After Port Arthur - issues of gun control in Australia
Federal Parliamentary Research Service
1 May 1996
What can be done to introduce uniform firearms laws in Australia?
Information supplied by the Federal Parliamentary Research Service to Federal Politicians before the
10th May 1996 APM Conference.
Page 7
There are a number of
options that could be used to produce uniform fireams laws in Australia. These
are set out briefly below.
A Cooperative Approach
This is the approach that has been adopted through APMC. Prime Minister Howard will go to an APMC
meeting on 10 May 1996 with further proposals for the type of uniform gun
laws that the Commonwealth wants to see in place throughout Australia.
Referrals Of Powers From The States To The Commonwealth
Under section 51 (xxxvii) of the constitution, the Commonwealth parliament
can make laws on matters reffered to it by a State or States. Section 51 (xxxvii)
further provides that the law shall extend only to States by whose Parliaments
the matter is referred, or which afterwards adopt the law'. The Premier of
New South Wales, Mr. Bob Carr, has introduced the Commonwealth Powers (Firearms)
Bill into the New South Wales Parliament. The purpose of the proposed legislation
is to refer control of fireams to the Commonwealth. In order for a referral
of power to work, all States would have to agree to refer their powers and
the Commonwealth would have to be willing to enact legislation as a result
of those referrals.
Constitutional Amendment
Section 128 of the Commonwealth Constitution sets out the manner in which
the Constitution can be amended. First, and absolute majority of each House
of Parliament must pass the proposed law for the alteration fo the Constitution.
The proposed law is generally called a Constitutional Alteration Bill.
It is important to note that section 128 of the Constitution contains a provision for the resolution of a deadlock if the House of Representatives and the Senate cannot agree on a proposal to alter the constituion. If a proposed constitutional amendment is passed by one house but rejected by the other, then the Governor-General can submit the proposal to a referendum.
In the case of a proposed law that has passed through both Houses of Parliament, the proposed law must then be submitted to a referendum not less than two months and not more than six months after it has passed through both Houses of Parliament. For the proposed Constitutional amendment to proceed, a majority of electors in a majority of States voting in the referendum must approve the proposed amendment to the Constitution.
Commonwealth Powers
As stated earlier, there is no power over fireams in the Commonwealth Constitution.
Without a referral of powers from all the States or a constitutional amendment
giving it power to enact laws about firearms and ammunition, the Commonwealth
would have to rely on relevant heads of Constitutional power in order to introduce
firearms laws. Any such as that providing for freedom of interstate trade.
There are a number of heads of power that might be useful. For example, the Commonwealth could propbably use the corporations power to regulate or prohibit trading and finacial corporations from dealing in certain fireams and ammuntition or from dealing in fireams not on a national fireams register. It might be possible for the Commonwealth to use its power over postal services to prohibit or restrict order sales of firearms.The Commonwealth might be able to use the interstate trade and commerce power to prohibit or regulate interstate trade in certain fireams and ammunition.
If a relevant international treaty existed to which Australia was a party, then the external affairs power could be used to legislate on the subject of fireams in a way reasonably proportionate to the treaty. The idea has been floated of using the external affairs power as a basis for a Constitutional head of power through which the Commonwealth could regulate gun laws in Australia. This is certainly a novel concept, and the viability of such an approach has never been tested in the courts. Nor has it previously received a significant degree of academic or bureaucratic consideration. Failing the existence of a relevant treaty, there are High Court dicta that the Commonwealth could use the external affairs power to legislate on a matter of international concern or in accordance with the recommendation of a relevant international body (assuming, of course, that such a recommendation existed).
The Commonwealth could also use the territories power to legislate comprehensively on firearms and ammunition in the ACT and the Northern Territory.
Uniform controls over fireams might also be achieved in an indirect fashion. For example, the Commonwealth might use its grants power under section 96 of the Constitution. Section 96 enables the Commonwealth to grant financial assistance to any State on such terms and conditions as the Parliament see fit. High Court decisions suggest that:
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.
Using section 96 of the Constitution, the Commonwealth could make grants available to the States on the condition that each enacts fireams 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.
The Commonwealth also has the power to make laws for taxation and excise. At present firearms and ammuntion are subject to the general rate of sales tax (22 per cent), with exemptions being allowed in some circumstances. The Commonwealth might place a high rate on firearms and ammunition. Taxes collected might be used to help fund a fireams 'buy back' scheme. In assessing these costs, it must be remembered that gun-related homicides and suicides themselves involve economic costs to the community. For example, mass killings like that in Port Arthur involve very substantial cost to the criminal justice system and also to tourism.
It has also been suggested that anyone in possession of a firearm not registered on a national firearms register could be subject to a high rate of tax based on the value of the firearm and calculated for each year that the person has been in possession of the fiream. However, section 53 of the Constitution states that a law is not a law about taxation merely because it imposes or appropriates fines or other pecuniary penalties. Thus, the exaction of such a payment might not survive a constitutional challenge because it might be regarded as a penalty rather than a tax.
Using the Executive Power of the Commonwealth, it is likely that the Commonwealth could establish a national fireams register, financed through an appropriation made under section 82 of the Constitution. It might also be possible, using section 51 (xxxix) of the Constitition in conjunction with the Executitve power, to establish a national statutory authority to register firearms and to confer the necessary powers on the authority. Given the difficulties encountered with a fragmented system of firearms regulation in Australia and the consequences for the nation as a whole of inadequate firearms laws, it is arguable that such measures might survive a constitutional challenge on the basis of the character and status of the Commonwealth as a national government.
Home > Research archive > 1996 > After Port Arthur - issues of gun control in Australia