Generally in Australia, it's a crime for one person to use force against another without their consent. However, sometimes situations can necessitate the use of force.
This is why Australian governments and courts have created specific exceptions to the general prohibition on force, which permit the reasonable and proportionate use of force in certain situations. In some instances, the force used under these exceptions causes death or injury, raising the questions around whether the force was excessive.
What is excessive force?
There is no offence called ‘excessive force’ per se, although excessive force will frequently amount to an offence like assault, battery, murder or manslaughter. Instead, ‘excessive force’ describes situations in which someone with the right to use a certain amount of force uses an excessive, unreasonable or disproportionate amount. To take an extreme example, a small business may have the right to physically search a person’s bag but would be using excessive force if they shot an escaping shoplifter.
When does excessive force generally occur?
Excessive force is often reported in altercations involving:
- Police: The police have the power to use force, but only within the conditions set out in the legislation of their state. Police brutality in America has been in the headlines lately, but unfortunately Australian police have been guilty of excessive force as well, with a record including fatal shootings, excessive taser use and overly rough treatment during arrests.
- Security guards or bouncer: As private employees, security guards and bouncers do not share the power to use force possessed by police officers, but they may have the power to arrest people or escort them off a property. However, they are not permitted to cause injuries.
- People acting in self-defence: Self-defence is the most well-known exception to the general rule against force, but even here there are limits to what is allowable. In one famous case, a teenager was awarded $50,000 after he drunkenly broke into a residence above a pub and was bashed with a baseball bat, sustaining serious facial injuries. Although he was trespassing drunkenly, he posed no immediate threat to the family in residence.
What are my rights when dealing with excessive force?
It is important to remember that the right to use force against another person is not limitless, even for those in positions of authority such as the police. If you have been the victim of excessive force, you may be able to claim compensation for assault, battery or any other offence relevant to the circumstances of the attack, or claim for the negligence of the attacker or of the attacker’s employer.
For more information on the process of bringing a legal claim, watch our step-by-step guide to compensation claims below.