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Thematic Issue: Vulnerability and the Law

You Can’t Charge Me, I’m a Cop: Should Police, Corrections Staff and Law Enforcement Officers Be Immune from Criminal Liability for Actions Carried Out against Vulnerable People in the Course of Their Duties?


Stephen Gray

This article will argue that current Australian laws which provide for immunity from criminal liability for police, corrections staff and other law enforcement officers for actions carried out in the course of their duties should be repealed. It will, firstly, survey and analyse a number of such provisions in different Australian jurisdictions. The laws cover several different occupations and contexts: from police officers arresting or holding people in custody; to prison or juvenile detention centre officers carrying out their duties; and to immigration detention centre guards. In the process, it will consider the extent to which such provisions operate more favourably to the defendant than the ordinary law of self-defence. Secondly, the article will consider what policy justifications there may be for or against the existence of such provisions. This will include a discussion of the historical origin of criminal immunity provisions in Australia, including the policy implications of the history of the use of force against Aboriginal people by police. It will conclude that a human rights-based perspective requires the repeal of such provisions, which operate primarily upon vulnerable people (prisoners, people being arrested or detainees), and are consequently liable to abuse.

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(2018) 41(3) UNSWLJ 670: