Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4140 ..
MS DUNDAS (continuing):
I understand that the common law had become so complex that the High Court actually abolished the defence in 1987 and, following much debate, the criminal code committee recommended that the offence be included as it stands in this piece of legislation. I am certain that legal debate will continue around this area of self-defence-of the right to protect oneself against serious harm by people committing criminal trespass.
We, as legislators, obviously have a duty to follow this debate and to monitor the implementation of this legislation. We have a duty to ensure that it is not being misused. At this stage I am happy to see subclause (3) (a) remain as part of the criminal code.
MR STEFANIAK (5.35): Mr Deputy Speaker, I will speak again and hopefully close debate on the amendment. From what Ms Tucker and Ms Dundas have said, the Chief Minister has the numbers to defeat my amendment.
I would like to make one point about what Ms Tucker raised in relation to clause 42 (2) (b). I think she might have missed the point a little bit. Paragraph (b) states:
the conduct is a reasonable response in the circumstances as the person perceives them.
There are a couple of elements there. You have to look at what the person perceives and then, given that, it has to be a reasonable response. If a person perceived that someone was taking their video and that they were not being personally threatened, racing over and braining them with a baseball bat or shooting them with a shotgun or whatever would not be a reasonable response. This test is used by the court to determine whether the response was reasonable. So there are two elements here: you have to look at what the person actually perceives and then determine whether the conduct is reasonable.
The person might perhaps be wrong, on the spur of the moment, in what they perceive, but if they genuinely perceive something and the conduct is reasonable-conduct that a reasonable man would believe to be reasonable-then, fine, that defence would be available. But it would not be available, and has not in fact been available in the past, to people who knew, or could be perceived to have properly known, that they were not remotely threatened and deliberately set out to kill someone. In that case, that person would in fact be charged.
All we can now do is see what effect-good, bad or indifferent-Mr Stanhope's clause, which will go through in its entirety, will actually have. I certainly hope that it does not lead to innocent people being harmed-people who might not otherwise have been harmed if subclause 42 (3) (a) were not in the legislation. We will be watching this very carefully, as we will the other provision discussed earlier that has gone through unamended.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Health, Minister for Community Affairs and Minister for Women) (5.38): Mr Deputy Speaker, I move amendment No 7 circulated in my name [see schedule 3 at page 4186].