Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT BILL 2001

Mr Speaker, on behalf of and at the request of the Attorney-General, I move that the bills be now read a second time.

The purpose of the Criminal Code Amendment Bill is to amend the defence of person and property provisions in the Code to reflect a concept of self-defence and defence of property which is readily understood by the public and, in particular, by a jury, to provide a more specific defence against home invasion and to remove the requirement for Police and Prison Officers to fire a warning shot.

The Law Reform (Miscellaneous Provisions) Amendment Bill provides immunity from civil action in certain circumstances.

The law on self-defence and defence of property is contained in Division 3 of Part II of the Criminal Code. That Division sets out the circumstances in which the application of force is justified. The provisions combine circumstances where force may be properly applied, such as in the execution of a warrant, with circumstances where self-defence may apply. These are two different, although sometimes closely related, concepts. The complex construction of the Division necessarily makes the task of a jury all the more difficult in requiring it to undertake a complex series of steps in considering whether the accused acted in self-defence.
In response to criticisms of the complexity of those provisions, and the developments in the common law on self-defence since the introduction of the Criminal Code, the matter was referred to the Law Reform Committee for consideration. The recommendations of the Law Reform Committee that the self-defence provisions be re-drafted to better reflect the developments in the common law and confirm the protection against home invasion were accepted. The Committee recommended the adoption of a new defence of person and property provision based on the Model Criminal Code provisions. These provisions have also been adopted by the Commonwealth in section 10.4 of the of the Criminal Code Act 1995. However, the model provisions have been slightly amended to accommodate the language of the Northern Territory Criminal Code.

The proposed bill replaces the complicated two-stage test previously required to determine what level of force is permitted in self-defence, with a simple test of principle to be used in all situations. The current common law test was laid down in a case called Zecevic v DPP (Vic) in 1987 and has been further developed by the New South Wales Court of Criminal Appeal in the case of Hawes in 1994. The current position is that a person is not liable for conduct carried out in self-defence if he or she believed upon reasonable grounds that it was necessary in self-defence to do what he or she did. The test is a mixture of objective and subjective tests. It is objective in the sense that the conduct of the person alleging self-defence must be reasonable. On the other hand, it is subjective in the sense that the reasonableness relates to the circumstances, as the person reasonably perceived them to be, even if the perceived circumstances were mistaken.

The bill does not affect the common law principle that a person cannot intentionally kill or cause grievous harm to another in order to protect property. However, a person is entitled to respond reasonably in the circumstances as he or she perceives them to protect property and to prevent wrongful entry onto land or into a premises, or to remove a person who wrongfully remains on the land or premises.

This bill extends the rights of self and property defence to include occupants of commercial premises. The law of self-defence applies equally to business owners and their employees as it does to the owner or occupier of a dwelling house. The service station attendant who acts in self-defence whilst at work is in the same position, and has the same protection as he or she would have in similar circumstances in his or her own home. This bill provides a clear and comprehensive set of laws on self-defence and defence of property. In doing so, it confirms the government’s commitment to law and order, and to the right of Territorians to enjoy absolute safety from attack, wherever they may be.

Division 3 of the Criminal Code currently contains a requirement that, where a police officer or a prison officer intends to use a firearm, the officer is required to, where practicable, fire first a warning shot. The bill removes that requirement. The use of warning shots is no longer considered to be responsible weapon use. In most cases it is more likely to escalate the situation and result in unnecessary wounding or death of persons involved in the situation. The National Police Research Unit’s National Guidelines, which are based on Principle 10 of the United Nations Prevention of Crime and the Treatment of Offenders, recommend that Police shall not fire warning shots.

The firing of a warning shot places officers and the public at unnecessary risk. Police officers in Victoria, Queensland, South Australia and Western Australia are instructed not to use warning shots. This amendment is consistent with Best Practice for Policing in Australia.

The Law Reform (Miscellaneous Provisions) Amendment Bill 2001 expressly provides that no civil proceedings can be taken against a property owner for injury sustained by a person who is on that property for illegal purposes. This means, that if a burglar injures himself or herself during the commission of a burglary, that person will not be able to sue the home owner for personal damages.

I stress that this in no way provides a licence to set traps or to deliberately make a property a dangerous place to visit. It is, and will remain, a crime to set traps for the purpose of inflicting harm on a trespasser. However, the innocent occupier of premises should be protected from the inconvenience, expense and embarrassment of being sued by a criminal for injuries he or she has sustained during a break-in. This bill provides that protection.

Mr Speaker, I commend the bills to the House.

Debate adjourned.

 

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