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2012
CRIMES (OFFENCES AGAINST POLICE)
AMENDMENT BILL 2012
EXPLANATORY
STATEMENT
Presented by the
Zed Seselja MLA
Overview
The Crimes (Offences Against Police) Amendment
Bill 2012 (the Bill) amends the Crimes Act 1900 (the Crimes Act) to make
a number of offences aggravated offences if an offence is committed against a
police officer and incorporates and consolidates previously passed amendments
that created aggravated offences against pregnant women.
The Bill
recognises that some acts of violence are worse than others and that violence
against a police officer in the line of their duty is a special case that merits
particular protections. Due to the fact that aggravated offences already exist
for assaults against pregnant women, this bill makes subsequential amendments to
the offences relating to pregnant women.
The effect of the aggravated
offence would be to increase the maximum available penalty for the simple
offence, across a range of existing sections of the Crimes Act. The penalties
for the aggravated offences have been set approximately 25 per cent higher than
the penalties for the simple offences.
The Bill also includes provisions
to limit the operation of the offences to instances where the offence was
committed against a police officer while the officer was exercising the
officer’s functions as a police officer, or because of, or in retaliation
for, anything done by the police officer in the exercise of the officer’s
functions as a police officer. Furthermore, the offence is not an aggravated
offence for the purposes of the Bill if, on the balance of probabilities, that
the defendant did not know, and could not reasonably have known that the person
was a police officer.
1. Ability to create laws covering Commonwealth
officers.
Section 28 of the Australian Capital Territory
(Self-Government) Act 1988 (Cwlth) provides that if an ACT law is
inconsistent with a Commonwealth law, it ‘has no effect to the extent
that it is inconsistent’, but ‘shall be taken to be
consistent with such a law to the extent that it is capable of operating
concurrently with that law’.
The Crimes Act 1914
(Cwlth), section 4C (3) provides that:
‘Where an act or
omission constitutes an offence against a law of a Territory, the validity of
that law is not affected merely because the act or omission also constitutes an
offence against a law of the Commonwealth.’
This means that the
ACT can also have offences that deal with assaults against police
officers.
It should also be recognized that the ACT has developed its own
legal identity, created under the Australian Capital Territory (Self
Government) Act 1998 (Cwth), that creates a ‘body politic under the
Crown.”
The AFP conducts their operations, as ACT Police, under a
contractual arrangement with the Commonwealth. There are many cases where AFP
officers charge offenders under ACT law. In fact, nearly all AFP officers, when
acting as ACT police, are either empowered by or are enforcing ACT
laws.
On a more simplistic legal basis, the Territory has the ability to
create whatever laws we deem fit for the Territory, subject to Commonwealth laws
and the Self Government Act, The Territory has created, and modified many times,
a comprehensive set of criminal laws for the ‘peace, order and good
governance of the Territory.’ This legislation is just another in that
suite of solutions.
2. The gap in existing Law.
The
current laws have been proven inadequate or at least unworkable when dealing
with assaults upon police, and the Bill addresses both the practical concerns
and the desire of the community to provide extra protection for police officers
when carrying out their duty.
While there is a specific offence under
Commonwealth law, it has proven an undesirable option, as it requires three
physical elements and three fault elements to be established. This has led to a
preference to prosecute under common assault provisions. These have previously
been indicated by the Assembly as being ‘summary’ rather than
‘indictable’ offences, indicating that the Assembly does not view
them as serious offences. This is an anachronistic position that leaves police
officers without adequate legal remedy for the seriousness of the
assaults.
3. A special class of assault.
It is a
previously stated intent of the legislature not to create a class of criminal
offence distinguished by the character of the victim, rather than the actions of
the offender. However, the Territory has passed aggravated offences in respect
to pregnant women. These aggravated offences were created in recognition of the
fact that, according to that Bill’s explanatory statement that
‘some forms of crime are worse than others.’
The same
principle applies in this instance, founded on the unique nature of the
responsibility that the Territory places upon those acting in the role of ACT
police officers. Those officers are required to ‘get in harm’s
way’ when an incident occurs – a unique requirement amongst all
professions in the ACT.
4. Human Rights
compliance.
As a matter of first principles, the Bill intends to
establish a clear intention that an assault on a police officer is a crime
viewed seriously by the people of the ACT, more seriously than a common assault.
In that way, the Bill does not limit the human rights of offenders, it
establishes a higher penalty range once the offence has been established in the
normal manner.
It is critical in this light, just as it is for the
aggravated offence of assault against a pregnant woman, that the elements of the
‘simple’ offence first be established. Then the aggravated elements
are then added in line with the legislation.
It is also important that,
while some rights are limited under the removal of the Criminal Code rights in
Chapter 2, those general provisions have common law or statutory counterparts
that may be relied upon.
Lastly, and importantly, the legislation is
balanced by the provision that:
the offence is not an aggravated
offence against a police
officer if the defendant
proves, on the balance of probabilities, that
the defendant did not
know, and could not reasonably have known,
that the person was a
police officer.
However, should human rights be considered an issue,
the following observations are made.
The discussion of the human rights
implications arising from creating aggravated assaults was considered by the
Assembly Scrutiny of Bills Committee when aggravated offences were created in
respect to pregnant women. In that examination, the Bill was assessed against
the principles enunciated in R v Oakes 1986 CanLII 46
(S.C.C):
“First, the objective to be served by the
measures limiting a Charter right must be sufficiently important
...
“At a minimum, an objective must relate to
societal concerns which are pressing and substantial.”
The
assaults on police are a matter of pressing concern, and reports and cases arise
on a regular basis. There are few more pressing and substantial issues than
violent assaults upon officers in their duty of upholding the law.
Again, from Oakes:
“Second, the party must invoking
s1. Must show the means to be reasonable and demonstrably
justified.”
All other jurisdictions and the Commonwealth
have provisions that provide for separate specific offences when they involve
police officers. In NSW, there have been moves to make murder of a police
officer a mandatory life sentence.
The proposed Bill does not go so far
as that, but it does make an assault on a police officer consistent with the
other aggravated offence in the Territory.
The new provisions make no
modifications to the presumptions of innocence per se, but impose higher
penalties once an offence has been established.
However, the legislation
does attempt to make its response within ‘reasonable limits.’ (R
v Sharpe [2001] SCR 45.) The penalties are deliberately consistent with
other aggravated offences in the ACT, and is consistent in intent with other
jurisdictions around Australia
Lastly, the inclusion of a wide range of
alternative judgments gives the courts the ability to judge each case on its
individual merits and act accordingly, again reinforcing a balanced, reasonable
solution.
This clause sets out the name of the proposed Act as the Crimes (Offences
Against Police) Amendment Act 2012.
This clause provides that the Act will commence the day after its
notification on the Legislation Register.
This clause states that the Act amends the Crimes Act 1900.
Clauses 5-8 inclusive New Notes
This clause substitutes a
new Note pointing to the sections relating to aggravated offences for
manslaughter, intentionally inflicting grievous bodily harm, and wounding,
indicating that s48A and 48C are relevant.
Clause 9 New section
22(2) and Note
This relates to the offence of assault with intent to
commit other offence, where the aggravated offence is included, and that the
penalty for an aggravated offence against a police officer has
increased.
Clause 10-11 New Note
This modifies the
sections for the offences of inflicting actual bodily harm and assault
occasioning actual bodily harm to include a note indicating that s48A and 48C
relate to aggravated assaults.
Clause 12 New section 25 (2) and
note
This relates to the offence of causing grievous bodily harm, where
the aggravated offence is included, and that the penalty for an aggravated
offence against a police officer has increased.
The clause also inserts a
note indicating that s48C relates to aggravated assaults on police
officers.
Clause 13 New section 26 (2) and note
This modifies
the sections for the offence of common assault and increases the penalty when it
is an aggravated offence against a police officer.
The clause also
inserts a note indicating that s48C relates to aggravated assaults on police
officers.
Clause 14 New section 30 (2) and note
This modifies
the sections for the offence of threat to kill and increases the penalty when it
is an aggravated offence against a police officer.
The clause also
inserts a note indicating that s48C relates to aggravated assaults on police
officers.
Clause 15 New section 31 (2) and note
This modifies
the sections for the offence of threat to inflict grievous bodily harm and
increases the penalty when it is an aggravated offence against a police
officer.
The clause also inserts a note indicating that s48C relates to
aggravated assaults on police officers.
Clause 16 New section 33
(2) and note
This modifies the sections for the offence of possession of
object with intent to kill etc and increases the penalty when it is an
aggravated offence against a police officer.
The clause also inserts
a note indicating that s48C relates to aggravated assaults on police
officers.
Clause 17 New section 34 (2) and note
This
modifies the sections for the offence of forcible confinement and increases the
penalty when it is an aggravated offence against a police officer.
The
clause also inserts include a note indicating that s48C relates to aggravated
assaults on police officers.
Clause 18 Section 35 (1),
penalty
This modifies the sections for the offence of stalking and
increases the penalty when it is an aggravated offence against a police officer
if the offence involved a contravention of an injunction or other order made by
a court; or the offender was in possession of an offensive weapon; and indicates
penalties in any other case.
The clause also inserts a note indicating
that s48C relates to aggravated assaults on police
officers.
Clause 19 Section 35A, penalty
This
modifies the sections for the offence of affray and increases the penalty when
it is an aggravated offence against a police officer.
The clause also
inserts include a note indicating that s48C relates to aggravated assaults on
police officers.
Clause 20 Aggravated offences—offences against
pregnant women
Section 48A (2) and (3)
This is a
consolidating section that omits “aggravated offence” and
substitutes “aggravated offence against a pregnant
woman.”
Clause 21 Section 48A (4) and (5)
This is a
consolidating section that omits “aggravated offence” and
substitutes “aggravated offence against a pregnant
woman.”
Clause 22 Section 48B (2), definition of aggravated
offence
This is a definition section that clarifies that
“aggravated offence” means an aggravated offence against a
pregnant woman.
Clause 23 New sections 48C and
48D
These are the substantive clauses that introduce the aggravated
offences for assaults against police officers.
The clauses also contain
the elements required for the offence to be made out and the exclusion for the
situation where an aggravated offence is not committed if it can be shown that
the defendant proves, on the balance of probabilities, that the defendant did
not know, and could not reasonably have known, that the person was a police
officer.
Subsection 1 specifies which sections are modified with the
inclusion of aggravated offences against police officers. The sections
are:
• section 15 (Manslaughter);
• section 19
(Intentionally inflicting grievous bodily harm);
• section 20
(Recklessly inflicting grievous bodily harm);
• section 21
(Wounding);
• section 22 (Assault with intent to commit other
offence);
• section 23 (Inflicting actual bodily
harm);
• section 24 (Assault occasioning actual bodily
harm);
• section 25 (Causing grievous bodily harm);
• section
26 (Common assault);
• section 30 (Threat to kill);
• section
31 (Threat to inflict grievous bodily harm);
• section 33 (Possession
of object with intent to kill etc);
• section 34 (Forcible
confinement);
• section 35 (Stalking);
• section 35A
(Affray).
Subsection 2 indicates the aggravated offence is
established only while the police officer was exercising the officer’s
functions as a police officer; or because of, or in retaliation for, anything
done by the police officer or any other police officer in the exercise of the
officer’s functions as a police officer.
Subsection 3 provides that
it is not an aggravated offence if the defendant proves, on the balance of
probabilities that the defendant did not know, and could not reasonably have
known, that the person was a police officer.
Subsection 4 is procedural
and provides that if the prosecution intends to prove that the offence is an
aggravated offence against a police officer, the relevant factors of aggravation
must be stated in the charge.
Subsection 5 clarifies that the prosecution
does not need to establish a fault element in relation to any factor of the
aggravation and that Chapter 2 of the Criminal Code does not apply to an offence
mentioned in subsection (1) (a) to (n), whether or not it is an aggravated
offence against a police officer.
This is consistent with the intent and
rationale behind the same clarification used when the assaults against pregnant
women aggravated offences were included in the Crimes Act.
New
48D Alternative verdicts for aggravated
offences—offences
against police officers
This offers
a range of alternative verdicts should the aggravated offences not apply. It is
intended to give courts a range of alternatives to suit different circumstances.
The new sections provide for a range of offences that may more accurately
reflect the offences and offers alternatives.
Clause 24 Table 49,
item 6, column 2
This omits a redundant section of the existing
Act.
Clause 25 Dictionary, definition of aggravated
offence
This provides additions to the dictionary to define
aggravated offence.
Clause 26 Dictionary, new
definitions
This provides additions to the
dictionary.
insert
aggravated offence against a police
officer, for part 2 (Offences
against the person)—see
section 9A.
aggravated offence against a pregnant woman,
for part 2 (Offences
against the person)—see section
9A.
fault element for part 2 (Offences against the
person)—see
section 9A.