Federal Government response on Bill of Rights and firearm ownership
Office of General Counsel
5 August 1996
OGC96079366
Ms Susan Hunt
Firearms and Drugs Policy Unit
Commonwealth Law Enforcement Board
Locked Bag 23
Queen Victoria Terrace
PARKES ACT 2600
Dear Ms Hunt
LAWS RELATING TO THE OWNERSHIP OF FIREARMS - BILL OF RIGHTS
I refer to your facsimile message dated 22 July 1996 requesting advice as to whether proposals to restrict gun ownership may 'breach the rights of citizens to bear arms guaranteed by the Bill of rights 1688 (UK).
2 The short answer is that the Bill of Rights does not guarantee a right to bear arms in Australia.
3 The statutory enactment is that the Bill of Rights 1689 (UK Will & Mar Sess 2, c2) is certainly a part of the received law of Australia. However, being part of the law received by the various Australian colonies from Britain at the time of their establishment, its practical effect may vary from State to State, or Territory, depending on the nature and operation of more modern State or Territory law. For example, Kirby J stated in Smith v The Queen (1991) 25 NSWLR 1 (at 13) that the Bill of Rights continued to operate in New South Wales as one of the constitutional enactments preserved by s.6 of the Imperial Acts Application Act 1969 (NSW).
4 The Bill of Rights was itself passed by the English Parliament and is generally regarded as one of the more important constitutional documents to come out of the 'Glorious Revolution' of 1689. Citing grounds of complaint against James II, the Bill of Rights sets out a number of 'declarations'. Clause 7 declares 'htat the subjects which are Protestants may have arms for their defence suitable to their condition, and as allowed by law'.
5 There is substantial support for the view that cl 7, like other clauses of the Bill of Rights, creates a qualified right; it authorises the possession of arms, but only in accordance with the law. In Australia, the relevant law would now include legislation passed by the Commonwealth or any State or Territory.
6 In any case, there is no doubt that it has been open to Commonwealth, State and Territory legislatures to variously restrict, amend or repeal cl 7 of the Bill of Rights as it has continued to operate in Australia; and the operation of the clause has, in fact, been overtaken by the Commonwealth, State and Territory laws whcih regulate the use and possession of firearms. Consequently, there is now no unqualified right to bear arms in any Australian jurisdiction.
7 To the extent that the clause has any continuing operation in Australia, it may be further restricted or amended by new Commonwealth, State and Territory legislation restricting gun ownership.
Yours Sincerely
(SIGNED)
James Faulkner
Acting Senior General Counsel
Copy held SSAA National
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