Government found to be unjust
by Ted Drane
Australian Shooters Journal
July 1997
In a court case of national significance, a Canberra Magistrate has ruled that the ACT Government was unjust in its refusal to pay more than the Commonwealth scheduled price for a surrendered firearm (S Elliott vs ACT Government No CF 96/61727, reasons for decision delivered on April 11th, 1997).
It might reasonably be expected of an elected government functionary that in the light of such a decision, some rethinking could be in order about laws that have been enacted to the detriment of people's rights, laws which research shows are unreasonable and certain to achieve no improvement of public safety.
However, the immediate reaction of Mr Humphries, the Attorney-General of the ACT Government, was that he would have changes made to the ACT Firearms Act to ensure that compensation paid to gun owners could not be increased to market levels, as determined in a court of law.
Even though he has since sought to do this and have his way, there would still appear to be an overriding obligation under the Self Government Act for the Territories (both ACT and NT) to pay just compensation for any property they compulsorily acquire.
Rigid adherence to the fixed values specified in the Commonwealth's Handbook of Compensation Values cannot be just, unless it is by chance.
Accepting that those values may in fact reflect some form of average value, it follows that in roughly 50% of cases owners will be undercompensated. Others will be overcompensated - in simple terms at least, although there is no compensation for anyone for sentimental, family or heirloom values, nor is there any compensation for the gross personal insult associated with the unjustified confiscation measures.
Mr Humphries is widely believed to have shown disdain and even dislike towards firearms owners generally. He has publicly scorned the very idea that a firearm owner should contest the case which the ACT Government subsequently lost so resoundingly.
Although the amount of money involved in the ACT compensation case was not great in absolute terms, the case was fought both vigorously and viciously by the ACT Government, because it recognised its implications as a precedent for other Australians.
Mr Humphries was reported to have said "the Government feared it could open the floodgates to a mass of similar claims by gun owners". He said he would make his retrospective changes to the legislation "to prevent substantial claims by firearm owners" (Canberra Times, April 15th and 18th, 1997).
In other words, Mr Humphries would be appalled if gun owners were to seek and be granted substantial just compensation by the courts. He would strongly prefer that individual complying gun owners should bear all the financial losses imposed by unjust compensation, rather than see justice - as found by a court - be done.
An illustration of the way Mr Humphries has demonstrated his notions of fairness and justice for gun owners is provided by the ACT Government's submission to the court. It argued that its own actions had rendered the firearm in question illegal, unable to be otherwise sold, and therefore to have no value at all, something which should appal any fairminded person. To gun owners everywhere, to have an argument like this put up by the government, that their confiscated property has no value because it has been prohibited by unjust government moves made without proper reference to known research, is a gross insult, and improper in this democracy.
It is surprising that a person in the office of Attorney-General with a good working knowledge of the law, or at least with access to those who do have, should put forward something that Magistrate Ward rejected as "an argument entirely without merit".
In saying so, in the opinion of ILA the magistrate was being gracious, for what has been done in Canberra represents Government behaviour of a much lower order than mere bad argument. In essence, the ACT Government has been found guilty of adopting a resolute attitude towards gun confiscation in the ACT, cementing in the minds of firearm owners that government believes it can do with them whatever it wants. A court has now quite properly determined that in this case, the ACT Government was being unjust to the law-abiding citizen concerned.
With some 400,000 firearms now boasted to have been confiscated and destroyed by governments across Australia there may already have been some 200,000 similar cases of financial injustice, with many more to come.
It continues to be good advice for all affected gun owners to obtain fully documented, certified valuations of their firearms. At the very least this will assist documentation of the processes felt by firearm owners to be tantamount to theft under duress being pursued by some jurisdictions, such as the ACT.
Ultimately, with further precedents still to be established, it may yet become possible for many owners to use small claims court procedures to belatedly obtain the financial justice sought to be expressly denied them by people like Mr Humphries. In this event, owners should also be able to recover interest payable on the difference between true value and schedule value for the period between surrender of the firearm and the date of full payment.
It is important to note that confiscation processes in this country have only just begun. For this reason, court cases which establish merely the financial injustices of the Commonwealth's "compensation" strategy are very important. The Howard-model legislation specifically provides for further confiscations whenever the Federal Government finds it politically expedient. In danger are remaining pump actions, pistols, centrefires, or any other kind of gun, whenever sufficient excuse arises to move against them. Gun owners who are tired of being treated like scum should now be taking every step to expose for wider public scrutiny their government's denial of justice towards them.
How much compensation do you expect to be paid for the destruction of your dog of a breed similar to the one which next kills a child? The scheduled price?
Footnote: The Firearms (Amendment) Bill 1997 was presented to the ACT Legislative Assembly by Attorney-General Gary Humphries, MLA, and in his presentation speech, referring to the successful court challenge, Humphries said: "The Plaintiff's firearm was a modified version of a firearm listed on the schedule and the court upheld his claim for an additional amount of compensation."
This was not correct.
The firearm was not a modified version of one listed on the schedule, but was as supplied new by the manufacturer.
Was Mr Humphries aware that his statement to the Assembly was inaccurate and likely to mislead? If not, why not?
If so, are we to assume that the government perceives the whole matter to be an Australia-wide threat to the gun confiscations?
Timeline
May 10th, 1996: Prime Minister
Howard convenes a special meeting of police ministers, avoiding consultation
with firearms owners and ignoring world-accredited research on firearms.
May 17th, 1996: ACT becomes the first Australian jurisdiction to legislate to give effect to the Federal push.
May 31st, 1996: SSAA member obtains a private valuation (for $490.00) on a Winchester Model 1400 semi-automatic shotgun with ventilated rib and choke tubes, photographs it and delivers it together with the valuation certificate to the Australian Federal Police, as they directed in a letter to him. The member delivers a letter of demand to the ACT Chief Minister.
September 5th, 1996: Member receives cheque from the ACT Government for $350.00 with no further explanation.
October 1st, 1996: Member instructs solicitors and an Ordinary Claim is filed in the ACT Magistrates' Court against the ACT.
April 4th, 1997: In court, the Government argues the member should accept a "wholesale" price, then a "reduced market price"; the member provides evidence that a similar gun without ventilated rib or chokes was sold two months earlier for $445.00, providing a benchmark.
April 4th, 1997: three hours after the case finishes, the Government comes forward to pay the full claim plus costs, provided the offer is accepted before judgement is handed down. This offer is not taken up as it appears a secrecy clause is to be included.
April 8th, 1997: In a highly irregular move, the Government makes extra written submissions to the court, at one point claiming the gun has no value whatever.
April 11th, 1997: Magistrate Michael Ward hands down his judgement, fully in favour of the plaintiff, and highly critical of both the Government's defence and the extra written submissions ( calling them "a radical new approach to this litigation").
April 15th, 1997: The ACT Attorney-General Humphries goes to press on the front page of the Canberra Times and says he will be forced to tighten up Canberra's gun buyback scheme.
April 16th, 1997: After considerable television coverage, Humphries responds to it by saying he had to protect the integrity of the buyback scheme.
May 13th, 1997: The Attorney-General tables a bill to restrict the amount of compensation which will be paid in the buyback scheme.
May 22nd, 1997: ILA Consultant Ted Drane calls a press conference in Canberra to highlight the issues of government confiscation, insufficient payment and then its changing of the law to cap compensation payments, in defiance of the Constitutional rights of all Australians. He suggests that because this law is unjust and unconstitutional there is a possibility of action in a higher court, and this will now be explored.
At law, what are 'Just terms'?
Regarding "Just
Terms", Section 51 (xxxi) of the Australian Constitution, in a decision handed
down by the High Court of Australia, Justice Brennan said in the case of Georgiadis
v. Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297
at 310-311:(1)
In determining the issue of just terms, the Court does not attempt a balancing of interests of the dispossessed owner against the interests of the community at large. The purpose of the guarantee of just terms is to ensure that the owners of property compulsorily acquired by government presumably in the interests of the community at large are not required to sacrifice their property for less than its worth. Unless it be shown that what is gained is full compensation for what is lost, the terms cannot be found to be just.
1. Available on the Internet www.austlii.edu.au/do/sinodisp.pl/au/cases/cth/high_ct/179clr297.html
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