Security of person is a human right, and self-defence is a lawful right. Two concepts, one conclusion >>
The incident that initiated the Bill:
14th September 2017, a farmer went to the back door of his house with an unloaded 22 rifle, after hearing someone trying to get in. The farmer disarmed the intruder and arrested him. The intruder was carrying a long length of wood (a club) and a knife. Police were already looking for the knifeman because the farmer’s neighbour had reported seeing him earlier. The Police met the farmer and took the intruder into their custody. All was good until the Police turned up at the farmer’s place the following day to seize his licensed firearm. The Police also served a notice on the farmer’s wife restricting her from storing her licensed firearm at the property. The story received national and international coverage as diminished security for a farmer and his family.
The Police wrote to the farmer and said, “It is important that you understand that the legislation prohibits you from possessing or using a firearm for the purpose of personal protection” (NSW Police reference no. 1110 53032/IR:SG). Look carefully at the police terminology, […] LEGISLATION PROHIBITS YOU. […]. It was not illegal for the farmer to do what he did, however he was prohibited from using a firearm to do it. If he had used a chain-saw that happen to be in the kitchen to deter the knife-man (although unlikely to be in the kitchen) would the police return the following day to seize it? No.
Some may say, “The farmer had other options”. There is, for instance, the kitchen chair, or a steak knife, the frying pan on the stove. The problem with all of these things is that one risks engaging in hand to hand combat when there is no necessity to do so. The entire purpose of the farmer producing an unloaded firearm was to deter the knifeman and preserve life, namely his own, his wife, his children, and the criminal.
The question, had the farmer not arrested the armed intruder and he absconded as far as some bushes to conceal himself, what could be the result? The Police arrive and take from the farmer the visual deterrent that initially kept the knifeman from entering the family home.
Some may argue that the human right of security of person does not apply to the farmer and the above is entirely a self-defence?
In reply, is the following.
The Universal Declaration of Human Rights signed by Australia in 1948:
Different jurisdictions around the world have considered if the phrase “right to liberty and security of person” should be construed as referring to one right with two facets, or to two distinct, if conjoint, rights. The Human Rights Committee in its General Comment 6 (1982) on Article 6 of ICCPR (which protects the right to life) states “It is a right which should not be interpreted narrowly”. Emphasis must be placed on the phase, “not be interpreted narrowly”. European Commission of Human Rights and the European Court of Human Rights have found that what is protected is “physical liberty” and “physical security.”
The question is, “Has there been an act or omission by State that has diminished the security of a person resulting in a grievous threat to life?”
- When an act or omission is done by a person for personal protection we may say, it is self-defence.
- When an act or omission is done by the State that results in diminished security of a person we may say, it is security of person.
Is there advice applicable to the farmer’s case?
The UN Human Rights Committee has said: ‘”It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them.” Ref. 181. The farmer was not under arrest, not detained, and his actions were lawful.
What may be the ‘known threat” that has been ignored by the State?
The police officer does not tell the criminal where they live, why? The history of arrest (citizen or otherwise) contain ample evidence that some criminals will retaliate violently at a later time because the arrest resulted in their punishment. This is a known threat and this history is provided during the training of a police officer. Source: Oxley Police Academy, L. J. Lyons 1977.
The State ignored the known threat to the citizen who has arrests an armed intruder. The act of the State was to remove the visual deterrent in the possession of the arresting citizen that kept the knifeman from entering the family home in the first instance. At a later date this criminal may read in the newspapers the story of his victims disarmament. Equally plausible is that a future event of a like kind will occur and the armed intruder runs only so far as to be concealed in bushes. They then watch the police disarm their victims and return to carry out their original criminal intent because the security of that person has been diminished by the actions of the police.
Perhaps the above case and one’s like it is a matter for a court of appropriate jurisdiction to judge if the human right of “security of person” is breached by the State in creating post-event prohibition laws?
Applying the logic of Aristotle with regard to law, and what is a natural right and what is an instituted right, ““The best division of right, one kind to be natural, and the other voluntary calls it a lawful right in the strictest sense of the word law, and sometimes an instituted right. Of this kind is the evil of certain actions compared with the nature of a reasonable being” translates as:
The farmer had a natural right to disarm and arrest an armed intruder (the evil doer), and the State uses it’s instituted right to take from the farmer the deterrent not because the farmer’s actions were unreasonable, but because there exists a post-event prohibition law.