ESSAY - PART 1

HOW THE FEDERAL GOVERNMENT SHALL USE THE CONSTITUTION TO FLOUT THE CONSTITUTION

There is no right under the Commonwealth Constitution enabling citizens to bear arms. Balancing this, the Commonwealth was given no express power over firearms and ammunition.

That's something which the Commonwealth has decided to flout.

At present, control of firearms is governed by eight different Australian jurisdictions. This was the intention of the Australian Constitution, which determined that the only power which the Commonwealth should have over firearms should be the control upon the importation of firearms and ammunition.  It was for the States and Territories to regulate the sale, purchase, possession and storage of firearms in accordance.

So the Commonwealth Government has set out, with bureaucratic malice aforethought, by implication, coercion and subterfuge, to redress its lack of power.

Why?

Well, the Commonwealth is offended by the lack of uniform laws between the States. (Freedom and liberty are most untidy rights for other persons to have.)  For instance, there are inconsistencies between the States provisions, including but not limited to:-

*minors can obtain a firearms licence;

*a firearms licence is valid for life

*there is no specific requirement relating to the mental or physical condition of the applicant for a licence,

*there is no limit on the number of guns that can be held by a particular owner

*automatic firearms can be owned by collectors or for the purposes of film production

*semi-automatic weapons can be legally owned

*there is no restriction on ammunition sales,

*not all firearms need be registered.

OK. First, let's eliminate the Territories liberty to conduct their own affairs free of the interference of the Commonwealth. Easy - Under S.122 of the Constitution, the Commonwealth may use the territories power to legislate comprehensively on firearms and ammunition in the ACT and the Northern Territory.  But that might be politically unpopular in the Northern territory.

Well then,  by introducing uniform firearms practices in the States and territories, first by  seeking a co-operative approach and, when this did not work entirely as intended, then by legislative and  financial coercion, the Commonwealth could get its way. 

So, in embarking upon its intended course, it examined a number of heads of power that could be useful to these intents. For example, it considered using the corporations power to regulate or prohibit trading and financial corporations from dealing in certain firearms and ammunition or from dealing in firearms not on a national firearms register. It decided that it was also possible to use its power over postal services to prohibit or restrict mail order sales of firearms. It even considered using its interstate trade and commerce power to prohibit or regulate interstate trade in certain firearms and ammunition. 

Then it got even more devious thoughts.

(Not that they'd do anything, mind you, Muggins. Australian Governments NEVER abuse power, not while the High Court is looking their way, they don't. Except when they secretly sponsor constitutional attacks upon Federal Power in anticipation of scaring the States into "co-operative approaches," that is.)

If a relevant international treaty existed to which Australia was a party, then the external affairs power might be used to legislate on the subject of firearms in a way reasonably proportionate to the treaty.

The idea has even been considered of using the external affairs power as a basis for a Constitutional head of power through which it could regulate gun laws in Australia. This is certainly a novel concept, and the viability of such an approach would certainly come under attention from the High Court.

There's also financial coercion, known in more polite circles as The Grants Power.  For example, the Commonwealth might  'grant financial assistance to any State on such terms and conditions as the Parliament sees fit.'  Decisions of the High Court decisions  support the contention that, by using section 96 of the Constitution, it can thus make grants available on the condition that each enacts firearms legislation containing particular provisions - thus enabling uniform legislation to come into existence. The Commonwealth could also withhold monies where undertakings were not honoured or a State refused to comply with the Commonwealth's wishes.

It could also make its wishes known to the states in meetings of State Commissioners of Police. His Master's Voice tends to trickle down to the lower rungs, and gradually, Weapons Licence Branch policies change.

Financial assistance may be granted over subject matter on which the Commonwealth otherwise has no authority and the terms and conditions imposed may be such that a recipient State has no control over the activities being financed. Of course, a State would have to be as duteous to the Commonwealth's vices as the Commonwealth would desire.

There's also its external affairs power. The legal threshold which must be passed before an issue can fall within the Commonwealth's external affairs power has not been finally, or at least fully, determined. But waiting in the wings are (a) The International Covenant on Civil and Political Rights which is one of the three central parts of the UN's Bill of Human Rights which states that 'Everyone has the right to life, liberty and security of person,' and (b)  The Convention on the Rights of the Child.

While there are no multilateral treaties which deal directly with the issue of the regulation of gun ownership, there are bodies within the United Nations which have expressed views dealing explicitly with gun ownership and which are also concerned at the issue of violence more generally. The Congress on the Prevention of Crime and the Treatment of Offenders, for instance, has recommended that Member States take the necessary steps to control urban violence by limiting and controlling access to 'weapons, including through international co-operation'.

Of course, all these are but a candle in the wind to the possibilities of using International Terrorism as a reason for the Commonwealth to assume the power to take the prize...

 

 

 

 

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So, how many of these have you seen the Commonwealth doing lately?

(a) using its power over overseas trade and commerce to prohibit the importation of certain types of firearms. Under the Customs Act 1901, the Governor-General may make regulations prohibiting the importation of certain goods into Australia. These prohibitions are found in the Customs (Prohibited Imports) Regulations. In brief, they prohibit absolutely the importation of firearms other than exempt firearms. The Regulations also prohibit absolutely the importation of firearms parts, except in the case of parts for exempt firearms;

(b) invalidating State laws by establishing inconsistency with Commonwealth laws and regulations;  Did the B709A which you used to use as authorisation to import firearms suddenly become useless for that purpose?

(c) denying funding to the States and Territories which do not comply with Commonwealth's  desires; the Commonwealth desires to establish "uniform national firearms laws" and it does not appear to matter that the Commonwealth was given no express power over firearms and ammunition, no State government has had the guts to tell the Commonwealth "No Trespassing!"

(d) using Commonwealth funded bodies to enhance and attain the Commonwealth's desires, even when those desires might have been beyond the Commonwealth's express powers; 

THE NEXT STEP - MAGAZINES WILL BECOME AS ILLEGAL AS FIREARMS

Reports of the shooting at Port Arthur indicate that the suspect was using high powered semi-automatic rifles with large capacity magazines. These weapons are usually referred to as military-style rifles because they have most of the characteristics of weapons developed for the use of troops in the armed forces of various countries. In many cases, civilian versions of the rifle are identical to their military counterparts, in others they are sold slightly modified, sometimes by deleting a fully-automatic fire option, often by being offered with a lower-capacity magazine. In practice, however, such changes can be overcome by modifying the firing mechanism or purchasing replacement parts, such as the original high-capacity military magazines.

The importation of military-style rifles with magazine capacities greater than five rounds was controlled under amendments to the Customs (Prohibited Imports) Regulations in 1991. However, those weapons already in the country can still be held, subject to the regulations of the States, and are currently sold by mail order throughout the country.