Jennifer Norberry
Law and Public Administration Group
Derek Woolner
Foreign Affairs, Defence and Trade Group
Kirsty Magarey
Law and Public Administration Group
Jennifer Norberry wishes to acknowledge the assistance of Bob
Bennett, Director, Law and Public Administration Group.
Kirsty Magarey wishes to acknowledge the assistance of Wiltrud
Harms, Reference Specialist for United Nations and Human Rights Law
at the University of California, Berkeley's Law School Library
(Boalt).
Contents
On 28 April 1996, 35 people were killed at the Port Arthur
Historic Site and many others were injured. The lives of many
others - families, friends and those who care for the wounded and
dying - have been permanently effected.
In 1994, over 400 Australians used a firearm to commit suicide,
about 20 Australians were killed in firearms accidents and over 70
Australians were the victims of intentional killing - often by
people known to them or by family members.
There is no uniform national firearms legislation in Australia.
The Commonwealth controls importation and the States and
Territories each have their own legislative schemes to regulate the
ownership and use of firearms. It has been estimated that there are
about 3.5 million firearms in Australia. Over 10,000 firearms are
legally imported into Australia each year (excluding those imported
for military or police use).
In an Age poll of 2058 Australians taken on 3-5 May
1996, 90 per cent of those surveyed supported a national ban on all
automatic and semi-automatic firearms, 88 per cent supported
firearms registration, 73 per cent thought that gun owners should
pay an annual registration fee for each gun they own, and 69 per
cent thought that gun owners should be required to store their guns
at an armoury or with the police.
The Hoddle Street and Queen Street mass killings in Victoria in
1987 provoked a great amount of community concern and resulted in
the establishment of the National Committee on Violence (NCV). The
NCV made 17 recommendations relating to firearms. Many of these,
including a recommendation for uniform firearms laws in Australia,
have not been implemented. Once again, Australians must consider
the need for a concerted, national approach to firearms control,
what that approach should entail and how it should be implemented.
The lethal use of firearms is a dramatic indication of violence in
society. Evidence suggests that the availability of guns increases
the likelihood of death in cases of assault, self-inflicted injury
and accident.
The events at Port Arthur have focussed the attention of all
Australians on whether and how such occurrences can be prevented.
But there are other reasons to consider anti-violence measures,
including gun control. While mass killings are horrific events they
are also relatively rare occurrences and our attention should not
be diverted from violence that more commonly occurs in the
community. The tragedy at Port Arthur should stimulate community
debate and political action about violence prevention strategies in
general, as well firearms laws in particular.
How many firearms are there in Australia?
Estimates of the number of firearms in Australia vary. Not all
jurisdictions require firearms to be registered and, in addition,
there are unauthorised firearms in the community. In 1990, the
National Committee on Violence put the number of firearms in
Australia at 3.5 million, at that time, approximately one firearm
for every four Australians.(1)
Statistics on firearms deaths in Australia for 1994 have been
published by the Australian Institute of Health and Welfare.(2)
These figures show that of 522 firearms deaths in 1994, 420 were
suicides, 76 were the result of interpersonal violence, 20 were the
result of an accident and in six cases, the intent was
unknown.(3)
Firearms are not the only weapons used in homicides in
Australia. Figures for 1992-93 show that firearms were used in 25
per cent of homicides. Sharp instruments were used in 30 per cent
of homicides, assault or the use of blunt instruments was the cause
of death in 27 per cent of homicides, strangulation in 7 per cent
and in 10 per cent of cases the primary weapon or method of
homicide was unknown or categorised as 'other.'(4)
In the same year (1992-93), in 40 per cent of homicides
involving a firearm the weapon was a .22 calibre rifle, in 30 per
cent of cases it was a shotgun, in 13 per cent of cases it was a
hand gun, in 7 per cent of cases an automatic or semi-automatic and
in 4 per cent of cases, a .303 calibre rifle.(5)
It has been estimated that 84 per cent of victims in mass
killings between 1987 and 1993 were killed by a licensed gun
holder, while 86 per cent of the victims were reportedly killed by
a person with no recorded history of violent crime or mental
illness.(6)
The recent mass killing at Port Arthur, Tasmania, which left 35
people dead has sparked understandable concern about firearms in
Australia. It is important to remember, however, that firearms are
also significant contributors to deaths by accident, suicide and in
individual killings - in particular, domestic homicides. Firearms
are important contributors to death and injury in two ways. First,
in terms of their availability and second, because they are lethal.
The National Committee on Violence concluded:
The vast majority of firearms
homicides are unplanned and impulsive, and in all likelihood would
not occur if such a lethal weapon were not to hand. The
availability of a firearm in these circumstances makes death a far
greater likelihood, for research has demonstrated that the death
rate for victims assaulted by guns is several times that of those
assaulted with lethal intent by knives or other weapons.(7)
International experience appears to support this finding and the
view that the amount of violent death in the community is related
to gun ownership. One study, based on a sample of 18 countries
concluded:
Substantial correlations were found
between gun ownership and gun-related as well as total suicide and
homicide rates. Widespread gun ownership has not been found to
reduce the likelihood of fatal events committed with other means.
Thus, people do not turn to knives and other potentially lethal
instruments less often when more guns are available, but more guns
usually means more victims of suicide and homicide.(8)
Recent multiple killings in Australia have included:
- August 1987 - seven people shot in Melbourne in the Hoddle
Street killings;
- December 1987 - eight people killed in Melbourne in the Queen
Street massacre;
- August 1990 - five people shot in Surrey Hills, Sydney;
- August 1991 - six people shot and one stabbed in the
Strathfield Shopping Plaza, Sydney;
- October 1992 - six people shot by a lone gunman in the Central
Coast of New South Wales;
- February 1992 - four people hacked to death at a farmhouse
north of Perth;
- August 1993 - three people shot dead by a gunman in the inner
west of Sydney;
- December 1995 - three members of the one family knifed to death
in Brisbane;
- January 1996 - seven people shot dead in a murder-suicide in a
Brisbane suburb.(9)
Reports of the shooting at Port Arthur indicate that the suspect
was using high powered semi-automatic rifles with large capacity
magazines. These weapons are usually referred to as military-style
rifles because they have most of the characteristics of weapons
developed for the use of troops in the armed forces of various
countries. In many cases, civilian versions of the rifle are
identical to their military counterparts, in others they are sold
slightly modified, sometimes by deleting a fully-automatic fire
option, often by being offered with a lower-capacity magazine. In
practice, however, such changes can be overcome by modifying the
firing mechanism or purchasing replacement parts, such as the
original high-capacity military magazines.
There has been some confusion about the nature of military-style
weapons in past attempts to regulate them. For instance, Customs
Regulations before 1990 described such weapons as those
'incorporating a pistol grip in its design'(10), although this was
not a characteristic of earlier military semi-automatic rifles. In
general, however, two characteristics of military-style rifles
stand out for their possible danger to the public - the high
velocity at which they fire bullets and the large capacity of their
magazines.
Two weapons matching these characteristics have been cited as
being used at Port Arthur, an AR15 of American origin and an SKS
which may have been made in the Peoples' Republic of China. In
addition there have been reports of some further weapons of
possible military background being recovered from the Seascape
Guesthouse, although whether they were taken there during the
affray has not been stated. One of them was said to be a military
shotgun of Belgian make.
The AR15 is the company designation of the M16, the standard US
ground forces weapon in the Vietnam conflict. It is a
semi-automatic rifle which fires a 5.56mm bullet at a muzzle
velocity of 1 000 metres per second , out to an effective range of
400 metres. It can be equipped with 20 or 30 round magazines and
has a theoretical [cyclic] rate of fire of 700 to 900 rounds per
minute.
The SKS was the standard Soviet infantry weapon of the 1950s and
was manufactured throughout much of the then Eastern Bloc. Later
versions of the Chinese weapon can be identified by the fact that
the integrally mounted bayonet has a triangular blade. The SKS
differs from the AR15 in firing a larger 7.62mm bullet at
significantly slower velocity - 735 metres per second. It has a ten
round magazine as standard but will accept a 30 round version.
Ammunition for these guns is available commercially. The
standard US 5.56mm military ammunition had been a development of
commercially available .222 sporting ammunition, and has been
adopted for manufacture in many countries. The military round is
sold for civilian use as conventional sporting ammunition and tends
to be unsuitable for high velocity rifles. Versions of the standard
NATO 7.62mm bullet are sold commercially as the .308
Winchester.
Several features of this type of weapon make military-style
rifles extremely dangerous. Their high rates of fire and large
magazines allow rapid, indiscriminate firing at targets, and
require no mechanical action that might allow a break in the mood
of the operator. The shooting at the Port Arthur site itself
reportedly lasted no more than eight minutes.
The major danger posed by these weapons, however, is their
enormous destructive power. There is some debate in military
circles about the most effective calibre of bullet. This tends to
concern the characteristics of the projectile at extended ranges
and selection is usually based on issues of doctrine and tactics
rather than the performance of the projectile. These concerns are
not relevant in cases where these weapons have been used in mass
murders. When fired from close range, both weapons of the type used
at Port Arthur create massive damage, temporarily displacing tissue
outwards from the bullet's path to diameters of around 20
centimetres, and shattering bone on impact. Although the 5.56mm
bullet has about half the energy of the larger round, even at close
range, its effects on bone are more severe, as the bullet shatters,
pulverising sections of bone that are hit(11).
These characteristics have significant implications for those
victims who are wounded but survive an attack by a military-style
weapon. Surgery may be more difficult because of the massive
disruption to the wound site. Injuries suffered may inflict a
life-long handicap, or at the least require extended physiotherapy.
These characteristics are consistent with reports that amputations
were required for the treatment of some survivors of Port
Arthur.
The ballistic characteristics of military-style rifles also
reduce their usefulness in roles other than those they were
designed for - that is, killing enemy soldiers. The performance of
high velocity 5.56mm bullets is exactly the opposite of traditional
hunting rounds. Game rounds have usually been designed to remain
intact and kill the prey by damage to a vital organ, leaving the
carcass intact.(12) Small game of around 10 to 15 kilograms mass,
suffers exaggerated damage when shot by military-style weapons(13).
It is difficult to think of any area of hunting or commercial game
shooting where the potential damage to trophy or carcass is not so
great as to immediately rule-out the use of military style-weapons.
Perhaps an application might be occasionally found in vermin
control but, if the concentration of feral pests is so great as to
require the rate of fire of a semi-automatic weapon, it could be
that alternative control methods would be more efficient.
It is difficult to estimate how many military-style weapons are
in civilian hands in Australia. The importation of military-style
rifles with magazine capacities greater than five rounds was
controlled under amendments to the Customs (Prohibited Imports)
Regulations in 1991. However, those weapons already in the country
can still be held, subject to the regulations of the States, and
are currently sold by mail order throughout the country. The
Melbourne Age [5 May 1996] estimates that there are more
than 850 registered owners, possessing a total of 2000
military-style, semi-automatic rifles.
There seems to be agreement between Commonwealth and State
governments that military-style weapons should be prohibited. The
issue would now appear to be how to withdraw those weapons which
are in Australia from the civilian population, and how to monitor
whatever approach is adopted to ensure that this objective has been
met.
The Queen and Hoddle Street mass killings led to the
establishment of the National Committee on Violence. In December
1987, an agreement was reached between Prime Minister Hawke, the
State Premiers and the Chief Minister of the Northern Territory.
The Committee was established in October 1988 and funded through
contributions by the Federal, State and Territory Governments.
The Committee made over 130 recommendations for violence
reduction in its report, Violence: Directions for
Australia. Seventeen of these were on the subject of firearms
control. Among other things, the Committee recommended:
- the enactment of uniform legislation throughout Australia to
regulate the acquisition and possession of firearms,
- a ban on the importation of military weapons except when
imported for use by law enforcement officers and the defence
force,
- if constitutionally possible, a Commonwealth ban on the sale of
mail order firearms,
- a ban on the sale of surplus military weapons,
- the establishment of a computerised national firearms
registry,
- the prohibition of automatic weapons and some types of
ammunition,
- restrictions on the possession of semi-automatic weapons,
- a requirement that all firearms owners be licensed,
- shooters' licences should not be available for minors,
- a cooling off period between application for and the grant of a
shooter's licence,
- the introduction of training and competence standards for
shooter's licence holders,
- the introduction of mandatory safekeeping standards for
individuals and businesses,
- restrictions on private sales of firearms,
- the imposition of severe penalties for those convicted of using
a firearm in the commission of a crime.
At present, control of firearms is fragmented between eight
different Australian jurisdictions. The Commonwealth controls the
importation of firearms and ammunition and the States and
Territories regulate the sale, purchase, possession and storage of
firearms.
While some States and the Territories have moved to amend their
firearms laws, others have lagged behind. In some
jurisdictions:
- minors can obtain a firearms licence;
- a firearms licence is valid for life,
- there is no specific requirement relating to the mental or
physical condition of the applicant for a licence,
- there is no limit on the number of guns that can be held by a
particular owner,
- automatic firearms can be owned by collectors or for the
purposes of film production,
- semi-automatic weapons can be legally owned,
- there is no restriction on ammunition sales,
- not all firearms need be registered.
Under the Commonwealth Constitution, there is a division of
powers between the Commonwealth and the States.
In order to legislate on a particular subject the Commonwealth
must first find a relevant Constitutional head of power. The
majority of these powers are found in section 51 of the
Constitution. Section 51 enables the Commonwealth Parliament to
legislate for the 'peace, order and good government of the
Commonwealth with respect to' the matters then listed. These
matters include overseas and interstate trade and commerce,
taxation, postal and similar services, trading and financial
corporations, and external affairs.
In contrast to the Commonwealth, the States can legislate for
the peace, order and good government of the State - in other words,
the legislative power of the States is not confined to a specific
list of subjects. There are limits on State power - for example,
under section 109 of the Commonwealth Constitution, a State law
which is inconsistent with a valid Commonwealth law is inoperative
to the extent of the inconsistency.
There is no express power over firearms and ammunition in the
Commonwealth Constitution. Further, there is no right under the
Commonwealth Constitution enabling citizens to bear arms.(14)
While no express power in relation to firearms exists under the
Constitution, the Commonwealth has used its power over overseas
trade and commerce to prohibit the importation of certain types of
firearms.(15) Under the Customs Act 1901, the
Governor-General may make regulations prohibiting the importation
of certain goods into Australia. These prohibitions are found in
the Customs (Prohibited Imports) Regulations. In brief, they
prohibit absolutely the importation of firearms other than exempt
firearms. The Regulations also prohibit absolutely the importation
of firearms parts, except in the case of parts for exempt
firearms.(16)
The need for uniform national firearms laws was considered by
the Australasian Police Ministers Council (APMC) in 1991.
Recommendations for reform were drawn up as a result of that
meeting.
At its meeting in May 1995, the Council noted the 'varying
registration and licensing systems applicable to firearms and
firearm ownership within the States and Territories to control the
use of firearms' and agreed to establish a working party composed
of officials from each jurisdiction to 'identify mechanisms which
would achieve uniformity' in a number of areas. These mechanisms
included uniform recognition of licensing between the States and
Territories, a system to control mail order sales of firearms,
uniform standards for training as a prerequisite to licensing,
uniform standards for security and storage of firearms, and a
uniform approach to the registration of pistols. Victoria agreed to
coordinate the Working Party and reported to the Council meeting in
November 1995. Further consideration of the subject was set down
for February 1996. The February 1996 meeting was postponed when the
Federal election was called. Following the Port Arthur massacre, an
emergency meeting of APMC has been set down for 10 May 1996 in
Canberra.
There are a number of options that could be used to produce
uniform firearms laws in Australia. These are set out briefly
below.
A Cooperative
Approach
This is the approach that has been adopted through APMC. Prime
Minister Howard will go to an APMC meeting on 10 May 1996 with
further proposals for the type of uniform gun laws that the
Commonwealth wants to see in place throughout Australia.
Referral
Of Powers From The States To The Commonwealth
Under section 51(xxxvii) of the Constitution, the Commonwealth
Parliament can make laws on matters referred to it by a State or
States. Section 51(xxxvii) further provides that 'the law shall
extend only to States by whose Parliaments the matter is referred,
or which afterwards adopt the law.' The Premier of New South Wales,
Mr Bob Carr, has introduced the Commonwealth Powers (Firearms) Bill
into the New South Wales Parliament. The purpose of the proposed
legislation is to refer control of firearms to the Commonwealth. In
order for a referral of powers to work, all States would have to
agree to refer their powers and the Commonwealth would have to be
willing to enact legislation as a result of those referrals.
Constitutional
Amendment
Section 128 of the Commonwealth Constitution sets out the manner
in which the Constitution can be amended. First, an absolute
majority of each House of Parliament must pass the proposed law for
the alteration of the Constitution. The proposed law is generally
called a Constitutional Alteration Bill.
It is important to note that section 128 of the Constitution
contains a provision for the resolution of a deadlock if the House
of Representatives and the Senate cannot agree on a proposal to
alter the Constitution. If a proposed constitutional amendment is
passed by one House but rejected by the other, then it can be
resubmitted after three months have elapsed. If it is again
accepted by one House and rejected by the other, then the
Governor-General can submit the proposal to a referendum.(17)
In the case of a proposed law that has passed through both
Houses of Parliament, the proposed law must then be submitted to a
referendum not less than two months and not more than six months
after it has passed through both Houses of Parliament. For the
proposed Constitutional amendment to proceed, a majority of
electors in a majority of States voting in the referendum must
approve the proposed amendment to the Constitution.
Commonwealth
Powers
As stated earlier, there is no power over firearms in the
Commonwealth Constitution. Without a referral of powers from all
the States or a constitutional amendment giving it power to enact
laws about firearms and ammunition, the Commonwealth would have to
rely on relevant heads of Constitutional power in order to
introduce firearms laws. Any such legislation would be subject to
express and implied Constitutional limitations - such as that
providing for freedom of interstate trade.(18)
There are a number of heads of power that might be useful. For
example, the Commonwealth could probably use the corporations
power(19) to regulate or prohibit trading and financial
corporations from dealing in certain firearms and ammunition or
from dealing in firearms not on a national firearms register.(20)
It might be possible for the Commonwealth to use its power over
postal services(21) to prohibit or restrict mail order sales of
firearms. The Commonwealth might be able to use the interstate
trade and commerce power to prohibit or regulate interstate trade
in certain firearms and ammunition.(22)
If a relevant international treaty existed to which Australia
was a party, then the external affairs power could be used to
legislate on the subject of firearms in a way reasonably
proportionate to the treaty.(23) The idea has been floated of using
the external affairs power as a basis for a Constitutional head of
power through which the Commonwealth could regulate gun laws in
Australia. This is certainly a novel concept, and the viability of
such an approach has never been tested in the courts. Nor has it
previously received a significant degree of academic or
bureaucratic consideration. Failing the existence of a relevant
treaty(24), there are High Court dicta that the Commonwealth could
use the external affairs power to legislate on a matter of
international concern or in accordance with the recommendation of a
relevant international body (assuming, of course, that such a
recommendation existed. See Attachment A).
The Commonwealth could also use the territories power(25) to
legislate comprehensively on firearms and ammunition in the ACT and
the Northern Territory.
Uniform controls over firearms might also be achieved in an
indirect fashion. For example, the Commonwealth might use its
grants power under section 96 of the Constitution. Section 96
enables the Commonwealth to 'grant financial assistance to any
State on such terms and conditions as the Parliament sees fit.'
High Court decisions suggest that:
Financial assistance may be granted
over subject matter on which the Commonwealth otherwise has no
authority and the terms and conditions imposed may be such that a
recipient State has no control over the activities being
financed.(26)
Using section 96 of the Constitution, the Commonwealth could
make grants available to the States on the condition that each
enacts firearms legislation containing particular provisions - thus
enabling uniform legislation to come into existence. The
Commonwealth could also withhold monies where undertakings were not
honoured or a State refused to comply with the Commonwealth's
wishes.
The Commonwealth also has the power to make laws for taxation
and excise.(27) At present firearms and ammunition are subject to
the general rate of sales tax (22 per cent), with exemptions being
allowed in some circumstances. The Commonwealth might place a high
rate of tax on firearms and ammunition creating financial
disincentives to ownership of firearms and ammunition. Taxes
collected might be used to help fund a firearms 'buy back' scheme.
Some concerns have been expressed about the costs of a 'buy back'
scheme. In assessing these costs, it must be remembered that
gun-related homicides and suicides themselves involve economic
costs to the community. For example, mass killings like that in
Port Arthur involve very substantial costs to the criminal justice
system and also to tourism.
It has also been suggested that anyone in possession of a
firearm not registered on a national firearms register could be
subject to a high rate of tax based on the value of the firearm and
calculated for each year that the person has been in possession of
the firearm.(28) However, section 53 of the Constitution states
that a law is not a law about taxation merely because it imposes or
appropriates fines or other pecuniary penalties. Thus, the exaction
of such a payment might not survive a constitutional challenge
because it might be regarded as a penalty rather than a
tax.(29)
Using the Executive Power of the Commonwealth, it is likely that
the Commonwealth could establish a national firearms register,
financed through an appropriation made under section 81 of the
Constitution. It might also be possible, using section 51(xxxix) of
the Constitution in conjunction with the Executive power, to
establish a national statutory authority to register firearms and
to confer the necessary powers on the authority. Given the
difficulties encountered with a fragmented system of firearms
regulation in Australia and the consequences for the nation as a
whole of inadequate firearms laws, it is arguable that such
measures might survive a constitutional challenge on the basis of
the character and status of the Commonwealth as a national
government.
If national uniform firearms laws are to be enacted, then a
number of questions must be asked about the contents of those laws.
These questions include:
national registration of firearms. Should there be a
national firearms register and what information should it contain?
What privacy issues are raised by a firearms register and how can
they be addressed?
absolute bans on some firearms. Are there some types of
firearms that should be absolutely banned for members of the
public? Is there a need for some members of the community, for
example, professional shooters to own semi-automatic weapons and,
if so, which ones? On the other hand, should all automatic and
semi-automatic firearms be proscribed?
licensing. What eligibility requirements should be met
before a person obtains a firearms licence? Should the person have
to satisfy a licensing authority that he or she is a fit and proper
person; should the applicant have to satisfy a licensing authority
that he or she has an acceptable and demonstrated need? Should a
licence to own a firearm be a licence for life or should licences
be reviewed periodically? Are there are any circumstances in which
minors should be able to obtain a licence for a firearm? Should
there be circumstances in which a person's firearms licence is
automatically cancelled for life - for example, where a domestic
violence order has been issued against the person or where the
person is convicted of certain offences?
sales. Should there be a cooling off period in relation
to the purchase of a firearm and, if so, how long should the
cooling off period be?
training. What are the appropriate minimum training
requirements for any citizen who wishes to own a firearm? Should it
be a legislative requirement that certified completion of a
training course in firearms use and safety is a prerequisite for a
firearms licence? Should licence holders be required to participate
in refresher courses in firearms use and safety from time to
time?
storage. Should it be possible for private citizens to
store firearms and ammunition in their own homes. If so,
legislative requirements be prescribed and what should they be? If
not, should legislation specify that firearms and ammunition must
be kept at shooters' clubs or other secure premises?
surplus firearms What arrangements are necessary when
law enforcement agencies or defence forces are getting rid of
surplus or outdated firearms and ammunition?
an amnesty. Should there be a permanent firearms
amnesty to encourage people who possess or own firearms to
surrender them without penalty?
penalties. What penalties should be prescribed for the
possession of unlicensed firearms? Should heavy penalties also
apply to a licensed firearms owner who lends or sells a firearm to
an unlicensed person?
sentencing. Should possession of an unlicensed firearm
result in a heavier penalty being imposed on an offender who has
used the firearm to commit a crime?
third party insurance. Should firearms owners be
required to take out third party insurance so that victims and
others who might be the subject of accident or violence from
firearms use?
Australia
Deaths Caused by Firearms, 1983 to
1993
Number 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Accident M 33 28 29 27 21 26 18 28 28 23 16
F 7 4 6 1 6 4 1 2 1 1 2
T 40 32 35 28 27 30 19 30 29 24 18
Suicide M 485 478 507 508 534 489 421 456 487 464 418
F 35 46 45 41 38 32 30 32 23 26 17
T 520 524 552 549 572 521 451 488 510 490 435
Assault M 59 77 69 64 55 79 60 45 46 62 42
F 34 44 30 37 42 45 20 34 38 34 22
T 93 121 99 101 97 124 80 79 84 96 64
Legal M 4 5 4 4 7 4 7 4 6 7 3
Intervention
F 0 0 0 0 0 0 0 0 0 7 0
T 4 5 4 4 7 4 7 4 6 14 3
Unknown M 5 6 19 12 10 16 15 15 4 7 6
F 1 1 5 3 0 1 0 1 1 0 0
T 6 7 24 15 10 17 15 16 5 7 6
Total 586 594 628 615 627 614 521 548 571 563 485
Males
Total 77 95 86 82 86 82 51 69 63 68 41
Females
Total 663 689 714 697 713 696 572 617 634 631 526
Persons
Notes:
M = Male. F = Female. T = Total
Accident = accident caused by firearm missile.
Suicide = suicide and self inflicted injury by firearms
and explosives.
Assault = homicide and injury purposely inflicted by
other persons, assault by firearms and explosives.
Legal intervention = by policy officers, security staff
and injury by: other law enforcement agents, military on duty, in
course of arrest or attempting to arrest, law breakers, suppressing
a disturbance, maintaining order, other legal activities.
Source: ABS mortality tabulations, 1983 to
1993.
From: Australian Institute of Criminology,
Crimes in Australia; The First National Outlook Symposium,
Canberra, 1995
The legal threshold which must be passed before an issue can
fall within the Commonwealth's external affairs power has not been
finally, or at least fully, determined. If an issue is the subject
matter of a multilateral treaty it can certainly provide the basis
for a use of the external affairs power (provided the implementing
legislation is suited to the purposes of the treaty), however, if
an issue has not yet been enshrined within a treaty but is
nevertheless an issue of 'international concern' there are various
statements indicating that it could still qualify as the basis for
the use of the external affairs power.(30)
The two multilateral treaties under which the Commonwealth
Government could arguably act to regulate gun laws on the basis of
the external affairs power are:
- The International Covenant on Civil and Political Rights (the
ICCPR).(31)
The ICCPR provides (Article 6):
1.Every human being has the inherent
right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.
The ICCPR is one of the three central parts of the UN's Bill of
Human Rights and this particular provision is a reaffirmation of
the Universal Declaration of Human Rights' Article 3 which
states that 'Everyone has the right to life, liberty and security
of person.'(32)
There is a plausible argument that these provisions could form
the legal basis on which to justify gun laws directed at guns
the specific purpose of which is to kill people. The
argument would be tenuous but is nevertheless viable. Furthermore
the tenor of the Human Rights Committee's General Comment on this
Article is more categorical than most of its General Comments. They
exhort States to take active steps to protect the right enshrined
in Article 6,(33) saying that States parties should take
'specific and effective measures' to protect the right to
life - a right which 'has been too often narrowly interpreted'. (In
passing it is interesting to note that it was this same Committee
whose views on the Tasmanian criminal provisions regarding
homosexuality(34) the Government relied on in enacting the
Human Rights (Sexual Conduct) Act 1995, believing
that they had the Constitutional power to do so.)
- The Convention on the Rights of the Child (CROC)
The CROC provides that States Parties should take:
all appropriate legislative,
administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or
abuse, ...(35)
Once again it would be arguable that this provision would
justify the use of the external affairs power to regulate gun laws
in such a way that children are protected from firearm
homicides.
It should be noted that, along with the ICCPR, the CROC has one
of the highest number of signatories of the multilateral treaties.
Australia is a signatory to both these instruments.
While there are no multilateral treaties which deal directly
with the issue of the regulation of gun ownership, there are bodies
within the United Nations which have expressed views dealing
explicitly with gun ownership and which are also concerned at the
issue of violence more generally. The Congress on the Prevention of
Crime and the Treatment of Offenders, for instance, has recommended
that Member States take the necessary steps to control urban
violence by limiting and controlling access to 'weapons, including
through international co-operation'.(36)
The issue of violence, particularly violence against women, has
formed the basis of a significant number of UN Resolutions and
Comments. While the Convention on the Elimination of All Forms of
Discrimination Against Women does not have an article comparable to
CROC's - i.e. an article specifically commenting on the need to
prevent violence against women - this lack has often been noted by
commentators and steps are being taken to remedy the omission.(37)
In 1993 the General Assembly passed the Declaration on Violence
Against Women, which is quite specific in its demand for States to
act to end violence against women, demanding that they:
Develop, in a comprehensive way,
preventive approaches and all those measures of a legal, political,
administrative and cultural nature that promote the protection of
women against any form of violence...(38)
The usual progression within the UN's treaty system is to move
from a Declaration to a Treaty. The concern regarding intra-State
violence and the need to take steps to prevent it is certainly a
growing issue within the UN. The 1995 Congress on the Prevention of
Crime and the Treatment of Offenders included excerpts from the
Australian Report by the National Committee on Violence,
Violence: Directions for Australia(39) and included its
series of recommendations on the control of firearms for the
further consideration of its participants.(40) The UN's Commission
on Crime Prevention and Criminal Justice has included firearm
control as one of the strategies which could be adopted to control
urban crime, and the Economic and Social Council have instituted a
global study on the issue of civilian-owned firearms, small arms
trafficking and firearms regulations. (See
Attachment.)(41)
The various provisions on violence, and particularly the
international concern regarding violence against women and
children, would certainly create an arguable case that the external
affairs power could be used by the Commonwealth to curtail violence
through the regulation of gun ownership. This argument would be
strengthened by the fact that violence resulting from the misuse of
firearms is often directed towards women and children.
However, the dicta on using the existence of an 'international
concern' as a basis for Commonwealth legislation under the external
affairs power have never been directly tested. Furthermore, it has
often been Australia (or a trio of Canada, New Zealand and
Australia) which has raised the issue of gun control at
international fora. It is doubtful whether the High Court would
consider proposals put forward by Australia itself as grounds on
which an issue would qualify as attracting the external affairs
power. Furthermore the current Chief Justice gave a very
restrictive reading of what would qualify as a matter of
international concern in the War Crimes case,(42) although
the addition of Kirby J to the bench, who has displayed an avid
interest in the activities of various international bodies, may
have an interesting effect on the balance within the High Court
regarding the impact of international law on the Commonwealth's
external affairs power, and therefore on Australia's constitutional
balance of power.
- National Committee on Violence, Violence. Directions for
Australia, Australian Institute of Criminology, Canberra,
1990.
- Australian Institute of Health and Welfare, Injury Issues
Monitor, No.8, February 1996.
- In 1995, the Australian Institute of Criminology published
figures on the number of deaths caused by firearms in Australia
from 1983 to 1993. These figures include deaths by accident, by
suicide, assault (including homicide) and by law enforcement
agencies in the course of arrest or other legal duties. These
figures appear as Table 1. The source of these figures is Crime
in Australia. The First National Outlook Symposium, June
1995.
- James, M & Hallinan, J Homicides in Australia 1992-93,
Trends & Issues in Crime and Criminal Justice, No.51,
December 1995.
- Ibid.
- 'Most killings by licensed shooters,' The Age
(Melbourne), 12 February 1996. Various conclusions are drawn
from these sorts of data. One is that the existence of licensing
and registration schemes will not prevent homicides occurring. The
other is that existing licensing schemes may not be stringent
enough and that gun control measures need to be directed to
ordinary gun owners as well as to criminals or the mentally
ill.
- National Committee on Violence, op.cit, p.170.
- Killias, M 'Gun ownership, suicide and homicide: an
international perspective,' in Understanding Crime: Experiences
of Crime and Crime Control, United Nations Interregional Crime
and Justice Research Institute, Rome, 1992.
- Canberra Times, 29 April 1996.
- Firearms: Clarifying the Legislation, The Library,
Parliament of Victoria, Background Paper No 5/95, August 1995, p.
17.
- Bruce D. Ragsdale, M.D. and Steven S. Sohn, Cdr., U.S. Navy,
'Comparison of the Terminal Ballistics of Full Metal Jacket
7.62-mm(NATO) and 5.56-mm M193 Military Bullets:A Study in Ordnance
Gelatin, Journal of Forensic Sciences, May 1988, pp. 676 -
695.
- Ibid., p.693.
- Martin L. Fackler, MD, 'Wound Ballistics A Review of Common
Misconceptions', Journal of the American Medical
Association, 13 May 1988, p. 2730.
- This can be contrasted with the United States Constitution
which states 'A well-regulated militia being necessary to the
security of a free state, the right of the people to keep and bear
arms shall not be infringed.' (Second Amendment to the
Constitution).
- Section 51(i), Constitution.
- Schedule 1, Customs (Prohibited Imports) Regulations 1901.
- Note, however, that the Governor-General acts on the advice of
the Federal Executive Council which is composed of Government
ministers. In recent times, Parliamentary Secretaries have also
been appointed as members of the Federal Executive Council. This is
particularly important, should the constitutional alteration bill
be passed in the Senate but rejected by the House of
Representatives. In 1913-1914, the Senate passed constitutional
alteration bills on two occasions. On the second occasion the
statutory period of three months had elapsed. The Bills were not
passed by the House of Representatives. A motion was later passed
by the Senate that an address be presented to the Governor-General
requesting him to submit the proposed laws to the electors. The
Governor-General acted on the advice of his Ministers and refused
to grant the Senate's request. See Odgers, JR Australian Senate
Practice, 5th ed, AGPS, Canberra, 1976.
- Section 92, Constitution.
- Section 51(xx), Constitution.
- Hull, C 'Federal resolve needed on guns,' Canberra
Times, 1 May 1996.
- Section 51(v), Constitution.
- Section 51(i), Constitution.
- Section 51(xxix), Constitution.
- A more detailed explication of the United Nations Convention on
the Rights of the Child is provided in Appendix A. It is arguable
that national firearms legislation could be a method of
implementing obligations under the Treaty to protect children
against all forms of physical and mental violence and neglect.
Children are the victims of stranger killings and domestic
killings; if their parents are the victims of such shooting, then
this may well result in mental injury to the child or in
neglect.
- Section 122, Constitution.
- Booker, K; Glass, A & Watt, R Federal Constitutional
Law. An Introduction, Butterworths, Sydney, 1994, p.117. This
view of the grants power was settled in Deputy Federal
Commissioner of Taxation (NSW) v. WR Moran Pty Ltd (1939) 61
CLR 737 and WR Moran Pty Ltd v. Deputy Federal Commissioner of
Taxation (NSW) [1940] AC 838.
- Section 51(ii) & section 90, Constitution.
- Hull, C op.cit.
- Booker et al, op.cit.
- Koowarta v Bjelke Petersen (1982) 153 CLR 168;
Commonwealth v Tasmania (1983) 158 CLR 1; Polyukovich
v Commonwealth (1991) 172 CLR 501, just to mention a few of
the more pertinent.
- Adopted by General Assembly resolution 2200A (XXI) of 16
December 1966. Entry into force 23 March 1976.
- Adopted by UN General Assembly Resolution 217A (III) of 10
December 1948.
- General Comment 6 (Sixteenth Session, 1982), HR1/GEN/1/Rev.1 p.
6.
- Toonen v Australia CCPR/C/50/D/488/1992, 31 March
1994.
- Article 19.
- A/Conf.144/28/Rev.1 Resolution on the Prevention of urban
crime, p. 127.
- In its General Recommendation No. 19 the Committee on the
Elimination of Discrimination Against Women put forward the view
that the Convention does actually cover violence against
women.
- Article 4(f).
- Canberra, Australian Institute of Criminology, 1990. See a
discussion of this report on pp.4-5.
- Background paper for the workshop on the prevention of violent
crime, p21.
- See attachment. Press Release
SOC/CP/178.
- Polyukovich v Commonwealth (1991) 172 CLR 501