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- 12 December 2001
Crimes Amendment (Self-Defence) Bill
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Page: 20074
Second Reading
The Hon. CARMEL TEBBUTT (Minister for Juvenile Justice, Minister Assisting the Premier on Youth, and Minister Assisting the Minister for the Environment) [8.30 p.m.]: I move:
That this bill be now read a second time.
I seek leave to incorporate the second reading speech in Hansard.
Leave granted.
I am pleased to introduce the Crimes Amendment (Self-defence) Bill 2001. The purpose of the Bill is to clarify and simplify the law as it relates to self-defence. Until now the law in this area has been complex and at times difficult to interpret and apply. The Bill provides a clear articulation of the requisite elements of the defence which will assist the judiciary and juries in the application of the law.
The contents of the Bill are drawn substantially from a model developed by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys General in its Chapter 2 "General Concepts of Criminal Responsibility". The Model Criminal Code Officers Committee has been in the process of reviewing the criminal laws of Australia with a view to rationalising them and making the laws consistent throughout Australia. New South Wales has adopted a number of other offences arising out of the Model Criminal Code Report, notably computer offences, sabotage offences and offences relating to the contamination of goods.
The model developed by the Committee was drawn from existing common law principles. The Attorney General's Department has used the Committee's model as a basis for consultation with the legal profession. As a result of these consultations the Government has further refined the model and developed the contents of the Bill.
In order to appreciate the changes the Bill will introduce, a brief examination of the existing common law in New South Wales in relation to self-defence is necessary.
The law of self-defence recognises that a person has a basic right to repel an attack upon their person or property. The common law has historically accepted that a person who kills another in legitimate self-defence is acting lawfully and should be acquitted of any charge of unlawful homicide.
The law also recognises the rights of an aggressor. Some may take the view that those who instigate unlawful attacks surrender all their rights to the protection of the law. Such a view goes against the basic principles of a civilised society which respects the sanctity of life and abhors physical violence. For these reasons the law has placed restrictions on the right of self-defence to prevent the defence from becoming a disguise for revenge or retaliation.
In Zecevic v DPP (Vic) (1987) 162 CLR 645, the High Court stated at 661:
"An explanation of the law of self-defence requires no set words or formula. The question to be asked in the end is simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."
Therefore under the prevailing common law, the test as to whether there are reasonable grounds for any belief on the part of the defendant that it was necessary in self-defence to do what he or she did is not a completely objective one. It is the belief of the accused, and not that of the hypothetical reasonable person in the position of the accused, that has to be reasonable.
This Government, in response to community concerns, partially codified two self-defence situations—defence in the home through the Home Invasion (Occupants Protection) Act 1998 and defence in the workplace through the Workplace (Occupants Protection) Act 2001. Each of these pieces of legislation essentially reflects in a statutory form the common law tests of self-defence and defence of others. It was always intended by this Government that a broader codification of the law of self-defence would follow the enactment of these pieces of legislation. With the release of the Model Criminal Code Officers Committee Report, consideration and development of that process was able to commence.
I turn now to the model proposed by the Model Criminal Code Officers Committee. That model removes the objective element of the test as to what the defendant perceived the danger to be. This represents the common law before the case of Zecevic v DPP (Vic) (1987) 162 CLR 645. It means that a person who really thought they were in danger, even if they were mistaken about that perception, may be able to rely on self-defence for their actions. The person's actions on the basis of their belief still has to be reasonable, but the belief itself is totally based on their circumstances as the person perceived them to be.
The Government Bill seeks to amend the Crimes Act through the repeal of the existing heading of "Part 11" and insertion of a new Part, entitled "Part 11—Criminal Responsibility—Defences". The new Part 11, Division 3 proposes to insert six new sections: section 418 outlines when the defence of self-defence is available; section 419 provides that the prosecution bears the burden of proof beyond a reasonable doubt that the person did not carry out the conduct in self-defence; section 420 provides that self-defence is not available if the use of force involves the intentional or reckless infliction of death to protect property or prevent criminal trespass or remove a person committing criminal trespass; section 421 relates to the situation where excessive force is used in self-defence which results in death. In such a case if the defendant believed that their conduct was necessary even though it was excessive the defendant is not criminally responsible for murder but is guilty of manslaughter; section 422 relates to the application of self-defence when it is a response to lawful conduct; and section 423 is a transitional provision.
These are the key provisions contained in the Bill. I do not propose to laboriously deal with each and every clause and provide corresponding commentary. Members should avail themselves of the time between this speech and the debate to read and carefully consider the Bill. I will however outline the rationale and content of the key provisions of the Bill.
The Bill follows the general concept of self-defence laid down by the Model Criminal Code, so that a defendant who actually believed it was necessary to do what he or she did to repel an attack, even if they were wrong about that perception, may seek to rely on self-defence, so long as it was a reasonable response in the circumstances as perceived by the defendant. However the Bill contains two fundamental departures from the Model Criminal Code.
The first departure is the re-introduction of the law of excessive self-defence, through proposed section 421 of the Crimes Act 1900. This was the common law position as previously stated by the High Court in Viro (1978) 141 CLR 88. It was held in that case that self-defence which was necessary but which involved the use of excessive force causing death would lead to a finding of manslaughter instead of murder. Such an approach is entirely appropriate when it is considered that in Australia we do not have degrees of murder as separate offences, and that proven unlawful homicide only leads to murder or manslaughter convictions being available. It is acceptable in the opinion of the Government that a person who honestly believes they are acting in self-defence but uses more force than is reasonable in the circumstances should not be liable for murder but be liable for the lesser offence of manslaughter. Such a result is consistent with the values of a civilised society which vehemently upholds and respects the sanctity of life. I should say that the reintroduction of excessive self-defence was strongly supported by the New South Wales Bar Association.
The second difference to the Model Criminal Code relates to self-defence in the context of defence of property, and is reflected in the proposed section 420 of the Crimes Act 1900. The Model Criminal Code limits the defence of property and criminal trespass by not permitting death or really serious harm to be occasioned. This limit has been modified under the Government Bill. Obviously, it is not desirable to encourage persons to defend their property with excessive force. The Model Criminal Code emphasised the need to consider the value of human life by indicating that really serious injury or death could never enliven a self-defence issue in defence of property or to prevent criminal trespass.
A better approach in the view of the Government is the one taken by the South Australian legislature in section 15A of the South Australian Criminal Law Consolidation Act 1935. Section 15A deals specifically with the defence of property and creates a scheme in which it is never an excuse to kill someone in defence of property. The Government believes that limitation is a useful one and it consequently has incorporated it into the proposed section 420 of the Crimes Act 1900.
There can be no circumstances where it is appropriate to intentionally or recklessly take a human life in the protection of property or to prevent criminal trespass, though it may be permissible to do serious bodily harm in certain circumstances if necessary and reasonable. The South Australian legislation also has taken this view of the value of human life.
An example of the possible necessity to cause really serious injury in defence of property is not difficult to imagine—a person is about to burn down your house, which you know is empty. It is appropriate that you be able to repel this person in defence of your property if necessary, as long as death is not intentionally or recklessly occasioned and the force used was reasonable. This is a position which it is appropriate for the legislature to make clear—that life is more valuable than property. It is important that the Government clearly and emphatically indicates this to the public and the courts through this legislation.
The Bill repeals the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001 so that the law can apply uniformly across all situations where self-defence might arise. It will effectively abolish the current common law regarding self-defence. In every case it will be the general concept of self-defence, as codified in the Bill, which will apply. However, the common law is not made irrelevant—the provisions in the Bill are firmly grounded in common law principles.
There are a number of other issues which are worth noting in relation to the Bill.
The Government Bill preserves the common law position in regard to the availability of self-defence in situations where the conduct being acted against is lawful. This is reflected in proposed section 422 of the Crimes Act 1900.
The Model Criminal Code also has been followed by the Government in regard to the availability of self-defence where unlawful deprivation of liberty is believed by a person to be an issue either for themselves or another person. This is again consistent with the common law and is reflected in proposed section 418 of the Crimes Act 1900.
As with other "defences" such as duress, provocation and necessity under the common law, the prosecution bears the legal onus in negating beyond reasonable doubt that an accused was acting in self-defence. Proposed section 419 of the Crimes Act 1900 is simply a statement of the common law.
It is useful to remember that the Opposition also moved a Bill which contained this proposal and which followed the Model Criminal Code in this regard, demonstrating the respect with which the Model Criminal Code model has been viewed by both sides of Parliament.
I commend the Bill.
The Hon. GREG PEARCE [8.30 p.m.]: The Opposition does not oppose this bill, which essentially codifies the law relating to self-defence. On three occasions since 1995 the Coalition has introduced self-defence legislation in the Legislative Assembly. But the Government has refused to allow that legislation to proceed. In 1996 the honourable member for Gosford, the shadow Attorney General, introduced a private member's bill entitled the Home-owners Defence Bill. The scope of that bill was somewhat wider than its title suggested, because it tried to set out the rights of a person to self-defence in all situations and not just those applying in the home. That 1996 bill was not proceeded with, although there was debate on its second reading in the other place. The Government did not allow the bill to be put to a vote, and when the Parliament was dissolved in 1998 in preparation for the 1999 election, the bill lapsed.
The honourable member for Gosford also introduced the Right to Self-defence Bill 2000. That bill, although it proceeded to the second reading stage, has never been debated and it languished on the business paper for a considerable time. Contrast that attitude of the Government to its propensity to deal with crossbench legislation. It should be noted that over the past few years the Government has twice adopted legislation that was proposed by the Hon. John Tingle—the Home Invasion (Occupants Protection) Act 1998 and the Workplace (Occupants Protection) Act 2001. Those were, if I might say so, good pieces of legislation in their time.
However, the adoption of those two private members' bill created three separate sets of laws dealing with self-defence—one law for the home, another law for the workplace, and the common law continuing to apply outside the home and the workplace. Unfortunately, from 1995 the Government continued to ignore the opportunity to have simple and comprehensive legislation dealing with self-defence, which is a significant issue in the community. The Government declined to take up the much more comprehensive legislation that the Opposition had put forward for the base political reason that the Coalition proposed it.
The Crimes Amendment (Self-defence) Bill sets out the circumstances in which self-defence is available. It specifies that the conduct must be a reasonable response in the circumstances as the person claiming the defence perceived those circumstances to be. The bill largely follows draft legislation contained in the Model Criminal Code, which was recommended by the Model Criminal Code Officers Committee [MCCOC] of the Standing Committee of Attorneys-General. In introducing the bill in the other House, the Attorney General noted that the bill was drawn substantially from the model developed by the MCCOC, which had undertaken the process of reviewing the criminal laws of Australia with a view to rationalising them and making them consistent. That is a laudable approach. That exercise by the MCCOC produced some other good results, some of which were noted by the Attorney General in the other House. Those related to offences arising out of the Model Criminal Code, such as computer offences, sabotage offences and offences relating to the contamination of goods.
The bill follows the general concept of self-defence laid down by the Model Criminal Code, so that a defendant who believed when exercising his right of self-defence that it was necessary to repel an attack, even if that perception might have been wrong, can still rely on self-defence, so long as it was a reasonable response in the circumstances as perceived by the defendant at the time. The Opposition agrees with that approach. As the Attorney General explained in the Legislative Assembly, the bill contains a couple of departures from the Model Criminal Code, the first of which is the reintroduction of the law of excessive self-defence, as provided in proposed section 421 of the Crimes Act.
The Attorney General pointed out, and the Opposition agrees, that this was the common law position as previously stated by the High Court in Viro's case, in which it was held that self-defence that was necessary but involved the use of excessive force causing death would lead to a finding of manslaughter instead of murder. The second difference to the model code relates to self-defence in the context of defence of property and is reflected in proposed section 420 of the Crimes Act. The model code limits the defence of property and criminal trespass by not permitting death or really serious harm to be occasioned. The Hon. Richard Jones has foreshadowed an amendment in relation to that, which, unfortunately, the Opposition will not support.
The Government adopted the approach taken in South Australia, under which there is no excuse for killing someone in the defence of property. The Opposition will support that position in this bill. Both of those departures, and indeed this legislation in general, emphasise the need for proper information to be available to the public about their rights in relation to self-defence. As I said, the bill in large part mirrors the Coalition's Right to Self-defence Bill.
The bill does not include provisions to protect victims from civil liability resulting from the use of self-defence, as provided in the Opposition's bill. The shadow spokesman on legal affairs, the honourable member for Gosford, Mr Hartcher, was critical of the legislation because of its failure to address civil liability. Mr Hartcher cited the well-known and celebrated case of a couple in the western suburbs of Sydney who were at home when an assailant broke in and attacked, assaulted and injured them. The assailant was subsequently convicted of home invasion and assault and was sentenced to gaol. However, on release from gaol he sued the couple whose home he had invaded because their dog bit him during the invasion.
The Hon. John Jobling: The dog should have been objecting about what he bit.
The Hon. GREG PEARCE: The dog should have objected to what he bit but, unfortunately, in absurd circumstances that criminal was able to take civil proceedings against the innocent couple who were the victims of his crime. That has been something about which the Opposition and the community have been very concerned. It raises the issue of the extent to which the community can be confident and certain about the use of self-defence.
This bill reinforces the proposition that in exercising one's right to self-defence one must have regard to what is reasonable in the circumstances. Someone who is forced to exercise his right to self-defence might use a greater level of force than, in hindsight, was necessary. The community's understanding of its rights in these circumstances has not been adequately addressed by the Government. Certainly in many meetings that members of the Opposition have attended there has been a lot of concern about the rights of individuals in exercising self-defence.
In the Legislative Assembly the Attorney General addressed this issue and was gracious enough to concede that it was not necessarily a bad concept to include in this legislation an amendment dealing with the civil liability that may arise when a dog bites a criminal. However, he pointed out that there were good reasons for dealing with that in separate legislation and, effectively, he gave an undertaking that the Government would do that in the near future. Therefore, the Opposition does not propose to move any amendments to this bill. However, we expect the Minister to be a little more energetic in dealing with that issue than he was in introducing this bill, given, as I have previously said, that the Coalition has been attempting to have this matter dealt with since 1996 when Mr Hartcher introduced his Home-owners Defence Bill.
I again emphasise the need for a concerted campaign to educate the community about the significant issue of the right to self-defence, particularly in these days when, as we know, the Government has not been very successful in dealing with street crime, drug crime, house breaking, breaking into cars, and various other public safety issues. The tardiness of the Government in responding to the need to properly codify laws in relation to self-defence is deplorable. The fact that the Government does not have any initiative in this area, as we know, is consistent with its failure to produce policies and initiatives in other areas, including some of the public safety matters that have been the subject of Opposition action and Government reaction.
I instance some of the legislation that the Government has copied from the Coalition—the life sentence confirmation legislation, the Crimes Amendment (Aggravated Sexual Assault in Company) Bill and the sniffer dog policy. The Opposition does not oppose this legislation but it is unfortunate that the Government has taken nearly seven years to do something about this matter, other than tinker with specific matters that needed reform. We hope that the Government will make sure that the community understands its rights more clearly. However, we commend the Government for finally dealing with this important issue.
The Hon. JOHN TINGLE [8.50 p.m.]: I support the Crimes Amendment (Self-defence) Bill, which is an excellent and overdue bill that goes a considerable way towards meeting the public demand for more and stiffer penalties for various sorts of crimes, including assaults and offences against the person, in particular.
The Hon. Dr Arthur Chesterfield-Evans: You would be tougher too, John.
The Hon. JOHN TINGLE: The Hon. Dr Arthur Chesterfield-Evans is quite right; I am glad he is in favour of tougher penalties. The bill is based on and expands the Home Invasion (Occupants Protection) Bill and the Workplace (Occupants Protection) Bill, which I introduced in this House and which became law in 1998 and 2001 respectively.
I believe I should clarify the situation regarding the home invasion bill, to which the Hon. Greg Pearce referred. He is quite right: the Opposition introduced legislation of this sort in the lower House but it was not passed. However, I point out to the honourable member that the bill introduced by the shadow Attorney General postdated the introduction of the home invasion bill in this House by about 12 months.
The Hon. Greg Pearce: It was a much better bill.
The Hon. JOHN TINGLE: It was a restrictive bill as it was entitled the Home-owners Defence Bill. The then Attorney General pointed out that that title would limit the defence rights conferred by the bill to home owners, whereas my bill referred to home occupants and thus offered wider protection. I also point out to the Hon. Greg Pearce that when the legislation was debated in this House the Government opposed it. It was not a question of the Government preferring to deal with the crossbenchers. The bill passed this House by one vote—that of the Hon. Richard Jones, for which I am grateful. Without his vote it would not have got through. When the bill reached the other place the Government thought better of it for some reason and supported it.
The Hon. Duncan Gay: Why did you single out the Hon. Richard Jones' vote from all the rest?
The Hon. JOHN TINGLE: Because he was the person who I did not think would support it, but he did. The Deputy Leader of the Opposition knows exactly why I singled him out. Both of the bills I introduced applied a different approach to what a house occupant or a person legally at a workplace could do if confronted by an attacker in the commission of a crime or an attempted robbery. Although the common law has always allowed some form of self-defence against an attack, there were two problems with leaving the matter in the realm of common law, which is why I introduced my bills in the first place.
Those reasons were as follows. First, the average citizen has only hearsay knowledge of the common law, which is derived from possibly millions of judgments by various courts and is simply inaccessible to the average citizen. Second, the common law calls in a series of very complex gradations of the type of self-defence that a person may use. There are questions of reasonable force, equal force and the like, and those parameters are simply incomprehensible to the average person.
For example, someone awakened from sleep and attacked in his or her bedroom in the middle of the night, perhaps in total darkness, cannot reasonably be expected to know instinctively what the common law says he or she may or may not do in reasonable self-defence. People who are attacked are likely to do what instinct directs and lash out at their attacker in any way open to them. That is where the problem arises in the minds of average, inoffensive, law-abiding citizens: if it is later considered that they had lashed out too hard, would they then face charges of assault or worse?
During my 26 years in commercial radio and television in Sydney, Melbourne and Brisbane I found that this subject came up repeatedly and insistently. There were reports of victims of attacks being charged after fending off housebreakers, for example, and this always alarmed people. Callers continually asked me whether they had the right to defend themselves and, if they did, what they could do and what penalties they might face. In fact, the law was that the determination of what was reasonable depended not on whether the judge or jury believed that the actions taken were reasonable but on whether the action had seemed reasonable to the victim at the time.
The Hon. John Jobling: And that was seriously difficult to explain, wasn't it?
The Hon. JOHN TINGLE: It was impossible. That is the point. So many people were concerned about the possibility of being charged that they refrained from acting in self-defence, even when such action was advisable and possible. How could any victim remember clearly, possibly months, or even the years, later—let alone explain convincingly—what was in their mind at the time of an attack, when they were in a confused and frightening situation and might have feared for their life? I felt there was a need to codify the common law: to put it in writing for everybody to read and understand.
I was also concerned that, after acting in self-defence against an attacker, the person who was clearly the victim could be suddenly transformed into an offender and be charged. They would suffer all the anxiety, humiliation and uncertainty that that would bring—to say nothing of the stress of waiting perhaps years for the case to come to court and worrying about the possible outcome—even though they had not instigated the attack but had been an innocent victim. It seemed to me that victims of genuine attacks should be given a clear and guaranteed right of immunity from civil and criminal liability and that, in the event of a charge being laid, the onus of proving their state of mind should be lifted from them and laid on the prosecution.
That is what my two bills provided, and I am pleased that the Government, in widening the self-defence concept beyond the confines of the home and workplace and applying it to anyone anywhere else, has seen fit to include those provisions. However, I absolutely endorse the important point made by the Hon. Greg Pearce that we must educate the public about the bill and the self-defence rights that it gives to people. Even now, three years after the home invasion bill became law, possibly 90 per cent of people do not know it exists. They are still confused, so we need to publicise it.
I know that some honourable members and organisations have questions about the bill: some believe it goes too far and others not far enough. An amendment to the bill has been foreshadowed that we will consider in Committee. However, I believe the amendment misses the point of the legislation, misquotes it, and cannot be supported, as I will demonstrate in Committee. I believe there are sufficient restraints within the bill to prevent it from becoming a vigilante law or a dirty Harry bill, as the Attorney General said when he announced it. This bill will be good law that will do what the law should but often fails to do: swing the weight and function of justice behind the law-abiding and the innocent and stop it from coddling and apologising to the criminal. I support the bill.
Ms LEE RHIANNON [8.56 p.m.]: The Greens believe that the Crimes Amendment (Self-defence) Bill is a particularly dangerous and poorly thought through part of the Government's law and order agenda. The law must obviously offer a defence to people who act in self-defence in certain circumstances. That is not in question. However, in seeking to exploit community fears about crime and to pander to simplistic and often harmful notions of punishment and retribution, the Government has produced legislation that goes too far and permits an excessive response to relatively trivial situations that do not involve self-defence.
Honourable members must understand that this bill provides for circumstances that do not involve self-defence as the public understands the meaning of that term. The bill allows a person to claim self-defence if he or she believes his or her conduct is necessary to protect property from unlawful taking, destruction, damage or interference or to prevent criminal trespass or remove a person committing criminal trespass as long as his or her conduct is a reasonable response in the circumstances as he or she perceives them. In other words, a relevant test is how the defendant perceived the circumstances that led to his or her actions rather than an objective assessment of those circumstances. I emphasise that point because the Greens believe it is outrageous that the test is how the defendant perceives the situation rather than an objective assessment of the overall circumstances.
Furthermore, in any criminal proceedings the onus is on the prosecution to prove beyond reasonable doubt that the defendant did not act in self-defence. Let us consider that concept in practice. For example, a person may claim self-defence if he or she physically restrains, or perhaps assaults, a person who is shoplifting an item of trivial value. In such a case the prosecution would have to prove beyond reasonable doubt that that person did not act in self-defence. This is a tremendous distortion of the traditional meaning of self-defence, which the public understands as a person being forced to use violence to protect himself or herself from injury or death when attacked.
Not even the Hon. John Tingle, after all the great words that he has spoken, could deny that fact. That is what people understand self-defence to mean. Under this bill a person would also be able to claim self-defence when preventing criminal trespass, which is quite outside the conventional understanding of that term. For example, protesters may stage a protest or a sit-in at a sensitive site such as Parliament House or at a site such as a chicken farm. The Hon. Richard Jones might join the Greens in a protest about the rights of animals. I know that he is passionate about that issue. At that sit-in an individual might physically grab and assault a protester and that individual might claim that it was self-defence. The Hon. Richard Jones, with his strong commitment to animal welfare, could find himself in such a situation.
This legislation clearly takes the concept of self-defence too far. As I said earlier, it distorts the public's understanding of the meaning of self-defence. Where is this coming from? Clearly, it is a reaction to the sensational stories that are run by the media from time to time—the "A person broke into my house, I thumped him and I am getting charged with assault" type stories. We have all read those stories in the tabloids and we have heard them on talkback radio. We know where this is coming from. This legislation will provide Labor with yet more ammunition to appear tough on crime and criminals, to get the runs on the board for the next election. That is what this legislation is about. It will not make our society safer.
It is worth noting that this bill repeals the two bills that were introduced by the Shooters Party, bills which the Government supported. Earlier the Hon. John Tingle expressed great satisfaction about the fact that those bills were supported by the Hon. Richard Jones. This bill will replace that legislation with a more coherent structure. So Labor is picking up the agenda of the lunar right and it is running hard with it. It is picking up the agenda of the far right, just like Howard did with Hanson's agenda on asylum seekers.
The Hon. John Jobling: Rubbish!
Ms LEE RHIANNON: I note the interjection of the Hon. John Jobling, who appears to be quite pained by my statement.
The Hon. John Jobling: I am pained by your performance.
Ms Lee RHIANNON: As it is after 8.00 p.m. I note that there is a different quality to debate. The Government is picking up the agenda of the far right, just as the Prime Minister picked up on Pauline Hanson's agenda, a fact that cannot be denied by honourable members. I put Labor on notice for the next election. The Greens will out its tactics in relation to this issue.
The Hon. John Jobling: You will out their tactics?
Ms LEE RHIANNON: Yes. Those tactics will catch up with members of the Labor Party—tactics that do the community a massive disservice. Those tactics, which will not make our community safer, will catch up with them.
The Hon. Jan Burnswoods: You would have to be the most arrogant person in this Chamber. You think that you can do this all by yourself, that you are so clever!
Ms LEE RHIANNON: I note the comments of the Hon. Jan Burnswoods, which say a lot about her.
The Hon. Michael Egan: I have come to help.
Ms LEE RHIANNON: I am glad we have now been joined by the Treasurer, who said that he has come to help. That will be most useful in this debate. This terrible piece of legislation will give rise to more injustices than it will address. This legislation will make people feel safe when they are taking extreme action, severe and violent action, against petty criminals such as shoplifters.
The Hon. John Hatzistergos: Rubbish!
Ms LEE RHIANNON: I note the comments of the aspiring Attorney General.
The Hon. John Hatzistergos: Where were you when the national parks bill was debated? Were you here at all?
Ms LEE RHIANNON: The Hon. John Hatzistergos asked me why I was not here for the national parks debate. The members of our party are responsible for the carriage of different bills. What a narrow definition from the aspiring Attorney General about what it means to be a Green.
The Hon. John Hatzistergos: Yes. Well you are not a Green; you are a red.
Ms LEE RHIANNON: I suppose the honourable member believes that remark to be insulting. The Greens are proud of the fact that they have policies across the board. Over the past four years my colleague the Hon. Ian Cohen has worked on a number of issues, national parks and all the crazy law and order issues that were introduced by this Government. The Hon. John Hatzistergos is aware that the Hon. Ian Cohen worked on those issues. The Hon. John Hatzistergos would also be aware that the Hon. Ian Cohen and I divide the bills between us. The honourable member will only fail if he tries to lock us into a narrow Green agenda.
The Hon. Michael Egan: There is a three-way split.
Ms LEE RHIANNON: If the Treasurer wants to do that he will have to join the Greens. Sometimes we have common ground.
The Hon. Michael Egan: Like what? Name one!
Ms LEE RHIANNON: I believe that the Treasurer has a commitment to public education, even though he went to a private school
The Hon. Greg Pearce: But he does not give them any money.
Ms LEE RHIANNON: That is good. The Treasurer is nodding his head in agreement, so there is always hope.
The DEPUTY-PRESIDENT (The Hon. Henry Tsang): Order! Ms Lee Rhiannon will address her remarks through the Chair.
Ms LEE RHIANNON: I am sorry, Mr Deputy-President. The Hon. Richard Jones proposes to move one amendment to this bill.
[Interruption]
That amendment is in the Chamber, so the Hon. Jan Burnswoods is wrong again.
The Hon. Peter Breen: You know that he has withdrawn it.
Ms LEE RHIANNON: I am not aware that the honourable member has withdrawn his amendment as he has not spoken to me. The Greens are disappointed about the fact that the Hon. Richard Jones is moving such a right-wing amendment to this bill. That amendment would extend self-defence even in a situation where a person, intentionally or recklessly, kills a person in defence of property to prevent criminal trespass or to remove a person committing criminal trespass. The Hon. Richard Jones, through his amendment, is putting property ahead of people. The honourable member's justification for this amendment—a terrorist trying to blow up the Opera House—is ludicrous. It demonstrates that he got a little carried away as a result of the 11 September terrorist attacks.
I know that the Hon. Richard Jones supported the original legislation that was introduced by the Hon. John Tingle. Earlier I heard the Hon. Peter Breen say that the Hon. Richard Jones will withdraw his amendment. I hope that that is the case. The Hon. Richard Jones has fought a hard battle in this place on many issues and for much fine legislation. If the honourable member withdraws his amendment he would redeem the standing he has developed in many important areas, particularly in relation to animal welfare. The Hon. Greg Pearce referred earlier to the fact that the Government is not addressing street crime. He spoke about the Government's tardiness in reducing crime levels. The Government will not win the fight against crime by approaching the issue in this way. It is concerned only about creating a perception in the community that members of the public are safe on the streets and on public transport.
The Government is not about achieving lasting solutions for our community. The Greens are deeply committed to allaying people's fears about crime and ensuring that crime levels decrease. But that will occur only if we tackle the real causes of crime in our community. The crime levels in our community have much to do with a lack of jobs, a lack of education, and changing people's attitudes to the use of drugs. I again place on the record the fact that the Greens are documenting the law and order arsenal that the Government is building up for itself as we approach the third election cycle. The 1995 and 1999 elections were fought in a simplistic way. The Labor Government, which realised that it could be one of the most creative examples of wedge politics, pushed the Coalition off its turf, grabbed the headlines and won the election. It appears as though that is the way it is shaping up again. We will continue to fight this issue because it is absolutely essential that communities are given every protection, but it must be real protection and not the sort of perceptions and half-truths the Government proposes with this legislation, which distorts the whole concept of self-defence and will not make our communities any safer.
The Hon. DAVID OLDFIELD [9.09 p.m.]: I support this bill and congratulate the Government on introducing it. The concept of the right of self-defence concerns the vast majority of the population. I am interested to know just exactly what level of self-defence Ms Lee Rhiannon may use if someone were to knock down her door, come in and attempt to rape her. Perhaps if someone were to endanger her children she may take a different view. Certainly the right of self-defence is fundamental to the basic rights of any human being. People should not be put in a position where they feel intimidated to such a degree by the law that they feel in more danger by defending themselves than they would be by submitting to the criminal. Mr Deputy-President, could I ask you to call the House to order, to perhaps try to quell the several conversations?
The Hon. Dr Arthur Chesterfield-Evans: If you think they're abusing you, you're getting off light!
The Hon. DAVID OLDFIELD: I assure the Hon. Dr Arthur Chesterfield-Evans that there is no level of abuse that has ever been of great concern.
The DEPUTY-PRESIDENT (The Hon. Henry Tsang): Order! The Hon. David Oldfield has the call.
The Hon. DAVID OLDFIELD: I was not concerned about what the Hon. Jan Burnswoods may or may not have been doing, but I did not think it was fair that Ms Lee Rhiannon was not able to hear my comments about her so that she too could have the right of interjection. It is inappropriate to suggest that the right of self-defence is fundamental to the concept that people could be intimidated into thinking they have difficulty in defending themselves under the eyes of the law. We should be concerned with knowing exactly what is excessive defence. A person who has been or who is in the midst of being or about to be assaulted will probably be under much stress. Perhaps not many honourable members have found themselves under physically intimidating stress and would not know that such a situation is likely to provoke you to do things you may not normally do in a calm state of mind.
If you are in your home and somebody invades your home, or if you are on the street and somebody approaches you in a menacing manner, particularly if it is dark, there is a good chance that your stress level will be such that you will want to react in the strongest possible manner either to defend yourself or run away. The Greens are concerned with how a person perceives the threat; that a person may perceive the threat to be greater than the actual assault. Perception is reality, at least to the person who perceives the threat. You take the threat as you perceive it—it is real. We should be more concerned with how the victim perceives the threat rather than how the criminal considers the threat. What the victim considers is important, not the level of threat the criminal may have in mind.
For example, if a person brandished a weapon and the victim was open handed and potentially defenceless to that weapon, I consider that threat excessive, and it would require and would quite fairly receive an excessive response. The difficulty is the expertise of the response to a threat. A person trained in self-defence using a firearm or open or closed hand, and with a calm state of mind, which is not the average member of the public, will respond perhaps not excessively but fairly quickly and with more force than the assailant expected. However, as I said earlier, the average member of the public will not necessarily respond in that manner. An example of this—which may be humorous, frivolous or perhaps even novel—is from a particular scene involving firearms in the classic western some honourable members may remember called Butch Cassidy and the Sundance Kid starring Paul Newman and Robert Redford which was released in about 1968.
The Hon. Jan Burnswoods: There were women in it as well.
The Hon. DAVID OLDFIELD: I acknowledge that the lovely Katherine Ross also was in the film, together with a number of other females. But the stars were Paul Newman and Robert Redford. Butch and Sundance no doubt were criminals, but at one stage they found themselves on the other side of the law acting as payroll guards. During the course of a payroll hold-up they found themselves suddenly law-makers rather than law-breakers defending that payroll from a group of Bolivian bandits. I remember the conversation between Butch Cassidy and the Sundance Kid as they prepared to defend themselves. To the shock and horror of the Sundance Kid, played by Robert Redford, he found out that Butch Cassidy had never fired a gun at another human being and was very stressed about having to do so.
This analogy demonstrates the difficulty of the expertise of a response to a threat. The scene was humorous at the very least when the Sundance Kid said to Butch Cassidy, "Just aim about the middle and that way you'll hit something." We will have problems with the expertise used in response to the threat. We will not find terribly many Sundance Kids or, for that matter, Butch Cassidys in the public being assaulted and then having to ascertain what is an excessive response. In many respects a victim will have the ability to respond physically and equally on a high threshold of fear to what is taking place and the criminal may face a much more dangerous and ongoing response than they would from some calm person with some physical ability to deal with the assailant.
It would not be unlikely for someone who was assaulted, extremely frightened and very stressed to overtake the assailant and beat them senseless. Those sorts of things should be taken into account. When a person invades another person's space—be that in their home or at their place of business—or when a person approaches another person in a threatening manner, intimidates them and possibly carries a weapon, the response to that excessive violence level will be determined by the stress and fear levels of the person responding. We should not be terribly surprised to find that as a result of those psychological circumstances people who generally are not considered violent—those simply defending themselves, for example, parents defending children—but desire to protect their children or loved ones, such as a wife or a husband, may realise in the calm, cool light of day that the level of force they used was apparently excessive.
The Greens argue that it should not be the threat that is perceived by the victim at the time that matters, but rather what somebody else may wish to judge at a later date. Any court must take into account that the victim is the victim, that the offender is the criminal, and that the victim has every right—assisted by these provisions—to use whatever force is necessary, whether they are calm, hot-blooded or fearful. In the cold light of day excessive force may appear to have been used, but it did not appear excessive to the person who had to respond at the time.
Reverend the Hon. FRED NILE [9.20 p.m.]: The Christian Democratic Party supports the Crimes Amendment (Self-defence) Bill. The bill will codify law with respect to self-defence. The codification effected by the bill seeks to simplify the law by enabling defendants to rely on self-defence if they believe their conduct was necessary, even if they were wrong, so long as the response was objectively proportionate to the situation as they perceived it. In the other place the Government finally supported two bills which preceded this bill, each dealing with self-defence—defence in the home through the Home Invasion (Occupants Protection) Bill, and defence in the workplace through the Workplace (Occupants Protection) Bill. Both those bills were initiated by the Hon. John Tingle. Each of those bills reflected in statutory form the common law test of self-defence and defence of others.
The Greens expressed some concern that this type of legislation may lead to animal liberation protesters who may be invading a chicken farm being shot or injured. Perhaps that issue can be discussed later, but my concern is the opposite of that presented by the Greens. Protesters wearing face masks or balaclavas at violent globalisation protests in Sydney utterly destroyed public property and particularly targeted McDonald's restaurants and other buildings. When I saw that on television I realised that the police, hindered by a protesting crowd, could not reach those doing the damage and had no idea who they were, because they were wearing ski masks. I ask the Government whether some consideration could be given to future amendment of this legislation to deal with persons who deliberately conceal their identity for the purpose of committing a crime. That would help bring more law and order to our streets and make them safer. My concern is focussed on that type of offender rather than people who might get into trouble by raiding a chicken farm.
This bill repeals the Home Invasion (Occupants Protection) Act and the Workplace (Occupants Protection) Act so that the law will now apply uniformly in all situations where self-defence may arise. It will effectively abolish the current common law regarding self-defence. In each case the general concept of self-defence as codified in the bill will apply. I am glad that the Government has given an assurance—and I assume that assurance is based on legal opinion from the Solicitor General and others—that in its view the common law is not made irrelevant through this legislation. The provisions of the bill are firmly grounded in common law principles. That is important.
This legislation has become necessary because of the increase in attacks in homes, whether described as home invasions, invasions for assault or robbery, or attacks on shopkeepers in their shops. Self-defence will only be available in the following circumstances: for defending oneself or another person, for preventing or terminating the unlawful deprivation of one's liberty or the liberty of another person, for protecting property from unlawful taking, destruction, damage or interference, and for preventing criminal trespass to any land or premises or removing a person committing criminal trespass. The Christian Democratic Party is pleased to support the bill.
The Hon. RICHARD JONES [9.25 p.m.]: I had intended to move an amendment along the lines recommended by the Law Society, which viewed proposed section 420 as highly problematic. In its briefings to me the society claimed that proposed section 420 limits the availability of self-defence if the person intentionally or recklessly kills a person in defence of property, to prevent criminal trespass or to remove a person committing criminal trespass. The society is concerned that it will provide great potential for unforeseen injustices. In the memorandum I sent around to members I quoted the example the society gave me, and that was quoted by Ms Lee Rhiannon. For example, the society talked about a security guard killing a terrorist who was trying to blow up the Opera House.
The Hon. Greg Pearce: You would think he would be concerned about the terrorist, wouldn't he? Self-defence would arise because he killed a terrorist. Perhaps the Attorney General in waiting will respond on this.
The Hon. RICHARD JONES: Perhaps you are right. The Law Society's view is that the test should be the same for all situations in which self-defence is available to the accused and that proposed section 420 should be deleted. That is not going to happen now unless somebody else moves an amendment and receives support from one side or the other.
The Hon. John Jobling: Why have you changed your mind?
The Hon. RICHARD JONES: I have talked to a number of people about it and I have received further advice since drafting the amendment. The advice to me is that it is not a good idea at all and that the Law Society may not have it right.
Reverend the Hon. Fred Nile: It gets it wrong, as it often has done on other occasions.
The Hon. RICHARD JONES: It does get it right, and I have supported it on many occasions in this House.
The Hon. Greg Pearce: Can you explain your note? I could not work out what you are saying.
The Hon. RICHARD JONES: The Law Society says that the need for specific circumstances for the matter to be an exception when invoking the defence of protecting property is accommodated. It says that according to proposed section 418 (2), as currently phrased, the conduct must be a reasonable response. If that section is amended as recommended by the society, the person would be required to believe on reasonable grounds that the conduct is necessary. That is all irrelevant now. When I supported the bill of the Hon. John Tingle in 1998 I was voting in opposition to—
The Hon. Greg Pearce: Quid pro quo, was it?
The Hon. RICHARD JONES: Absolutely not. I was opposing my colleague of the day, the Hon. Elisabeth Kirkby. I felt very strongly about the matter, as I still do. At the time a group of schoolchildren were in the gallery, and the Hon. Elisabeth Kirkby was appalled by my saying that I would do whatever was necessary to defend my home and my loved ones. I stand by that. I hope I would not recklessly kill someone in doing so, but if someone tried to break in I would do whatever was necessary to defend my home and would take the consequences. I think every reasonable person would do that.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.28 p.m.]: On behalf of the Australian Democrats I oppose this bill. It is a nonsense. I am disappointed that the Government has introduced it. It is a disgrace that the Opposition is saying that it has been waiting ages for this bill. The Opposition would have been much more rednecked, as evidenced by the contribution from the Hon. Greg Pearce. We do not agree with some aspects of the Standing Committee of Attorneys-General Model Criminal Code. We do support, along with the abolition of the States, the codification of a single, nationwide criminal code that applies to all jurisdictions in the Commonwealth. Interestingly, during my contribution to debate on the Workplace (Occupants Protection) Bill on 13 October last year I responded to an interjection from the Hon. John Tingle. I acknowledged that:
… in 1998 I voted in favour of the escalation in the rights of a person to defend his or her house, but, in retrospect, I wonder whether I did the right thing.
Now I do not think I did the right thing. In October 2000 I foreshadowed that in a few months someone would introduce a bill to extend those rights to the streets. More than a few months have passed, and here is the bill. It has arrived! The initial legislation defended occupants, the second bill defended workplaces, and this bill defends self-defence. There has been a steady escalation. Inconsistencies will arise, these provisions will not apply everywhere, and there will be escalation everywhere.
The Hon. Jan Burnswoods: Up or down?
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Up, of course. The Crimes Amendment (Self-defence) Bill will codify the requisite elements of self-defence that defendants may use in their defence in court. That is a significant departure from common law self-defence. Self-defence will now be a defence for defendants protecting themselves or another person, preventing or terminating the unlawful deprivation of one's liberty or the liberty of another person, protecting property from unlawful taking, destruction, damage or interference, preventing criminal trespass to any land or premises, or removing a person committing criminal trespass. Under proposed section 421, if a defendant uses excessive force and inflicts death, and the Court determines that it is not a reasonable response in the circumstance of the offence but the defendant believed it was necessary for personal defence or for preventing or terminating unlawful deprivation of liberty, the offence will be reduced from murder to manslaughter.
Effectively, this legislation moves away from reasonable response to the vaguer concept of personal belief. If there is a suggestion of self-defence or if the defence can prove that it is self-defence, the offence will be reduced from murder to manslaughter, even if the response to the force is not reasonable. That will result in an escalating likelihood that people will be killed. The deterrence offered by penalties, if they have a deterrent effect, will be lessened. If self-defence is believed to be necessary, the offence will be reduced from murder to manslaughter. Effectively, the offence of murder will be reduced if a person kills someone when responding in self-defence. Honourable members can scoff and laugh in their usual childish fashion.
The Hon. Greg Pearce: Point of order: Having listened to the Hon. Dr Arthur Chesterfield-Evans, it is apparent that he has mistakenly brought the wrong speech to the Chamber and this speech relates to some other bill. Nothing he has said so far has been at all relevant to the bill before the House. Therefore, I ask you to direct him to get the correct speech and to address the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: To the non-point of order: That is complete and absolute nonsense. The Hon. Greg Pearce is attempting to make a debating point. He should be told to shut up and stop wasting the time of the House.
The DEPUTY-PRESIDENT (The Hon. Henry Tsang): Order! There is no point of order. However, the Hon. Dr Arthur Chesterfield-Evans should return to the main subject of the bill.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The peanut gallery should remain silent. The Law Society does not support codification of the common law relating to self-defence, but it supports the reintroduction of the partial defence of excessive self-defence. Clause 418 (2) makes the test completely subjective for determining the circumstances to which a person is responding. Under the proposed legislation, the words "in the circumstances as he or she perceives them" will allow a person who has an honestly held, but completely deluded, perception, if accompanied by a reasonable response, to invoke the defence of self-defence. In other words, it creates a loophole that may be manipulated to widen the type of conduct that can be labelled as "self-defence".
The legislation could also give rise to after-the-event claims of self-defence. That puts more eloquently what I was saying. In the Law Society's view, clause 420 is even more problematic. That clause limits the availability of self-defence if the person intentionally or recklessly kills a person in defence of property to prevent criminal trespass or to remove a person committing criminal trespass. The Law Society is concerned that this will provide great potential for unforeseen injustices. In the Law Society's view, the test should be the same for all situations in which self-defence is available to an accused person, and clause 420 should be deleted from the bill, whether or not clause 418 (2) is amended as recommended. The Law Society supports the restoration of the partial defence of excessive self-defence.
It is the Law Society's view that when a court or jury does not accept that a person's conduct is a reasonable response or that the belief was based on reasonable grounds, but accepts that the person honestly believed such, it is appropriate that the court or jury should return a verdict of not guilty of murder but guilty of manslaughter. The bill changes the defence from reasonable conduct to the vaguer concept of the perpetrator's state of mind at the time of the offence. That defence will be more difficult to argue, and a conviction will be much more difficult to secure. That is dangerous. We must look at crimes in terms of both the perpetrators and the victims. This House seems intent on showing no understanding or compassion for perpetrators.
The Hon. Malcolm Jones: It is a voluntary act.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: My home was invaded twice. The first time was when I was a student. When I came home the lights were off, the front door was open and the glow of a cigarette was moving down the stairs of my terrace house. When I turned the light on I was confronted by a person carrying my flatmate's record player. I could have hit him; he was only a little shorter than I am. I am not much of a pugilist but he had an advantage in that he had something in both hands. As I hesitated he thrust the record player at me and ran past in the narrow corridor. He jumped in his car and drove off. I took his number and called the police. The police immediately identified the person from the description.
The police said, "Oh, that's Ron. He has a fight with his missus when they get short of money. He does a job like this and sells the stuff at the local pub. We will go and pick him up." They proceeded to do that, and they recovered about half the stuff. We did not hear anything from the police for about six weeks, and my flatmate complained that the police were not delivering well. The police said we had made them go through a lot of red tape and we had two choices: they could continue with a prosecution and put Ron in gaol, or we could make a deal in which we asked for money equivalent to the replacement cost of the goods that had been stolen and not recovered.
The Hon. John Jobling: You took the money!
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The police would make a deal with him: If he provided the money he would not go to gaol. We took the money. This man was nicking a few stereos from students because he had a social and economic problem. If I had killed him, how much better off would I have been under this legislation? I would have said, "Hang on! I was in fear of my life. I am no pugilist. I walked into my house. I was in the dark and I was defending myself and my property. I committed manslaughter." The man's wife, whom I had never met and who only wanted economic benefit for their children, would be a widow. I would have a man's death on my conscience, assuming I was convicted of manslaughter. I do not know whether I would have to serve time in gaol.
The position of the criminal and his family have to be considered in the context of this legislation. There have been numerous contributions to the debate, both in the other place and in this House. I did not hear all of what Ms Lee Rhiannon had to say, but, basically, the position of the perpetrator has not been considered. The second occasion on which my home was invaded I woke in the night to find a fellow coming through the window of the front room, where I was sleeping. My response at the time was to leap towards the person, ready to punch his head in. That was on the basis that while he was in the process of getting through the window he was at his most vulnerable and, therefore, even a poor pugilist such as I would have had a pretty good chance because his arms were still outside the window. The chap retreated very rapidly and I struggled to get dressed so that I could go out in the street and chase him.
After I had calmed down I reflected on what had occurred. At the time we were living in Newtown, next door to some Aborigines, and people very often came visiting. When they did so they used to climb in through the window of the house next door. It was their custom. I presumed my visitor had mistakenly gone to the wrong house. The point is that the intruder was a fellow who was visiting a friend and who quite innocently—in an unusual way, perhaps—climbed through the window of my home. At that time, as I said, it was not uncommon for people to climb over fences and so on. I would wait to see whether the house next door was being burgled or someone was merely visiting. It was slightly unusual, a cultural adaptation, if you like. I learned something, which, it would appear from the cacophony in this House, many honourable members steadfastly refuse to do.
We have before us a bill that I believe will result in more deaths and achieve very little. It goes against a uniform national code. I think it is a great mistake, a pandering to the shock jocks, and part of the law and order option in the lead-up to the next State election, as Ms Lee Rhiannon said. I foreshadow moving some amendments, which I will state in case they have not arrived by the time we are ready for the Committee stage. The first amendment will amend clause 418 (2) to insert the words "upon reasonable grounds" after the words "if the person believes" at line 20 on page 3. The second amendment will delete the words, "and the conduct is a reasonable response in the circumstances as he or she perceives them", at lines 6 and 7 on page 4. The future Attorney General—
The Hon. Greg Pearce: Attorney General in waiting.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: The Attorney General in waiting said that this would undermine the bill. As the honourable member may have noted if he had been even half listening to what I said, I do not think this is a good bill; I think it is a very bad bill. Once again, it is just racking up the law and order option. It will not get to the root of the problem. What is needed is a serious analysis in this House of why the incidence of crime is increasing and a serious analysis of how to fix it.
The Hon. Duncan Gay: Point of order: It is clear that the Hon. Dr Arthur Chesterfield-Evans is deliberately delaying the House because he has not prepared his amendments. This bill has been dealt with in the other place and has been on the Legislative Council notice paper for some time. If the honourable member cannot organise his life and his pathetic party, he should not make this House wait while he filibusters on this bill to move his amendments. I ask you to call him to order. I also appeal to the Hon. Dr Arthur Chesterfield-Evans to have some decency.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I do not believe that this is in any way a point of order. The Deputy Leader of the Opposition merely considers that I have been speaking for too long. That may or may not be so. At any rate, there is no substance to the point of order. I should also say that I am not attempting to filibuster; that I had finished my speech—
The Hon. Duncan Gay: Well, sit down!
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I will not sit down until I have finished what I am saying, you rude people. You are now delaying things. I would have finished by now, had the Deputy Leader of the Opposition not interrupted me.
The DEPUTY-PRESIDENT (The Hon. Henry Tsang): Order! Will the honourable member return to the topic, please, and conclude.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: I am endeavouring to return to the topic. In fact, that is exactly what I was trying to do. I had almost concluded my contribution. I was going to say that if the amendments did not arrive I did not propose to filibuster until the Committee stage. That is why I went to some trouble to read the amendments; otherwise I would not have bothered. But, of course, the Deputy Leader of the Opposition, in an attempt to score some points, pretended to take a point of order. He stated that I was filibustering when I was not; I was simply making a point, and I think the point was worth making. If the honourable member does not think so, that is because we have heard a lot of members grandstanding and saying the same thing.
The Opposition suggests that if a member says something different he or she is taking up too much time. In fact, the amount of time members opposite took to say the same thing was much longer than that taken by honourable members who put a contrary point of view—and I think the only two members to do so were Ms Lee Rhiannon and me. As I said, this is a bad bill and I think it should be opposed. I have an amendment that, as the Attorney General in waiting said, would change the nature of the bill. If it is not possible for me to move my amendments, so be it. I will vote against the bill, and I urge other honourable members to do the same, if they have the courage.
The Hon. MALCOLM JONES [9.46 p.m.]: My contribution will be very brief. There is a great deal of fear in our society. Very often that fear is inexplicable and takes an unwarranted form. It simply lives in the souls of many in society. The fear is aggravated by the increase in home invasions, with people being raped or bashed or having their money stolen or their home burgled. News reports of these home invasions feed the fear in society. The Hon. John Tingle spoke about people being woken in the night. That statement was criticised by Ms Lee Rhiannon, who used the phrase, "taking all things into consideration". If people are woken in the middle of the night because their home is being invaded, they cannot take all things into consideration.
A victim in a fearful state is likely to act irrationally. The bill tries, to some extent, to take a victim's perception into consideration. I remind the House that crime is not compulsory. Crime is a voluntary act perpetrated against society. This bill is justified. Prior to its introduction, if a person acting in self-defence injured a criminal in the course of criminal activity, the potential for the laying of assault charges, or even murder charges, lingered over that person's head for a prolonged period. It creates a terrible environment in which to try to survive. Not only is it a long time to survive with all the attendant worry; the costs of finding a defence are astronomical.
The Hon. JOHN HATZISTERGOS [9.49 p.m.], in reply: I thank honourable members for their contributions on the bill, which codifies and consolidates the law on self-defence. It continues on the path that was initiated by the Hon. John Tingle when he introduced his Home Invasion (Occupants Protection) Bill. Last year we supported his Workplace (Occupants Safety) Bill. The Government and I pay tribute to the work the Hon. John Tingle did in pioneering the precursor legislation to this set of reforms. Today we are finishing the job. The legislation applies everywhere—at home, at work, in the streets and everywhere else. I will not respond to all the contributions but I will respond to the outrageous and inflammatory statements, which, I think, indicate a fundamental failure to understand what the bill is about.
Ms Lee Rhiannon stated that the bill contains a totally subjective test on self-defence. That is not correct. The law as it stands, under Zecevic's case, is that if the accused believed on reasonable grounds that it was necessary in self-defence to do what he did, and the jury has a reasonable doubt, he is entitled to an acquittal. This bill removes the requirement for reasonable grounds but requires that the action taken was a reasonable response in the circumstances as the person perceived them to be. So there is a subjective and an objective element in the bill, and it is totally misleading to say that it is totally subjective. Ms Lee Rhiannon suggested that the requirement under section 419 of proof beyond reasonable doubt was somehow novel or new. It is actually part of the law the way it operates.
When self-defence is raised as an evidentiary matter there is a requirement on the prosecution to establish that the act was not done in self-defence. Section 419 does no more than reflect what is already the position. We heard from the Hon. Dr Arthur Chesterfield-Evans—unfortunately, we will hear from him a little further. I get a bit sick of hearing the story about the invasion of his home. We have heard it so many times. This bill does not authorise a killing in the circumstances that the Hon. Dr Arthur Chesterfield-Evans suggested. It does not allow a person to intentionally kill someone to protect property or remove a trespasser; it allows a person to intentionally inflict grievous bodily harm in the circumstances set out in the bill. Self-defence will also not be a successful defence if the conduct of another person is lawful, such as a lawful arrest by police.
But the bill introduces a new partial defence of excessive self-defence. This means that if a person kills someone defending himself and uses greater force than is reasonably necessary he can be charged with and convicted of manslaughter rather than murder. This better reflects the culpability of the accused where the event is not premeditated. It also gives the jury a choice. Without that choice a jury might totally acquit a person, whereas with the provision that we have allowed in the bill the jury has the option of returning a verdict of guilty of manslaughter. I think that this is commonsense law reform and it is worthy of support. The Hon. Dr Arthur Chesterfield-Evans simply wants to take us back to where we were before the introduction of the Hon. John Tingle's bills. For those reasons we will not support his foreshadowed amendments in Committee. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
In Committee
Clauses 1 to 4 agreed to.
Schedule 1
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.54 p.m.]: I seek leave to move Australian Democrats amendments Nos 1 and 2 in globo.
Leave not granted.
I move Australian Democrats amendment No. 1:
Page 3, schedule 1 [4], line 20. Insert ", on reasonable grounds," after "person believes".
If the amendment is accepted the wording of section 418 will be:
(1) A person is not criminally responsible … if the person carries out the conduct constituting the offence in self-defence.
(2) The person carries out conduct in self-defence if and only if the person believes on reasonable grounds the conduct is necessary …
In other words, the test is whether the grounds for the belief are reasonable. The difference is whether the grounds are reasonable on objective criteria or whether it involves a state of mind. An objective test is very important. This would get us back to where the common law was. I think it allows a more reasonable assessment of the situation than simply speculating on a person's state of mind, which may allow somebody who uses unreasonable force in self-defence to be acquitted. Effectively, this would take away any consideration that one may not use excessive force in self-defence. In a sense, with the present wording there is no legal sanction on using excessive force. That is the essence of what I was saying during the second reading debate, and that is the essence of this amendment. I ask honourable members to support it, although I confess I am not hopeful.
The Hon. JOHN HATZISTERGOS [9.58 p.m.]: This amendment is misconceived: it introduces into the bill the current common law test that is in Zecevic's case. It was a confusing test that splintered the first objective limb of the proposed test into a subjective-objective limb. It negates the entire principle of the model criminal code, which the Hon. Dr Arthur Chesterfield-Evans faintly praised in his contribution during the second reading debate. It actually takes us back to the test that was criticised by the model code. For those reasons the Government will not support the amendment.
The Hon. GREG PEARCE [9.59 p.m.]: These amendments were presented to us just a couple of moments ago. That is why I wanted an opportunity to look at both of them and hear the arguments of the Hon. Dr Arthur Chesterfield-Evans on them. I fully concur with the Government's view on the amendment and the Opposition does not support it.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [9.59 p.m.]: The Australian Democrats support a uniform national criminal code. The provisions of the bill make things harder for the alleged assailant and are more likely to produce deaths from actions in self-defence. That needs to be taken into account. The national criminal code and this bill, which to some extent stems from it but goes beyond the code—
The Hon. John Hatzistergos: But you have not given notice of any amendments to suggest that the bill has gone beyond the code.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: No, I have not given notice of any amendments, that is true. The Australian Democrats support a uniform national criminal code. Basically, the Democrats do not want to change the test from what happens in the reasonable, real world to what may or may not be in a person's mind. Proposing some better limits on the extent to which one may plead self-defence is a good thing and will lead to fewer deaths and less violence.
Amendment negatived.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [10.01 p.m.]: Mr Temporary Chairman—
The Hon. John Hatzistergos: You are not going to move the second amendment now, are you?
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes.
The Hon. John Hatzistergos: After you lost the first one?
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: You don't think I am going to withdraw the amendment now, do you? What sort of a wimp do you think I am?
The Hon. John Hatzistergos: This amendment makes the whole bill a joke.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Yes, that is correct. I do not deny that for one minute. I think the whole bill is a joke. I am simply moving an amendment to correct an anomaly. I do not think there is anything wrong with that. That it is entirely philosophically consistent, and why would I not act philosophically consistently? I move Australian Democrats amendment No. 2:
No. 1 Page 4, schedule 1 [4], lines 6 and 7. Omit all words on those lines.
The amendment deletes the words "and the conduct is a reasonable response in the circumstances as he or she perceives them". As I said, it is not a question of perception. The Australian Democrats want a more objective test of behaviour. We do not want a claim of self-defence to be based on what people believe. We want it to be based on the actual situation. It is true that this amendment undermines the whole bill. I make no apology for that.
The Hon. JOHN HATZISTERGOS [10.02 p.m.]: If ever an amendment has defeated and undermined what the mover has been talking about, this is it. The Hon. Dr Arthur Chesterfield-Evans has criticised this bill because of its lack of objectivity. His first amendment was unsuccessful, but he now wants to proceed with a second amendment that will take all of the objectivity out of the bill and make the test for self-defence totally subjective. That is exactly why he has been criticising the bill. He ought to read these amendments before he moves them. This amendment would be totally and utterly unworkable.
The Hon. GREG PEARCE [10.02 p.m.]: One cannot say much more than that it is quite extraordinary that the Hon. Dr Arthur Chesterfield-Evans is prepared to waste the time of the Committee in this manner. The Opposition will not support the amendment.
Amendment negatived.
Schedule 1 agreed to.
Title agreed to.
Bill reported without amendment and passed through remaining stages.
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