Self Defence Under Australian Law
A large brawl breaks out in a nightclub, a security officer runs in and safely disarms a participant by putting him in a chokehold causing the brawler to black out. The security officer then safely removes the, temporarily unconscious, participant out of harm’s way. During that very same fight one of the fighters does a wild punch and hits another in the head. That person blacks out, falls and hits his head on the floor causing a severe concussion and heavy brain damage.
The security officer will be the one charged for use of excessive force. That, unlike the other party, he intentionally and knowingly inflicted excessive force onto another person.
Excessive force is a term unique to self-defence and is defined as: inflicting more force or damage than is necessary. This is determined in a court ruling at the judge’s personal discretion after the accused can safely justify the two elements needed to justify self-dence. The objective element: that the use of violence was indeed relevant and necessary, and the subjective element: that the belief was held on reasonable grounds.
There is a grey area in the case of those trained in martial arts. This grey area is caused by the belief that martial artists should be well aware of the damage caused by attacking someone above the neck. Despite the higher chances of safety of using chokeholds or sleeper holds in order subdue someone who is resisting.
Under current Australian law, it is illegal to attack someone above the neck as it is considered excessive force. In the case of self-defence it is possible to argue that, under duress, you engaged in in violence in order to preserve the safety of yourself, your property or a third party.
Security officers are put at most risk due to their knowledge of the law and their training, which emphasises the use of wrist and arm locks in order to safely subdue an attacker. However this is not always possible as security officer Jonathan Ngai admits.
“If it’s a big bar brawl, twenty versus twenty, and other security are getting involved. Then you just have to come in swinging.”
In the 1997 revision of The Criminal Law Consolidation Act it was deemed that any use of violence above the shoulders could be seen as use of excessive force. Martial arts was also deemed as a “special skill” which could potentially be seen as dangerous as carrying a weapon.
Local martial arts and combative instructor Andy Elliott argues that, “to attack the head is far easier and could actually be more humane than doing a hard body slam or attacking the torso.”
He continues on, stating that those who have martial arts or combative training must have a responsibility to use their training wisely and to understand the confines of the law. That anyone who greatly abuses their training outside of a life-threatening situation should be aware that there is a possibility they could be penalised under the law. But those who practice martial arts should not be discriminated against, especially when they are only employing a skill set that could potentially save their lives.
Further revisions to The Criminal Law Consolidation Act also states that in the event that the defendant causes the death of their attacker they can no longer be sentenced for murder, but a lesser charge of manslaughter is possible. The maximum penalty of which is a life time imprisonment.