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It’s the vibe of it. It’s the constitution. It’s Mabo. It’s Justice ….
Darryl Kerrigan, The Castle
Growing up, your parent or guardian might have kept a baseball bat, a knife, or some sort of object hidden in the house that they could use as a weapon in the case of a home invasion. The idea behind this is to fend off an attack from an intruder, protect the home and whoever is inside of it.
This is not new.
In my opinion, it is so common that we would all call this measure reasonable. Tribesmen would have warriors stand guard outside their homes. British lords would have a knight stand sentinel at the top of a castle tower. Modern Americans may have a legal right hidden in a safe that can be used to guard themselves in this same manner. However, this age-old idea that someone has the right to protect their home (their castle) and their family has been lost in the infinity of foreign legal systems, wherein its practical application in the modern day is somewhat confusing. For the purpose of this, I will be comparing the American state of Alabama – which advocates for this so-called ‘Castle Doctrine’ – and New South Wales, where we have no such doctrine.
The Castle Doctrine forms a part of the great notion of self-defence, which, in some aspects, extends to defending one’s property. In Alabama, they assert the idea that you can ‘stand your ground’ in defending your home, business, or occupied vehicle. That is, if someone were to unlawfully intrude on one’s property, the owner could defend their property to a “reasonable extent”. This is important because, through common law examples and statute, deadly force is permitted so long as the homeowner believed it was necessary. Does this law lead to arbitrary and disproportionate responses to intrusion? Imagine knocking on a neighbour’s door at night for help, being mistaken for a trespasser and looking down at the unfortunate end of a Browning X-Bolt rifle – no Australian can imagine this.
In New South Wales, we have no such doctrine. Further, it is written in statute that deadly force is NOT permitted in home invasions. Self-defence is, but not of the same deadly calibre. I acknowledge there are obvious differences between these states; comparing someone in Birmingham AB reaching for their protection rifle (Jim Jeffries has a lot to say on this one) to stop a home intruder is different to someone in Narrabeen reaching for the Kookaburra bat when someone is breaking in.
In Alabama, the chance of a home intruder carrying a deadly weapon (like a gun) is high, so it can be argued that a homeowner is only matching the strength of the threat. That is a whole new dimension that Australia (thankfully) does not have to deal with, which raises the question:
Should someone be allowed to defend their property using deadly force, if they see needed?
Liberalism would point to the argument that in a situation of one’s home and family at stake, any means are necessary to protect both. Further, those who have endured a violent break-in might point to the argument that there is no time to wait for law enforcement, as the situation is rapidly evolving and victims are at further risk of danger. Many of us also cannot fathom the mental state of someone locked in a bedroom listening to an intruder wander around their house. Often, section 418 of the Crimes Act isn’t at the forefront of one’s mind during this time…
So here we are: lost in the infinity of ‘what ifs’ and hypotheticals. But, what if Australia actually had Castle Law?
We almost – sort of – did.
In July 2024, Queensland State MP Nick Dametto introduced the Criminal Code (Defence of Dwellings and Other Premises – Castle Law) Amendment Bill. This bill would have laid the groundwork for the Castle Law doctrine in modern Australia, allowing people to use lethal force to defend themselves in their home or premises. It also asserted that there is no duty to retreat in one’s own home, the Castle Law, meaning that all lethal force used against an intruder is reasonable if the intruder was unlawfully present. The bill was referred to a legal committee for review, and the Parliament lapsed, in essence killing the bill. For now.
Some hold the argument that Australia does need Castle Law, specifically in rural areas and areas with little law enforcement presence. Some argue it is needed as a liberal method to counter the increase in youth and violent crimes across the state, where the frequency of youth break-ins is high in rural areas. If passed, the Queensland Castle Law bill would have interestingly paralleled the new legal principle of “adult crime, adult time” underlying the crackdown on violent youth crime.
Opponents of Castle Law argue that it allows people to take the law – or the defensive cricket bat – into their own hands, ‘playing’ the job of police. Some argue it is a race-to-the-bottom, leading to increasingly extreme and unjustified uses of force as individuals impose their own idea of justice without legal oversight, and the possible arbitrary danger of the doctrine.
Popular culture (such as the movie aptly named ‘The Castle’) leads us down a road of protection. Protection of yourself, your home, and your family. In the words of Machiavelli, nothing is ever so decisive. A failed attempt at introducing this type of law is not the end – in my opinion, it is the start. Queensland is a democratic state, and Nick Dametto is a democratically elected member. If the people want something, in essence, they tend to get it in some form eventually.
In another time – or another parliament – we may see Queensland actually implement its own brand of Castle Law. For better or for worse, whichever side of the fence you are on, we all still sit in hypothetical territory. For now.
