Page 5915 - Week 14 - Thursday, 8 December 2011
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increased risk. The purpose of this amendment is to ensure that a victim’s special occupational vulnerability as a provider of an important public service is given appropriate weight at sentencing. It will apply to victims such as police officers, emergency service workers, care and protection workers and nurses.
The amendment will not increase the maximum penalty available for offences against these workers, but, instead, will permit the court in the exercise of its discretion to impose a sentence within the existing sentencing range that adequately reflects the vulnerability of the victim. This will clearly signal to the court that society and this legislature consider it is appropriate in certain circumstances to impose a longer sentence than might otherwise have been imposed.
The second key change made by this bill is to the law on self-defence. This change involves amendments to the Crimes Act 1900 and the Criminal Code 2002. Currently the law on self-defence allows a person to use reasonable force to resist what they reasonably believe to be an unlawful arrest by police. This is the case even if the arrest was, in fact, lawful or was unlawful for a technical reason only. This common law rule has its origins in 17th century England, and the reasoning behind it is no longer relevant in contemporary society.
Now, an unlawful arrest results in an accused person only spending a matter of hours in custody before being brought before a judicial officer to apply for bail and, if appropriate, to challenge the lawfulness of their arrest. Also, there are a number of remedies open to a person who is unlawfully arrested, such as lodging a civil claim for damages, making an application for any evidence obtained as a consequence of an unlawful arrest to be excluded from criminal proceedings, or making a complaint to the professional standards unit of the Australian Federal Police or to the ACT Ombudsman.
The bill amends section 45 of the Criminal Code 2002 and inserts a new section into the Crimes Act 1900 to limit the availability of self-defence for people who assault police in the course of an arrest or while under police restraint. A defendant would not be able to raise self-defence if they assaulted police in response to perceived unlawful arrest or restraint. The defence will not be available even if the arrest or restraint was in fact unlawful as long as police were acting in good faith. However, the defence will still be available if the defendant assaulted police in response to harm or threat of harm by police. This bill will not remove the requirement for a police officer to use force in a reasonable manner and in a way that is the minimum force reasonably necessary in the circumstances.
The government is making this change to address concerns about assaults against police in the ACT. In particular, the change is intended to prevent opportunistic abuse of the current law on self-defence. There have been situations reported where police have been acting in good faith and have been assaulted, but the defendant has been subsequently acquitted on the basis of self-defence because the initial arrest was technically unlawful. These concerns have been identified by my directorate in the first half of this year in the context of the review of police criminal investigative powers.
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