The organisation says that the section has an "unjust and draconian" impact
The ACT Bar Association has advocated for section 435 of the of the Crimes Act 1900 (ACT) to be repealed by the ACT Legislative Assembly with immediate effect.
Section 435 imposes a requirement that actions against people acting as public authorities (such as police officers and other law enforcement officials) must be initiated within six months, “with stringent notice requirements”, according to the ACT Bar Association. This, the organisation said, works to effectively shield “those acting as public authorities against whom wrongdoing is alleged from accountability and denying victims their right to justice”.
The ACT Bar Association added that section 435 has an “unjust and draconian impact” on those seeking redress for wrongdoing committed against them by such authorities.
Section 435 was derived from the NSW Crimes Act. It has not undergone any significant amendment since 1911, but the recent case of Glavinic v Commonwealth [2023] ACTSC 261 put the provision under the microscope. According to the ACT Bar Association, in this case Justice Mossop noted how the provision provided immunity even in cases of unlawful conduct, undermining the principle of equal access to justice.
"Section 435 operates as a significant barrier to justice. Its arbitrary timeframe and onerous procedural requirements disadvantage victims, particularly the vulnerable and disadvantaged in our community", ACT Bar Association President Brodie Buckland said. "The continued existence of Section 435 contradicts principles of fairness and equality before the law. It disproportionately affects marginalised groups, including Indigenous Australians, who are already overrepresented in encounters with law enforcement".
He explained that repealing the provision represented “a crucial step towards ensuring that victims of tortious acts can be properly compensated and that justice is accessible to all”.
"We urge legislators to recognise that Section 435 does not align with the values of fairness, equality, and human rights upheld in the ACT", Buckland said.
A provision similar to section 435 was repealed in NSW in 1977 after the NSW Law Reform Commission outlined systemic biases favouring public authorities and the obstacles to litigation experienced by private citizens as a result.
