The Federal Government, if it were serious and determined, could ensure a tough national system of gun control.
It is a matter of politics as much as constitutional law. On the question of politics, governments are wary of the Unsworth factor. This is the myth that the promise of tighter gun laws caused the defeat of the Unsworth Labor Government in NSW because pro-gun organisations could rally a critical one or two per cent of people in marginal electorates to change their vote on that issue alone. Maybe they can, but the Unsworth government was doomed anyway. Besides, politicians are supposed to act for the overall welfare and, by and large, for majority wishes. Certainly, where they coincide (as they clearly do on gun control), politicians should act.
Superficially, gun control is a state matter. By and large, it is difficult for the Commonwealth to legislate in the area of criminal law and the actions of individuals. But it can be done. The Constitution provides a list of areas of federal power and leaves all other areas to the states. The list includes things like foreign trade, defence, foreign affairs, taxation, currency, communications (expressed in the turn-of-the-centruy phrase “”postal, telegraphic and other like services”), banking, insurance, lighthouses, divorce and in relation thereto the custory of children, industrial disputes that cross state boundaries and so on.
There is no mention of gun control, race or sex discrimination or the environment. But just as the Commonwealth exercises its political will on the last three it can exercise its political will on the first. It requires imaginative law-making.
It can pluck out its heads of power and write laws that restrict gun use to the limits of those powers.
For example, using the foreign trade power, it could be an offence to import a range of defined weapons; it could be an offence (punishable draconionally) to possess those imported weapons. Using the corporations power, the Commonwealth could make it an offence for a corporation to buy or sell weapons not on a national register. Using the tax power, weapons not on a national register could be subject to a tax of 90 per cent of value per year upon discovery. Using the posts power, it could be an offence to send anything through the post pertaining to a weapon. Using the bills of exchange power, it could make it an offence to use a cheque to purchase weapons. It could be an offence to be in possession of certain weapons on Commonwealth lands. Using the defence power, it could demand registration of all weapons with military value.
It would be a cumbersome way of going about it, but that’s the nature of the Constitution. But a coherent, practical pattern would follow. The Commonwealth could set up a national system of registration of all weapons. Nasty weapons would be unregistrable and leave their possessors and owners subject to heavy penalties under the various heads of power. Less nasty, rabbit-shooting type weapons would be registered. If they were not, once again the owner or possessor would be subject to heavy penalty under the various heads of power.
Sure, it may be possible for a person to make his own weapon and sell it for cash to someone living in the same state. But the bulk would be caught.
There is a more subtle point. The Commonwealth might only need to threaten to use a hotch-potch of its powers to achieve the objective of gun control and national registration. Having drafted and threatened the legislation, it could present it to the states. It could say to the states, why not refer the overall power to the Commonwealth (under Section 51 xxxvii of the Constitution) instead of having this awkward law? (As happened, for example, with awkward custody cases that fell outside the Commonwealth’s power over divorce.) Or it could say, unless you tighten your laws within, say, a year, this will be enacted.
The states have proven themselves inept at dealing with guns. Every time there is a mass shooting the cry goes up for reform and precious little happens. After the Hoddle street and Queen Street massacres in Melbourne and the Strathfield killings in NSW the same cries went up. There was some reform, but Tasmania, siginficantly, still does not have compulsory registration of weapons.
The issue is more than mass shootings. In 1994, 522 deaths were attrributed to firearms. Of these, nearly 80 per cent were suicides and most of the rest were accidental, domestic violence or assault. Very few were killings in self-defence. Owning a weapon is very risky for the family in which it is owned and the risk far outweighs any self-defence need.
The states should ban weapons in built up areas and restrict weapons in rural areas to legitimate vermin control.
If the states won’t, the Commonwealth should call the political bluff. The gun lobby must have been weakened by the events in Tasmania. The past three elections show the gun vote has peaked and is getting weaker. In 1993 the Shooters’ Party got a paltry 1.8 per cent of the vote in NSW. In the 1995 NSW election it got 2.8 per cent, enough to elect John Tingle on preferences. In the 1996 federal election it ran in four states. It got nowhere near a Senate quota anywhere. In Queensland (the supposed home of red-neckery) it got a tad over 0.6 per cent.
These paltry figures, though, are enough to tip some seats in the House of Represenatives from one major party to the other. That is why it is so important for the major parties to have a unified voice, so there is nowhere for the shooters to go. After Port Arthur, the Australian major parties must not get hijacked by the shooters as they have in America.
This is why the Commonwealth should use whatever power it has to twist the legislative arm of the states. It is not good enough to say this is a states’ issue. If might have remaioned a states issue if they have dealt with it. The fact they haven’t makes it a national issue.