Shooting to kill

Just to prove that I can be as even handed as the next right wing Aussie blogger, and even though I don't like to go out of my way to support grandstanding Labor State premiers, I think I agree with them that the so-called "shoot to kill" provision in the anti terrorism bill deserves either amendment or ignoring.

The Australian runs a not bad summary of the issue in its article here.

The proposed bill's section is s105.23:

"An AFP member must not, in the course of taking a person into
custody or detaining a person under a preventative detention order,
use more force, or subject the person to greater indignity, than is
necessary and reasonable:

(a) to take the person into custody; or
(b) to prevent the escape of the person after being taken into
custody.

(2) An AFP member must not, in the course of taking a person into
custody or detaining a person under a preventative detention order,

(a) do anything that is likely to cause the death of, or grievous
bodily harm to, the person unless the AFP member believes
on reasonable grounds that doing that thing is necessary to
protect life or to prevent serious injury to another person
(including the AFP member); or

(b) if the person is attempting to escape being taken into custody
by fleeing—do such a thing unless:

(i) the AFP member believes on reasonable grounds that
doing that thing is necessary to protect life or to prevent
serious injury to another person (including the AFP
member); and
(ii) the person has, if practicable, been called on to
surrender and the AFP member believes on reasonable
grounds that the person cannot be apprehended in any
other manner.

This section in the proposed bill simply copies the power that is already in the Commonwealth Crimes Act. Also, to take one example, Queensland has a similar legislative power which is worth reading in detail by way of comparison:

"(1) This section applies if a police officer reasonably suspects a person--

(a) has committed, is committing, or is about to commit an offence punishable by life imprisonment; or

(b) has committed an offence punishable by life imprisonment and is attempting to escape arrest or has escaped from arrest or custody

(2) This section also applies if--

(a) a police officer reasonably suspects a person is doing, or is about to do, something likely to cause grievous bodily harm to, or the death of, another person; and

(b) the police officer reasonably suspects he or she can not prevent the grievous bodily harm or death other than in the way authorised under this section.

(3) It is lawful for the police officer to use the force reasonably necessary--

(a) to prevent the continuation or repetition of the offence or the commission of another offence punishable by life imprisonment; or

(b) to apprehend the person; or

(c) to prevent the escape of a person from arrest or custody; or

(d) to prevent the commission of an act mentioned in subsection (2).

(4) The force a police officer may use under this section includes force likely to cause grievous bodily harm to a person or the person's death.

(5) If the police officer reasonably believes it is necessary to use force likely to cause grievous bodily harm to a person or the person's death, the police officer must, if practicable, first call on the person to stop doing the act."

The difference is that the Queensland provision is talking about persons who are already suspected of having commited a serious offence (or are currently engaged in something that will harm others,) whereas the Commonwealth section is aimed at people who are the subject of preventative detention orders.

Now, such orders may only be granted in cases where:

"there are reasonable grounds to suspect that the subject:
(i) will engage in a terrorist act; or
(ii) possesses a thing that is connected with the preparation
for, or the engagement of a person in, a terrorist act; or
(iii) has done, or will do, an act in 1 preparation for, or
planning, a terrorist act; and

(b) making the order would substantially assist in preventing a
terrorist act occurring.

(3) A terrorist act referred to in subsection (2):
(a) must be one that is imminent; and
(b) must be one that is expected to occur, in any event, at some
time in the next 14 days."

Clearly, the proposed bill may be used to allow the police to nab people who may be seriously dangerous, so serious powers relating to arrest are needed. However, you would have to suspect that the very fact that a preventative detention order has been made will make the police more ready to assume that lethal force is necessary to "...protect life or to prevent serious injury to another person (including the AFP member) ". The Commonwealth section, although almost certainly intended to cover necessary steps if the danger is immediately present at the time of the arrest, does not spell that so clearly.

Frankly, I think the wording of the Queensland provision is better and clearer in that it's emphasis in section (2) is obviously more clearly on the "here and now" of the arrest: the person "... is doing, or is about to do" the thing that will cause death or gbh.

There was no nefarious intent in the Commonwealth drafters in putting the current Crimes Act provision in the Bill, and the Premiers have been guilty of grandstanding on this. But, it is still the case that the Commonwealth power is left a little ambiguous when you try to apply it to arresting someone for an possible future offence, not one that is already committed. The wording of the Commonwealth provision should therefore, in my view, be tightened.

But frankly, I doubt that it would matter much if the States just all keep their own laws on "shoot to kill" anyway. I am no expert, but I think that their provisions are not going to work dramatically differently to the AFP's. It just takes care and common sense (and good police training onrecognizingg quickly when the different levels of force are needed).

There, I have done it. Supported Labor Premiers. (Sort of.) Now must have a shower and come to my senses!