Page 2585 - Week 07 - Tuesday, 5 June 2012
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Officer Shoate then repeated to Ms Hobson that they were going to take her son to the police station, to which Ms Hobson again replied, “You’re not taking my son anywhere.” Officer Shoate then advised Ms Hobson that she was under arrest for obstructing the officer. Officers then attempted to handcuff Ms Hobson. Ms Hobson pushed the officer away—assault No 1—and struck one officer across the face. She was arrested and charged with battery of police.
But here is the kicker:
The court ultimately went on to find that there was a defence of resisting unlawful arrest in Wisconsin …
And in this matter they found that Ms Hobson had a right to resist this unlawful arrest. But the Supreme Court of Wisconsin then went on to find, in a way that no court in the ACT or in Australia would find—in no way would we see such judicial activism in the ACT—that, although this defence applied to Ms Hobson, they ruled it out prospectively for anybody else in the state of Wisconsin.
This is the case that this government relied upon—the only case that it quoted at length—to throw out 800 years of law in the ACT. This is a right that goes back to 1292, and the case that we had was the case from a state supreme court of elected judges in the United States. The government could not refer to any experience in Australia or any other common-law country that was a better precedent than this. That is because there is none. This was, almost single-handedly, the reason why the committee decided that this part of the bill should not be supported.
The other part of the bill proposed by the government is that, if a police officer is assaulted or if a public officer is assaulted, judges and magistrates take that into account when sentencing. We were told clearly and repeatedly by the Bar Association and the Law Society that this is already the case; this is the current practice in the ACT. While I personally do not have a great deal of problem with that as a notion, it was the view of the committee that it was probably unnecessary.
I want to turn now to the Crimes (Offences Against Police) Amendment Bill, on which I published some dissenting comments at the back of the report. I wish to dissent from the recommendation of the committee that the Assembly not support the Crimes (Offences Against Police) Amendment Bill 2012. In doing so, I first of all wanted to make the point that I was very disappointed that the committee did not follow the usual practice that we have had in the committee, and which has been advocated by Mr Hargreaves over many years, that if there is a place where there is dissent the report reflect that by saying things like “the majority of the committee think” or “the majority of the committee recommend”. In this case, in my absence, although the committee knew that I did not agree with this recommendation, the committee adopted a form of words that gives the impression, on reading the recommendations without reference to the dissenting comments, that I agree with recommendation 2. So it is unfortunate that we did not observe the practice that we usually have in this case, and I have not had a justification for this.
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