Updated: Jul 19
One of the most important duties, which we owe our families and communities, is the duty of physical protection. In the Code, this is described as an ‘active obligation’ requiring us “to actively take all reasonable steps to prevent physical attacks on members of our families and communities”. This injunction quite necessarily carries with it a requirement for us to use force (including deadly force) to protect our families and communities if they are being or are likely to be attacked. Unfortunately, the laws in the Anglophone nations (except part of the USA) do not seem to recognise the fundamental right of a free person to defend themselves, their families and their communities as fully as is perhaps necessary. This article will look at, firstly, what the laws are in Australia and other Anglophone nations, before offering suggestions as to the content of laws which would better allow the citizens of these nations to legally act in accordance with the requirement of the Code.
But first, a disclaimer. This article is not intended to offer legal advice, it is intended only to provide a discussion of the legal situation surrounding self-defence in the common law of Australia, New Zealand, Canada and the UK. We will begin, as always, with my home state of Western Australia.
Under Western Australian Law, self-defence is covered under two sections: 244(1) and 248 of the Criminal Code Act Compilation Act 1913. Section 248 covers self-defence while 244 covers home invasions.
Section 248 (see Figure 1) implies that an act is self-defence if:
A harmful act is in response to another harmful act either directed at the person raising the defence or in defence of another person, which includes non-imminent acts;
The harmful act is in the subjective view, a reasonable response by the accused in the circumstances they believe them to be; and
There are reasonable grounds for those beliefs. (gotocourt.com.au, 2021)
Section 244 is a complimentary section, which deals specifically with the unlawful entry of a person to your property. This section (see Figure 2) also provides for a theoretical right for residents of Western Australia to protect their property from intruders, provided that they have reasonable grounds for doing so.
Taken together, these two sections seem to provide robust legal protections to residents in WA to protect their families and communities. The problem is, however, that these laws are open to interpretation by the judiciary.
“Under Section 244(1A), there is also an objective component of the home invasion defence that must be satisfied. This subsection requires that the occupant cannot “use force that is intended, or that is likely, to cause death to a home invader unless the occupant believes, on reasonable grounds, that violence is being or is likely to be used or is threatened in relation to a person by a home invader.”
It’s important to note that these objective elements of ‘reasonable’ and ‘likely’ under Section 244(1A) are a tough hurdle to overcome when it comes to mounting a successful home invasion defence under Section 244. Consequently, it’s common practice for the Court to find on the balance of probabilities that the occupant’s response to the home invasion was unreasonable in the circumstances.” (gotocourt.com.au (2), 2021)
In other Jurisdictions
This seems to be a fairly standard legal interpretation in the Anglophone common law nations, with the exception of the United Kingdom and South Australia.
NSW allows you under the Crimes Amendment (Self-defence) Bill 2001 to defend yourself, your property or others with reasonable and proportional force. Though as in Western Australia, it disallows the use of deadly force in defence of property.
QLD allows under the CRIMINAL CODE 1899 - SECT 271 self-defence using reasonable and proportionate force.
Victoria allows under Section 322K of the Crimes Act self-defence under similar restrictions.
South Australia allows under the Criminal Law Consolidation (Self Defence) Amendment Act 2003 self-defence under the same restrictions, with the exception that in the case of a home invasion, reasonable proportionality does not apply.
Tasmania allows under section 46 of the Criminal Code Act (1924) the right to self-defence with “such force as, in the circumstances as he believes them to be, it is reasonable to use”.
New Zealand allows under section 48 of the Crimes act of 1961 “in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.”
Canada allows under the Citizen’s Arrest and Self-defence Act (2012) self-defence provided it is reasonable and proportionate.
The United Kingdom like South Australia, allows under the Criminal Justice and Immigration Act 2008 Section 76 disproportionate force to be used by the householder to defend themselves, their families and their property.
With the exception of South Australia and the UK, the law implies that while you have the right to defend yourself, you do not have the right to defend yourself in a way that is likely to cause injury, except in completely unambiguous situations. To my understanding, this makes the right of self-defence somewhat hollow, especially in home invasion situations where you will be making split-second decisions literally in the dark. This implies that as a free citizen and resident, you are required to act at night in defence of your family and home against an intruder as if you were walking down a street in broad daylight.
This is inherently unjust as it places the welfare of the criminal ahead of that of the citizen and their family. It assumes that the criminal who has no good reason to enter someone’s property would have an intent more benign than malevolent. That the criminal should be assumed to be unarmed and not habituated to violence. Furthermore, it requires the citizen to take extra risk on themselves in that rather than using whatever means necessary to incapacitate the intruder, they must effectively use only the force that the intruder manifests lest they face criminal charges.
South Australia’s (Figure 3) and the UK’s laws regarding self-defence during home invasions serve as a reasonable model for self-defence laws in relation to home invasions as they allow the citizen to use whatever force they feel to be sufficient to defend themselves, their families or property if they discover a person ‘committing or having just committed a home invasion’.
The key difference between South Australia’s and the UK’s laws regarding self-defence and those in the other Australian states and Canada is the difference between a citizen being legally able to proactively defend their family during a home invasion and legally having to wait until the criminal carries out a violent act and only then being able to respond. In the latter case, the law amounts to de facto repudiation of the right to actively defend your home while offering a prima face suggestion that self-defence is allowed.
Additionally, while having the right to use whatever force you judge as being necessary to defend your family in your home is a good start, but it does not go far enough. The right of using force you judge, i.e., not limited to reasonable proportionality, to be sufficient to protect members of your family and the wider community should be expanded to encourage neighbours and passers-by to intervene to protect those who are being attacked anywhere in the community. While there would need to be a legal test incorporated to ensure that people use reasonable care to ensure that a crime was being commissioned to prevent such a law from becoming a licence for criminal behaviour, there is little to recommend against such a provision. As by legally sanctioning communal defence of neighbours and members of our communities from criminal acts, we would help to foster a greater sense of community, further enhancing public safety as well as disincentivising criminal acts.
In essence, the stronger the legal protections are for citizens to defend themselves, their families and their communities, the safer they will be. The better they will be able to ensure the long-term welfare of their families and communities and the more secure will be their achievement of their purpose in life.
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