The Queen v Rolfe (No 5)

This matter concerned referred questions of law arising from a criminal trial. The defendant, a police constable, was facing charges, and the proceedings involved the interpretation of various statutory provisions relating to the conduct of police officers. The dispute centred on the scope of protection afforded to police officers under the *Police Administration Act* (NT) and its relationship with defences available under the *Criminal Code* (NT), particularly in circumstances involving the use of force.

The court was required to determine the applicability of s 148A of the *Police Administration Act* to s 148B of the same Act in its current form. Specifically, the court had to consider whether s 148A, which refers to the "performance of duties as a member," extended to the protection from criminal liability provided by s 148B, which covers acts done in good faith in the exercise of a power or performance of a function under the Act. Further, the court needed to ascertain whether s 148B applied to acts done by a police officer acting as a "public official" under an "authorising law," or if its protection was limited to actions taken directly under the *Police Administration Act*. The court also considered whether the defendant's actions, particularly the firing of shots, were undertaken in good faith within the exercise of a power or performance of a function under the *Police Administration Act*, especially when self-defence was also invoked.

The court reasoned that s 148A of the *Police Administration Act* did not apply to s 148B in its current form. This conclusion was based on the legislative history, noting that s 148B had been repealed and re-enacted in significantly different terms, while s 148A remained largely unamended and continued to have application in other areas, such as vicarious liability and claims for police torts. The court held that s 148B should be construed according to its plain terms, which provide protection for acts done in good faith in the exercise of a power or performance of a function *under the Police Administration Act*. The protection did not extend to acts done by police officers acting as public officials under separate authorising laws. The court also clarified that s 148A did not operate in reverse to deem an act done under the *Police Administration Act* as being done in the capacity of a public official under an authorising law.

The court answered the referred questions as follows: Question 1 was answered "No," meaning s 148A does not apply to s 148B. Question 2 was also answered "No," indicating that a member acting under the *Police Administration Act* is not acting in the capacity of a public official under an authorising law for the purposes of s 148A. Regarding Question 3, the court agreed with the Crown's proposition that the applicability of s 148B turned on whether the defendant fired the shots in good faith within the exercise of a power or performance of a function under the *Police Administration Act*, but noted that High Court authorities suggested this would only apply if the defendant genuinely believed their actions were under their power to arrest. The court indicated that the defence invoking self-defence under s 43BD of the *Criminal Code* might be inconsistent with such a genuine belief.