Page 5916 - Week 14 - Thursday, 8 December 2011
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Let me give you an example of the type of circumstance the bill seeks to address. In one case, a man was arrested by police late at night outside a Canberra nightclub and escorted to a caged police vehicle without any use of force. Arriving at the vehicle, the man took a female officer in a headlock and wrestled her to the ground. When another police officer went to the female officer’s aid, he was struck in the throat by the man’s friend. In court, the arrest was found to be technically unlawful because the police officers did not consider alternatives to arrest. The prosecution of the men for assaulting the police officers was unsuccessful on the basis that they had been acting in self-defence in response to an unlawful arrest. I do not believe this is the way the law should operate.
The government believes self-defence should not be available to excuse this type of poor and inappropriate behaviour. This example also highlights an ancillary but important purpose of the bill which is to encourage peaceful resolution to arrest situations. It is important to ensure that the law does not create or support any incentives to use violence.
The self-defence amendment may engage a number of rights contained in the Human Rights Act 2004. However, the government has ensured that any limits on the fundamental rights protected by the act are reasonable and demonstrably justifiable in a democratic society. The right to equality before the law may be engaged by clauses 4, 6 and 7. This is because the availability of self-defence in response to perceived unlawful imprisonment is restricted where the victim is a police officer.
This may have the effect of elevating the protection of one group in the community above that of other groups. However, the government is satisfied that any limitation of this right is proportionate. Arrest, by its very nature, places police officers in direct physical proximity to another person in a situation where it is very likely that the other person would perceive themselves as being in direct conflict with the police officer. Although people who are not police officers may make arrests, this is rare and police officers are the only people who are required by their employer and by the community’s expectations to arrest people. It is appropriate to single out police due to their provision of services to the public.
Clauses 4, 6 and 7 of the bill may also engage the right to liberty in the sense that the provisions may limit responses potentially available to a person in connection with restrictions on their liberty. However, the government believes that, to the extent that there is any such limitation on the right to liberty, it is restricted and proportionate to the aims of the bill. Self-defence will still be available to a person if the arrest was unlawful and the police officer did not honestly believe that the arrest was lawful. This prevents police from relying on the provisions in this bill where an arrest is made in bad faith, though I am pleased to be able to say that I do not anticipate this will be an issue in the ACT.
The bill will make an important change to prevent abuse of self-defence in cases of assaults against police and promote peaceful resolution of possible arrest conflicts. The bill will also ensure that the special vulnerability of some victims, such as police officers, is recognised at sentencing. I commend this bill to the Assembly.
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