of elements and applicable fault elements. The ACT offences are less complex.48

2.55 In relation to this, the Director quoted section 147.1 from the Commonwealth Criminal Code 1995 verbatim and put the view that it was poorly drafted.49 He went on to observe that:

The offence has about seven physical elements, each accompanied by a fault element. The proof of the offence is complex, and the offence is difficult to explain to juries.50

46 DPP, Submission No.6, p.3. 47 DPP, Submission No.6, p.4. 48 DPP, Submission No.6, p.4. 49 DPP, Submission No.6, p.4. 50 DPP, Submission No.6, p.4.


Policy of the DPP

2.56 Having described these matters, the Director went on to outline the policy position of his Office. This was, he advised the Committee, based on considerations that:

Given that the ACT is self governing with respect to criminal law, and that specific consideration has been given to some issues, and specific provision made with respect to others, it seems to follow that specific ACT provisions should be preferred to more general Commonwealth provisions;

The ACT provisions allow for matters to be dealt with summarily which is usually preferable in these cases;

The Commonwealth provisions are notably more complex that the ACT provisions.51

2.57 From these points he drew the conclusion that:

where the allegation is one of obstructing, hindering, intimidating or resisting a police officer providing ACT police services, the matter should be charged under section 361 of the Criminal Code 2002 [ACT] (and where appropriate section 363) rather than under section 149.1 of the Criminal Code of the Commonwealth.52

2.58 In practice, the Director wrote:

Where the allegation is one of assaulting a police officer, the charge of common assault or if appropriate aggravated assault is to be preferred to section 147.1 or 147.2 of the Criminal Code of the Commonwealth. This is not completely to rule out the possibility of proceeding with Commonwealth offences. There may be occasions where the Commonwealth offences provide options that would not otherwise be available under the ACT legislation. An example may be an offence of causing harm to a Commonwealth public official in appropriate circumstances.53

51 DPP, Submission No.6, p.5. 52 DPP, Submission No.6, p.5. 53 DPP, Submission No.6, p.5.


1 7

2.59 In connection with this latter point, the Director also suggested that it may be appropriate to employ the Commonwealth offences where assaults on police have involved ‘spitting and like conduct’. This was due to the considerable time that may elapse before an infection is ruled out or confirmed, making charges of aggravated assault ‘impractical’, and due to the significant ‘mental anguish occasioned to the victim while they await the results’.54

54 DPP, Submission No.6, p.5.


3 V I EW S ON T HE B I LL

ACT Government

Attorney-General’s opening statement

3.1 In his opening statement in public hearings, the Attorney-General told the Committee that:

The bill proposed by the government has its origins in the review of police criminal investigative powers. The government was concerned about the issue of assaults on police and proposed amendments to ensure prosecutions are not inappropriately stymied on the one hand and on the other hand that sentences handed down by the court properly reflect the circumstances of the victim in cases of police assaults.55

3.2 The Government’s aims in the Bill were, he told the Committee, ‘to achieve two things’: first, to prevent ‘perverse outcomes in criminal trials involving assaults on police’ and, second, ‘to ensure that a victim’s special occupational vulnerability as a provider of a vital public service is given appropriate weight at sentence’.56

3.3 He told the Committee that:

The government’s view is that its amendments to the law of self-defence are measured and appropriate; indeed, they are approaches that have been adopted in other common law jurisdictions. They specifically target those cases where assaults on police are patently malicious and offenders should not enjoy the protection of the law in these circumstances.57

55 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.1. 56 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, pp.1-2. 57 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.2.


1 9

ACT Government submission

3.4 In his submission to the inquiry, the Attorney-General expanded on these remarks, particularly in the following areas:

trends in assaults on police;

the purpose of the Bill; and

the effect of the Bill.


Trends in assaults on police

3.6 With respect to trends on assaults on police in the ACT, the Attorney advised the Committee that:

Data provided by ACT Policing indicates the number of reported assault offences against police been trending downwards since 2007-2008 (although the numbers are still concerningly high). In 2010-11, for example, there were 48 reported assault offences against police, compared with 66 in 2007-08.58

3.7 Conversely, he said:

ACT Policing Occupational Health and Safety reports show that during 2010-11 there were 57 reported assaults. This figure has been trending upwards since 2008-2009.59

3.8 Moreover, he advised the Committee, changes in data handling had resulted in a better quality of information, and this too had led to the formulation of the Bill:

Changes made to the coding of ACT Policing Occupational Health and Safety incidents has led to more comprehensive recording of instances of offenders kicking, punching or spitting on members during normal operational duties. Based on this data, on average 1 police officer is

58 ACT Government, Submission No.2, p.1 59 ACT Government, Submission No.2, p.1


assaulted every week in the ACT. The CPO has also observed an increase in severity of assaults on police.60

Purpose of the Bill

3.9 The Attorney stated that the purpose of the Bill was to respond to these conditions, addressing:

these concerns about the frequency and severity of assaults against police in the ACT and [encouraging] peaceful resolution in perceived unlawful arrest situations; and ensure that a victim's special occupational vulnerability as a provider of an important public service is given appropriate weight at sentencing.61

3.10 In the submission he Attorney stated that:

A key aim of the rule of law, and by extension a key goal for those with responsibility for making the law, is to discourage that which the community finds abhorrent. At times, changes to the law are aimed at changing behaviour and culture over time.62

3.11 He went on to say that while:

I support the individual's right to protect him or herself against harm but it is not appropriate for citizens to be entitled to use force to resist arrest by a police officer who is acting in good faith.63

3.12 And that:

Responding with violence (with the accompanying potential for significant harm to both police officers and arrestees) where a person considers their arrest may be unlawful is inappropriate and dangerous. This is because we live in a modem civil society with a criminal justice system that protects rights and ensures humane treatment of arrested people.64

60 ACT Government, Submission No.2, p.1 61 ACT Government, Submission No.2, p.2. 62 ACT Government, Submission No.2, p.2. 63 ACT Government, Submission No.2, p.2. 64 ACT Government, Submission No.2, p.2.


2 1

3.13 This ‘modern civil society’, the Attorney argued, meant that there were alternatives to force, which could be used more productively as remedies for those who considered their arrests illegal:

These safeguards include possible police bail and being brought before a court within hours after the arrest. As unpleasant and distressing as a brief period of detainment may be, particularly to a person who feels aggrieved about the circumstances of their arrest, the potential risk to human life and safety, including the safety of arrested people, must be put first.65

Effect of the Bill

3.14 In the submission, the Attorney stated that the effect of the Bill would be to provide that where:

a person is arrested by a police officer;

it is reasonably clear the police officer is a police officer;

the police officer is acting in good faith (honestly believing the arrest is lawful); and

the person commits a violent offence against the police officer;

the person cannot rely on the defence of self-defence in relation to that violent offence.66

3.15 He suggested that these amendments would:

prevent people from pleading self-defence to an offence because of perceived unlawful imprisonment where the victim is a police officer, whether or not the perceived imprisonment was in fact unlawful, in circumstances where the police officer was acting in good faith.67

3.16 And noted that:

The Bill will also insert a new consideration into section 33 (1) of the Crimes (Sentencing) Act 2005 to which a court may have regard at

65 ACT Government, Submission No.2, p.2. 66 ACT Government, Submission No.2, p.2. 67 ACT Government, Submission No.2, p.3.


sentencing. The purpose of this amendment is to ensure that a victim's special occupational vulnerability as a provider of an important public service is given appropriate weight at sentencing. It will apply to victims such as police officers, emergency services workers and care and protection workers.68

3.17 In the submission, the Attorney sought to rebut three misconceptions which, he suggested, had arisen with regard to the Bill.

3.18 First, he stated that the Bill would not remove ‘the important protection of self-defence’, and that:

A defendant would still be able to plead self-defence when they did not know they were being arrested or restrained by a police officer’.69

3.19 Second, he stated that the Bill will not ‘remove the prosecution's burden of proof’:

The Bill does not purport to detract in any way from the requirement that the prosecution prove an offence committed against a police officer beyond reasonable doubt.70

3.20 Third, he stated that the Bill would not ‘unreasonably’ limit human rights if passed into law.71

Extract from internal paper from the police powers review

3.21 When the Committee wrote to the Attorney-General on 5 March 2012 to invite him to appear in public hearings, the Committee also asked him to provide a copy of an internal Directorate report arising from the review of police powers. It believed that this document contained more detail on the legal background and reasoning for the Bill.

3.22 On 4 April 2012 an extract from the report, containing material relevant to the Bill, was provided as an appendix to the ACT Government submission to the

68 ACT Government, Submission No.2, p.3. 69 ACT Government, Submission No.2, p.3. 70 ACT Government, Submission No.2, p.4. 71 ACT Government, Submission No.2, p.4.


2 3

inquiry. Along with the submission, the Committee authorised that the extract be published and be made available on the inquiry website as part of the Government submission.72

3.23 The extract argued that Australian common law on self-defence originated in English common law under particular historical conditions.73 Under those conditions, it argued:

The rationale for permitting self-defence to be pleaded against an unlawful arrest was twofold: to allow a person who is wrongly accused to avoid the injustice of languishing in dungeon-like conditions, where there was the very real prospect of death or serious illness, whilst awaiting (often for months) for the circuit Magistrate to adjudicate his matter; and because an unlawful arrest was thought to be an 'outrage' and a 'provocation to all men of England'.74

3.24 The report went on to quote judgements from US state courts which emphasised the changes in conditions that had occurred since then, in particular Wisconsin v· Hobson (1998), in which it was suggested that:

Not only is forcible resistance now a substantially less effective response to unlawful arrest, there are many safeguards and opportunities for redress. No longer must individuals languish for years in disease-ridden jails. Now, bail is available. No longer are individuals detained indefinitely on dubious charges. Now, prompt arraignment and determination of probable cause are mandated. No longer are individuals left to fend for themselves in the legal system. Now, there-is a right to counsel. No longer must individuals violently resist to prevent the fruits of an unlawful arrest from being used to prosecute them. Now, the exclusionary rule is in operation. No longer must unlawful police action go undetected or undeterred. Now there are internal review and disciplinary procedures in police departments. No longer must patterns

72 ACT Government, Submission No.2, Appendix, available at

http://www.legassembly.act.gov.au/downloads/submissions/Sub%2002.%20ACT%20Government.pdf 73 ACT Government, Submission No.2, pp.8-9. 74 ACT Government, Submission No.2, p.9 [p.45 of Police Powers Discussion Paper No.2].

http://www.legassembly.act.gov.au/downloads/submissions/Sub%2002.%20ACT%20Government.pdf


of police misconduct go unchecked. Now, civil remedies and injunctions are available.75

3.25 Another case from US state courts, in this instance from California, People v Curtis (1969) was cited by the Discussion Paper. This judgement stated that:

In a day when police are armed with lethal and chemical weapons, and possess scientific communication and detection devices readily available for use, it has become highly unlikely that a suspect, using reasonable force, can escape from or effectively deter an arrest, whether lawful or unlawful. His accomplishment is generally limited to temporary evasion, merely rendering the officer's task more difficult or prolonged. Thus self-help as a practical remedy is anachronistic, whatever may have been [its] original justification or efficacy in an era when the common law doctrine permitting resistance evolved.76

3.26 The extract from the Discussion Paper summed-up these arguments in the following way:

After considering the reasons underpinning the common law rule, on balance, the American jurisprudence is persuasive when it finds that the rule is an antiquated and no longer has any place in modern day society.

Where a person believes that their arrest is unlawful, the current rule may embolden the arrestee, who is likely suffering from a misapprehension as to the lawfulness of their arrest, to settle their grievance through violence, in the street, directed at the police. Where a person does resist arrest the police will, in all likelihood, respond with a greater measure of force. In such circumstances, there is a real danger for events to quickly escalate, with there being a considerable risk of serious injury, or in extreme cases, death, to the arrestee, police, or innocent bystanders.

A rule which may foster such risks is intolerable in a modern and civilised society where other reliable means of redress are open to a

75 [*Check citation*] Wisconsin v· Hobson (1998) 218 Wis.2d 350, cited in ACT Government, Submission

No.2, p.10. [p.46 of Police Powers Discussion Paper No.2]. 76 People v Curtis (1969) 70 Cal.2d 347, cited in ACT Government, Submission No.2, p.11. [p.47 of Police

Powers Discussion Paper No.2].


2 5

person aggrieved by their arrest. Such remedies include civil actions for negligence, assault and battery, judicial review, the exclusion of unlawfully obtained evidence, and complaints to the Professional Standards Unit in the AFP and the Ombudsman. Accordingly, it is recommended that the rule that a person may use force to resist an unlawful arrest by a police officer be abolished.77

Government view on creating a specific offence

3.27 In its submission the ACT Government responded to proposals which had been made by some witnesses for a specific offence for assaulting police.

3.28 It advised the Committee that it was not favourably disposed toward creating such an offence, as had been proposed by both the CPO and the AFPA:

Creating a specific offence of assaulting a police officer may raise a number of issues for the ACT. The primary issue, as indicated above with respect to the Opposition Bill, is that any effect flowing from the introduction of a specific offence is dependent on first addressing the issue of self-defence being raised where a police officer is acting in good faith. Successful prosecution of any offence committed against police officers will not occur otherwise.78

3.29 Rather, the Attorney-General told the Committee, in hearings:

The government’s response on that issue is to provide for a special consideration at sentencing for vulnerable, at-risk occupations. The government bill, the bill before the committee currently, amends section 33 of the Crimes (Sentencing) Act to include a requirement for a sentencing court to give special consideration to whether the victim of an assault was in a vulnerable or at-risk occupation. That includes police but it also includes other people carrying out public duties— ambulance officers, care and protection workers, health staff.79

77 ACT Government, Submission No.2, p.11. [p.47 of Police Powers Discussion Paper No.2]. 78 ACT Government, Submission No.2, p.5. 79 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.9.


3.30 He went on to say that:

The government bill seeks to ensure that in giving consideration to the sentence that is imposed where an offence is proven, the special occupational vulnerability of a worker is taken into account—that is, they were more vulnerable because they had to engage with this person, either because of their duties as a police officer or because they were seeking to care for them as a paramedic or a nurse, for example. Therefore the sentence that is imposed should be commensurate with that particular vulnerability.80

3.31 ‘Nevertheless’, the Attorney advised the Committee in his submission:

I have written to police ministers seeking their views on the effectiveness of the methods they have adopted to address this issue, to ensure that all possible avenues are considered.81

AFPA

3.32 When the President of the AFPA appeared in hearings, he told the Committee that his organisation took a favourable view of the Crimes Legislation Amendment Bill 2011 (and the Crimes (Offences Against Police) Amendment Bill 2012) because:

the AFPA supports any initiative which attempts to deter violent assaults and other offences against police in the course of their duties. We strongly support a bipartisan approach to ensure that both important legislative reforms occur in a timely fashion. Legislation such as what is proposed will bring the ACT more in line with other jurisdictions which already have appropriate laws relating to offences against police officers.82

80 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.9. 81 ACT Government, Submission No.2, p.5. 82 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.26.


2 7

3.33 The President told the Committee that the most important aspect of the Bill was deterrence:

The AFPA believes strongly that one central facet of our legal system is to dissuade potential offenders from offending by way of the punishment administered for a particular offence. The role of deterrence is twofold. The greater the perceived certainty and severity of punishment, the less crime will occur, and the greater the actual certainty and severity of punishment, the less crime will occur. We believe that both proposed pieces of legislation go quite some way in achieving the two mentioned forms of deterrence—if you like, a proactive and a reactive situation.83

3.34 Despite this support, he told the Committee that the AFPA believed that neither Bill ‘goes far enough in addressing the threat of assault which currently exists to our members’.84 Rather, he told the Committee:

We strongly support the implementation of a specific offence of assaulting a police officer in the execution of his or her duties as an officer of the Crown.85

3.35 An alternative, he told the Committee was to ‘encourage the Attorney-General to amend the current position’:

to enable Australian Federal Police officers to charge an offender for causing harm to a public official, being a law enforcement officer, under section 147 of the Criminal Code 1995, which has been the case until quite recently.86

3.36 Speaking specifically about the Crimes Legislation Amendment Bill 2011, the President told the Committee that:

The Crimes Legislation Amendment Bill 2011, we believe, is an excellent bill that needs to be introduced. We support the government in ensuring that an offender will no longer be able to rely upon the argument of self-

83 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.26. See also AFPA, Submission No.3, p.2. 84 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.26. 85 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.26. 86 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.26 and see also AFPA, Submission No.3,

pp.2-3.


defence when they have acted violently towards an officer of the Crown who has acted in good faith in direct execution of their duties.87


The AFPA has been concerned about the significant loophole in the legislation in the ACT which may allow offenders to violently retaliate against police officers who are executing their lawful duties and acting in good faith during an arrest. It is almost outrageous to consider the premise that an offender may circumvent a lawful arrest and actually assault a police officer in the process. Such a loophole poses a significant threat to our members and also may serve to encourage offenders to actually utilise force during an otherwise lawful arrest.88

3.38 In summary, the President told the Committee that in relation to the Crimes Legislation Amendment Bill:

Although the AFPA supports the closure of this loophole and strongly supports the government’s legislation, the AFPA does not believe this bill goes far enough in addressing or deterring the threat of violence against officers of the Crown. The AFPA urges the government to reconsider the drafting and passage of legislation to acknowledge a specific crime of assaulting a police officer of the Crown.89

3.39 In its submission to the inquiry the AFPA argued that without the specific offence there was in its view still an inadequate framework for deterring assaults on police.

3.40 There were two elements to this.

3.41 First, in the view of the AFPA, the present legislative framework in the ACT provided offenders with ‘little-to-no additional legal deterrent against assaulting an Officer’.90

87 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.27. 88 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.27. 89 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.27. See also AFPA, Submission No.3, p.5. 90 AFPA, Submission No.3, p.9.


2 9

3.42 Second, and as discussed earlier in this report, there were operational and OH&S implications in that:

though an individual may be a repeat offender and may possess a propensity for assaulting police, a crucial piece of operational safety intelligence (Where possible, police conduct criminal history checks and -safety alerts prior to approaching offenders) is missing due to the removal [of] the specific offence.91

3.43 The AFPA’s recommendation in relation to the Crimes Legislation Amendment Bill 2011 was that Bill should be supported.92

Law Society

3.44 When the ACT Law Society appeared in public hearings, it divided its remarks between clauses 4, 6 and 7 of the Crimes Legislation Amendment Bill, seeking to limit self-defence arguments that could be made on behalf of defendants, and clause 5, seeking to ensure that the occupation of the assaulted person is taken into account during sentencing.

Concerns

3.45 In relation to clauses 4, 6 and 7 of the Bill, the Society told the Committee that it had ‘significant concerns in relation to the proposed amendments’.93

3.46 First, it was concerned about the legal and precedential basis for the Bill. It told the Committee that the Attorney-General had, in his presentation speech for the Bill, referenced only one case, and that case was ‘not sufficiently delineated’ to allow the case to be identified ‘with certainty’. It also noted that the case which appeared to be in question supported other conclusions than those drawn by the Attorney, and that this alternative view would be outlined later in the hearing by the ACT Bar Association.94

91 AFPA, Submission No.3, p.9. 92 AFPA, Submission No.3, p.5. 93 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.15. 94 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.15.


3.47 Second, it stated its concern, regarding self-defence, that it should not be regarded as a ‘legal loophole’.95 Rather:

It is a substantive legal right. It should be treated in that fashion and, therefore, extreme caution should be exercised when amending that right.96

Legal powers and characteristics of arrest

3.48 In presenting its views on the Bill in public hearings, the Society described the legal characteristics of arrest which, it argued, had implications for the how the Crimes Legislation Amendment Bill 2011 should be regarded.

3.49 It told the Committee that ‘the actions that constitute an arrest … would, but for the legislative powers of arrest, actually be unlawful acts’:97

The application of force, the restraint of a person, which are necessary ingredients of any arrest—to differing degrees, obviously, depending on circumstance—themselves, in essence, are unlawful acts, but they are legalised for police to use them for the purpose of arrest.98

3.50 Moreover, it argued:

That being the case, police always need to be cognisant—and the legal system should be such—of that considerable power that they are given, and it needs to be exercised responsibly.99

Conditions for legal arrest

3.51 The Society also noted that arrest could only take place within a narrowly-defined set of parameters if it were to be, in fact, a legal arrest:

When you look at arrest, custodial impositions by the court are the last resort. You cannot jail somebody unless that is the last resort. Arrest fulfils a similar function. Arrest can only take place where that is the

95 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 96 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 97 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 98 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 99 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16.


3 1

resort that has to take place in relation to the administration of justice. So an arrest is a lawful circumstance by which you can deprive of liberty and it can only occur under fairly confined circumstances. It ought not be used except in those confined circumstances but it does get used outside those confined circumstances.100

3.52 It went on to say that this point had been underscored by the behaviour of police, in practice, in the ACT:

We understand that [arrest does get used outside those confined circumstances] because repeatedly the territory courts have identified police arresting people under circumstances where they could not do so, where they ought not to have done so. That, usually, is not to say that the police were malicious in their conduct. Usually it is accepted that there was good faith on the part of the police officer. But the law simply did not justify the arrest taking place.101

3.53 In day-to-day life, it argued:

We are in a circumstance where there are narrow grounds to arrest, frequently arrests occur outside those narrow grounds, and not for reasons of bad faith.102

3.54 As a result the Society’s view was that self-defence was an important avenue of defence, and should not be considered a ‘technical problem’,103 because:

to talk about an arrest as a technical problem is not to comprehend how serious it is to arrest somebody outside those narrow grounds.104

Reasonable grounds for the defence

3.55 The Society stated that it would be concerned if, as a result of the passage of the Bill people could not ‘rely on self-defence where there are reasonable

100 Mr Gill, Transcript of Evidence, 4 April 2012, p.17. 101 Mr Gill, Transcript of Evidence, 4 April 2012, p.17. 102 Mr Gill, Transcript of Evidence, 4 April 2012, p.17. 103 Mr Gill, Transcript of Evidence, 4 April 2012, p.17. 104 Mr Gill, Transcript of Evidence, 4 April 2012, p.17.


grounds’. It went on to say that reasonable grounds was ‘the key’ to present legal arrangements:

under the tests for self-defence there need to be found to be reasonable grounds in an objective sense, as assessed by a magistrate, judge or jury, before a person will be able to successfully rely on that to avoid criminal prosecution.105

3.56 Regarding this, the Society told the Committee that:

We do not feel there is a need to moderate that further where it is already the case that the court, the finder of fact—whether that be a jury or a judge or magistrate in a particular case—needs to be satisfied there are reasonable grounds for the belief of an accused or a defendant before they could actually rely upon self-defence in respect of an arrest, and successfully rely on that, to avoid criminal prosecution.106

3.57 It also described to the Committee a scenario in which, if the Bill were passed into law, actions which the Society thought reasonable, in terms of assisting other people under threat of arrest, would be rendered criminal.107

Infrequent resort to the defence

3.58 The Society told the Committee that self-defence was ‘not a claim that is frequently made’, 108 and in particular because:

If one looks at the court process, it is a very difficult thing to say that you are behaving reasonably when you physically resist a police officer in self- defence. It is.109

3.59 It was ‘axiomatically difficult to say that I needed to use force to protect myself from someone who is clearly executing their lawful duty’.110 As a result, it was:

only under rare circumstances that a decision maker will say, “Yes, on

105 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 106 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 107 Mr Gill, Transcript of Evidence, 4 April 2012, pp.17-18. 108 Mr Gill, Transcript of Evidence, 4 April 2012, p.19. 109 Mr Gill, Transcript of Evidence, 4 April 2012, p.19. 110 Mr Gill, Transcript of Evidence, 4 April 2012, p.19.


3 3

the circumstances that you perceived it was reasonable to resist that uniformed police officer”.111

An unnecessary change

3.60 On the basis of these two propositions—that resort to such a defence is rare, and that successfully employing such a defence is even less common, the Society argued that the change encapsulated in the first part of the Bill was ‘not a necessary change’. There was no excess of failed prosecutions created by the theoretical availability of the defence which would require legislative changes to be made.112

Other remedies

3.61 As noted in the context of its submission to the inquiry, the Government’s arguments in favour of the Bill were in part based on the view that the original conditions which gave rise to the defence now no longer applied. The Government argued that there were now other remedies available to defendants, including bail, civil actions and appeals to accountability mechanisms, which make physical self-defence in the face of an arrest unnecessary.113

3.62 In hearings, the Society was concerned to rebut these propositions.

3.63 First, with regard to Bail, the Society argued that the circumstances of an unlawful arrest were very unlikely to be considered at a bail hearing:

The issue there is that at a bail hearing the evidence of the police and the statement of facts in relation to a matter are accepted as being true for the purposes of the bail determination. It is almost inevitable that that statement of facts will, on its face, disclose a lawful arrest. It is very uncommon that they will, on the face of the police’s own statement of facts, disclose the matters which may later be found to be the cause of the arrest being determined to be unlawful. So it is for that reason as much as

111 Mr Gill, Transcript of Evidence, 4 April 2012, p.19. 112 Mr Gill, Transcript of Evidence, 4 April 2012, p.19. 113 ACT Government, Submission No.2, Appendix 1, pp.9-10 (pp.45-46 of excerpted review report on

police powers).


any other that, when a bail hearing is conducted, where the prosecution evidence is essentially taken at its highest for the purpose of determining whether a person should or should not have liberty, the police assertions are not looked behind.114

3.64 During such proceedings it was ‘very uncommon, if at all, that the police assert their own actions to have been unlawful’.115 Rather, they ‘present them in a [certain] way’ and the police ‘statement of facts’ is, ‘necessarily’,116 accepted:

Bail courts are busy places and they do not have time, and that is why magistrates and judges defer the digging-in, the assessment and the presentation of conflicting evidence about that until the hearing or the trial. For that reason it just gets accepted at that stage and, as I say, it is very unlikely and improbable that the police will actually present a statement of facts that discloses unlawfulness to their actions.117

3.65 Rather, the Society told the Committee the question of the legality of an arrest was usually a matter that would:

ultimately be reserved for the final hearing of the matter, whether that be a hearing in the Magistrates Court approximately four to six months later or whether that be a criminal trial considerably further away than that.118

3.66 Second, the Society told the Committee that seeking civil damages was unlikely to be a satisfactory remedy for unlawful arrest:

The other issue is that, in respect of civil damages being available if it is an unlawful arrest, it seems to the society somewhat strange that we could have a situation where a person is criminally convicted for their actions because they are not allowed to rely on self-defence even though

114 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, pp.23-24. 115 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.24. 116 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.24. 117 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.24. 118 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16.


3 5

their actions have been assessed to be a reasonable response to an unlawful arrest and they have taken them in response to that.119

3.67 The result was that defendants could be placed in an anomalous position, that is:

denied the opportunity to rely on self-defence, and thereby be found guilty, yet at some later stage be awarded civil damages, some monetary sum, to represent the inconvenience, pain and suffering and the like that was suffered to them as a result of the illegality. That is a significant concern. The person would still be left in that scenario with a criminal conviction, with that criminal mark against their name. That is something which should not be taken lightly.120

The ‘trifecta’

3.68 In portraying the potentially problematic nature of arrests, and warning against placing too great a reliance on an expectation that police would always behave correctly, the Society highlighted a practice it said was ‘known to legal practitioners’ as ‘the trifecta’:

The trifecta is where somebody comes before the court, they are charged with resist police, assault police and offensive language to police in the course of the arrest, but not facing a substantive charge. So all of that has come out of the interaction with the police and the person has ended up in custody under those circumstances when ultimately there is no primary charge.121

3.69 The Society told the Committee that this confirmed the fact that arrests were ‘not a pristine area of policing’. In its view the legal boundaries of arrest were ‘trampled over’ frequently, of which the ‘trifecta’ was one example. This was in its view strong grounds for objecting to the proposals in clauses 4, 6 and 7 of the Bill.122

119 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 120 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.16. 121 Mr Gill, Transcript of Evidence, 4 April 2012, p.17. 122 Mr Gill, Transcript of Evidence, 4 April 2012, p.17.


Clause 5 of the Bill

3.70 As noted, clause 5 of the Bill seeks to mandate that the official role of police suffering assaults will be taken into account during sentencing. In relation to this, the Society told the Committee that already it was:

the experience of practitioners that, where police or ambulance officers or other public officials as categorised in that proposed amendment are the victims of assaults and similar, magistrates and judges routinely take that into account as an aggravating factor in relation to sentences that are handed out.123

3.71 The Society said that it adopted ‘a relatively neutral position’124 in relation to this part of the Bill, and it went on to say that:

We are just making the observation that it does seem to already be playing out as a factor— and it is always an aggravating factor—in relation to sentences for people who commit offences, most commonly assaults and the like, against people in those categories.125

3.72 That being the case, the Society told the Committee, from its point of view there did not:

seem a great deal of difference that would be made in a practical sense to having [the victim’s official role considered in sentencing] either, so we do not see any particular harm that needs to be guarded against by not including it.126

Australian Lawyers Alliance

3.73 When the Australian Lawyers Alliance appeared before the Committee in hearings, its representative told the Committee that the Alliance concurred with the views expressed in the submission of the ACT Bar Association. The Alliance presented other views that are considered below.

123 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.15. 124 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.15. 125 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.15. 126 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.15.


3 7

Clauses 4, 6 and 7

Initial comments

3.74 In relation to the alterations to self-defence proposed in the Bill, the Alliance’s representative told the Committee that in its view clauses 4, 6 and 7 of the Bill would not ‘make any impact’ on offenders in real-world scenarios.127

3.75 These provisions would ‘not increase the protection for police’, and would not give them more powers, ‘but it certainly has the potential to make them less accountable’.128 This was because ‘a lack of honest belief is not the same as acting unreasonably’.129

Status of self-defence

3.76 The Alliance told the Committee that current avenues through which defendants might argue self-defence were significantly constrained in practice. Arguments in court regarding self-defence during arrest were subject to particular criteria:

On self-defence, even if you have been arrested unlawfully it does not give you the right to belt somebody, necessarily. It is still an assault. It still has to be proportionate, reasonable and … objective.130

Status of ‘honest belief’

3.77 The Alliance told the Committee that it had concerns with provisions in the Bill relating to ‘honest belief’ on the part of arresting police, and suggested ways this could play-out in day to day scenarios. It told the Committee that the Bill would empower police to apprehend ‘persons of interest’ with less cause so long as the officers involved held such an honest belief as to their powers and objectives.131

127 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39. 128 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39. 129 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39. 130 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 131 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53.


3.78 In relation to this, it told the Committee that:

Under this legislation, this person has no right to take any action against this sort of conduct by the police, because the poor constable has got an honest belief. There is no incentive for rigorous training because they just have to have an honest belief. Good faith or bad faith is a very hard test to meet.132

3.79 Conversely, the Alliance said, such changes would make it difficult to mount defence arguments against the conduct of police, needing as they would to show ‘dishonest belief’ on the part of police.133 It went on to observe that those ‘sorts of things would happen’ in real-life.134

Inadequacy of other remedies

3.80 The Alliance sought to counter arguments by the ACT Government that there were other remedies available to persons who were subject to illegal arrest. As noted above, the Government had argued that these, including bail hearings, civil suits and police accountability mechanisms had made self-defence a redundant avenue.135

Bail hearings

3.81 The ACT Government submission had suggested that ‘police bail’ was among the contemporary measures which could mitigate unlawful arrests.136

3.82 The Alliance, however, told the Committee that bail hearings in courts would not provide relief:

the Magistrates Court does not go into the defendant saying, “They unlawfully arrested me.” The Magistrates Court says: “You get bail,” or “You do not get bail. I haven’t got time to decide whether this was a

132 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 133 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 134 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 135 ACT Government, Submission No.2, pp.2, 11 [p.47 of Police Powers Discussion Paper No.2]. 136 ACT Government, Submission No.2, p.2.


3 9

lawful arrest or an unlawful arrest.” Those issues of the appropriateness of what happened do not get resolved.137

3.83 This was consistent with other views put to the Committee about bail hearings. The ACT Bar Association also told the Committee that:

Whether the arrest was unlawful or whether there was self-defence will never be raised at the bail application time.138

3.84 Moreover, the Lawyers Alliance contended that the lack of time would militate against such arguments for most defendants in this position:

there is no way on earth they are going to be able, at that stage, to have seen any footage, to look at any police statements, and all the magistrate is concerned with is the charge and other criteria can go to the bar. 139

Civil actions and accountability mechanisms

3.85 In relation to other remedies, such as civil actions and appeals to accountability mechanisms, the Alliance told the Committee that:

People who are usually the subject of this in all of these situations are not people necessarily with the resources to go to the Ombudsman or to bring a civil suit or to take the other remedies the attorney has suggested would still be available to them.140

3.86 In particular:

a lot of them will be people labouring under addictions or mental health issues who simply would have no ability to assert any right if they were the subject of this type of conduct, whether or not they defended themselves.141

3.87 The Alliance told the Committee that these factors had significance for the balance of power between police and members of the community.142

137 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 138 Mr Pappas, Transcript of Evidence, 4 April 2012, p.54. 139 Mr Pappas, Transcript of Evidence, 4 April 2012, p.54. 140 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 141 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53. 142 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.53.


Statistical arguments

3.88 During hearings the Alliance also responded to arguments made by the AFPA in favour of the Bill or of creating a specific offence of assault against police. As noted above, the AFPA argued that were statistical and operational reasons for pursuing these changes, in that they would create a better information stream on offenders known for assaulting police and that this would help police to be better prepared when making an approach.

3.89 However, said the Alliance:

All of us here, I suspect, have had some familiarity over the years with the police systems, PROMIS and the computer systems, and know that they already record these sorts of things. You do not need a criminal record before the dispatch caller sending somebody to 1 Smith Street Giralang will say, “There’s an alert on this residence”—or “this person”—“for this, that or the other.” They may never have been to court in their life, but they will have that intelligence and be given a heads-up.143

3.90 The Alliance took the view that in light of these systems already in place, this was ‘not an appropriate reason for making changes’ which constituted ‘a fundamental erosion of the right to … liberty’.144

Clause 5 of the Bill

3.91 The Alliance spoke to the Committee about clause 5 of the Bill, which requires judges to take into account, during sentencing, the professional role of the victim where that role increases the risk of being exposed to assault.

3.92 In relation to this provision, it told the Committee that it did not ‘have any particular difficulty with the new section 33(1)(ga), which effectively sets out what is current sentencing practice’:

If a particularly vulnerable member of the community is the subject of an offence of violence, the court will take that into account. If it is a child, if

143 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39. 144 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39.


4 1

it is an elderly person, if the victim is a check-out operator at an all-night supermarket or service station and subject to armed robbery, the courts recognise these as vulnerable people who need protection. So the sentence for the offence needs to be taken into account.145

3.93 A possible virtue of the proposed section was that it made these practices more explicit. This could as a result be:

promulgated to the public quite clearly, that “If you assault these people, if you do these things, you will be subject to a higher penalty.”146

3.94 However, on balance the Alliance considered that these provisions were not necessary ‘because the existing law already has mechanisms in place to deal with all of these matters’.147 It provided an illustration of how this worked in practice:

The last person that I can think of who was sentenced to life imprisonment for murder was David Eastman. He murdered the assistant commissioner of police—and that was a significant factor in putting the seriousness of that offence into the scale.

3.95 In that instance, it told the Committee:

We did not need a special law or a special aggravated offence because the victim was a police officer to provide for that more elevated form of sentencing.148

ACT Bar Association

3.96 When the ACT Bar Association appeared at the Committee’s public hearing it spoke about the:

basis of the right to freedom from unlawful arrest;

extent to which legal defences based on self-defence can be considered ‘technicalities’;

145 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39. 146 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.39. 147 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.40. 148 Mr Whybrow, Transcript of Evidence, 4 April 2012, pp.39-40.


frequency with which self-defence arguments were resorted to in cases where assaults on police were alleged; and

the effects of the Bill, if it were passed into law, both in a legal sense and its effect on the relationship between police and residents of the ACT.


Basis of the right to freedom from unlawful arrest

3.98 The Bar Association described the legal basis for the right to freedom from unlawful arrest.

3.99 First, it said that ‘the thesis on which our whole system of law works is that you start free at liberty’. As a result, ‘anybody who attempts to constrain your liberty must show lawful authority in order to be able to do so’.149

3.100 There were considerable legal foundations for this presumption stemming, in the first place, from the Magna Carta:

The Magna Carta was signed in 1215. It was enacted into statute in 1297, the following part of which remains on the statute books of the ACT today. “No freeman shall be taken or imprisoned, or disseised of his freehold, liberties or free customs ... but by the lawful judgment of his equals, or by the law of the land.”150

3.101 This was, the submission said, ‘reiterated in the Petition of Right to Charles 1 in 1628’,151 which stated that:

no man of what estate or condition he be, should be put out of his land or tenements, not taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law.152

3.102 The submission noted that the Explanatory Statement for the Bill attributed the origins of the right to resist arrest to 17th century England. It said that this was not so, and that in fact:

149 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 150 ACT Bar Association, Submission No.4, p.2. 151 ACT Bar Association, Submission No.4, p.2. 152 ACT Bar Association, Submission No.4, p.2.


4 3

Self-defence has a much older pedigree and this is not its weakness - it is its strength. Our citizens are not given liberty by their government which may be taken away if a government does not think some aspect of it is justified. Liberty is our citizens' birthright. It is fundamental principle that absent legal authority, a person is entitled to maintain his liberty. Our most fundamental constitutional documents protect citizens from arbitrary arrest by state officers. Arbitrary arrest is unlawful and a free person is entitled to resist unlawful intrusions upon his person.153

3.103 In support of this view, the submission also quoted from a more recent source, the judgement of Deane J in Donaldson v Donaldson (1982):

Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny.154

3.104 Second, the submission noted the relevance of the doctrine of the rule of law. Speaking of this, it said that a ‘fundamental proposition of our law’155 was that ‘you do not get any special treatment because you happen to be officialdom’:

Governments are bound by law just as much as citizens are. You do not have any special entitlement to disobey the law and trample on people’s rights and liberties just because you happen to be an official of the state. Those are matters which ought to be considered in any such debate of this kind.156

3.105 It noted that this principle ‘constrains public and private actions alike’. As a result, there was no ‘special entitlement’ to ‘interfere with citizens … merely because a person is an employee of the state’.157

153 ACT Bar Association, Submission No.4, p.2. 154 Deane J in Donaldson v Donaldson (1982) 60 FLR 124, 1226. 155 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 156 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 157 ACT Bar Association, Submission No.4, pp.1-2.


Contrast with the orientation of the Bill

3.106 The Bar Association advised the Committee that, contrary to these principles, and in particular the principle of the rule of law, the Crimes Legislation Amendment Bill 2011 proposed ‘special entitlements’, which if enacted would allow ‘police alone’ to act ‘contrary to law’. As a result, ‘people who [defended] themselves in the face of that illegal action [would] be punished’.158

3.107 It also advised the Committee that it was concerned that the report of the review of police powers did not ‘set out’ the rule of law as a fundamental principle, and did not ‘explain why an exception to this principle’ was warranted.159

Perceptions of the defence as a ‘technicality’

3.108 In view of the historical foundations it described for a right to resist unlawful arrest, the Bar Association disagreed with statements, made by the ACT Government, which it described self-defence as a defence against charges of assaulting police as a ‘technicality’. It raised a number of objections on this point.

3.109 First, the Bar Association was critical of the fact that, in its view, the material prepared by the Directorate in support of the Bill ‘variously presented’ self-defence ‘as if it was a loophole or that is was some particular defence the justification for which had run out’.160

3.110 Second, it suggested that while the Attorney-General had ‘regularly’ referred, in his testimony to the Committee, to ‘people getting off on a technicality’,161 there was:

never an explanation as to exactly what this technicality or these technicalities were which were supposed to see people escape conviction for assaulting police.162

158 ACT Bar Association, Submission No.4, p.2. 159 ACT Bar Association, Submission No.4, pp.1-2. 160 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 161 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 162 Mr Walker, Transcript of Evidence, 4 April 2012, p.40.


4 5

3.111 Third, seeking to rebut this point, it said that:

In some instances these things are not terribly technical at all; just deciding to arrest somebody without even considering whether they have committed an offence, more out of venting of the spleen, makes the arrest unlawful. That is not a technicality. The elementary requirement that you should consider whether somebody can be brought to court by a summons rather than arrest is not terribly technical.163

3.112 Fourth, seeking to clarify the status of self-defence in legal proceedings, it advised the Committee that successful arguments of self-defence precluded, rather than ameliorated, the charge of assault:

Crimes identify that conduct which ought to be suppressed and which, where it occurs, merits punishment. Self-defence is not a “defence” which is given to defendants who are otherwise guilty of assault. If the self-defence or the defence of another is reasonable, there is no assault. If self-defence is reasonably open, it is fundamental that the prosecution must exclude it for there to be an assault. If it does not do so, the criminal law does not view conduct as meriting punishment.164

3.113 With this in mind, Bar Association went on to suggest that:

If any other member of the community attempted or was thought to be attempting to unlawfully detain a person, a person who acted in self-defence or defence of another would not merit punishment.165

3.114 However, in its view:

The proponents of the Bill do not explain why identical conduct merits punishment if it occurs with respect to police.166

Frequency of use of the defence

3.115 In addition, the Bar Association sought to counter perceptions of self-defence as a ‘technicality’ or ‘loophole’ by suggesting that it was, in practice:

163 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 164 ACT Bar Association, Submission No.4, p.1. 165 ACT Bar Association, Submission No.4, p.1. 166 ACT Bar Association, Submission No.4, p.1.


subject to considerable constraints within the legal framework;

infrequently used in arguments in Court; and

rarely successful.

3.116 These points are considered below.

Defence subject to constraints

3.117 The Bar Association spoke against a view of self-defence as a ‘technicality’ or ‘loophole’ on grounds that in practice it was difficult to succeed in such arguments.

3.118 It noted in a further submission that self-defence, as a defence, could only be sought on ‘reasonable grounds’, as set out by the High Court in Zecevic v DPP (1987) where a two-part test was applied.167

3.119 The first part consisted in:

Whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it or if the jury is left in reasonable doubt about the matter he is entitled to an acquittal.168

3.120 The second part consisted in a definition of ‘reasonableness’:

B. “Reasonableness” arises in three different stages:

(i) There must exist an occasion of self defence in the mind of the accused which was "reasonable" in the circumstances;

(ii) Must be reasonably proportionate i.e. to respond with a knife or gun is not reasonably proportionate to a punch or slap;

(iii) The accused must honestly hold that belief i.e. that self defence was necessary and also it must be objectively reasonable in the circumstances.169

167 Zecevic -v- DPP (1987) 162 CLR 645 168 Zecevic -v- DPP (1987) 162 CLR 645 169 Zecevic -v- DPP (1987) 162 CLR 645


4 7

3.121 As a result of self-defence arguments having to meet these criteria, the Bar Association advised the Committee, it was ‘absolutely wrong to say self-defence is a technicality’:

It is damned hard to succeed on it, and even more difficult when a police officer is involved [and] more difficult than between citizen and citizen.170

3.122 Another representative of the Bar Association agreed that it was ‘very rare to succeed on a self-defence argument’, particularly when the matter concerned ‘on-duty police who are badged and dressed as such’.171

Legal effects of the Bill

3.123 The Bar Association made comment on the effects of the Bill in legal terms.

3.124 It considered these in relation to:

bail hearings;

exposure of information in court; and

questions over the status of ‘good faith’ and ‘honest belief’ under the provisions of the Bill.

3.125 These matters are considered below.

Bail hearings

3.126 With regard to bail hearings the Bar Association suggested that the ‘rationale for the proposed amendment’ was flawed in that it was based on the premise that:

Now, an unlawful arrest results in an accused person spending a matter of hours in custody before being brought before a judicial officer to apply for bail and/ or challenge the lawfulness of their arrest.172

170 Mr Purnell SC, Transcript of Evidence, 4 April 2012, p.44. 171 Mr Pappas, Transcript of Evidence 4 April 2012, p.44. 172 Explanatory Statement quoted in Mr Purnell SC, Submission No.5, p.2. **


3.127 It argued that this was an inaccurate picture of bail hearings:

Applying for bail and challenging the lawfulness of an arrest is not dependent on the future establishing of self defence or of pleading self defence.173

Exposure of information in Court

3.128 In addition, the Bar Association told the Committee that if the Bill were passed it could result in less information being exposed to the Court, to the detriment of the defendant’s case:

if the attorney’s proposals go through, once the police give evidence that they have acted in good faith, if that is accepted by the magistrate then the bench may never see any of this material, because the prosecutor would say it is irrelevant.174

3.129 As a result ‘citizens could be very badly placed in terms of the administration of justice’.175

‘Honest belief’ and ‘good faith’

3.130 The Bar Association advised the Committee that:

What is being proposed will mean that a citizen cannot plead self defence because he reasonably believes the imprisonment (arrest) unlawful whether or not the imprisonment (arrest) was in fact unlawful if the police officer was acting in good faith.176

3.131 It advised that this constituted a significant change in balance between the prosecution and the defence because:

A dishonest belief asserted in an apparently honest fashion is almost impossible to disprove. I can assert to you that I believe in one omnipotent god. I defy you to disprove that. You might look at my lifestyle and say that I never go to church. You might say other things

173 Explanatory Statement quoted in Mr Purnell SC, Submission No.5, p.3. ** 174 Mr Purnell SC, Transcript of Evidence, 4 April 2012, p.51. 175 Mr Purnell SC, Transcript of Evidence, 4 April 2012, p.51. 176 Mr Purnell SC, Submission No.5, p.2.


4 9

about me that tend to suggest that I do not have that honest belief. But how do you prove it?177

3.132 The Bar Association said there was another problem under the terms of the Bill, in that:

honest belief only has to be established on the balance of probabilities. The policeman only has to say, “I honestly believed I had the power,” and he or she can dishonestly make that assertion and it is almost impossible to disprove on the balance of probabilities.178

3.133 This was to argue that the Bill changed the onus of proof, on both police and defendants, in a way that significantly detracted from legal position of defendants.

Scrutiny Committee

3.134 In the present Assembly, the Standing Committee on Justice and Community Safety also performs the duties of a Scrutiny of Bills and Subordinate Legislation Committee, referred to here as the ‘Scrutiny Committee’. Report 47 of the Scrutiny Committee considered the Crimes Legislation Amendment Bill 2011, and the Committee’s comments on the Bill are considered below.

Clauses on self-defence

3.135 As noted above, clauses 4, 6 and 7 of the Bill seek to remove self-defence as an available defence where an assault against a police officer occurs in connection with an unlawful arrest.

3.136 Of this, Scrutiny report 47 stated that:

In simple terms, a person under restraint by a police officer will not be able to plead self-defence where they commit an offence to end an unlawful imprisonment, if the defendant knew, or it is reasonable to

177 Mr Purnell SC, Transcript of Evidence, 4 April 2012, p.54. 178 Mr Purnell SC, Transcript of Evidence, 4 April 2012, p.54.


suppose that the defendant should have known, that the victim is or was a police officer.179

3.137 The Committee observed, in relation to this, that the:

person under restraint must in effect tolerate what they believe is a false imprisonment, and then raise the question of unlawfulness in some other way.180

3.138 The report also stated that this would not be a blanket removal of the defence, and that under other circumstances it could still be available.181

Clause on sentencing

3.139 The Scrutiny Committee also considered clause 5 of the Bill, requiring judges to consider the victim’s occupation during sentencing.

3.140 As previously noted, the Explanatory Statement for the Bill gives an account of the effect of this clause, saying that:

section 33(1)(d) of the Sentencing Act currently allows the court to consider the personal circumstances of any victim of the offence if those circumstances were known to the offender when the offence was committed.

3.141 However this amendment went ‘beyond this section as the defendant does not need to know of the victim’s occupation for the new section to apply’.182

3.142 In its report, the Scrutiny Committee raised concerns about the human rights implications of this clause:

It is … arguable that the right to liberty and security ([Human Rights Act 2004] subsection 18(1)) is engaged. The defendant may receive a more severe punishment (and thus their right to liberty is limited) based on the

179 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills

and Subordinate Legislation Committee), Scrutiny Report No. 47—6 February 2012, p.6. 180 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills


and Subordinate Legislation Committee), Scrutiny Report No. 47—6 February 2012, p.6. 182 Explanatory Statement, Crimes Legislation Amendment Bill 2011, p.7.


5 1

existence of circumstances (that the victim was providing a service to the public etc) of which the defendant was unaware and could not reasonably have been aware.183

3.143 Of this the Committee stated that:

It might be argued that the lack of moral culpability of the defendant is such that it is difficult to justify the limitation of the right.184

3.144 The Committee went on to state that even if it were:

considered that [Human Rights Act 2004] subsection 18(1) is not limited, the argument might be that to punish a person in circumstances where they have no moral culpability is an undue trespass on their personal rights and liberties.185




and Subordinate Legislation Committee), Scrutiny Report No. 47—6 February 2012, p.7.


4 FU RT HER CO N SI DE R AT IO NS

4.1 In addition to the views considered in the previous chapter, contributors to the inquiry paid attention to:

the human rights implications of the Bill; and

the jurisprudence that had been used as a basis and rationale for the Bill.


Human rights implications

4.3 A number of contributors to the inquiry made comment on the Bill’s implications with respect to the Human Rights Act 2004 (ACT).

ACT Government

Hearings and submission

4.4 In its contributions to the inquiry, the Government indicated that clauses in the Bill, relating to self-defence, were likely to engage provisions of the Human Rights Act 2004, in particular those touching on rights to life and to liberty.186

4.5 In view of the requirement, under section 28 (2) of the Human Rights Act 2004, that any limitation of human rights should be reasonable, and made to an appropriate end, the Government stated in public hearings that:

In considering the proposed amendments and preparing advice for the government on the changes to the law on self-defence, we looked at the issue of making certain that the limitation to the rule of self-defence was the minimum necessary for achieving the end that we were seeking to promote, and that is to address the issue of inappropriate assaults on

186 Mr Martin, Transcript of Evidence, 4 April 2012, p.2.


5 3

police where accused persons are of the belief that the arrest was unlawful.187

4.6 As noted earlier in this report, in the Government’s submission the Attorney-General advised the Committee that he had:

closely considered the Bill to ensure that human rights contained in the Human Rights Act 2004 are not unreasonably limited by the proposed law.188

4.7 The Attorney referred the Committee to the Bill’s Explanatory Statement for further details about this.

4.8 The Explanatory Statement is considered below.

Explanatory Statement

4.9 Under the Human Rights Act 2004 a statement is required for all Bills introduced into the Assembly, stating their compliance with the Act.

4.10 In this case the Explanatory Statement also contained detailed comment on the Bill’s implications under the Act.

4.11 The Statement listed the provisions of the Human Rights Act 2004 potentially engaged by the Bill as: section 9, right to life; section 18, right to liberty; section 8 (3), regarding equality before the law; and section 28 (2), setting out criteria for reasonable restrictions on rights.189

4.12 The Statement said that it was unlikely that the Bill’s clauses 4, 6 and 7—regarding self-defence—would engage section 8, ‘Recognition and equality before the law’, subsection 3, of the Human Rights Act, regarding equality before the law, because they were ‘directed toward the enforcement of the law’.190

4.13 In addition, the Statement argued that the other ways the clauses may engage the Human Rights Act 2004 also met the requirements for reasonableness under

187 Mr Martin, Transcript of Evidence, 4 April 2012, p.2. 188 ACT Government, Submission No.2, pp.3-4. 189 Explanatory Statement, Crimes Legislation Amendment Bill 2011, pp.2-3. 190 Explanatory Statement, Crimes Legislation Amendment Bill 2011, p.3.


section 28 (2) of the Act, and that, in relation to section 28 (2)(e), there was no less restrictive alternative means to achieve the same end.191 It also suggested that the limitations of rights proposed under the Bill were reasonable for other rights—section 9 (1), Right to life, and section 18, Right to liberty and security of the person—set out in the Act.192

4.14 For clause 5 of the Bill, requiring that ‘special occupational vulnerability’ of the victim be taken into account at sentencing, the Statement considered the possibility that this may engage ‘equality before the law’ requirements of the Act. However, it considered that they would not be engaged because this provision focused on ‘judges and administrative official’ not ‘acting arbitrarily in enforcing laws’.193

4.15 This was to say that ‘equality before the law’ primarily consisted in the following definition provided in the Statement:

‘Equality before the law’ has been essentially held to mean that judges and administrative officials must not act arbitrarily in enforcing laws.194

Human Rights Commission

4.16 The ACT Human Rights Commissioner took another view from that expressed in the Explanatory Statement. While in her submission to the inquiry she substantially agreed with the Statement on which elements of the Human Rights Act 2004 were engaged by the Bill, her interpretation of ‘equality before the law’ was different.

4.17 This was raised in connection with what she saw as the unequal effect of the Bill on different groups in society. She stated in her submission that:

The Explanatory Statement notes one form of inequality may be the distinction drawn between police exercising arrest powers compared to a private citizen? However, I think the more serious engagement of this right concerns the types of defendants who would be generally unable to

191 Explanatory Statement, Crimes Legislation Amendment Bill 2011, pp.4-5. 192 Explanatory Statement, Crimes Legislation Amendment Bill 2011, pp.4-5, 6-8. 193 Explanatory Statement, Crimes Legislation Amendment Bill 2011, pp.5-6. 194 Explanatory Statement, Crimes Legislation Amendment Bill 2011, p.3.


5 5

plead this defence. The amendments may disproportionately impact on defendants who are more likely to come into contact with police, or be unlawfully detained. The nature of the discrimination in the Bill would be 'indirect' on the basis that the provisions do not seek to directly discriminate on the basis of a particular attribute, but rather imposes a universal condition that has the effect of disadvantaging people because they are at a socio-economic disadvantage.195

4.18 The Commissioner cited legal authority from European Court of Human Rights for this view:

that a measure which disproportionately affects a particular group may be discriminatory, even if not specifically aimed at that group. For example, in DH v Czech Republic the Court suggested that once an applicant had established a rebuttable presumption of indirect discrimination, the onus would shift to the respondent State to justify it.196

4.19 She went on to indicate what sections of the community might be expected to suffer a disproportionate burden as a result of the Bill’s passage:

International and national research suggests that groups more apt to be targeted include Aboriginal and Torres Islander People, poly-drug users/ young people with disabilities, and those with mental illness are more likely to come into contact with the criminal justice. Evidence from the USA also suggests that same-sex attracted young people report higher rates of surveillance and harassment from police. The Human Rights Commission's 2011 Review of the Youth Justice System noted that in the ACT, Aboriginal young people were 35 times more likely to be detained than non-Indigenous young people.197

4.20 In view of this, the Commissioner stated that while she considered that the aim of the Bill to reduce ‘the number and severity of assaults on police’ was important, she asked whether:

195 ACT Human Rights Commission, Submission No. 1, p.2. 196 ACT Human Rights Commission, Submission No. 1, p.2. 197 ACT Human Rights Commission, Submission No. 1, pp.2-3.


the amendment will lead to certain marginalised groups in our community being held criminally responsible for anti-social or other behaviour disproportionately to others, because they are more likely to come to the notice of, and into contact with, police.198

ACT Bar Association

4.21 The ACT Bar Association was critical of the ACT Government’s analysis of the human rights implications of the Bill.

4.22 First, it was critical of the degree to which it considered the provisions of the Human Rights Act were engaged:

Despite the assertion in the Explanatory Memorandum that the Bill “may” limit the right to liberty, it is difficult to see how legislation which makes it a criminal offence to assert the “right to liberty and security of the person” in the face of arbitrary arrest or detention could possibly not offend this provision.199

4.23 Second, it considered that in relation to section 28 of the Act the first subsection had not been considered in arguments. The Bar Association’s submission to the inquiry said of this that:

The critical reference “demonstrably justified in a free and democratic society”, sets the bar. It has been omitted from the analysis. As a result the conclusions drawn are at best questionable.200

4.24 In hearings, the President of the Bar Association noted that:

In the explanatory memorandum, much space is devoted to the consideration of subsection (2)… [and in] fact, in the attorney’s speech to the house, he refers to whether the legislation is reasonable or justifiable.201

198 ACT Human Rights Commission, Submission No. 1, p.3. 199 ACT Bar Association, Submission No.4, p.6. 200 ACT Bar Association, Submission No.4, p.7. 201 Mr Walker, Transcript of Evidence, 4 April 2012, p.42.


5 7

4.25 However, he argued:

Subsection (2) is only an elaboration of the principal section in the Human Rights Act which contemplates abrogation of human rights. That is section 28(1). Section 28(1) gets no mention.202

4.26 The President noted that Section 28(1) of the Human Rights Act 2004 ‘sets the bar as’:

Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.203

4.27 He went on to note the wording of the requirement set out in section 28 (1): ‘

Not justified, not reasonable but demonstrably justified in a free and democratic society.

4.28 In relation to this provision, he stated that:

You will search in vain for a reference to that provision in the explanatory memorandum.204

Jurisprudential basis

4.29 Contributors to the inquiry made significant comment on the jurisprudence quoted to support the Bill. This included cases cited and interpreted in the Explanatory Statement, the Government’s submission, and in the section of the police powers review paper that was provided as an appendix to the submission. It also included opposing views from the ACT Bar Association, ACT Law Society and the Human Rights Commission.


202 Mr Walker, Transcript of Evidence, 4 April 2012, p.42. 203 Mr Walker, Transcript of Evidence, 4 April 2012, p.42. 204 Mr Walker, Transcript of Evidence, 4 April 2012, p.42. See also ACT Bar Association, Submission

No.4, pp.6-7.


ACT Government

4.31 In public hearings the Committee asked the Attorney-General about the jurisprudence used to develop and support the Bill. In particular, it asked why for the most part cases and judgements from the US had been cited rather than those from Australia and other common law jurisdictions closer to those of Australia.205

4.32 In response, the Attorney told the Committee that:

The United States is the jurisdiction where the jurisprudence is the most markedly different from other common law jurisdictions such as the UK or Canada.206


Obviously in addressing this question we always have regard to development in all common law jurisdictions and make judgements about whether or not it is applicable in the territory. In this respect we have had regard to the US jurisprudence.207

4.34 The Attorney stated that this focus on US jurisprudence had not been the result of the Government ‘looking for a justification for a preordained position’, and that the ‘question was genuinely raised’ as a result of discussions in the police powers review:

about whether or not that particular rule was relevant, remained relevant, or was … based on an antiquated notion of the protections available to citizens in these matters.208

4.35 Moreover, the Attorney told the Committee:

In the context of analysing alternative approaches to addressing this question it is simply common sense to look at how other jurisdictions address it and whether or not it is of relevance to the territory.209

205 Transcript of Evidence, 4 April 2012, p.11. 206 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.11. 207 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.11. 208 Mr Corbell, Transcript of Evidence, 4 April 2012, p.13. 209 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.11.


5 9

4.36 In the Attorney’s view, this did not mean that there was:

a bias in favour of looking at one jurisdiction over another; it is simply the logical consequence of scanning developments in other parts of the world to have regard to whether or not a particular reform is appropriate here.210

4.37 The Directorate of Justice and Community Safety was also asked to comment on these matters. The Acting Senior Manager, Legislation and Policy Branch, told the Committee that the ‘jurisprudence and commentary on this issue coming out of the United States is very clear’. Current legislative arrangements in the UK did not ‘really pick up on the issue of [the] unlawfulness of its own of an arrest’, and the relevance of it being a police officer who was the victim of an assault was ‘not as terribly clear’ in the UK as it was in the United States.211

4.38 The Acting Senior Manager went on to say that it was clear ‘from the commentary we have looked at’ that ‘jurisdictions have addressed this issue in a variety of different ways’.212 In relation to Australian jurisdictions, he told the Committee:

Certainly the position … is that they retain the more conventional rule of self-defence which includes an act done in self-defence to an unlawful arrest.213

4.39 However, US commentary had been used because ‘it was very clear and decisive on this’.214

ACT Bar Association

4.40 The ACT Bar Association was critical of the jurisprudence used to support the Bill. This had two elements: the grounding of the Bill in a particular case in the

210 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.11. 211 Mr Martin, Transcript of Evidence, 4 April 2012, p.12. 212 Mr Martin, Transcript of Evidence, 4 April 2012, p.12. 213 Mr Martin, Transcript of Evidence, 4 April 2012, p.12. 214 Mr Martin, Transcript of Evidence, 4 April 2012, p.12.


ACT, and the grounding of the Bill in US case-law rather than that of other common law jurisdictions.

Grounding in ACT case law

4.41 In the first element of these objections, the Bar Association was critical of the implicit grounding of the Bill in the circumstances of a particular case in the ACT Magistrates Court involving Danny Andrew Klobucar. There were a number of objections to the use of the case in this context.

4.42 First, a representative of the Bar Association argued that police had, in statements, misreported the circumstances that had given rise to the case. In this case:

police are said to have taken a fellow without any use of force and, when he arrived at the back of the police vehicle, the man took a female officer in a headlock and wrestled her to the ground.215

4.43 He went on to say that this was ‘simply just not so’. 216 He demonstrated this in the hearing by providing police statements from the case to the Committee, and showing Closed Circuit Television (CCTV) footage which showed significant divergences between the statements and the same events as captured by CCTV cameras. Speaking about this, the representative told the Committee that in his view:

this amendment is predicated … on an assumption—perhaps a fond hope—that police are always honest. In my experience, that is not so.217

4.44 Rather, in his view, it seemed ‘to be a growing trend for police in this territory to be dishonest’.218

4.45 At a later point in the public hearing the representative made the following comment on these matters:

I was very upset to see that the Klobucar case was used as the example for why there was this need for a change to this legislation, when

215 Mr Pappas, Transcript of Evidence, 4 April 2012, p.44. 216 Mr Pappas, Transcript of Evidence, 4 April 2012, p.44. 217 Mr Pappas, Transcript of Evidence, 4 April 2012, p.44. 218 Mr Pappas, Transcript of Evidence, 4 April 2012, p.44.


6 1

demonstrably the police were not acting in good faith. The magistrate at the end of the proceedings invited the prosecutor to effectively offer no further evidence; otherwise she would need to make some very hard findings about the credit of those police. To then see that appear in a presentation speech as a representation of police acting in good faith without any use of force in arresting Mr Klobucar was disturbing, and that is what caused me initially to write to the attorney.219

4.46 He also told the Committee, with reference to the Klobucar case, and protections offered by the Magna Carta (that ‘no free man shall be taken or imprisoned but by lawful judgement of his peers or by the law of the land’) that this was ‘not something that we should lightly overthrow based on a false analysis of a case that was in the scheme of things an unusual case’.220

Grounding in US case law

4.47 As noted, the ACT Bar Association was also critical of the use of cases and legal reasoning from the US to develop and support the Bill. When the President of the Bar Association appeared in public hearings, he described in detail the lead cases used to justify the Bill.

4.48 He told the Committee that in Hobson and Wisconsin the court was constituted in a very different manner than those in Australia, and that the specific circumstances of the case, and ensuing judgement, did not form a suitable basis from which to draw inferences to support the present Bill.221

4.49 The President also spoke about another case cited in support of the Bill, Queen v Kumar, a case from Victoria. He said that the deductions drawn by the Directorate from this case, regarding the status of provocation, were taken out of context of the circumstances that had given rise to the case, and that, again, this placed in doubt whether the case was suitable as a basis for the Bill.222

219 Mr Pappas, Transcript of Evidence, 4 April 2012, p.51. 220 Mr Pappas, Transcript of Evidence, 4 April 2012, p.51. 221 Mr Walker, Transcript of Evidence, 4 April 2012, p.41. 222 Mr Walker, Transcript of Evidence, 4 April 2012, p.42.


4.50 The Bar Association expanded on these views in its submission to the inquiry. Here it suggested, with regard to legal arguments made in the second report of the review of police powers that ‘the strongest criticism of Hobson comes from within the opinion itself’.223 In the judgement, one of the judges had noted that:

there were many states in the United States and the British Commonwealth of Nations which had continued to recognise the right to resist unlawful arrest.224

4.51 The submission considered other US cases cited in the report of the police powers review, suggesting that in each case the deductions drawn in order to support the case for the Bill were taken considerably out of context, to the extent that they could not be considered to be useful foundations for the Bill.225

4.52 As noted, a number of participants in the inquiry raised questions over what was perceived to be a strong reliance, in supporting material for the Bill, on US cases. In response to this, the Bar Association’s submission cited a number of Australian cases which supported views contrary to that adopted in support of the Bill.226

4.53 In relation to this, the Bar Association stated its view that:

Despite this long and clear jurisprudence asserting the importance of personal liberty, the need for lawful authority for any deprivation of liberty, the absence of any special legal authority deriving from government office, this material from our legal system is not mentioned in the discussion paper, the Explanatory Memorandum or the Attorney's presentation speech.227

4.54 In light of this, the President of the Bar Association told the Committee, the material prepared by the Directorate of Justice and Community Safety in

223 ACT Bar Association, Submission No.4, p.4. 224 ACT Bar Association, Submission No.4, p.4. 225 ACT Bar Association, Submission No.4, pp.4-5. 226 These cases included: Trobridge v Hardy (1955) 94 CLR 147; Williams v R (1986) 161 CLR 278; and Re

Bolton; Ex parte Beane (1987) 162 CLR 514. ACT Bar Association, Submission No.4, pp.2-3. 227 ACT Bar Association, Submission No.4, pp.2-3.


6 3

support of the Bill appeared to contain ‘some misconceptions’ and to be ‘a somewhat one-sided presentation of authority on the subject’.228


4.55 The submission of the ACT Human Rights Commission to the inquiry raised two points relevant to these matters.

4.56 First, the submission cited a number of instances of UK case law which showed that there was a consistent thread of common law which created a clear demarcation, in relation to arrest, between the rights of citizens and the powers of the police.229

4.57 Second, the Commission’s submission stated that, so far as it was aware, ‘no common law jurisdiction has removed the defence in this manner, apart from the United States’.230

228 Mr Walker, Transcript of Evidence, 4 April 2012, p.40. 229 ACT Human Rights Commission, Submission No. 1, pp.4-5. 230 ACT Human Rights Commission, Submission No. 1, p.2.


5 C O MMI TTEE COM ME NT

Arguments in favour of the Bill changes to self-

defence

5.1 In its deliberations, the Committee noted the following arguments in support of clauses 4, 6 and 7 of the Bill:

that police are under special threat of assault;

that removing the defence will influence the behaviour of offenders to reduce assaults on police;

that present conventions on self-defence as a defence belong to another era, and that these conventions are an anachronism, a loophole and a technicality in the context of contemporary law, which allows offenders not to be convicted in cases when they should; and

that there are other remedies available under law, such as bail hearings and recourse to accountability institutions such as the Ombudsman’s office, which make the defence redundant.

5.2 In terms of legal reasoning and precedent, the following additional points are made in favour of these clauses:

that there is a reliable and considered body of case law which provides jurisprudence to support this kind of legislative change; and

that other jurisdictions have introduced similar legislative changes.

Arguments against the Bill’s changes to self-

defence

5.3 The Committee also noted the following arguments that had been made against these provisions in the Bill.


6 5

5.4 The Committee notes the following objections in terms of legal reasoning:

that police are indeed exposed to a greater threat of assault by virtue of their occupation, but so are people working in a number of other occupations, and the law already provides for that to be taken into account when assaults occur on victims in these occupations;

that the principle of equality before the law would be deleteriously affected;

that defences in court based on self-defence in this context are rarely made and rarely successful, and so do not represent a significant obstruction to successful prosecutions;

that the right to mount a physical defence against unlawful arrest is not a ‘technicality’ but forms a part of substantive common law legal conventions on rights and freedoms; and

that the majority of case-law in common-law jurisdictions supports the continued availability to defendants of the defence.

5.5 The Committee noted the following objections in terms of legal practice in the Courts:

that the proposed other avenues of bail hearings and appeals to accountability mechanisms would not provide remedies due to procedural elements (in the case of bail) and due to the socio-economic status of defendants, which places them in a less capable position with respect to these instruments;

that these provisions of the Bill would lead to a significant imbalance in the standards of proof required for police and defendants;

5.6 The Committee noted the following objections in relation to the effect of the clauses on police and people who have dealings with police:

that changing the legal constraints on self-defence will not have a deterrent effect on would-be offenders because such assaults are not, for the most part, premeditated and there is little connection between the state of law and the state of mind of the offender at the time;

that the changes will have an unequal and adverse effect on certain sections of society, who are already more likely to have contact with police;

that the propriety of police in matters of arrest can vary from instance to instance; and


that such changes would reduce the incentive for police to act with propriety in matters of arrest.

Arguments in favour of clause 5 of the Bill

5.7 The Committee notes the following arguments in support of clause 5 of the Bill:

that the changes proposed formalise and make more explicit considerations that are already present at law;

that formalising them in this way will act as a further deterrent to potential offenders;

that although the clause would make special provision for persons engaged in certain occupations, it would not contravene principles of ‘equality before the law’ because this refers to decisions made under law (by courts, for example) rather than to legislation.

Arguments made against clause 5

5.8 The Committee notes the following arguments against clause 5:

that the changes that would be made under clause 5 are unnecessary because the law already operates this way under the Crimes (Sentencing) Act 2005, and because this is a known and routine practice in the courts; and

that the changes would further complicate sentencing practice without producing a countervailing benefit.

Discussion

5.9 Although the comments in the Explanatory Statement for the Bill regarding ‘equality before the law’ have been made in connection with clause 5 alone they are, in the Committee’s view, central to questions about this Bill.

5.10 This is because the Bill seeks to elevate protections for one group in society over those of others. In the Committee’s view the proper object of legislation is to strike an effective balance between rights and protections across all of the


6 7

components of society, while attending effectively to practical considerations and addressing problems and anomalies.

5.11 With this in view, the Committee makes the following comments.

5.12 It appears to the Committee that the Explanatory Statement adopts an unnecessarily narrow view of ‘equality before the law’. This interpretation is contrary to the wording and spirit of section 8, ‘Recognition and equality before the law’, of the Human Rights Act 2004, which states that:

(1) Everyone has the right to recognition as a person before the law.

(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.

(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.

5.13 This line of reasoning could, in the view of the Committee, give rise to perceptions of having had recourse to selected sources to support the Bill, which could also arise in connection with the case-law presented in support of the Bill.

5.14 The Committee notes that other accounts of equality before the law in an Australian legal context leave open the interpretation that laws should not discriminate, and not just application of laws by courts, although that is one possible view.231 The Human Rights Commissioner’s comments, in the following chapter, are consistent with a wider interpretation.

5.15 The Committee also notes that the Explanatory Statement places strong reliance on the purpose to which Bill’s clauses are made, as a basis for limiting

231 Thomas Reuters Legal Online, entries under ‘Human Rights – Equality and the Rule of Law’, The

Laws of Australia, in particular the following articles: ‘Legal equality is closely associated with the concept of the rule of law, in both its narrow sense of legality and its broader sense of justice in the content of law’, TLA [21.10.270]; ‘The procedural aspect of the rule of law, often referred to as equality before the law, requires everyone to be treated equally according to whatever law exists’, TLA [21.10.280]; ‘The substantive aspect of the rule of law is often referred to as the equal protection of the laws, or equality in law, and asserts a claim to justice in the content of the law’, TLA [21.10.290]; and ‘Whether the equal protection of the law is an essential part of the concept of the rule of law is still controversial’, TLA [21.10.300], available from http://legalonline.thomson.com.au/tla/resultSummary.jsp?limit=20&tlaTitle=21.10c2d3.


rights, (as per section 28 (2)(b) of the Human Rights Act 2004). In the Committee’s view greater attention to other subsections of section 28 of the Act is warranted, and would be likely to produce a less favourable picture of the human rights implications of the Bill.

Whether the Bill should be supported

5.16 The Committee has had an opportunity through the course of the inquiry to benefit from the various submissions made to it on the merits or otherwise of the Bill.

First part of the Bill

5.17 While the Committee appreciates that the Bill represents an attempt by Government to provide further protections for police, and a greater surety in obtaining convictions, it is not convinced by the arguments made in favour of the Bill.

5.18 With regard to those clauses of the Bill which seek to modify access to self-defence as a defence in court, the Committee finds that the costs and risks represented by implementing these clauses far outweigh the benefits which are claimed for the Bill. On one side of the argument are ancient and respected limitations on the power of the state over the individual citizen. On the other side are operational and safety imperatives which are far from having been over the course of the Committee’s inquiry.

5.19 Further, evidence provided to the Committee regarding the development process and legal reasoning used to generate the Bill prompt the concern of the Committee. In its view the presentation of legal reasoning, both with respect to cases local to the ACT, and in connection with international jurisprudence, appear indeed to be slanted so that they are consistent with the course of action adopted by the Government in this instance.

Second part of the Bill

5.20 In relation to clause 5 of the Bill, which would require that the ‘special vulnerability’ of public officers be taken into account during sentencing, the Committee is persuaded by the submissions made to it that this is a redundant


6 9

provision, already taken into account by ACT Courts. In the Committee’s view it has not been proven, in support of this part of the Bill, that there is any deficiency in current ACT law that would warrant the passage of this part of the Bill.

5.21 In light of the view it holds on both parts of the Bill, the Committee makes the following recommendation.


5.22 The Committee recommends that the Crimes Legislation Amendment Bill 2011 not be supported by the Assembly.


6 C R IM ES (OFFE N CE S AG AIN ST P OL I C E)

AM EN DMENT B I LL 2012

Description of the Bill

6.1 The Crimes (Offences Against Police) Amendment Bill 2012 seeks to amend the Crimes Act 1900 so that aggravated offences would be provided for the various types assault listed in the Act where they had been committed against police officers.232 These include manslaughter, intentionally inflicting grievous bodily harm, wounding and so on, and are specified in clauses 5 to 22 of the Bill. Similar provisions, providing for aggravated offences for different assault offences, currently apply in the ACT for assaults against pregnant women.

6.2 The Bill if passed would change the Act to insert new definitions in section 9A (clause 4 of the Bill) and a new section 48C, ‘Aggravated offences—offences against police officers’, contained in clause 23 of the Bill.

6.3 In clause 23, a new section 48D provides alternative sentences where judges are ‘not satisfied’ that the defendant has committed the aggravated offence.

6.4 The remaining clauses seek to alter notes to sections for the various classes of assault provided for under the Act. Some reference both the existing section 48A, ‘Aggravated offences—offences against pregnant women’ and the new section 48C, on offences against police.

Opposition view

6.5 On 15 February 2012 the Leader of the Opposition spoke to the Assembly on the motion that the Bill be agreed to in principle.

232 The assault offences for which aggravated forms would be made available under the Bill are also

listed in short form in Explanatory Statement, Crimes (Offences Against Police) Amendment Bill 2012, p.8.


7 1

6.6 In his speech, the Leader of the Opposition stated that the Bill addressed ‘a very important and increasingly troubling issue’:

At the outset I want to remind the Assembly what this bill is about. It is about headlines like “Another attack on police” from July last year. It is about revelations that police officers in the ACT are being assaulted at a rate of nearly one a week or situations such as the police officer who was grabbed in a headlock and hit repeatedly. It is about stories like the one entitled “Another weekend attack on police” from last August. It is about saying “enough”. It is about recognising the unique difficulties faced by our police, the extraordinary courage we ask of them and our responsibility to offer exceptional protection for them as recognition of the exceptional protection they provide to the community.233

6.7 The Leader of the Opposition told the Assembly that current laws were ‘not working’, and that they were ‘unworkable or ineffective’.234 Current avenues to prosecute persons assaulting police officers he said were, in the case of offences under Commonwealth law, ‘technically difficult to raise and practically impossible to establish’. Where charges of common assault were laid, these were ‘easier to establish’, but had ‘been shown through precedent and application’ to amount to ‘charges and sentences that are inadequate’. This, he said sent a ‘message that an assault on a police officer is a less serious offence’.235


We do not believe an attack on a police officer doing their duty is a less serious offence. We need to send a message that this Assembly treats assaults on our officers as a very serious offence. This bill does that. It does it reasonably and sensibly and does, I feel, strike the right balance between the message we want to send and the issues that have been previously raised.236

233 Mr Seselja MLA, Legislative Assembly of the ACT, Debates, 15 February 2012, p.138. 234 Mr Seselja MLA, Legislative Assembly of the ACT, Debates, 15 February 2012, p.138. 235 Mr Seselja MLA, Legislative Assembly of the ACT, Debates, 15 February 2012, p.138. 236 Mr Seselja MLA, Legislative Assembly of the ACT, Debates, 15 February 2012, p.138.


ACT Government view

6.9 In its submission to the inquiry, the ACT Government advised the Committee that the Government found the Opposition Bill ‘to be problematic on a number of grounds’.237 Four main objections were raised to the Bill.

6.10 The first objection was that:

any effect flowing from an increase to maximum penalties for offences against police is dependent on first successfully prosecuting such offences. The Opposition Bill is a blunt instrument of punishment for what is a difficult issue faced by police in the field.238

6.11 The submission went on to say that in the Government’s view ‘existing penalties adequately address the most serious examples of offences against the person’. This was particularly so in view of ‘amendments made in late 2011 to the Crimes Act 1900’, in which offences:

including intentionally inflicting grievous bodily harm, recklessly inflicting grievous bodily harm and (negligently) causing grievous bodily harm were all amended to ensure the penalties reflected the seriousness of the criminal behaviour.239

6.12 The second objection was that:

the Opposition Bill places a reverse legal burden of proof (the higher burden) on the defendant who must prove, on the balance of probabilities, that they did not know that the victim was a police officer.240

6.13 The submission suggested that this raised concerns under the provisions of the Human Rights Act:

Such a reverse legal burden on the defendant engages the presumption of innocence in section 22(1) of the Human Rights Act 2004. I am not

237 ACT Government, Submission No.2, p.4. 238 ACT Government, Submission No.2, p.4. 239 ACT Government, Submission No.2, p.4. 240 ACT Government, Submission No.2, p.4.


7 3

satisfied, with reference to the evidence available, that such a provision is reasonably justifiable.241

6.14 The third objection raised dealt with issues of equality in the application of law:

aggravated offences with higher penalties that single out particular classes of victims are generally not appropriate as it suggests that an offence committed against one person is always more serious than if the same offence were committed against another person.242

6.15 This was contrasted with the approach taken in the Crimes Legislation Amendment Bill 2011 which, the submission stated:

retains court discretion as to whether to take the victim's occupational vulnerability into account at all when sentencing. This will depend on the circumstances of each case.243

6.16 The fourth objection to the Bill was that it would not produce the desired outcome. In hearings the Government’s view was presented in the following way:

the opposition bill is founded on the premise that, if you increase the penalty, it will help prevent the incidence of assaults against police. The opposition bill increases the penalties for those offences by making them aggravated offences, and they are about 30 to 40 per cent higher than the current penalties for the basic offence. Certainly, the advice I have is that an increase in the penalty in and of itself is unlikely to have any impact on the incidence of assaults against police …244

AFPA

6.17 In its contributions to the inquiry the Australian Federal Police Association (the AFPA) gave qualified support to the Crimes (Offences Against Police)

241 ACT Government, Submission No.2, pp.4-5. 242 ACT Government, Submission No.2, p.5. 243 ACT Government, Submission No.2, p.5. 244 Mr Corbell MLA, Transcript of Evidence, 4 April 2012, p.8. This objection is also raised in ACT

Government, Submission No.2, p.4.


Amendment Bill 2012. The President of the AFPA told the Committee that his organisation welcomed ‘the intent’ of the Bill:

This bill addresses the very real risk of assault to Australian Federal Police Association members when they are off duty, where an assault occurs as a consequence of or in retaliation for actions undertaken by the officer in the execution of the officer’s duties. We think that is a great improvement. The bill acts as a deterrent for revenge attacks and prevents an offender from attempting to circumvent the effect of the proposed legislation by waiting until the officer is not in uniform or is, indeed, off duty.245

6.18 He told the Committee that the AFPA was, however, concerned about the implications of the reversal of proof contained in the Bill, and stated this may ‘encroach upon section 22(1) of the Human Rights Act 2004’.246

6.19 The AFPA’s submission advised the Committee that this should be amended if the Bill were to be passed into law.247 The submission also stated that although the AFPA viewed the intent of the Bill in a positive light—as it did that of the Government Bill—neither Bill would act ‘as a deterrent for attacks on Police purely due to their status as Officers of the Crown’.248

6.20 In light of this, the submission advised, the AFPA was:

of the opinion that the ACT legislature must seriously consider the creation of a specific offence of Assaulting a Police Officer of the Crown.249

6.21 This would, it said, ‘bring the ACT in line with a host of other jurisdictions within Australia and internationally’.250

6.22 The AFPA also stated that it would support the Bill if the reversal of onus was removed.251

245 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.28. 246 Mr Hunt-Sharman, Transcript of Evidence, 4 April 2012, p.28. 247 AFPA, Submission No.3, pp.7, 8. 248 AFPA, Submission No.3, p.8. 249 AFPA, Submission No.3, p.8. 250 AFPA, Submission No.3, p.8. See also Mr Hunt-Sharman, Transcript of Evidence 4 April 2012, p.28.


7 5

Other views

Chief Police Officer

6.23 When the Committee asked the Chief Police Officer (the CPO) to comment on the Crimes (Offences Against Police) Amendment Bill 2012, he told the Committee he did not believe that the Bill’s ‘increased penalties, particularly in the range of those proposed, would act as a deterrent effect on offenders assaulting police’. 252 He said this was because:

in the vast majority of cases those offences are committed by people in a very spontaneous and impulsive manner. Quite often those people are affected by alcohol, drugs or some emotional disposition which was existent prior to police turning up at the scene.253

6.24 The CPO went on to say that he did not believe that ‘assaults on police in the large majority of cases are premeditated’:

If you take the analogy of looking at capital offences where there are life sentences, and in some countries’ jurisdictions there is the death penalty for capital offences, that still is not a deterrent effect for what are essentially crimes of passion. So whilst there may be some marginal deterrent effect for those offences against police which are premeditated, I do not believe that in real effect, in a pragmatic sense, the increase in penalty will actually reduce the number of assaults on police.254

6.25 The CPO told the Committee that it was his preference that ‘a specific provision for assault police’ be created. One reason for this was for ‘the purposes of collating our statistics’.255

6.26 Currently, he told the Committee:

When a police officer is assaulted, we have a range of statutes under which we can prefer a charge. It may be common assault, it may be

251 AFPA, Submission No.3, p.8. 252 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.8. 253 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.8. 254 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.9. 255 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.10.


assault on a commonwealth official, it may be under the Crimes Act or the Criminal Code of either the ACT or the commonwealth. That disaggregates the specific offence of assaulting police; hence that is our issue in terms of trying to collate the statistics in a viable way, to try and distil out.256

6.27 Under present arrangements:

if we look at a host of charges retrospectively of assaulting a commonwealth official, to delve into which ones of those were police, we would have to do some analytical work around that.257

6.28 The CPO told the Committee that did not believe that ‘if we had a specific assault police offence’ it would ‘totally eradicate that problem’ because ‘police would still potentially charge under other available statutes’. However, it would, ‘over time … help us to collate the statistics a little more easily’.258

Law Society

6.29 The Committee asked the ACT Law Society to comment on the Bill.

Deterrence

6.30 In line with comments made by some other witnesses, the Society took the view that the provisions of the Bill would not deter assaults on police. A representative of the Society told the Committee that:

I do not think a lot of thought is usually occurring when the hinder [of police] takes place, and a consideration of particular penalties is not at the forefront of a person’s mind under those circumstances.259

6.31 He went on to say that, rather:

The practical best deterrent is people thinking they are going to get caught: if they hinder they will get arrested; if they commit some other crime they will be caught. That seems to work as a more effective

256 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.10. 257 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.10. 258 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.10. 259 Mr Gill, Transcript of Evidence, 4 April 2012, p.21.


7 7

deterrent than saying, “We’re going to tack six months onto the theoretical maximum penalty for a particular thing.”260

6.32 In day-to-day criminal cases, he told the Committee:

When it comes to hinder police I think you are right generally that it be categorised as a spur of the moment thing—normally a spur of the moment thing that the person ultimately pleads guilty to and says: “I’m sorry. That was out of line. I ought not to have done that.” That is how the majority of these matters are disposed of.261

Avenues already in law

6.33 The Committee asked whether clauses of the Bill would be useful in relation to more premeditated offences, such as ‘stalking members of families to intimidate’.262 The Society’s representative responded by saying that:

those circumstances would effectively aggravate the offence even without an amendment to the law. So somebody who stalks a police officer, because the police officer’s position is a police officer, will be punished by the courts much more harshly than for a normal stalking event. Somebody who kills a police officer will find themselves at the life end of the spectrum, if they are not already at the life end of the spectrum. So there is a mechanism by which those who regard it as a more heinous form of crime already …263

6.34 As a result, he suggested, it was ‘really a social policy question about whether you bring into effect an aggravated offence provision’, as proposed in the Bill.264

Disadvantages

6.35 The Society told the Committee that there were three potential disadvantages to the changes proposed in the Bill.

260 Mr Gill, Transcript of Evidence, 4 April 2012, p.21. 261 Mr Gill, Transcript of Evidence, 4 April 2012, pp.21-22. 262 Transcript of Evidence, 4 April 2012, p.22. 263 Mr Gill, Transcript of Evidence, 4 April 2012, p.22. 264 Mr Gill, Transcript of Evidence, 4 April 2012, p.22.


6.36 The first of these, the representative told the Committee, was that it added a ‘degree of complexity to the law’. Existing sentencing provisions were already ‘complex and confused’ and, in any case, ‘that sort of matter is taken into account already’. The changes proposed in the Bill would add a further ‘degree of complexity to sentencing law’.265

6.37 A second potential outcome was that defendants may not be sentenced on the basis of the aggravated offence if it were not added to charges at the outset:

once the aggravated offence is there, if it is not charged for whatever reason, or if as part of plea negotiations it becomes an agreed position that a lesser charge is appropriate, if that itself is not an aggravated form of offence, then potentially the fact that the person is a police officer could be precluded from sentencing consideration because of the principles in De Simoni and [this] … means that those aggravating factors become excluded from the sentencing.266

6.38 As a result ‘it could in certain circumstances have the opposite to the desired effect in terms of the sentencing outcome’.267

6.39 A third potential outcome was that:

because more becomes at stake in terms of the potential sentencing range, a matter is less likely to be able to be resolved by way of a guilty plea…268

6.40 The effect of this could be to increase the number of cases where charges were defended (that is, contested rather than resolved through a guilty plea):

because it is definitely a factor; the severity of penalty and seriousness of an offence is reasonably commonly regarded as a factor in terms of rates of defended or not defended. The more serious an offence is, the more likely they are to be defended.269

265 Mr Gill, Transcript of Evidence, 4 April 2012, p.22. 266 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.22. The case referred to is R v De Simoni

(1981) 147 CLR 383. 267 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, pp.22-23. 268 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, pp.22-23. 269 Mr Kukulies-Smith, Transcript of Evidence, 4 April 2012, p.23.


7 9

Lawyers Alliance

6.41 The representative told the Committee that the Lawyers Alliance had ‘some difficulties’ with the Bill because:

It seems to go through every offence where there is an act of violence and add two years to it. There seems to be no rhyme or reason to some of them. For example, pick out the one of stalking. That would cover a police officer having an AVO situation with their neighbour and if they happened to have an incident while the person is on their way to work or on duty…270

6.42 He told the Committee that in fact the penalties for these offences were already ‘reasonably significant’, and the fact that persons convicted of these offences were not usually given the maximum sentence in the range bore out the severity of the penalties. In addition, the particular vulnerability of victims due to occupation was already taken into account under the ‘current range of penalties’.271

6.43 The representative also said that comparisons with aggravated offences which currently apply for assault on a pregnant woman weakened the case for the present Bill:

The fact that there are specific aggravated offences for pregnant women may well be indicative of the fact that we are talking about another potential life here that is being affected, not just the victim. There is consequential damage potentially being caused.272

6.44 He went on to observe that the ‘current sentencing laws allow for all of these things to be taken into account’. The approach taken in the Bill, he told the Committee, would lead to a situation in which there would be ‘interest group after interest group lobbying to say, “We want one too”. ‘The police’, he said,

270 Mr Whybrow, Transcript of Evidence, 4 April 2012, pp.54 271 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.55. 272 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.55.


were an example of this, as they had ‘a powerful association’ and had ‘a strong interest’.273

6.45 The representative told the Committee that in his view the Bill arose from ‘tough on crime type of thing that potentially is able to get votes’. 274 In the view of the Alliance this was ‘the emperor’s new clothes’:

There is nothing to it. It does not achieve anything, other than lead to possible injustice, complication and more work for various of us here as we try to deal with what would be an unjust situation that is unnecessary. 275

ACT Bar Association

6.46 A representative of the ACT Bar Association concurred with the opinion of the Lawyers Alliance. He told the Committee that the Bill was ‘a blunt and ineffective instrument’:

The great unwashed do not think before they act. They do not think, “He’s a policeman and I’m going to be exposed to a further two-year penalty.” It is just a nonsense. It is a bit of window-dressing that does not achieve anything that cannot be and is not achieved by the current legislation.276


6.47 In her account, the Human Rights Commissioner referenced the Scrutiny Committee’s report on the Bill, considered below. She noted that the Committee had found that the:

combination of sub-clauses 48C(3) and (5) of the PM Bill seek to place a legal burden on the defendant to show that they were not aware that the

273 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.55. 274 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.55. 275 Mr Whybrow, Transcript of Evidence, 4 April 2012, p.55. 276 Mr Pappas, Transcript of Evidence, 4 April 2012, p.55.


8 1

victim was a police officer in order to escape the aggravated (but not the simple) offence.277

6.48 She also noted that the Committee had, in view of this, raised the question of:

whether a less restrictive means is reasonably available to achieve the purpose of the limitation, for example to require a defendant to discharge only an evidential burden of proof in relation to the matters of amelioration stated in proposed subclause 48C(3).278

6.49 The Commissioner was critical of the Explanatory Statement in this regard, saying that it offered:

no discussion of why this proposed amendment is a reasonable limitation on the presumption of innocence under s.22 of the HR Act.279

6.50 Regarding this, she commented that without ‘such a discussion it is very difficult to analyse the reasonableness of the proposition’. Moreover, ‘such an analysis’ was:

also hampered by the Explanatory Statement's assumption that if an offence may carry a higher penalty when committed against a pregnant woman, it can equally be reasonably classified as ‘aggravated’ when committed against a police officer.280

Scrutiny Committee

6.51 As noted above, in the present Assembly, the Standing Committee on Justice and Community Safety also performs the duties of a Scrutiny of Bills and Subordinate Legislation Committee, referred to here as the ‘Scrutiny Committee’.

6.52 The Scrutiny Committee considered the Bill in its Report 49 of March 2012.281

277 ACT Human Rights Commission, Submission No. 1, p.9. 278 ACT Human Rights Commission, Submission No. 1, p.9. 279 ACT Human Rights Commission, Submission No. 1, p.9. 280 ACT Human Rights Commission, Submission No. 1, p.9. 281 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills

and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, pp.8-10.


6.53 In the report, the Committee noted that conventionally the prosecution case must first ‘prove beyond reasonable doubt that elements of the simple [that is, not aggravated] offence exist’, and then prove the ‘facts which establish that the offence is “aggravated” ‘.282

Divergence from legal convention

6.54 The Scrutiny Committee stated that the process outlined in the Bill would work in another way from established legal convention, as outlined above.

6.55 The first two stages were relatively conventional:

In the first place, the result of proposed subsections 48C(4) is that the Crown must state in the charge the particular factors of aggravation (as stated in proposed paragraph 48C(3)(a) and paragraph 48C(3)(b)) it alleges exist. Secondly, the Crown must prove beyond reasonable doubt that in the circumstances of the case these factors charged do exist.283

6.56 However, a third element formed a strong contrast with the conventional approach in law:

Thirdly, and contrary to what would normally be the case, proposed paragraph 48C(5)(a) provides that “[i]t is not necessary to prove that the defendant had a fault element in relation to any factor of aggravation”.284

6.57 Of this the Scrutiny Committee observed:

Given paragraph 59(b) of the Criminal Code, the use of the word “proves” results in the defendant being obliged to discharge a legal burden of proof of these matters, although the standard of proof is “on


and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, p.9. 283 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills

and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, p.9. 284 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills

and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, p.9.


8 3

the balance of probabilities”. This provision limits the presumption of innocence, and requires justification.285

6.58 The Scrutiny Committee also noted there was some lessening of this effect due to that of another clause. It said that the ‘effect of proposed paragraph 48C(5)(a) [was] ameliorated by proposed subclause 48C(3)’, which provided that:

However, the offence is not an aggravated offence against a police officer if the defendant proves, on the balance of probabilities, that the defendant did not know, and could not reasonably have known, that the person was a police officer.286

Human rights implications

6.59 The Scrutiny Committee went on to comment on the human rights implications of this limitation of the presumption of innocence:

The effect of proposed paragraph 48C(5)(a) is that the Crown need not prove that the defendant had any knowledge that the victim was a police officer, etc. On the face of it, there thus arises a significant issue concerning the compatibility of proposed paragraph 48C(5)(a) with the presumption of innocence stated in HRA subsection 22(1).287

6.60 The Scrutiny Committee also stated that a ‘human rights issue arises out of the way proposed section 48A makes provision concerning proof of these circumstances’.288

6.61 In light of this the Scrutiny Committee asked whether there was a “less restrictive means reasonably available to achieve the purpose the limitation [to


and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, p.9. ** Add reference to definitions of ‘legal burden’ and ‘evidential burden’ from Criminal Code 2002**

286 Standing Committee on Justice and Community Safety (performing the duties of a Scrutiny of Bills and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, p.9.




the relevant right] seeks to achieve” (as per section 28 (2)(e) of the Human Rights Act 2004). In particular, the Scrutiny Committee asked if it would be:

reasonable to require a defendant to discharge only an evidential burden of proof of the matters of amelioration stated in proposed subclause 48C(3)? 289

Committee comment

6.62 In view of the evidence presented to it over the course of the inquiry, a majority of the Committee considers that the Crimes (Offences Against Police) Amendment Bill 2012 has some significant flaws.

6.63 The majority of the Committee believes that the most important of these is the reversal of the burden of proof, away from the prosecution case and onto the defendant, concerning whether the defendant’s knowledge that the victim was a police officer. This, in its various components, could give rise to unjust outcomes in criminal cases.

6.64 A further concern on the part of the majority of the Committee is that the Bill, or indeed its explanatory statement, does little to anticipate or address the limitation this places on human rights. What makes this a more notable omission is that evidence tendered to the Committee suggests that higher penalties will not prove effective deterring assaults against police, for the most part, because they are not premeditated.

6.65 There is a further weakening of arguments that could support the Bill under the criteria for ‘reasonable limits’ of rights are set out in the Human Rights Act 2004. The Act states at section 28 (2)(b) that the question of what are reasonable limits hinges on, among other things, ‘the importance arises that of the purpose of the limitation’ and, at section 28 (2)(d), on the ‘relationship between the limitation and its purpose’. Evidence tendered to the Committee suggests that ACT law is already able to respond to such circumstances as are


and Subordinate Legislation Committee), Scrutiny Report—15 March 2012, Report 49, p.10.


8 5

anticipated by the Bill, and if this is considered true then it would be hard to consider such limits reasonable.

6.66 In short, it is the view of the Committee that the changes proposed by the Bill would create greater risk of legal harm for the sake of introducing a measure unlikely to deter assaults on police.

6.67 In view of this, the Committee makes the following recommendation.


6.68 The Committee recommends that the Legislative Assembly not support the Crimes (Offences Against Police) Amendment Bill 2012.

Vicki Dunne MLA

Chair

June 2012


APPENDIX A: Dissenting Comments:

Vicki Dunne MLA

Introduction

6.69 I wish to dissent from the comments in the main report about the Crimes (Offences Against Police) Legislation Amendments Bill 2012.

6.70 This report has made unfavourable findings in relation to the Bill and has recommended against the passage of the Bill. It has usually been the practice in this Committee that when there is not unanimity in a recommendation this is made clear in the body of the report with the phase: “the majority of the Committee…”. It is unfortunate that this practice has not observed in this case.

6.71 I wish to state another view on the merits of the Bill. In my view the purpose of the Bill, and the means by which it seeks to change the legal protections afforded to police, would have a positive effect if the Bill were passed.

6.72 The risks faced by and the responsibilities required of police officers demands that the community afford them a high level of protection. The Crimes (Offences Against Police) Legislation Amendments Bill 2012 seeks to deliver that high level of protection.

Main focus of contributions

6.73 For the most part, contributors to the inquiry focused on the Crimes Legislation Amendment Bill 2011, and in particular to proposed changes to self-defence. Submitters with the exception of the Australian Federal Police Association (AFPA) and, to a lesser extent, the Attorney-General only referred to the Crimes (Offences Against Police) Bill 2012 in passing and when specifically prompted to do so.

6.74 It is clear from the evidence that the main concern of the majority of witnesses was the self-defence provisions.


8 7

Information on assaults on police

6.75 However the Committee also heard from two contributors with a specific interest in the Bill: AFPA and ACT Policing. Both organisations raised two significant issues that I would like to highlight at the outset.

6.76 One was that the number of assaults on police in the ACT was in a steady state over the past few years, possibly with a modest decrease perceptible over time. A second, very important, point was that the severity of these assaults had been seen to increase over the same period, and it was agreed that statistics for Occupational Health and Safety for police supported this picture of events. 290

Possible responses

6.77 ACT Policing and the AFPA proposed two responses to this state of affairs, additional to the proposals expressed in the two Bills under consideration.

6.78 First, ACT Policing expressed hopes that the introduction of directed energy weapons (tasers) would help to mitigate both the rate and severity of assaults on police.291 Second, both ACT Policing and the AFPA stated that their first preference was that a separate and distinct offence of assaulting police be created in law.292

Need for further legislative response

6.79 The Chief Police Officer emphasised the need for further legislative response by reference to the statistics and the fact that the use of tasers is still at a trial stage in the ACT. The belief is that tasers attracts some controversy and, after the current trial, they may not be considered a reliable means of discouraging assaults on police. So even if the use of these devices were supported, in the future, as part of normal police work, the presence of further legislative

290 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, pp.5-6, and see Transcript of Evidence, 4 April

2012, p.33. 291 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 292 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p10; .Mr Hunt-Sharman, Transcript of Evidence, 4

April 2012, p.26.


protections would add to rather than subtract from their use as a deterrent to assaults on police.293

6.80 Second, while the AFPA and ACT Policing have expressed a preference for a distinct offence of assaulting police, the ACT Government has categorically stated that it is opposed to creating such an offence.294

6.81 Evidence provided to this inquiry supports the view that police in are subjected to particular risks of harm in the course of their daily work. The as-yet uncertain status of tasers in police work and the absence of the possibility that a specific offence of assaulting police could be created, under the present ACT Government, together lead to a reasonable perception that it would be wise to consider other measures to deter assaults on ACT police.

6.82 In my view the Crimes (Offences Against Police) Amendment Bill 2012 answers this need.

Proven legislative approach

6.83 I emphasise that the measures proposed in the Bill, to add aggravated forms of offences where they occur in relation to a particular class of at-risk individuals, is already an approach that has been adopted in ACT legislation. The coming into effect of the Crimes (Offences Against Pregnant Women) Amendment Act 2006 resulted amendments to legislation so that aggravated forms of offence were created for a number of categories of assault.295

Onus of proof

6.84 In the course of the inquiry a number of contributors contended that Crimes (Offences Against Police) Amendment Bill 2011 contained a reverse onus of proof. This would mean that if the Bill passed into law a defendant would be obliged to prove that he or she was unaware that the person assaulted was a police

293 Mr Quaedvlieg, Transcript of Evidence, 4 April 2012, p.7. 294 Mr Corbell, Transcript of Evidence, 4 April 2012, pp.9-10. 295 See the Crimes Act 1900 (ACT) section 48A and notes for other provisions on assault under this

section, such as notes to section 15, ‘Manslaughter’ and following.


8 9

officer, rather the prosecution being required to prove that knowledge beyond reasonable doubt.

6.85 The AFPA specifically recommended that the onus of proof issues be considered if the Bill were passed.

Conclusion

6.86 In light of the concerns raised by the police and the need to increase the protection for police, I recommend that Crimes (Offences Against Police) Amendment Bill 2011 be supported.


9 1

APPENDIX B: Submissions

The Committee received submissions following submissions to the inquiry:

The ACT Human Rights Commission—Submission No.1;

The ACT Government—Submission No.2;

The Australian Federal Police Association—Submission No.3;

The ACT Bar Association—Submission No.4;

Mr John Purnell SC—Submission No.5; and

The Director of Public Prosecutions—Submission No.6.


9 3

APPENDIX C: Witnesses

At its public hearing for the inquiry, held on 4 April 2012, the following witnesses appeared before the Committee:

Mr Simon Corbell MLA, Attorney-General, Minister for Police and Emergency Services and Minister for the Environment and Sustainable Development;

Mr Shane Gill, Member, Criminal Law Committee, ACT Law Society;

Mr Jon Hunt-Sharman, National President, Australian Federal Police Association;

Mr Michael Kukulies-Smith, Chair, Criminal Law Committee, ACT Law Society;

Mr Victor Martin, Acting Senior Manager, Legislation and Policy Branch, Justice and Community Safety Directorate;

Mr Rogan McMahon-Hogan, Member, Australian Federal Police Association;

Mr Jack Pappas, Barrister, and Member, ACT Bar Association;

Mr Francis John Purnell, Senior Counsel, and Member, ACT Bar Association;

Mr Roman Quaedvlieg, Chief Police Officer, ACT Policing;

Ms Angela Smith, Member, Australian Federal Police Association;

Mr Philip Anthony Walker, President, ACT Bar Association; and

Mr Steven Whybrow, Barrister, Australian Lawyers Alliance.

Date post:	04-Jul-2020
Category:	Documents
Upload:	others
View:	6 times
Download:	0 times

Crimes Legislation Amendment Bill 2011 and Crimes ...€¦ · Crimes (Offences Against Police)...

Documents