We are always happy to publish opinion pieces. This is one such piece.
The human right to self-defence
As an Australian ask yourself the question, “do I have the right to self-defence?” Well, the answer is yes, no and maybe. It all depends on what is considered a “right”, and in which context you use the term. Most people are familiar with the concept of self-defence in criminal law. If you find yourself in certain criminal law contexts you may use self-defence as a complete defence to any criminal charges laid against you. This has long been recognised in the common law, and is now codified by the commonwealth, states and territories.1
However, this concept is misleading. This is not a “right” per se but rather a legal defence against the State in the event it chooses to lay criminal charges against you. Essentially your use of force to protect yourself, others, or property is ordinarily a crime, there is just an exception written into the law to allow for self-defence in certain circumstances. A lawful crime is created by this defence. Hence, under the criminal law, self-defence is no more than a legal defence alongside mental impairment, duress and several others. Confusing and counterintuitive? Well that’s because it is.
The Australian courts have also interpreted this defence to require an immediacy.2 What this means is you do not have a right which extends into the future and provides a defence to any act which would otherwise be criminal. Your right only applies at the time of a threat. Essentially the law does not permit you to prepare for a threat in any way, only to react when one presents.
The restriction of the right to self-defence in Australia
The limit of this criminal law defence to immediacy is coupled with the lack of a general right to self-defence in any Australian jurisdiction. It may strike people as frightening to discover that there are very few examples of a general right to self-defence in Australian law. The police, military and select others (such as security guards) have laws permitting them to carry firearms or other items in preparation for their use in self-defence. The opposite is true for the remaining citizens. In fact in almost every jurisdiction there are laws specifically criminalising the possession of firearms and a range of other things without a lawful purpose. In each example self-defence is specifically excluded from lawful purposes. As lawful purpose is synonymous with lawful authority, those of us wishing to prepare to defend ourselves could only do so outside the law as criminals. In effect our “right” to self-defence is denied by the laws of the land. You can risk carrying a non-lethal self-defence tool such as capsicum spray, but you are looking at a serious criminal offence in most Australian cities—let alone examining where firearms sit in this legal regime.
But why is this the case? Decades ago self-defence was a lawful reason to own firearms or carry other items in many states. The reasons are more complex than just blaming the 1996 National Firearms Agreement, but underlying them is the lack of a constitutional protection against governments legislating away the right to self-defence. Whilst laws passed by the commonwealth and states must comply with the principle of legality—that common law rights and freedoms will only be abrogated with a clear statement from parliament, and then only to the minimum extent necessary—governments of all persuasions have had no qualms at legislating away the right to self-defence in any and every form it presents itself.
The perspective of international law
International law also paints a bleak picture for those who believe in an individual right and responsibility such as the right to self-defence. In the Universal Declaration of Human Rights, amongst other things, we find a right to rest and leisure, to social security, and to receive an education. Importantly we find the right to life, liberty and security of person.3 Yet nowhere is a right to self-defence listed. In fact the only treaty to explicitly list the right is the European Convention on Human Rights.4 Hardly applicable to Australia.
Another key international instrument is the Charter of the United Nations. Within Article 51 of the Charter we find the text “the inherent right of individual or collective self-defence if an armed attack occurs”. But this text provides no support for an individual’s right to self-defence, and instead undermines it to a degree through its necessary link to conflicts involving States. International law is predicated on the interactions of States and supranational bodies (such as the UN, EU, etc), not citizens like you or I. Unfortunately, whilst not being able to show a prohibition on the right to self-defence exists, the UN has consistently interpreted international legal instruments to deny a human right of self-defence, often coupled with an extreme hostility to private firearms ownership.
This was no more clearly demonstrated than in a 2006 report to the UN Human Rights Commission.5 The Special Rapporteur found there is no human right to self-defence other than as a criminal defence.6 Instead, both private firearms ownership and the right to self-defence were viewed as undermining human rights generally. This deeply flawed view resulted in recommendations to support States’ “due diligence requirement” to maximise other human rights through, amongst other things, suppressing private violence (such as the right to self-defence) and seriously restricting private access to small arms.7
It is noteworthy that the Human Rights Council includes members such as Saudi Arabia, Qatar, Cuba and Venezuela who each have a vested interest in ensuring their populations do not have either the right to self-defence or the means to resist tyranny.
Behind rights and law
It is important to recognise that just because a State’s domestic laws have excluded a right, and that it is not explicitly written in an international legal instrument, it does not mean a right does not exist or no longer exists. The classic example is the Nuremberg Race Laws. Nazi Germany satisfied all the tests for statehood, these laws passed through the Reichstag, and they were enforced with the authority of the State. But they were nonetheless fundamentally illegitimate. No amount of positive law created by man can take away your natural rights; they are yours regardless of what any government tells you. In this regard the human right to self-defence is a natural right held independent of what any legislature decrees, or any unelected and unrepresentative international body claims.
One has to ask why the right to self-defence has been so harshly treated in Australia. Why do politicians and officials at both the domestic and international level see the right to self-defence as something to be undermined, to be denied, and to be de facto criminalised? The primary reason is many believe in the primacy of the State. The State, not the individual, is seen as all important and it claims exclusive responsibility for the protection of its citizens, regardless of its motives or capabilities.
This commonly held, but flawed view, places governments above people. Indeed during the recent debate over the import of Adler lever action shotguns Senator David Feeney stated, “[w]e do believe that the state should have a monopoly on violence”.8 His statement is a perfect example of the worship of government over people, and demonstrates how lawful human rights abuses are created. This position is not universally accepted in our parliament. Nearly a year prior Senator David Leyonhjelm had astutely noted that “[o]nly an authoritarian society would treat its people like helpless victims, with the government masquerading as some kind of guardian angel”.9
I ask you, if you accept the argument that you have no inherent right to protect yourself, your family or your property, that this is exclusively the role of the police and other government agencies—what do you do when the State is not there to protect you, and what do you do if the State is the perpetrator of violence against you? Instead I argue that each and every one of us already hold the human right to self-defence; it cannot be taken away by any man’s law. What our parliaments and parliamentarians should do is recognise that the law should reflect our rights, not attack them.
- See, eg, s 10.4(2) of the Criminal Code 1994 (Cth); s 418(2)(a) of the Crimes Act 1900 (NSW); s 9AC, s 9AE(a) of the Crimes Act 1958 (Vic).
- Taikato v R 186 CLR 454, 463-4.
- Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 art 3.
- Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) art 2(a). 4 November 1950.
- UN Human Rights Council, Sub-Committee on the Promotion and Promotion of Human Rights, 58th sess, Adoption of the Report on the Fifty-eighth Session to the Human Rights Council, UN Doc A/HRC/Sub.1/58/L.11/Add.1 (Aug. 24, 2006).
- Ibid [20-25]
- Ibid [33-37].
- Commonwealth, Parliamentary Debates, House of Representatives, 12 October 2015, 10825 (David Feeney, Shadow Minister for Defence, Veterans Affairs and Justice).
- David Leyonhjelm, ‘Lindt cafe hostages, like the rest of us, denied the practical right to self-defence’ Sydney Morning Herald (Sydney) 18 December 2014.