Why we cannot invoke the 1688 Bill of Rights and what we can do instead
by Gary Towers
12 February 1998
Over the last years a lot has been said about challenges to various gun laws in Australia. As a lawyer with a keen interest in firearms, what I have heard and read both amuses and disturbs me. It amuses because it is so often based on a thirdhand, incomplete and sometimes bizarre views of Australia's legal system; it disturbs because it demonstrates laziness, and serves as an excuse not to oppose unnecessary regulation on political grounds.
There are strict limitations upon the legal means of preventing overregulation of firearms. This article will now explain these, and then go on to show what will work instead.
Let's go back to basics. Australia's legal system is inherited from (but is not a copy of) that of England. Under that system, Parliament is supreme, within the limits of its constitutional power. This means that Parliament may make (pass) and unmake (repeal) any law that it likes, so long as it does not exceed the authority granted to it by the constitution. In England, the constitution is not a single, neat document as it is in Australia. Rather, the constitution is said to be made up of two parts: watershed pieces of legislation (such as the Magna Carta, the 1688 Bill of Rights, and so on) and conventions (such as the right of the party holding a majority of seats in The House of Commons to form a government).
In reality, neither part of the English "constitution" is much of a fetter on the Parliament. The Acts of the Parliament, and may be repealed or modified in any way Parliament chooses. And the conventions are only that - they do not bind Parliament, as Prime Minister Whitlam discovered in 1975.
Already I can hear the cries of "Nonsense! No one can change Magna Carta". But as long ago as 1905, The High Court of Australia held that a statute of an Australian Parliament could displace Magna Carta (Chia Gee -v- Martin (1905) 3 CLR 649), and this has been applied as recently as June 29th, 1994 (re: Skyring (1994) 68 ALJR 618). If an Australian Parliament, which owes its existence to that of England, can displace the greater charter, it must be obvious that the English Parliament can do the same. The lack of any successful legal challenge to firearm regulations in England based on Magna Carta or the Bill of Rights amply demonstrates this point.
What about the Australian state of affairs? This is a little more complex because of the sovereignty of the state. (Without wishing to offend, I will ignore The Northern Territory for the moment, as their position is more difficult again). Upon Federation, the Commonwealth Parliament was given certain specific powers, and most of the remaining powers were vested in the states. Road traffic laws differ state by state - they come under state powers. Income tax, though, is levied across all Australia by the Commonwealth.
The power to control firearms is not mentioned in the Federal Constitution (which, by the way, is an Act of the English Parliament). Therefore, it is vested in the states and that is the reason firearms laws vary from state to state. Again, as long as the states do not exceed their constitutional power, any law they make will be valid.
The Supreme Court of South Australia has said the following in relation to the power of the South Australian Parliament:
The absolute power of the state has been questioned by legal philosophers throughout the ages, including modern legal philosophers such as Dworkin and Eli. Questioning does not effect change. Whatever may be the theory of legal philosophers, the common law which applies in this state is the common law of England as it existed in 1836, as it was translated into this colony and as it has developed within this colony and state in the last 148 years. There is nothing in that common law which inhibits or is capable of inhibiting the power of the Parliament of the state to make laws for the peace, welfare and good government of this state……Under received constitutional doctrine, the Parliament of the State of South Australia is supreme, and subject only o the Constitution Act, 1901, the Constitution Act 1934 - 1975 (SA), the receding shadows o the Colonial Laws Validity Act (UK) and considerations of extraterritoriality, it can make whatever laws it wishes for the peace, welfare and good government of this state….The opinion of the Parliament as to what laws are for the peace, welfare and good government of the state is paramount and conclusive as a matter of law. The Parliament's opinion, as expressed in a particular statute, cannot be impugned in a court of law as being an invalid exercise of Parliament's power"
(White, J).
Another judge of the court went on to comment as follows:
The fundamental problem…is the supremacy of Parliament. The plain fact is that in the absence of a Bill of Rights such as that in the First Amendment to the United States Constitution and with the qualifications I have mentioned, the citizens of this state do not have rights which may not be overridden by Act of South Australian Parliament. The South Australian Parliament is Supreme. Thankfully ours is still a democratic community and that supremacy accordingly may be and often is curbed politically. It seems to me that the only remedy which the appellant may have is a political one (Millhouse, J).
The name in that case is Grace Bible Church -v- Reedman (1984) 36 SASR 376.
Even though these judges were speaking in South Australian courts, the principles they are enunciating apply also to other jurisdictions in Australia. It is therefore within the legal power of any state parliament to make any law it chooses regulating or banning firearms. The real question, of course, is whether it is politically expedient to do so (remember Mr. Unsworth?). there is no second amendment in this country to use as a shield as exists in the United States of America; Magna Carta and The Bill of Rights can be and have been displaced time and again by legislation.
The only way to prevent fruitless incursions into your sport is to become political. By that I do not mean adopting the cause of one political party. The reality is that if enough people make enough noise, and protest enough about useless restrictions on law abiding citizens, governments will be forced to take notice of them.
The SSAA is a large organisation, but it is not all powerful. You the members must help it - principally by signing up your friends, relatives, spouses and acquaintances as members, to take the struggle up to governments. Don't think that the law will help you - it is not that it will not, but that it cannot. The only answer is to help yourself.
ASJ
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