Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4139 ..
MR STANHOPE (continuing):
prevent serious injury". We arm our police with a whole range of really significant powers but we don't arm them with the power to cause death or to cause grievous bodily harm to protect property. We limit that power to the police for the purpose of protecting life or preventing serious injury, and this reflects a very significant and important principle of the criminal law.
MS TUCKER (5.31): This is another interesting discussion. I will not be supporting Mr Stefaniak's amendment. Mr Stefaniak referred to clause 42 (2) (b), which states:
the conduct is a reasonable response in the circumstances as the person perceives them.
So, basically, a person is deemed to be carrying out conduct in self-defence only if the person believes the conduct is necessary-and there are a list of criteria in paragraph (a) of subclause (2), such as "to defend himself or herself or someone else"-and that the conduct is a reasonable response in the circumstances as the person perceives them.
I do not think the removal of paragraph (a) of subclause (3), as proposed by Mr Stefaniak's amendment, can be justified. My understanding is that paragraph (a) is saying that the argument of self-defence would not be accepted if somebody basically used an unnecessarily severe response. I have an image of someone who has the capacity to inflict severe damage, who basically does have the aggressive response that Mr Stanhope spoke about, and who chooses to act in such a way whether or not it is necessary to do so. I think that is the critical issue.
We know that there is a tendency, particularly in the United States, for people to form vigilante-type groups to go out to claim back the city. They attempt to get rid of violence by being as violent as possible in destroying people who they believe are perpetrators of violence. Obviously, by acting in such a way they are guilty of that themselves.
I think it is very important that, as a society, we make the point clearly that it is not appropriate for someone to use extreme force in a situation which does not require such a response. The words "intentional infliction"are a critical aspect of subclause (3) (a). So that is really covering something quite different.
A person who perceives, as some people do, that it is a reasonable response to kill someone who comes onto their property, could argue under subclause (2) (b) that their action was "a reasonable response in the circumstances". I know that the gun lobby in the United States argue that they have the right to bear arms and defend the country. So I think this is very important clause and I agree with what the Chief Minister has said.
MS DUNDAS (5.34): The ACT Democrats will not be supporting this amendment. However, we recognise that, as was the case with the first amendment Mr Stefaniak brought to the attention of the Assembly, we are discussing a vexed question of criminal law. We understand that the Model Criminal Code Officers Committee themselves were also divided on this issue of excessive self-defence and there are certainly conflicting views on pleadings of defence when causing serious injury or death, many of which have been brought to light today in the Assembly.