Right: Katter's Australia Party MP Nick Dametto wants Queensland to adopt a so-called 'Castle Law', which allows a home owner to use deadly force in the event of an invasion of their home. .
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Arguments in favour of reducing restrictions on the use of force against home intruders
1. Australia has an increasing incidence of home burglaries and home invasions
Those who believe that Australian home occupants should have greater capacity to protect themselves against home intruders, including with the use of lethal force, note that since the decline that occurred at the beginning of the COVID epidemic, there has been a continued increase in the incidence of home burglaries and invasions. Supporters of greater self-protection rights claim these incidents are traumatic and place residents at risk of injury and death.
Recent data indicates an upturn in home invasions and burglaries in numerous Australian jurisdictions. A report published in The Herald Sun, on June 15, 2024, cited Victoria Police figures revealing 37,668 residential aggravated burglaries since 2014, with 90,000 victims left traumatised.
On May 9, 2024, it was reported that data from the Victorian Crime Statistics Agency (CSA) reveals burglary and break-and-enter offences in residential locations have increased by 16 percent in the 12 months from 2022 to 2023. This is an increase from 21,752 incidents in 2022 to 25,260 in 2023. The seriousness of this offending is the reason Victoria Police has been allocating significant police resources towards a nightly Melbourne-wide operation named Trinity since March. This sees large numbers of local police working alongside the Air Wing, Dog Squad and Public Order Response Team every night to prevent burglaries and car thefts from occurring while the home occupants sleep. Similarly, Australian Bureau of Statistics data shows that the victimisation rate for attempted break-ins in Queensland increased from 2.3 percent of households to 3.2 percent between 2019-21 and 2021-23, an increase of nearly 50 percent. Addressing a community gathering at Toowoomba in February 2023, Queensland Police Commissioner Katarina Carroll stated, 'What we clearly see in the statistics in the last 12 months, there is a spike that we have seen, not only in Toowoomba but [also] across the state as well.' Concern has been expressed about residential break-ins across the entire country. In the 2022-2023 financial year, 21,500 residents across Australia reported being confronted by a perpetrator during a break-in, according to the Australian Bureau of Statistics' (ABS) Crime Victimisation Australia report. Over this period there were 185,300 reported break-ins and another 194,700 attempted break-ins. A Herald Sun report published on May 5, 2024, claimed that a home invasion takes place nearly once every 30 minutes in Australia.
The year before, during the 2020-2021 financial year, an estimated 3.5 percent of Australian households either experienced a break-in or attempted break-in with 4 percent (394,600) experiencing malicious property damage. Recent news reports have stressed the trauma and injury victims can face during burglaries and home invasions. In February 2023, an octogenarian Queensland couple reported their fear when two teens, one armed with a metal bar and the other with a machete, tried to break into the couple's home.
Also in February 2024 a septuagenarian couple had their home invaded when robbers pretending to be police broke down the couple's front door. The elderly couple were left anxious about further attacks. Another incident, in April 2024, involved a 66-year-old New South Wales man whose left armed was partially severed allegedly by one of two axe-wielding intruders who broke into his house. In May 2024, a woman resident's arm was fractured, and a wheelchair-bound man was stabbed in the neck during a home invasion by three intruders, one armed with a bladed weapon and the other with an axe. Toowoomba South MP David Janetzki noted after a local community meeting called to voice concern about home burglaries, 'These are personal stories of men and women who are fearful in their homes, who sleep with baseball bats under their beds, locked windows in the middle of summer. We can't continue to live like that.' 2. The home is a special space which residents should be able to protect
Supporters of the homeowner or occupant's right to use up to lethal force against an intruder argue that home burglaries and invasions are intrusions that justify a forceful response. The home, they claim, is a privileged area requiring special protection.
Advocates of castle law argue they are reasserting the importance of controlling admission to an individual's home. They note that already the home is legally regarded as a private space to which there are limited rights of entry without the owner's expressed and continued permission. Even police cannot enter a person's home without their consent unless they have a warrant, are arresting a felon or have grounds for presuming a crime is being committed on the premises.
Supporters of castle law claim that the home is a sanctuary within which the owner or occupant expects privacy and security. It is not a public space, where some level of intrusion or threat might be anticipated. In a statement advising residents how to respond in the event of a home invasion, Victoria Police acknowledge the extent to which most people see their homes as a place of refuge and expect to be safe there. The statement recognises, 'A home is a haven away from the world. It's the place we're at our most comfortable and relaxed .'
Within the privacy and supposed security of their homes, people generally feel able to be vulnerable. For example, they may be asleep, undressed, bathing, engaged in intimate activity or recovering from illness. This vulnerability places the homeowner or occupant at a severe disadvantage relative to any intruder who enters the home intending theft or other harm. Queensland statistics indicate that the most common time for home invasions to occur is between 2am and 4am when occupants are likely to be asleep. The same Queensland data claims that one in eight of such home invasions involves a confrontation between the awakened occupants of the property and the invaders. For supporters of castle law, one response to this problem is to allow residents to use greater force to protect their properties. Queensland member of parliament Nick Dametto has stated, 'Your home should be your sanctuary and if someone intrudes or breaks into your sanctuary, you should have the right to do what's necessary to protect your property, family or yourself.' Supporters of castle law also claim that force is justified in defence of one's home because the intruder has often backed the occupier into a corner, leaving him or her without a safe option to retreat. In law, the duty to retreat, is a legal obligation in some jurisdictions. It is stated that a threatened person cannot harm another in self-defence (especially using lethal force) when it is possible instead to retreat to a place of safety. In Victoria, Victoria Police specifically advises homeowners against fronting up to an intruder. Instead, the organisation encourages homeowners to remember four steps to 'help keep yourself and your family safe.' These steps are 'go to a safe place, call triple-0, stay calm and think as clearly as possible and, if possible, put a physical barrier between you and the threat.'
Supporters of castle law argue that when physically confronted by a burglar, the option of safe retreat is often taken away from the resident. New South Wales Police Detective Superintendent Joe Doueihi has claimed there has been a level of brazenness about some recent home invasions in his state. Victorian victim of a home invasion, Peter Dickson, made the same point, noting that the burglars seemed to seek physical confrontation with their victims. Dickson stated, 'They knew we were there. They had no fear of that confrontation.'
Some supporters of castle law make stronger claims. They argue that the resident is under no obligation to retreat within their own home. This more aggressive approach is often known as 'stand your ground' and is legally available within some United States jurisdictions. It permits a person who is threatened or attacked within their own home to stand their ground and claim self-defence even where an avenue of retreat or other means of avoiding the conflict is safely available.
The implication is that when an intruder enters another person's home with the intention of committing a crime, the resident can automatically take self-protective action against the intruder, up to and including the use of lethal force. 3. Australian law should protect the home occupier's right to self defence
Supporters of castle law argue that it is provided for by the right of all human beings to act in their own defence.
They claim that current Australian laws need to be extended and clarified so that the right to self-defence during home invasions is explicitly protected by the law.The rule of law in most nations of the world aims to protect individuals' right to life. The Department of the Australian Attorney General states, 'Under human rights law, countries ... must not deprive a person of life arbitrarily or unlawfully. Countries also have a duty to take appropriate steps to protect the right to life and to investigate arbitrary or unlawful killings and punish offenders.'
This right to life determines the right to self-defence of citizens in Australia and many other nations around the world. Acting in self-defence involves an individual acting to prevent another person unjustly or arbitrarily robbing them of life. The right to self-defence also extends to individuals defending themselves against others who present the threat of injury or the loss of property. These provisions are outlined on the homepage of the Department of the Australian Attorney General which states, 'Conduct which would otherwise amount to an offence is not criminal if it is done in self-defence... The application of the defence [extends] beyond circumstances involving a threat of personal harm. A plea of self-defence is also available when action is taken to defend property or to repel or remove trespassers.'
Critics of an individual's right to act in self-defence claim that it has a range of limitations or restrictions. Under the law in most Australian states the application of a right to self-defence needs to be proportionate (that is, in accord with the level of threat presented). Those who want castle law used to extend the right to personal self-defence argue that proportionality provisions should be relaxed.
Supporters of castle law want to see the balance shifted in the application of the right to act in self-defence during a home invasion. Katter Party MP Nick Dametto, who represents the Queensland electorate of Hinchinbrook, wants to see presumptions change so that the law recognises the inherently aggressive intent of home invaders. He has emphasised that being able to defend yourself inside your own home is not promoting vigilantism or encouraging unnecessary violence. He has stated, 'In a split-second decision it can be either fight or flight...the consequences of [a homeowner's] fight response should be protected by legislation, but currently there are gaping holes in that.'
The Katter Party position was detailed in a petition posted on May 2, 2024. The petition states in part, 'Current legislation fails to adequately protect victims from prosecution following the act of defending themselves or others against an intruder after a home invasion.
Every Queenslander deserves the right to protect themselves, their loved ones, and their property. Currently, in Queensland if a person chooses to defend themselves or others during a home invasion, they may only use force that is reasonably necessary in all of the circumstances. What is reasonable in all the circumstances is open to a broad interpretation. Homeowners may end up facing criminal charges such as assault or murder.
Queenslanders do not feel safe in their own homes knowing that offenders have more rights than occupants. The law does not protect victims of crime and forces them to second-guess their actions when faced with a split-second, life-threatening situation. Good laws should be in place to protect good people.
Castle Law (or the Castle Doctrine) is a principle grounded in the fundamental right to self-defence. Introducing Castle Law in Queensland would give victims the right to use whatever force necessary to protect themselves, others within the premises and their property if faced with an intruder. Giving victims the right to defend themselves without fear of prosecution puts the rights of victims before the rights of criminals.'
4. The circumstances of a home invasion justify the use of disproportionate force
Australian self-defence laws generally require that the force used against an assailant be proportionate to that being used against the victim of the attack. Supporters of castle law argue that the circumstances of a home invasion justify the use of what might otherwise be regained as excessive force against the intruder. They claim that this can extend to lethal force.
Western Australia is currently the only Australian jurisdiction which allows disproportionate force as part of self-defence during a home invasion. Section 244 of the Criminal Code in Western Australia creates the 'defence against home invasion'. This defence was passed into law in 2000. It was introduced in response to a growing number of 'home invasion' offences during which burglars were assaulted by homeowners, and police were charging the homeowners for defending themselves in their own property. The defence gives persons in possession of a dwelling (i.e., a home) the right to use any force against a 'home invader.' This includes force which amounts to death if the home occupier believes the home invader will use or threatens to use violence to any person.
The Western Australian defence is based on the presumption that homeowners faced with an intruder often make decisions rapidly, without being able fully to think them through. The presence of the intruder in the victim's home is likely to create a sense of immediate and potentially lethal threat and thus the perceived need to act urgently. In such a scenario, the use of lethal force can be viewed as a proportionate response to the imminent danger posed by the intruder. The amount of force that is ultimately used is difficult to assess by reference to what a reasonable person in the position of the victim would do. Most people are unlikely to have ever encountered a home intruder and therefore have no reliable understanding of what constitutes 'reasonable' self-defence. They are likely to act instinctively rather than decide on a 'reasonable' and proportionate use of force based on previous experience.
Fear is also likely to lead the victim of a home invasion to respond in a way that is later judged disproportionate. Personal safety and wellbeing consultant Kevin Ellis has attempted to explain the level of threat a person is likely to feel in response to a home invasion. Ellis writes, 'Home invasions are a massively fearful and stressful situation that is being encountered more and more around our suburbs and towns. Such offences drive into every element of psychological security - people have entered your home without your permission and are intent on stealing or vilifying everything that is precious to you.'
Supporting the Western Australian 'defence against home invasion' law, Ian Dobinson, from the University of Technology Sydney, has stated, 'Given the circumstances of home invasion, they're not rational circumstances at all. They involve extreme fear, high emotion and all of these things need to be considered. So, if someone does kill and even where that may be seen to be excessive, in a home invasion situation, they are still entitled to a full defence.' Jerry Farsoun, a United States personal safety consultant, has outlined the range of responses that any individual might have during a home invasion. He writes, 'The amount of terror and fear experienced during a home invasion is immense. Because of this, victims often fail to think clearly and make tragic mistakes. Some are overcome with fear and literally freeze in their tracks. Others run for their very lives. There are also some that immediately go into attack mode and attempt to fight off the intruders.'
Farsoun argues that all of these are instinctive reactions, products of the fight or flight response, and all (including the urge to attack) are predictable given the situation. Farsoun's assessment suggests that expectations of an objectively reasonable and proportionate response to a home invasion are not realistic. Supporters of castle law argue that Australia should recognise the unique threat posed by home invasion and allow residents to use the level of defensive force they believe is necessary without facing legal repercussions.5. Occupants using lethal force in self-defence can deter home invaders
Supporters of castle law argue that allowing homeowners or occupants to use lethal force in defence of their homes can act as a deterrent to potential intruders. The possibility of encountering armed resistance may dissuade criminals from attempting to break into homes, thereby contributing to overall community safety.
Nick Dametto, the Queensland MP who introduced the castle law private members bill into the Queensland Parliament, has stated, 'The presence of a robust Castle Law regime can act as a deterrent to potential intruders. Knowing that homeowners are legally protected in using force against intruders can discourage criminal activities like break-ins and home invasions.'
Studies of particular jurisdictions demonstrate that the imposition of castle law and the shooting of alleged burglars can reduce the incidence of burglaries. The State of Texas enacted its castle doctrine law on September 1, 2007. Two months later, a 61-year-old computer technician, Joe Horn, fatally shot two men he believed were robbing a neighbour's home. Mr Horn was subsequently not brought to trial. Harris County District Attorney Kenneth Magidson stated, 'The use of deadly force is carefully limited in Texas law to certain circumstances. ... In this case...the grand jury concluded that Mr. Horn's use of deadly force did not rise to a criminal offense.'
A study published in the journal of the American Psychological Association examined the deterrent effect of the Texas law change and the killing of two accused burglars that was sanctioned by the new law. The report stated, 'The Horn shooting incident in Houston in November 2007, served to publicise the Texas law to a great extent.' Daily data of residential and business burglary, over the period from January 1, 2007, to August 31, 2008, were obtained from the Houston Police Department. Interrupted time-series designs were employed in the study to analyse the intervention effects. The findings suggest a deterrent effect of the law and the Horn shooting; both residential and business burglaries were reduced significantly after the shooting incident in Houston. The study suggests that media coverage of incidents in which residents use lethal force enhances castle law's deterrent effect. The Joe Horn shooting incident sparked a media frenzy via lengthy reports by Fox News, ABC, NBC, U.S.A. Today, the Associated Press, the Daily Telegraph London, the National Post Canada, and the New Zealand Herald. A search of the United States newspaper database revealed that there were 30 articles covering the story in Houston Chronicle in the month and half after the shooting incident, as well as reports on the four local TV stations and many other local newspapers in the Houston metropolitan area.
Those who conducted the Houston research note, 'According to deterrence theory, two crucial components, certainty of detection and severity of punishment, largely determine the deterrent effect of a law.' With castle law, the burglar's punishment is inflicted immediately by the victim of the crime and because castle law can justify lethal force, the punishment can also be extreme.
The researchers believe that a combination of publicity, certainty and severity made castle law an effective deterrent.Australian supporters of castle law also argue that the criminal justice system does not adequately deter potential burglars. Firstly, they claim that too many burglars go uncaught. Of the 17,246 non-aggravated residential burglaries committed in 2022, 14,621 remain unsolved. This is 85 percent.
Further, only a quarter of all aggravated burglaries committed in Victoria committed over the same period resulted in an arrest. Aggravated burglars, those who use significant force, have a three in four chance of not being punished for their crime. It has also been claimed that even when the criminal is found and convicted, the sentences being given are too lenient. Examining sentencing data in Victoria from 2005 to 2010, a 2011 study of sentencing practices found that the median term of imprisonment for aggravated burglary was two years. The available maximum penalty for this offence is 25 years' imprisonment. The most given penalty is only 8 percent of the available maximum penalty. Critics of current attempts in Australia to discourage burglary and home invasion argue that neither the chance of apprehension nor the length of time spent in prison is great enough to deter burglars. Castle law, they argue, is needed to act as a deterrence.