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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4137 ..

MR STEFANIAK (continuing):

The householder might have young children or someone else in the house and would have no idea what might happen. I would submit that it is not reasonable for a person to be put in a situation of having to make quick decisions about complex legal matters. People will react by instinct. Any reasonable person would know that someone could be killed if they were hit over the head with a baseball bat. So is that intention? Hitting someone over the head with a baseball bat could certainly be classed as very reckless behaviour. Indeed, such an act could result in death.

So there are a number of problems with this. However, I certainly don't want to see people in the community perhaps confused or worried even further about what they legitimately can do to protect themselves, their homes and their loved ones in these sort of circumstances.

I cannot think of any real instances in the ACT, or indeed in Australia, where anyone has deliberately laid in wait for burglars and said, "Come on. Come here and I'll waste you with my shotgun."I might be wrong-the Chief Minister might be able to point to a case somewhere else-but I certainly cannot think of anything in the ACT which would properly invoke a section such as this.

Even if someone did intentionally inflict death or serious injury-where that involvement was planned and not spontaneous; and government law officers have explained to me that intending to do it is something more than that-such an action would not be covered anyway by 42 (2) (b), as the conduct quite clearly would not be a reasonable response in the circumstance.

So I don't think we need paragraph (a) of subclause (3). I don't think it assists the law at all. In fact, I think it complicates it and will make it harder for ordinary honest citizens to know what their legitimate rights are. I don't want to see a situation in which people are so scared of defending themselves or exercising reasonable steps to protect their property that they do absolutely nothing and are killed or maimed by a home invader as a result. I think the law as it stands is fine. I would ask members to support my amendment.

MR DEPUTY SPEAKER: The member's time has expired.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (5.23): Mr Deputy Speaker, the government will not be supporting the amendment. This provision is quite explicit in its terms, that if the defendant uses force to protect a property right and intends to kill or cause serious harm in the defence of that property then the defence doesn't apply.

I think you are not putting nearly enough emphasis on the word "intention". What the provision says-and I think the provision is reflective of us as a civilised people, as a civilised community and society-is that it is appropriate that we not allow people in defence of their property to set out to kill somebody. We are suggesting that there should be a different test in relation to the defence of life than there should be in relation to the defence of property. I think that is quite appropriate; I think this is a legitimate distinction for us to draw. I don't believe that suggesting it is appropriate to kill a fellow human being in order to defend property or a property right is a measure of a civilised society.

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