Gun Legislation and The Bill of Rights
by Jeremy Ludlow
Australian Shooters Journal
April 1999
Jeremy Ludlow is a lawyer with McAuliffe Schwikkard, Perth. He has a special interest in constitutional law, and in 1995 he appeared as counsel at the hearings of the widely publicized Easton Royal Commission, at which the interpretation of the Bill of Rights was a very important issue.
The Bill of Rights that applies in Australia was enacted by the British Parliament in 1689. In form and substance it is just like any other ordinary Act of Parliament. Additionally, it operated in 1689 as a kind of peace treaty, bringing to an end a long-running dispute between the British Monarchy and Britain's two Houses of Parliament, the House of Lords and the House of Commons.
The dispute revolved around a marked difference of opinion between King James II and the Houses of Parliament as to the nature and extent of the Monarch's executive powers. In some respects this dispute resembled the controversy here in Australia over the sacking of the Whitlam government. However, the dispute was much broader and more serious than the one precipitated by Sir John Kerr and gradually it deteriorated into something akin to a civil war. Eventually, in 1688, the issue was brought to a head when James II fled the country and was therefore regarded by the Houses of Parliament as having abdicated his throne. The Houses of Parliament then offered the vacant throne to two members of the Dutch royal family, William and Mary, on condition that they give assent to the Bill of Rights. William and Mary jointly accepted the throne on that basis.
When the various Australian colonies were established between 1788 and the middle of the nineteenth century, each of them inherited the then-existing laws of England, including the Bill of Rights. Subsequently, each colony was given a Parliament with the power to legislate, including the power to amend or repeal existing legislation.
Like most other pieces of legislation, the Bill of Rights is divided into a number of sections. Since the Bill of Rights is of great antiquity and importance, these sections are usually referred to as "Articles", but there is no difference in substance between Articles and sections. Each of the Articles is concerned with either abolishing an executive power previously exercised by James II, or with denying that any such power ever existed.
For example, Article 1 denies the existence of James II's "pretended Power" of suspending laws (such as Acts of Parliament), or the administration of the law without the consent of Parliament. James II had previously suspended various laws, or had refused to enforce them for the simple reason that he did not agree with them. In the mid-1970s, Article 1 gained some prominence in New Zealand following the election of the Muldoon government. In line with party policy, the newly elected government announced that it intended to repeal certain legislation and that in the meantime New Zealanders did not need to comply with that legislation. One of Muldoon's political opponents then took Muldoon to the New Zealand High Court, seeking a declaration that the announcement had been a breach of Article 1. The Court duly made such a declaration. (1)
Another provision in the Bill of Rights abolishes the ancient doctrine of non obstante. Under the doctrine the Monarch had the power, if he or she believed that Regal assent previously given to an Act of Parliament had been induced by fraud or deception, to revoke that assent. If the doctrine of non obstante had not been abolished by the Bill of Rights, it would have given the Monarch an easy method of evading Article 1. The Parliament enacting the Bill of Rights therefore decided to abolish the non obstante doctrine at the same time.
The Bill of Rights also includes a number of other important Articles, such as Article 9, which protects freedom of speech in Parliament, and Article 4, which prevents the levying of taxation without Parliamentary authority. From the shooter's point of view, however, the most interesting article in the Bill of Rights is probably Article 7, which reads as follows:
"Subjects' Arms - That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law."
Some people have suggested that this Article could be used as the basis of a constitutional challenge to the validity of Australian gun legislation. The contention for invalidity would be that the present gun legislation is so restrictive that it is inconsistent with Article 7, and is therefore constitutionally invalid. However, I doubt that any court hearing a constitutional challenge would give it any serious consideration.
There are several reasons why the invalidity contention cannot be accepted. First and foremost, it is contrary to the British doctrine of Parliamentary sovereignty. According to the doctrine, which is often said to be based upon the Bill of Rights, the British Parliament has the power to pass legislation on any subject whatsoever, other than legislation limiting its own powers to legislate. Thus, the British Parliament has the power to amend or repeal the Bill of Rights, or to pass legislation inconsistent with it. And since Australian Parliaments have been given similar powers to legislate, they too have the power to amend, repeal, or pass legislation inconsistent with the Bill of Rights. (2) In this respect, the powers of Australian Parliaments are greater than those of the various United States federal and state congresses, which are limited by the US equivalent of Article 7. Unlike Article 7, the US guarantee of the right to bear arms is constitutionally entrenched, and therefore has a special status leading to the invalidity of inconsistent legislation.
Secondly, there is, on closer analysis of Article 7, no real inconsistency between Article 7 and the gun legislation. This point can be illustrated by reference both to history and to the actual text of Article 7. Because of the absence of any real inconsistency, Australia's current gun legislation would not be declared invalid by a court even if Article 7 had the special constitutional status that in fact it does not have.
I will deal first with the historical point about lack of inconsistency. Unlike its US equivalent, Article 7 was not intended to guarantee the right to bear arms in the abstract sense. Rather, it was intended simply to end the practice of James II, who was a Catholic, of disarming his Protestant subjects so as to leave them at a disadvantage vis-…-vis his fellow Catholics. As such, Article 7 is really just a very early example of anti-discrimination legislation. Article 7's purpose was to ensure that Protestants were put on the same legal footing as Catholics. Contrary to the invalidity contention, Article 7 was never intended to allow all subjects to possess whatever arms they considered necessary for their protection.
This historical point is reinforced by the textual point, which, in the end, is probably the strongest argument against the invalidity contention. As can be seen from the full text of Article 7 quoted above, Article 7 contemplates that Protestants are not simply to have arms in the abstract, but to have arms ". as allowed by Law". The expression "Law" in this context is intended to be a reference to the laws as they evolve over time. Since those laws in the Australia of 1999 include the various State and Territory gun laws, the effect of Article 7 is pretty much the same as it would be if the word "Law" in that Article were amended to read "the gun control laws of Australia's States and Territories". As a consequence, Article 7 and the gun legislation, far from being inconsistent with each other, in fact dovetail together.
It follows that a constitutional challenge based upon the invalidity contention would not succeed. However, the Bill of Rights does give some comfort to those alarmed by the current legislation, because it includes another article (Article 5) guaranteeing the right of subjects to petition the Monarch (and therefore the federal and state governments). Those who object to the current legislation therefore have a legislatively protected right to urge the federal and state governments to change the legislation. And I would suggest that they exercise that right in preference to bringing a doomed constitutional challenge
1. The court case is known as Fitzgerald v Muldoon [1976] 2 NZLR 615. In some Australian States, the police forces have unofficial policies of not enforcing, or only selectively enforcing, certain controversial criminal laws, such as anti-prostitution legislation or anti-sodomy legislation. These policies are probably also breaches of Article 1, but there is little any private citizen can do about these probable breaches.
2. Until recently, there was a doctrine that Australian legislation could be declared invalid if inconsistent with British legislation having so-called "paramount force". However, the Bill of Rights, although British, is not an example of legislation having paramount force, because it was enacted before the paramount force doctrine came into being. Moreover, the doctrine of paramount force, at least insofar as it applied to Australia, was abolished by the Australia Acts of 1986, and the gun legislation that would be challenged in any constitutional challenge by a sporting shooter is legislation that was either enacted or substantially amended more recently than 1986.
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