A piece of territory legislation could help a police officer accused of punching a 13-year-old girl defend possible civil action brought against him.
The child's lawyer, Hugo Law Group partner Tom Taylor, has called for immediate reform of the provision, which he said offered a "complete defence" for certain police abuse cases.
In a letter sent to the ACT Attorney-General, chief police officer, human rights commissioner and several politicians, Mr Taylor described the legislation as "unjust, arbitrary and draconian".
"Its continued existence in the statute book is simply a result of oversight and inadvertence by the ACT Legislative Assembly," Mr Taylor wrote this week.
"To give the section continued force is in my view unconscionable."
'Current example'
Mr Taylor sent the letter while considering civil proceedings against the Commonwealth of Australia and the police officer in question.
"I represent an Aboriginal child who claims she was unlawfully arrested and unlawfully assaulted by AFP officers," he said of the alleged incident of police violence.
The lawyer wrote that his 13-year-old client, a girl of "slight build" and "disadvantaged background", was transported to the ACT watch house on January 18.
"During the intake procedure at the watch house, it is alleged she kicked a male police officer in the leg who then punched her in the face," the lawyer said.
An ACT Policing spokesperson said Professional Standards, which internally investigates allegations of police misconduct, had received a complaint in relation to this matter.
But an "unduly restrictive" time limit to launch civil action could mean the child's case against the officer is lost before it even begins.
"Not on the merits of the case but simply because she did not commence proceedings within six months. Such an outcome is plainly unjust," the lawyer wrote.
Legislation under fire
The provision cited in Mr Taylor's letter is section 435 of the territory's Crimes Act.
It requires any action against a person for "anything done, or reasonably supposed to have been done" under the Act, including using its powers for an arrest, must be "commenced within six months after the fact committed".
Notice of that action must also be given at least one month before being launched.
A civil case against alleged police abuse failed in December last year partly because the claims were started outside the half-year window and therefore "statute-barred by s 435".
Justice David Mossop found the entry of police officers into the plaintiff's home in that case was not justified by the Crimes Act or common law but was still "within the scope of the protective provision in s 435".
That ACT Supreme Court decision, Glavinic v Commonwealth, is being appealed.
'Arbitrary ticking clock'
"The reasons why a child might not commence proceedings within six months are numerous and obvious," Mr Taylor wrote in his letter.
The lawyer said plaintiffs in cases like his client's often faced a simultaneous criminal prosecution during the "extraordinarily tight" six-month period for offences allegedly committed against police.
That meant, Mr Taylor said, people forced to immediately file a civil claim during opposing criminal proceedings would be required to compromise their right to silence and privilege against incrimination by disclosing evidence.
"Further, it does not require any significant scrutiny to recognise that this is a law which, if not deliberately targeted towards disadvantaged persons, inevitably operates most keenly to the detriment of persons in that category," he said.
The lawyer said that was because powers of arrest and use of force covered by the legislation were disproportionately used against Indigenous Australians and other disadvantaged people.
Mr Taylor said disadvantaged groups were also less likely to have access to lawyers with the resources to rapidly file civil action against the "arbitrary ticking clock" enforced by section 435.
It is "not proper", he explained, to ask "overstretched" Aboriginal Legal Service and Legal Aid lawyers to also take on the responsibility of identifying civil wrongs and weigh up the merit of launching action for their clients.
Especially when evidence is often obtained slowly through criminal proceedings which face "notorious delays".
Will action be launched against the officer?
"We intend to commence civil proceedings," Mr Taylor told The Canberra Times.
"However, we are not in possession of any of the necessary information required to properly consider and commence those proceedings."
That is, he said, despite having requested the information, including CCTV and body-worn camera footage, almost a month ago.
The lawyer now has less than a month left to launch a civil suit on behalf of his young client before the Commonwealth could aim to use the time limit defence.
"Section 435 is a significant factor in whether proceedings are commenced and whether they would be successful," Mr Taylor said.
In his letter, the lawyer said he sought reform so that people who have wrongful acts committed against them by persons, "almost always police officers", can be properly compensated without obstacles.
The NSW equivalent of the territory provision being called into question was repealed in that state in 1977.
ACT Policing did not respond to questions about criminal investigations into the police officer or the 13-year-old girl.
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Support is available for those who may be distressed. Phone Lifeline 13 11 14; Kids Helpline 1800 551 800; beyondblue 1300 224 636.
