Australia

Constitutional Provisions

Australia's federal constitution does not protect fundamental human rights nor does it regulate the use of force by the police.

Treaty Adherence

Global Treaties

Regional Treaties

There is not yet a regional human rights treaty to which Asian nations can adhere.

National Legislation

Police Use of Force

The Australian Federal Police is the principal national law enforcement agency. There are also state police forces. Both federal and state police officers in Australia carry pistols, pepper spray, and batons. Many also have access to conducted energy weapons (e.g. Tasers).

The Australia New Zealand Policing Advisory Agency (ANZPAA) has use of force guidelines from 2013, which stipulate that the police should only use force that is reasonable, necessary,  proportionate and appropriate to the circumstances. Police should use no more force than is reasonably necessary for the safe and effective performance of their duties. Individual police officers are accountable and responsible for their use of force and must be able to justify their actions at law.

The 1914 Crimes Act applies to use of force by both federal and state and territory law enforcement officers, requiring that force be both necessary and reasonable. Specifically it provides that:

(1) A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.

(2) Without limiting the operation of subsection (1), a constable must not, in the course of arresting a person for an offence:

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

(b) if the person is attempting to escape arrest by fleeing—do such a thing unless:

(i) the constable believes on reasonable grounds that doing that thing is necessary to protect life or to prevent serious injury to another person (including the constable); and

(ii) the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.S. 3ZC, 1914 Crimes Act.

With respect to Tasers, in its 2019 periodic report under the UN Convention against Torture, Australia reported that the threshold and reporting requirement for the use of Tasers varies across each state and territory, however, in most jurisdictions is “immediate physical threat of serious harm”, which ranks as the highest standard in Australia. The use of Tasers on pregnant women and children is prohibited unless in exceptional circumstances where there is no other reasonable option to avoid the imminent risk of serious injury. In addition, All Taser use involving discharge is subject to a review, including analysis of video footage.

Use of firearms is generally only lawful where necessary and where a threat to life or limb is imminent. In 2013, the Australian Institute of Criminology reported that in 1989–2011, police fatally shot 105 people, of whom more than 40% had been identified as having some form of mental illness, with psychotic disorders such as schizophrenia being the most common.

Victoria

In Victoria, firearms must not be drawn by a law enforcement official unless extreme danger is anticipated and firearms may only be discharged when he or she reasonably believes it is necessary to protect life or prevent serious injury. Warning shots should not be fired.Victoria Police Manual Instructions 101-3 6.3.

New South Wales

In June 2017, it was reported that the law in New South Wales would be changed to allow the state police to shoot suspects in terrorist-related incidents even if the attacker does not pose an imminent threat. Subsequently, this amended legislation was enacted, with the key elements on police use of force in relation to declared terrorist act as follows:

(1)  The police action that is authorised by this section when police officers respond to any incident that is declared to be a terrorist act to which this Part applies is authorising, directing or using force (including lethal force) that is reasonably necessary, in the circumstances as the police officer perceives them, to defend any persons threatened by the terrorist act or to prevent or terminate their unlawful deprivation of liberty.

(2)  A police officer does not incur any criminal liability for taking any such police action for the purposes of a police action plan of the police officer in charge of the police officers responding to the terrorist act.

(3)  This section applies only to action taken by a police officer in good faith.S. 24B, Terrorism (Police Powers and Parole) Act 2017.

Police Oversight

There is no single, independent police oversight body in Australia. The folllowing uses of force must be reported within the Australian Federal Police: 

• Baton: striking a person, or raising with the intention to strike or gain compliance
• Force to enter a building, vehicle, vessel, or other secured area to search, seize or arrest
• Conducted energy weapon (Taser): drawing, aiming or discharging
• Handcuffs: restraining a person
• Chemical agent: drawing, aiming or discharging
• Police dog or horse to apply force
• Compliance or restraint holds, strikes, kicks or other physical force
• Pyrotechnic device(a): deploying
• Firearm: drawing, aiming or discharging
• Shield: striking a person

Within the Australian Federal Police, the Professional Standards Unit, based in Canberra, is responsible for investigating allegations of excessive use of force resulting in serious harm, with the final outcome determined by an adjudication panel. Where a death results from police use of force a coroner will investigate whether that force was lawful. In its Concluding Observations on Australia in 2017, the Human Rights Committee noted its concern 

that the close relationship between the police investigations and the coroners’ investigations may compromise the independence of the coroners’ investigations.Human Rights Committee, Concluding Observations on Australia's sixth periodic report, UN doc. CCPR/C/AUS/CO/6, 1 December 2017, §31.

There are also oversight bodies in the various states. In Victoria, for example, alleged excessive use of police force is investigated by the state's Independent Broad-based Anti-Corruption Commission (IBAC).

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In its Concluding Observations on Australia in 2017, the Human Rights Committee called on the authorities to ensure

that all allegations of excessive use of force by the police, including deaths in custody, are investigated in a fully independent and impartial manner.Human Rights Committee, Concluding Observations on Australia's sixth periodic report, UN doc. CCPR/C/AUS/CO/6, 1 December 2017, §32.

Regional

There is no regional human rights body to which alleged victims of excessive use of police force can complain.

National

The High Court of Australia is the ultimate court of appeal on issues of both federal and state law. 

Australian Capital Territory

Australian Capital Territory v. Crowley and Commonwealth of Australia and Glen Pitkethly (2012)

In its judgment in 2012 in this case,ACT Court of Appeal, Australian Capital Territory v. Crowley and Commonwealth of Australia and Glen Pitkethly [2012] ACTCA 52.the ACT Court of Appeal overturned the finding at first instance that the Australian Federal Police (AFP) owed the plaintiff, Jonathan Crowley, a duty of care, and had breached that duty of care. This duty of care can be considered akin to the duty of precaution under international law.

The case concerned a call-out on 11 December 2001 to the AFP, which had received reports that Mr Crowley was walking in the streets in a highly disturbed state and behaving in a threatening manner to a number of people while carrying a kendo stick. When two AFP officers approached him, he refused to comply with their instructions and struck both officers with the stick. One of the officers shot him in the neck, shattering his spinal column and leaving him a quadriplegic. He did not argue that the shooting was unreasonable. The Court of Appeal held that the AFP could not be under an obligation to discharge a duty of care when apprehending someone to prevent apparent or possible criminal behaviour.

Queensland

Coroners Court of Queensland, Recommendations from Inquest Into the Deaths of Anthony William Young et al (2017)

Between August 2013 and November 2014, officers from the Queensland Police Service (QPS) shot and killed five men in unrelated incidents in the course of their duties. The Coroner found that in each case the relevant QPS officers acted appropriately in discharging their weapons. The Coroner accepted that:

due to the nature and immediacy of an imminent lethal threat, it is essential that the police response is to incapacitate the threat. To achieve this police officers will shoot at the “armpit hold” – the centre of an imaginary transverse cross-sectional line between the two armpits of the human body (roughly centred on the heart/aorta and lungs).Coroners Court of Queensland, Recommendations from Inquest Into the Deaths of Anthony William Young et al (2017), §63.

Victoria

Slaveski v. Victoria (2012)

On reasonableness of the force used during arrest, Justice Kyrou affirmed in the Supreme Court of Victoria decision that:

The person exercising the power of arrest is entitled to use such a degree of force as in the circumstances they reasonably believe to be necessary to effect their purpose, provided that the means adopted by them are such as a reasonable person placed as they were placed would not consider to be disproportionate “to the evil to be prevented.”Supreme Court of Victoria, Slaveski v. Victoria [2010] VSC 441 at [127] per Kyrou J, citing R v. Turner [1962] VR 30 at 36.

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